The North Carolina Court of Appeals reverses the dismissal of a declaratory judgment claim because a controversy exists regarding whether a child born after the decedent’s death can inherit. In Abitol v. Clark (N.C. Ct. App., No. COA24-478, December 3, 2024).
On January 25, 2018, Daniel Abitol executed a last will and testament, a revocable trust (“Trust”), and a special needs trust (“SNT”) for his daughter, Ava Marie Abitol, a minor with a disability and the sole beneficiary of the SNT. Also in 2018, Mr. Abitol married Hasnaa Abitol. Mr. Abitol had fathered Ava with a previous partner. Deborah Clark was the appointed guardian of Ava’s estate.
On November 19, 2018, Mr. Abitol amended the Trust to distribute certain trust property to Mrs. Abitol at the time of his death. After amending the Trust, he and Mrs. Abitol underwent in vitro fertilization treatments to conceive a child.
In May 2020, Mr. Abitol died unexpectedly. His brother, Michael Abitol (“plaintiff”), submitted the decedent’s will for probate and qualified as executor for his estate in June 2020.
More than 10 months after her husband died, Mrs. Abitol gave birth to Noah Abitol on March 16, 2021. DNA evidence confirms that Noah is the decedent’s biological child.
Through Mr. Abitol’s will, the residuary of his estate passed to the Trust, which included provisions regarding the allocation of trust property to various family members, with the remaining balance of the Trust going to the SNT.
At the time of his death, Mr. Abitol had a $1 million life insurance policy. Ava was the sole beneficiary. However, due to the failure to name the SNT as a beneficiary on the life insurance policy, in accordance with what the decedent intended, Ms. Clark petitioned the trial court to establish a new special needs trust for Ava that would receive the life insurance proceeds. Neither plaintiff nor decedent’s estate were included as parties in that proceeding. A new special needs trust (“court-ordered SNT”) was created, with Ms. Clark as its trustee.
During the administration of the decedent’s estate, the plaintiff brought a declaratory judgment action seeking to determine Noah’s right to inherit, modify the Trust to include Noah as an equal beneficiary with Ava, and reconcile the 2018 SNT with the court-ordered SNT.
Ms. Clark moved to dismiss. She argued that there was no statutory authority or judicial basis for carving out and distributing an intestate share of a decedent’s estate to a child born more than 10 months after the decedent’s death. Mrs. Abitol moved for judgment on the pleadings, arguing that DNA evidence can be used to establish that a decedent is the father of a child born within one year of the decedent’s death and this evidence may be used to allow that child to inherit.
In February 2024, the trial court denied Mrs. Abitol’s motion, stating that the pleadings in this matter remain open. The trial court partially granted Ms. Clark’s motion by dismissing plaintiff’s claim for declaratory judgment on Noah’s right to inherit as an after-born child, finding that there was no controversy as to Noah’s right to inherit. The plaintiff appealed.
Although Mrs. Abitol is an appellee for this appeal, she also argues that the trial court erred in dismissing the plaintiff’s complaint and requests that the appellate court allow Noah to inherit from his late father’s estate.
The appellate court agrees that the trial court erred, finding that the plaintiff’s complaint has sufficient basis for a declaratory judgment claim because an actual controversy exists between the parties and Ava and Noah’s rights would be affected through this litigation. As there is no statutory bar to prevent this matter from being litigated, the trial court erred in dismissing the plaintiff’s request for declaratory relief.
The court reverses the trial court’s dismissal of the plaintiff’s claim for declaratory judgment and remands this case for further proceedings.
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