In Re the Purported Will of Shepherd , 235 N.C. App. 298 ( 2014 )


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  •                             NO. COA 13-1149
    NORTH CAROLINA COURT OF APPEALS
    Filed: 5 August 2014
    IN THE MATTER OF THE                     Union County
    PURPORTED WILL OF RUBY                   No. 10 E 230
    SHAW SHEPHERD,
    Deceased.
    Appeal by        Caveator from Order entered 12 April 2013         by
    Judge W. David Lee in Union County Superior Court. Heard in the
    Court of Appeals 19 February 2014.
    Wall Esleeck Babcock LLP, by Andrew L. Fitzgerald, and
    Hickmon & Perrin, PC, by James E. Hickmon, for Caveator.
    Helms, Robison & Lee P.A., by R. Kenneth Helms, Jr., and
    Aimee E. Brockington, for Propounder.
    STEPHENS, Judge.
    Factual Background and Procedural History
    This appeal arises from a caveat proceeding challenging the
    will of Ruby Shaw Shepherd (“Decedent”). Decedent died on 21
    February 2010 in Fort Myers, Florida. At the time of her death,
    Decedent   was   a    resident   of   Union   County,   North   Carolina.
    Decedent is survived by her husband           of nearly thirty years,
    Caveator James A. Shepherd, and four children from a previous
    marriage, including Propounder Angela Caroline Jeffers Bullock.
    -2-
    On   7   April    2010,    Propounder      filed    in   the   Union   County
    Superior Court clerk’s office an application for probate and
    letters    testamentary        and   a    document   entitled    “Last     Will   and
    Testament of Ruby Shaw Shepherd,” which purported to be the will
    of Decedent. The purported will made no mention of Caveator and
    named Propounder as the executrix of Decedent’s estate. With the
    exception      of    several    specific     devises     of    tangible    personal
    property, the purported will provided that Decedent’s estate was
    to be divided equally among her four children. The clerk of
    superior court admitted the purported will to probate in the
    common form in the Estates Division of the Superior Court of
    Union County.1
    Caveator filed a verified petition for an elective share on
    18 June 2010, seeking a statutory spousal elective share from
    the   estate    of    Decedent.      In   Caveator’s     petition    for   elective
    share, he stated that Decedent “died testate . . . and [that]
    her Last Will and Testament was probated on April 7, 2010.”
    1
    Although the application for probate and letters testamentary
    are included in the record, the certificate of probate and the
    letters testamentary are not. Thus, this Court has no
    information in the record to verify the date that the purported
    will was admitted to probate. We must assume from the
    progression of the probate of the purported will that a
    certificate of probate was issued.
    -3-
    Propounder filed the inventory for Decedent’s estate and an
    addendum thereto on 14 September 2010. The inventory indicated
    that Decedent’s estate contained total assets in the amount of
    $1,894,928.97.
    Caveator filed a caveat to the purported will of Decedent
    on 29 October 2010.     In his petition,        Caveator alleged that,
    “[u]pon   information   and   belief,   [Decedent’s    purported   will]
    . . . is not the Last Will and Testament of Ruby Shaw Shepherd”
    because Decedent either did not sign the purported will, or, if
    she did, she did so under “undue and improper influence and
    duress.” Propounder filed an answer to the caveat on 19 November
    2010. Subsequently, an order was entered sua sponte by the clerk
    of superior court on 3 December 2010 staying the hearing on
    Caveator’s petition for an elective share until the resolution
    of the caveat action.2 Propounder appealed from this order to the
    trial court.3 The trial court entered an order on 21 January 2011
    reversing    the   clerk’s     stay     order    and   remanding     the
    administration of the estate and the petition for elective share
    2
    The clerk’s 3 December 2010 order also stayed hearing on a
    petition for recovery of estate assets filed by Propounder. No
    copy of this petition is included in the record.
    3
    Although both briefs indicate Propounder appealed the 3
    December 2010 order, no copy of the notice of appeal is included
    in the record to indicate the date or grounds for said appeal.
    -4-
    to the clerk for further proceedings consistent with the trial
    court’s reversal order. Following the trial court’s reversal of
    the   stay    order,         Caveator    filed    a     motion   to    compel    partial
    payment of the spousal elective share, to compel payment of
    expert    fees,        for    issuance    of     an    order   to     show   cause,   for
    revocation        of     Propounder’s       letters         testamentary,       and   for
    attorneys’ fees. In this motion, Caveator referred to the paper
    writing offered for probate as the “Decedent’s purported will.”
    Caveator also referred to the paper writing as the purported
    will in his memorandum in support of the motion for partial
    payment      of    the       spousal     elective       share;      however,    Caveator
    calculated the spousal elective share                       based on     the value of
    property      passing         according     to        the   probate     of     Decedent’s
    purported will.4 Caveator’s motion for partial payment of the
    spousal elective share was continued by the clerk of court until
    the   parties          engaged    in     mediation.         Caveator’s       motion   for
    4
    Calculation of the elective share is defined in Article 1A of
    Chapter 30 of the North Carolina General Statutes. The share to
    which a surviving spouse is entitled is diminished by the
    property he or she is already receiving, either under the
    probate estate, by intestate succession, or by other means.
    Here, Caveator received nothing under the purported will.
    However, his share received by intestate succession would be
    approximately one-third of the estate. See 
    N.C. Gen. Stat. § 29
    -
    14 (2013). Therefore, the calculation of the elective share
    would differ depending on which way Caveator was to receive
    property.
    -5-
    attorneys’      fees     was    granted,       and    his      remaining      motions    were
    denied.
    On 19 December 2012, the clerk of court entered an “Order
    Determining Elective Share” whereby the spousal elective share
    was calculated to be $36,028.93 and Propounder, as Executrix of
    the Estate of Decedent, was ordered to pay the whole amount to
    Caveator.       The     clerk’s       order     did       not       mention    the    caveat
    proceeding, and the clerk calculated the elective share based on
    the values of the probate estate, wherein no property passed to
    Caveator under the purported will.
    Following the order for payment of the spousal elective
    share, Propounder filed a motion for summary judgment as to the
    caveat     on     8   March     2013.     In    her       summary       judgment      motion,
    Propounder argued that Caveator was estopped from pursuing the
    caveat because his position that the purported will was not
    valid was inconsistent with the position he maintained in the
    elective    share       action.    Caveator          filed      a    memorandum      opposing
    Propounder’s motion for summary judgment on 21 March 2013. The
    trial     court       entered    an     order        on   12        April   2013     granting
    Propounder’s motion. Caveator appeals.
    Discussion
    -6-
    On appeal, Caveator argues that the trial court (1) erred
    in granting summary judgment in favor of Propounder on grounds
    that the doctrine of election of remedies bars Caveator from
    sustaining the caveat action, and (2) abused its discretion by
    holding      that   the   doctrine    of    judicial   estoppel    also     barred
    Caveator from sustaining the caveat action.5 Caveator contends
    that the doctrine of election of remedies is not applicable in
    the case sub judice because payment of a spousal elective share
    and caveat of a will are not inconsistent remedies. Further,
    Caveator contends that the doctrine of judicial estoppel is not
    applicable in this case because Caveator did not make clearly
    inconsistent factual assertions. We agree and reverse the order
    of the trial court.
    I.        Election of Remedies
    Caveator        argues   that    the   trial   court   erred   in   granting
    summary judgment on the basis of the doctrine of election of
    remedies because a petition for payment of a spousal elective
    share   is    not   inconsistent     with    the   institution     of   a   caveat
    action to contest a will. In contrast, Propounder argues that
    5
    In support of her motion for summary judgment, Propounder
    argued that Caveator was estopped from pursuing the caveat
    according to the equitable doctrines of election of remedies and
    judicial estoppel. The trial court did not identify the grounds
    on which summary judgment was granted in favor of Propounder.
    -7-
    Caveator is estopped from pursuing the caveat action because it
    is predicated on an “opposite and irreconcilable” position from
    Caveator’s     position    in    the    elective     share   proceeding.     We
    conclude     that   the   two    remedies    are    not   inconsistent     and,
    therefore, that      the doctrine of election of remedies is not
    applicable.
    “Our standard of review of an appeal from summary judgment
    is de novo; such judgment is appropriate only when the record
    shows that there is no genuine issue as to any material fact and
    that any party is entitled to a judgment as a matter of law.” In
    re Will of Jones, 
    362 N.C. 569
    , 573, 
    669 S.E.2d 572
    , 576 (2008)
    (citation and internal quotation marks omitted; italics added).
    “The purpose of the doctrine of election of remedies is to
    prevent more than one redress for a single wrong.” Triangle Park
    Chiropractic v. Battaglia, 
    139 N.C. App. 201
    , 204, 
    532 S.E.2d 833
    , 835 (citation omitted), disc. review denied, 
    352 N.C. 683
    ,
    
    545 S.E.2d 728
     (2000). “The whole doctrine of election is based
    on the theory that there are inconsistent rights or remedies of
    which a party may avail himself, and a choice of one is held to
    be an election not to pursue the other. The principle does not
    apply   to   coexisting    and    consistent       remedies.”   Pritchard    v.
    Williams, 
    175 N.C. 319
    , 323, 
    95 S.E. 570
    , 571 (1918) (internal
    -8-
    quotation marks omitted). “One is held to have made an election
    of remedies when he chooses with knowledge of the facts between
    two inconsistent remedial rights.” Lamb v. Lamb, 
    92 N.C. App. 680
    , 685, 
    375 S.E.2d 685
    , 687 (1989) (citation omitted). “[A]n
    election of remedies presupposes a right to elect.” Competitor
    Liaison Bureau of NASCAR, Inc. v. Midkiff, 
    246 N.C. 409
    , 414, 
    98 S.E.2d 468
    , 472 (1957) (citation and internal quotation marks
    omitted). “A party cannot . . . occupy inconsistent positions. .
    . . But the doctrine of election applies only where two or more
    existing    remedies   are   alternative     and    inconsistent.     If    the
    remedies are not inconsistent, there is no ground for election.”
    Douglas v. Parks, 
    68 N.C. App. 496
    , 498, 
    315 S.E.2d 84
    , 85
    (citation   omitted;   emphasis    added),    disc.      review   denied,   
    311 N.C. 754
    , 
    321 S.E.2d 131
     (1984). “It is the inconsistency of the
    demands    which   makes   the   election    of    one   remedial   right   an
    estoppel against the assertion of the other . . . .” Richardson
    v. Richardson, 
    261 N.C. 521
    , 530, 
    135 S.E.2d 532
    , 539 (1964)
    (citation omitted).
    A plaintiff is deemed to have made an
    election of remedies, and therefore estopped
    from suing a second defendant, only if he
    has sought and obtained final judgment
    against a first defendant and the remedy
    granted in the first judgment is repugnant
    [to] or inconsistent with the remedy sought
    in the second action.
    -9-
    Triangle Park Chiropractic, 139 N.C. App. at 203–04, 532 S.E.2d
    at 835.
    Here, the issue is whether the pursuit of an elective share
    based   on   the    administration        of    a   testate   estate    and   a   will
    caveat are alternative and inconsistent remedies. “In general,
    the   purpose      of   a   caveat   is   to    determine     whether   the   paper[
    ]writing purporting to be a will is in fact the last will and
    testament of the person for whom it is propounded.” Baars v.
    Campbell Univ., Inc., 
    148 N.C. App. 408
    , 419, 
    558 S.E.2d 871
    ,
    878 (citation, internal quotation marks, and brackets omitted),
    disc. review denied, 
    355 N.C. 490
    , 
    563 S.E.2d 563
     (2002). The
    right to claim an elective share is a statutory right created by
    section 30-3.1 which is given to “[t]he surviving spouse of a
    decedent     who    dies    domiciled     in    [North   Carolina].”     
    N.C. Gen. Stat. § 30-3.1
     (2013).6 The elective share is calculated as a
    share of the decedent’s “Total Net Assets” subtracted by the
    “Net Property Passing to Surviving Spouse,” as both terms are
    defined by section 30-3.2. See 
    N.C. Gen. Stat. § 30-3.1
    . Thus,
    the surviving spouse’s elective share is reduced by the amount
    6
    Section 30-3.1 was modified by 
    2013 N.C. Sess. Laws 91
    , §
    1.(d), effective 1 October 2013. The modification is not
    applicable to the issues on appeal in this case.
    -10-
    of property he or she is already going to receive. The “Net
    Property    Passing       to    Surviving        Spouse”    includes        property        “(i)
    devised, outright or in trust, by the decedent to the surviving
    spouse    or     (ii)    that     passes,       outright    or    in       trust,      to   the
    surviving spouse by intestacy.” 
    N.C. Gen. Stat. § 30-3.2
    (3c)
    (2013).    By    including       both    property     devised         to    the    surviving
    spouse    and     property       passing    by     intestate      succession           in   the
    calculation of the elective share, it is clear from the plain
    language of the statute that an elective share may be claimed by
    a   surviving      spouse        whether     the     decedent         dies    testate        or
    intestate.      See,     e.g.,    Bland     v.    Harold    L.    &    Audree       S.   Mills
    Charitable Remainder Unitrust, __ N.C. App. __, 
    754 S.E.2d 259
    (2014)     (unpublished         opinion),        available       at    
    2014 WL 220557
    (holding that quasi-estoppel was inapplicable to bar a challenge
    to the validity of a trust where distributions received by the
    wife     were    less     than     the    elective        share       of   her     husband’s
    intestate       estate    to     which    she     would    be    entitled        absent     the
    trust); In re Estate of Hendrick,                    __ N.C. App. __, 
    753 S.E.2d 740
     (2013) (unpublished opinion), available at 
    2013 WL 6237353
    (holding that the wife was entitled to an elective share of the
    husband’s       testate    estate    where        other    beneficiaries          failed     to
    -11-
    establish grounds barring her entitlement).7                     Section 30-3.4(b)
    also makes clear that a claim for an elective share is not
    dependent    on    whether       the     decedent    dies      testate    because      it
    requires that the claim be made within “six months after the
    issuance    of    letters    . . .       in    connection       with     the   will    or
    intestate    proceeding.”         
    N.C. Gen. Stat. § 30-3.4
    (b)     (2013).
    Indeed,    Propounder      concedes       in   her   brief      that     Caveator     was
    entitled    to    pursue    an    elective       share    whether      Decedent     died
    testate or intestate.            Because the caveat action               is meant      to
    determine whether a purported will is in fact the will of a
    decedent and the statutory right to claim an elective share does
    not depend on whether a decedent dies with a will, we conclude
    that the two remedies are not inconsistent.
    In this case, however, Caveator made a specific assertion
    in his petition for elective share that Decedent “died testate”
    even though he was entitled to pursue an elective share whether
    Decedent died testate or not. On its face, this statement is
    inconsistent with Caveator’s challenge to the will. Propounder
    argues    that    such   inconsistency         estops    him    from     pursuing     the
    7
    These opinions are unpublished and, thus, have no precedential
    value. N.C.R. App. P. 30(e). Nonetheless, they provide helpful
    examples of recent cases in which this Court has acknowledged
    the entitlement of a surviving spouse to an elective share in
    both testate and intestate estate administrations.
    -12-
    caveat    action       as    an   impermissible     election            of   remedies.        We
    disagree.
    Propounder’s           argument     is   misplaced           as    applied    to      the
    doctrine    of     election       of    remedies.       As    discussed       above,      the
    elective share proceeding is not an inconsistent and alternative
    remedy     to    the    caveat     action.       Even    if       the    elective        share
    proceeding were inconsistent with the caveat action, however,
    Caveator’s assertion that Decedent died testate is irrelevant to
    the clerk’s calculation of the elective share.
    “[P]robate is conclusive evidence of the validity of the
    will,    until    it    is    vacated    on   appeal         or   declared     void      by   a
    competent tribunal.”8 N.C. Gen. Stat. § 28A-2A-12 (2013). When
    the clerk of superior court takes proof of a script and admits
    it to probate in common form, it is an ex parte proceeding, and
    the script “stands as the testator’s will, and his only will,
    until challenged and reversed” by caveat. In re Will of Charles,
    
    263 N.C. 411
    , 415, 
    139 S.E.2d 588
    , 591 (1965); see also Walters
    v. Baptist Children’s Home of N.C., Inc., 
    251 N.C. 369
    , 377, 
    111 S.E.2d 707
    , 714 (1959) (“[T]he probate of a will by the [c]lerk
    of   [s]uperior        [c]ourt     is    . . .    conclusive            evidence    of     the
    8
    This statute was codified as 
    N.C. Gen. Stat. § 31-19
     in 2010,
    when Decedent died. It was re-codified as N.C. Gen. Stat. § 28A-
    2A-12, effective 1 January 2012, by 
    2011 N.C. Sess. Laws 344
    .
    -13-
    validity of the will[] until vacated on appeal[] or declared
    void by a competent tribunal in a proceeding instituted for that
    purpose.”).
    Consistent with our statutes and established case law, the
    trial court’s 21 January 2011 order, which reversed the stay of
    the elective share proceeding until the resolution of the caveat
    action,   concluded     that    probate        “of   the   [w]ill    is   conclusive
    unless and until it is vacated on appeal or declared void by a
    competent tribunal in a caveat proceeding.” In addition, the
    trial court concluded, inter alia, that (1) the will had not
    been set aside by the caveat because no determination had been
    reached in that proceeding, (2) the filing of the caveat did not
    stay the administration of the estate or the elective share
    proceeding,   and     (3)    the   elective      share     proceeding     should   be
    remanded to the clerk to proceed accordingly. As a result, the
    clerk was obligated on remand to calculate the elective share in
    accordance    with     the    probate      of    Decedent’s      purported     will,
    regardless      of      Caveator’s        assertion        in       his    petition.
    Consequently,        Caveator      had    no     “right     to   elect”      between
    calculation of the elective share on the basis of a testate or
    intestate estate administration. See, e.g., Competitor Liaison
    Bureau of NASCAR, Inc., 
    246 N.C. at 414
    , 
    98 S.E.2d at 472
    .
    -14-
    Though Caveator chose to pursue an elective share, that remedy,
    alone, is not inconsistent with a caveat. Moreover, the doctrine
    of election of remedies cannot be applied to bar the award of
    the    elective    share       to      Caveator    based    solely      on   the    clerk’s
    administration of Decedent’s estate as a testate estate. Indeed,
    to the extent Caveator could have alleged an inconsistent remedy
    in    his    petition    for      an    elective     share,   that      element     of    his
    petition cannot work to bar his caveat proceeding when the clerk
    had no choice but to calculate the elective share based on a
    testate      estate     administration.           Accordingly,     we    hold      that   the
    doctrine of election of remedies does not work to bar Caveator’s
    challenge to the will.
    II.    Judicial Estoppel
    Caveator       also   argues       that     the     trial   court      abused      its
    discretion by applying judicial estoppel as a bar to the caveat
    action after the trial court ordered payment of the elective
    share. In opposition, Propounder contends that judicial estoppel
    was    properly       applied       because    Caveator       asserted       inconsistent
    factual      positions       by     alleging       both     the    validity        and    the
    invalidity of Decedent’s will. We disagree.
    -15-
    “[J]udicial     estoppel         is   to    be    applied     in    the   sound
    discretion of our trial courts.” Whitacre P’ship v. Biosignia,
    Inc., 
    358 N.C. 1
    , 33, 
    591 S.E.2d 870
    , 891 (2004). “[A] trial
    court’s application of judicial estoppel is reviewed for abuse
    of   discretion.”     
    Id. at 38
    ,      
    591 S.E.2d at 894
       (citations
    omitted). “[W]hen a trial court has acted within its discretion
    in   applying   judicial     estoppel,       leaving     no   triable     issues   of
    material fact, summary judgment is appropriate.” 
    Id. at 39
    , 
    591 S.E.2d at 895
     (citations omitted). “If the trial court did not
    abuse its discretion in determining that [judicial estoppel is
    applicable], there are no triable issues of fact . . . as a
    matter of law, rendering summary judgment appropriate.” Bioletti
    v. Bioletti, 
    204 N.C. App. 270
    , 274, 
    693 S.E.2d 691
    , 694-95
    (2010). “Where the essential element of inconsistent positions
    is   not   present,   it    is    an   abuse      of   discretion    to   bar   [the]
    plaintiff’s claim on the basis of judicial estoppel.” Estate of
    Means v. Scott Elec. Co., 
    207 N.C. App. 713
    , 719, 
    701 S.E.2d 294
    , 299 (2010) (citation omitted).
    “[T]he purpose of the [judicial estoppel] doctrine [i]s to
    protect the integrity of the judicial process by prohibiting
    parties from deliberately changing positions according to the
    exigencies of the moment.” Whitacre P’ship, 
    358 N.C. at 28
    , 591
    -16-
    S.E.2d at 888 (citations and internal quotation marks omitted).
    “[T]he     circumstances   under       which   judicial     estoppel     may
    appropriately    be   invoked   are    probably   not   reducible   to   any
    general formulation of principle.” T-Wol Acquisition Co. v. ECDG
    South, LLC,        N.C. App.       ,      , 
    725 S.E.2d 605
    , 612 (2012)
    (citation and internal quotation marks omitted). Nevertheless,
    our Supreme Court [has] set forth three
    factors    which    may   be     considered    in
    determining     whether    the     doctrine    is
    applicable:    First, a     party’s    subsequent
    position must be clearly inconsistent with
    its    earlier    position.    Second,     courts
    regularly inquire whether the party has
    succeeded in persuading a court to accept
    that party’s earlier position, so that
    judicial    acceptance   of    an   inconsistent
    position in a later proceeding might pose a
    threat to judicial integrity by leading to
    inconsistent court determinations or the
    perception that either the first or the
    second court was misled. Third, courts
    consider whether the party seeking to assert
    an inconsistent position would derive an
    unfair    advantage   or   impose     an   unfair
    detriment on the opposing party if not
    estopped.
    
    Id.
     at __, 
    725 S.E.2d at 612-13
     (citation omitted). “[T]hese
    three factors do not establish inflexible prerequisites or an
    exhaustive formula for determining the applicability of judicial
    estoppel    and . . . additional       considerations     may   inform   the
    doctrine’s application in specific factual contexts.” Whitacre
    -17-
    P’ship, 
    358 N.C. at 29
    , 
    591 S.E.2d at 889
     (citation and internal
    quotation marks omitted). “The first factor, and the only factor
    that is an essential element which must be present for judicial
    estoppel to apply[,] is that a party’s subsequent position must
    be clearly inconsistent with its earlier position.” Wiley v.
    United Parcel Serv., Inc., 
    164 N.C. App. 183
    , 188, 
    594 S.E.2d 809
    , 812 (2004) (citation and internal quotation marks omitted).
    “[J]udicial estoppel is limited to the context of inconsistent
    factual assertions and . . . the doctrine should not be applied
    to   prevent    the   assertion     of    inconsistent     legal    theories.”
    Whitacre P’ship, 
    358 N.C. at 32
    , 
    591 S.E.2d at 890
    . When the
    record   and     pleadings    are        examined    as    a     whole,    minor
    discrepancies    in   a   position       consistently     maintained      do   not
    amount   to     “clearly     inconsistent”          positions.     Harvey       v.
    McLaughlin, 
    172 N.C. App. 582
    , 585, 
    616 S.E.2d 660
    , 663 (2005)
    (holding that discrepancies in allegations in the plaintiff’s
    complaint regarding the date of the onset of injury were not
    clearly inconsistent positions where            the plaintiff maintained
    one position as a whole), disc. review denied, 
    360 N.C. 289
    , 
    628 S.E.2d 250
     (2006); see also Estate of Means, 207 N.C. App. at
    720, 
    701 S.E.2d at 299
     (holding that differences in allegations
    of knowledge of the two defendants in a negligence action which
    -18-
    were “in general           . . .       not inconsistent,” and meant to show
    separate     duties       owed    by    each       defendant,         were     not    factually
    inconsistent positions).
    Here, Caveator stated in his petition for an elective share
    that   Decedent       “died      testate”          and    that       “her     Last    Will      and
    Testament was probated on April 7, 2010.” Four months later,
    however, Caveator stated in his caveat that Decedent “did not .
    . . sign and execute said paper writing as her Last Will and
    Testament”     and    that,      if     she    did,       it    was    due    to     “undue     and
    improper     influence      and    duress.”          Propounder        argues        that    these
    statements represent clearly inconsistent factual assertions. We
    disagree.
    No   will     is   valid    unless          it    complies      with     the    relevant
    statutory requirements. 
    N.C. Gen. Stat. § 31-3.1
    . “[T]he [c]lerk
    of   the    [s]uperior      [c]ourt          has    the       sole    power    in    the     first
    instance     to    determine          whether       a     decedent       died       testate      or
    intestate, and if he died testate, whether the script in dispute
    is   his    will.”    Walters,         
    251 N.C. at 376
    ,    
    111 S.E.2d at 713
    (citation and internal quotation marks omitted). “[T]he probate
    of a will by the [c]lerk of [s]uperior [c]ourt is a judicial
    act, and his certificate is conclusive evidence of the validity
    of the will, until vacated on appeal, or declared void by a
    -19-
    competent tribunal in a proceeding instituted for that purpose.”
    
    Id. at 377
    , 
    111 S.E.2d at 714
    ; see also N.C. Gen. Stat. § 28A-
    2A-12; In re Will of Spinks, 
    7 N.C. App. 417
    , 
    173 S.E.2d 1
    (1970) (upholding the clerk’s denial of a motion by a group of
    surviving family members to set aside probate of a holographic
    will because there was no inherent or fatal defect appearing on
    the face of the will and no caveat action was filed). “And until
    so set aside it is presumed to be the will of the testator.”
    Walters, 
    251 N.C. at 377
    , 
    111 S.E.2d at 714
    . In addition, “the
    proper execution of [a] will [is] a mixed question of law and
    fact.” Burney v. Allen, 
    127 N.C. 476
    , 478, 
    37 S.E. 501
    , 502
    (1900); see also In re Will of Mucci, 
    287 N.C. 26
    , 
    213 S.E.2d 207
     (1975) (holding that directed verdict as to whether a will
    may   be   probated   is   the   best   procedure   when   no   evidence   of
    testamentary intent is presented); In re Will of Deyton, 
    177 N.C. 494
    , 507, 
    99 S.E. 424
    , 430 (1919) (“But the facts must be
    found by the jury, in order that we may pass upon the validity
    of the paper[ ]writings as the will of the deceased.”); In re
    Will of Mason, 
    168 N.C. App. 160
    , 
    606 S.E.2d 921
     (holding that
    directed verdict is appropriate as to the validity of a will
    when there are no evidentiary issues to be resolved),                 disc.
    review denied, 
    359 N.C. 411
    , 
    613 S.E.2d 26
     (2005).
    -20-
    Here, Decedent’s purported will was admitted to probate by
    the clerk of superior court before Caveator filed the petition
    for   an    elective     share.9   By    admitting      the    purported     will    to
    probate, the clerk made the determination that Decedent died
    testate     and   that    the    purported      will   was    the   last   will     and
    testament of Decedent. See, e.g., Walters, 
    251 N.C. at 377
    , 
    111 S.E.2d at 714
    .    Caveator’s      statement      in   his   petition    for    an
    elective share is consistent with the determination made by the
    clerk and the legal presumption that the purported will is the
    valid will of Decedent until set aside by a caveat action. See
    
    id.
     Further, as the validity of a will is a mixed issue of law
    and fact, Caveator’s statements that Decedent “died testate” and
    that “her Last Will” was probated are not factual assertions as
    to the will’s validity, and, therefore, judicial estoppel is not
    applicable in this case.
    III. Receipt of a Benefit
    Caveator also argues that estoppel does not otherwise apply
    to bar him from pursuing the caveat when he accepted property to
    which he was already entitled. Propounder responds that estoppel
    does,      in   fact,    apply   because     Caveator        actually   received      a
    9
    According to the petition for an elective share, the purported
    will was admitted to probate on 7 April 2010.
    -21-
    “benefit under the will,” which bars him from thereafter seeking
    to invalidate it. This response is incorrect.
    Although Propounder and Caveator make these arguments in
    the context of the doctrine of election of remedies, the cases
    cited     are   more      representative            of     the    principle     of    quasi-
    estoppel. In defining quasi-estoppel, or “estoppel by benefit,”
    the North Carolina Supreme Court has stated that, “[u]nder a
    quasi-estoppel        theory,     a    party    who        accepts   a   transaction       or
    instrument and then accepts benefits under it may be estopped to
    take a later position inconsistent with the prior acceptance of
    that same transaction or instrument.” Whitacre P’ship, 
    358 N.C. at 18
    , 
    591 S.E.2d at 881-82
     (citations and internal quotation
    marks omitted). “[T]he essential purpose of quasi-estoppel is to
    prevent     a    party      from       benefitting           by    taking     two clearly
    inconsistent         positions.”       
    Id. at 18-19
    ,   
    591 S.E.2d at 882
    (citation, internal quotation marks, and ellipsis omitted). In
    the context of a will, a party that has “judicially asserted
    rights    consistent       with       the    validity        of    the   will     . . .    is
    estopped,       in    a   subsequent         proceeding,          from   asserting        the
    inconsistent position of disputing the will’s validity.” In re
    Will of Lamanski, 
    149 N.C. App. 647
    , 650, 
    561 S.E.2d 537
    , 540
    (2002) (citation omitted) [hereinafter Will of Lamanski]. The
    -22-
    cases cited by Caveator further address the doctrine of quasi-
    estoppel     in   the    specific      context   of   a   will    caveat       and   its
    exceptions.
    In In re the Will of Peacock, a decedent’s son instituted a
    caveat proceeding after receiving a check under the decedent’s
    will.   
    18 N.C. App. 554
    ,   555,     
    197 S.E.2d 254
    ,    255    (1973)
    [hereinafter      Will     of     Peacock].      In    analyzing        whether      the
    decedent’s son could be estopped from pursuing the caveat on
    grounds that he had already taken under the will, this Court
    observed that the share of the estate to which the decedent’s
    son would be entitled would be greater than the amount of the
    check he had already received                 if his caveat proceeding were
    successful. Id. at 556, 
    197 S.E.2d at 255
    . Specifically, the
    Court held that
    [the son’s] acceptance of a check for less
    than [the amount of his share of the
    intestate estate] could in no way prejudice
    his sisters in [the] event [the] probate of
    the will is subsequently set aside. Nothing
    in the circumstances indicates any reason
    why it would be inequitable for [the son] to
    proceed with his caveat.
    
    Id.
    Similarly, in In re Will of Smith, this Court held that the
    decedent’s daughter was not estopped from pursuing a caveat even
    though she received a car under the will. 
    158 N.C. App. 722
    ,
    -23-
    724-25, 
    582 S.E.2d 356
    , 358 (2003) [hereinafter Will of Smith].
    The Court observed that the daughter was entitled to the car
    under   the    will   admitted     to     probate,     a    prior   will,    or    via
    intestate succession. 
    Id.
     Quoting Will of Peacock, the Court
    further reasoned that, because the daughter’s caveat would not
    change the disposition of the car, it was not inequitable for
    her to receive the car and pursue the caveat. 
    Id.
    Will     of   Lamanski    arose      in   a   slightly      different   factual
    situation from Will of Smith and Will of Peacock. In Will of
    Lamanski,     the decedent’s will gave her sister                   the    choice of
    certain items of tangible personal property in the decedent’s
    home.   149   N.C.    App.    at   647,    
    561 S.E.2d at 538
    .    Under    that
    provision,     the    decedent’s       sister      chose    specific      pieces    of
    property, some of which were delivered to her pursuant to the
    bequest. 
    Id. at 648
    , 
    561 S.E.2d at 539
    . When the executrix of
    the decedent’s will failed to deliver the other items, however,
    the decedent’s sister filed a caveat despite retaining the items
    of tangible personal property that had been delivered to her
    under the will. 
    Id.
     The sister argued that retention of the
    tangible personal property should not work to estop her from
    pursuing the caveat because, if the will were set aside, she
    would be entitled to one-third of the estate, which was more
    -24-
    than the value of the property she retained. 
    Id. at 651
    , 
    561 S.E.2d at 540
    .    Acknowledging       the   rule   set   forth    in   Will   of
    Peacock and applied in Will of Smith, i.e., that “one cannot be
    estopped by accepting that which he would be legally entitled to
    receive in any event,” we distinguished the facts in Will of
    Lamanski. 
    Id. at 651
    , 
    561 S.E.2d at 540-41
    . Specifically, we
    pointed out that the beneficiary in Will of Peacock received
    cash in an amount less than he would have received if the will
    were set aside. 
    Id.
     In Will of Lamanski, however, the decedent’s
    sister had been given a right to choose from among items of
    tangible      personal    property        in    the    decedent’s      home.      
    Id.
    Otherwise, the sister “would have had no legal right, outside
    the will, to the specific personal property which she received
    and retained pursuant to the specific bequest.” 
    Id.
     Thus, the
    distinguishing       factor   in   Will    of    Lamanski    was     the   sister’s
    choice   of   specific    property    which      she   would   not    necessarily
    receive if the will were set aside. 
    Id.
    In this case, unlike Will of Lamanski, Caveator did not
    receive a specific bequest. Rather, he asserted his right to an
    elective share, consistent with the validity of the will. The
    amount of the elective share awarded to Caveator was a cash
    amount that was a direct result of the probate of Decedent’s
    -25-
    will.   Modeling       our    analysis        after    Will     of   Peacock,     Will    of
    Smith, and Will of Lamanski, we conclude that, if the will were
    set aside, Caveator would be entitled to receive a cash amount
    greater than he has already received. He has not exercised a
    right   under    the    will       to   any    specific       property    he    would    not
    otherwise   be    entitled         to   receive.        Thus,    Caveator       cannot   be
    estopped from pursuing the caveat action based on his receipt of
    the elective share because he would be entitled to that amount
    of cash in any event. Propounder’s argument is overruled.
    Conclusion
    Propounder argues that the trial court’s order, granting
    summary   judgment,          was   appropriate         pursuant      to   the   equitable
    doctrines   of    election         of   remedies       and    judicial     estoppel.      We
    conclude,   as     discussed            above,        that    neither      doctrine       is
    applicable here. Therefore, we hold that the trial court erred
    in granting summary judgment in favor of Propounder. We thus
    reverse that decision.
    REVERSED.
    Judges BRYANT and DILLON concur.