This сase involves the validity of a will. Testatrix was survived by two brothers and five sisters. Contestants (caveators) are the children of a brother of testatrix who predeceased her. Contestants challenge the validity of the will primarily on the basis of undue influence.
Contestants were not included in what appears to have been testatrix’s 1978 will. Nor were they included in her 1979 will offered for probate and in issue here.
Propounder moved for summary judgment in the superior court. One contestant filed an affidavit in opposition to the motion in which she stated that testatrix had told her on numerous occasions after thе death of testatrix’s brother (affiant’s father) in 1964 that testatrix would include affiant and her brother and sister in testatrix’s will; that one of testatrix’s sisters (Malene Pollard, executrix, propounder and one of the beneficiaries under the will) was constantly аround testatrix prior to her death and suggested to testatrix how her estate should be distributed, omitting contestants; that this sister influenced testatrix and arranged for the preparation and execution of the will omitting contestants; that at the time оf executing her will testatrix was having dizzy spells, on medication, unable to complete sentences without forgetting where she was or what she was doing; that testatrix’s physical condition was such that she was depressed and susceptible to suggеstions; and that said sister suggested to testatrix that contestants did not love her and should be excluded from her will.
After hearing on the motion for summary judgment, the trial court called for briefs and thereafter entered the following order: “The motion for summаry judgment filed by [propounder] having come on for a hearing ... and the Court having given counsel for the parties time to submit briefs with regard to said Motion; and it appearing to the court that counsel for the [propounder] has submitted a brief and counsel for [contestants] has not submitted a brief; it is CONSIDERED, ORDERED AND ADJUDGED that there is no genuine issue as to any material fact and that [propounder] is entitled to judgment as a matter of law, said Motion for Summary Judgment is hereby granted.” Contestants appeal.
1. Contestants enumerate as error that the trial court’s order was based not on an examination of the evidence submitted on the motion but on their failure to file a brief. While we agree that the grant of summary judgment should be based on the evidеnce submitted on the motion rather than respondent’s failure to take advantage of the opportunity to file a brief ,(no order requiring the filing of briefs and giving notice that failure to file would result in dismissal appears in the record, and the аppeal was not dismissed for want of prosecution), inasmuch as the court also found that there was
As was stated by Justice Bleckley in Lee v. Porter,
2. Contеstants enumerate as error the trial judge’s failure to consider contestants’ affidavit. The portions of that affidavit which could be said to raise genuine issues of fact
Code § 81A-156 (e) sets forth three requirements for affidavits supporting and opposing motions for summary judgment, as follows: “[They] shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidencе, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Although contestants’ affidavit states that it was made on personal knowledge, the affidavit sets forth conclusions without laying the necessary foundаtion therefor, not facts as would be admissible in evidence, and it nowhere shows that affiant is competent to testify to the conclusory statements that the sister “suggested” to testatrix that contestants be excluded from the will and “influenced” testatrix to omit contestants from the will. We are
We cannot hold that the trial court erred in not considering this affidavit in opposition to the motion for summary judgment and thus we hold that the trial court did not err in not cоnsidering it.
3. Contestants enumerate error on the trial court’s considering the transcript of the hearing in the probate court in granting summary judgment. The transcript of the probate proceeding was certified by the court reporter and wаs transmitted from the prohate court to the superior court (even though such transmission may not be required by Code §6-114). The transcript thus was properly before the superior court. It could be relied upon there to support or oрpose a motion for summary judgment. Taylor v. Donaldson,
On an appeal to superior court from the probate court of a proceeding to probate a will, under Code § 81A-156 either party, and certainly the prevailing party, may move for summary judgment, Taylor v. Donaldson, supra; the superior court may consider the transcript of proceedings in the probate court on motion for summary judgment, Brown v. Frachiseur,
Contestants argue that they do not receive the de novo appeal to which they are entitled in the superior court (Code § 6-501) if that court considers the probate court transcript. This argument was implicitly rejected in Taylor v. Donalson, supra, when this court held that summаry judgment could be granted in favor of the propounder by the superior court in an appeal from the probate court.
Opinion evidence has been allowed in support of the grant of summary judgments in favоr of the propounders of wills without discussion. See Taylor v. Donaldson, supra; Thomas v. Roughton,
The purpose of granting summary judgment is to eliminate the necessity for trial by jury where there is no genuine issue as to any material fact shown by the record and the moving party is entitled to a judgment as a matter of law. Lampkin v. Edwards,
In Wheeler v. Rowell, supra, relied upon by contestants, issues of fact were raised by contеstant’s counter-affidavit. To the extent that case appears to be based on the additional proposition that the propounder of a will is not entitled to summary judgment because of the necessity that the propoundеr rely upon opinion evidence, it is overruled. See Mitchell v. Hillsman, supra,
4. The foregoing rulings dispose of contestants’ remaining enumerations of error.
Judgment affirmed.
Notes
The 1979 will bequeathed $12,000 to charities, $2000 to neighbors and $4000 to Malene Pollard, testatrix’s sister and executrix under the will, with the residue to be divided equally among nine named individuals including Malene Pollard and testatrix’s other surviving brothers and sisters.
Merely showing an opportunity to exert undue influence by one who occupies a confidential relationship to the testator and who receives a substantial benefit under the will is not sufficient to prove undue influence, and the choice of one in a confidential relationship as a favored beneficiary under the will, standing alone, is not cause to deny the will to probate. Cornelius v. Crosby,