Mildred Green Pate “Pate” appeals the trial court’s determination that her inheritance under the will of her husband, Waddell Pate “Decedent”, must be reduced by attorney fees and litigation expenses incurred by Decedent’s estate. The expenses were incurred by the estate in order to prove at trial and on appeal that Pate and her son, Aaron Green, exerted undue influence over Decedent with regard to the inter vivos transfer of several parcels of real estate located in North Carolina. For the reasons set forth below, we reverse. The facts underlying this litigation are set forth in the appeal of the North Carolina undue influence trial, Wilson v. Green , 185 N.C. App. 544 648 SE2d 577 2007. There, in an unpublished opinion, the North Carolina Court of Appeals found: Decedent had three children with his first wife prior to their divorce in 1961, plaintiffs Polly Wilson and Lydia Dugan, and a son who pre-deceased him. Decedent married defendant Mildred Green “Mrs.Pate” in 1968. Mrs. Pate had two children from a previous marriage, Lamonie Green and defendant Aaron Green “Green”. Decedent and defendants lived in Augusta, Georgia prior to decedent’s death.
Decedent owned 1.19 acres of beach-front property in Carolina Beach, New Hanover County, North Carolina “property”. The property had been owned by his family since the 1930′s. Green contacted a surveyor, Sherwin Cribb, in February of 2000, requesting that the property be surveyed and subdivided into three lots. The survey was completed on 29 February 2000, and the property was subdivided. Green also contacted an attorney, Jim Snow, and requested he prepare a deed of gift for one of the lots transferring ownership from decedent to Green. On 30 March 2000 one of the three lots, lot number two, was transferred by deed from decedent to Green. The deed was signed by decedent at Mr. Snow’s office, and in the presence of both defendants. Green contacted Mr. Snow again on 24 July 2000, requesting that he prepare deeds conveying Tract 1 to Mrs. Pate, and Tract 3 to Green. Mr. Snow prepared the deeds without any discussion with decedent, and mailed them to Augusta, Georgia. On 30 July 2001, one of the remaining two lots was transferred to Green, and the other to Mrs. Pate. Decedent died testate on 22 February 2002. Decedent’s will named Bank of America as executor, but it declined to serve in that capacity. Plaintiff Polly Wilson and Mrs. Pate both applied to be appointed as administratrix of the estate. Ms. Wilson was named administratrix of decedent’s estate in a contested proceeding in Richmond County, Georgia. This action was originally instituted as a declaratory judgment action by defendants. Plaintiffs counterclaimed seeking to set aside the conveyances of the three lots based upon undue influence. The declaratory judgment action was voluntarily dismissed, whereupon the designations of plaintiffs and defendants were reversed. This matter came on for trial before Judge Cobb at the 18 July 2005 session of court. A jury returned a verdict in favor of plaintiffs on 28 July 2005. The trial court entered judgment on 9 August 2005, setting aside the deeds to the three lots. Id.
