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  • jason jones

In re Moore (NC App May, 2022): when a father's only child cannot inherit in intestacy.

In May of 2022 the NC Court of Appeals issued its opinion in In re Moore reversing a trial court that had ruled on a will caveat (lawsuit challenging a will). At trial the propounder (person defending the will caveat) missed a discovery deadline while proceeding pro se and the court took their failure to answer as an implied admission (see NC Rules of Civil Procedure, Rule 36) of the claims against them when awarding summary judgment to the caveator (the person bringing the caveat).

The basis of the COA’s reversal was that the trial court overlooked that the caveator lacked standing (the right to sue) for being a child born out of wedlock to a putative father. Under N.C. Gen. Stat. § 31-32 a caveat can only be filed by “any person interested in the estate.” The court recited the longstanding position of the common law in defining a “person interested in the estate” as someone having “a direct pecuniary interest…which will be defeated or impaired if the instrument in question is held to be a valid will.” The court goes on to explain that only 2 categories of people meet this standard: (1) those who would inherit under a different will, and (2) those who would inherit if there were no will, i.e., the intestate heirs.

In this case, the caveator was not a devisee under any other will, so a review of the intestate statutes at N.C. Gen. Stat. § 29-15 and 29-19(b) was undertaken by the court. 29-15 is the basic intestate succession framework, but 29-19 was under review because the caveator was a child out of wedlock (born outside the marriage). North Carolina has an outdated law that while allowing someone born out of wedlock to easily inherit from their mother, makes it difficult to nearly impossible to inherit from a putative father. (“Putative” means presumed to be, as opposed to known to be.) This is due to ease of identifying a mother at birth and the difficulty of identifying a father at birth. It also relates to the long-standing common law presumption that children born during a marriage are presumed to be the children of the parents in the marriage.

29-19(b) provides only three ways a child born out of wedlock can inherit from their father in intestacy: (1) if the father is decreed by a court to in fact be the father for child support purposes under N.C. Gen. Stat. § 49 et seq.; (2) if the father during his lifetime follows the procedure outlined in N.C. Gen. Stat. § 52-10(b) to file a formal paper in the local Clerk of Superior Court’s office proving he is the father; and (3) if the father died before the child turned one year old, then DNA evidence can be used to prove parentage.

I join the ranks of most attorneys in disapproving this statute and the absurd fact that DNA evidence is only admissible to prove parentage in the first year of a child’s life. Nonetheless, until the law changes someone who is born out of wedlock and does not meet one of the three above exceptions “has no legal right to take from her putative father through intestate succession.”


  • If your family has children born outside of marriage you should see a lawyer (A) to do a will, or (B) to try to take steps to legally acknowledge the father/child relation. Doing a will is much easier.

  • Pro se is dangerous. This whole lawsuit stems from the propounder refusing to hire counsel and then sitting on a discovery package they did not understand their inaction would give rise to such an exacting legal standard (namely: that allegations not timely denied are deemed admitted).

  • Intestacy is complicated, even for lawyers. Many lawyers experienced in estate statutes still have to review the intestacy laws with care in each case. The rules are not commonsensical to most people and lawyers, judges, and clerks make mistakes everyday interpreting these complex inheritance patterns. If you are an heir to an estate with no will (or if you think you might be) you should see an experienced estate attorney who can give you an adequate assessment of your status as an intestate heir.

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