Grandchildren to collect $663k from Executrix-Aunt after Alamance Co. Verdict

Two grandchildren of a deceased Alamance County woman have been awarded over $663,000 from their aunt who refused to give the grandchildren their respective share of the inheritance. The aunt, who served as executor of the estate, accused the her niece and nephew of theft and murder.

Issue in the case: did the executor (Aunt) perform her duties for the estate? Did the Aunt misappropriate money from the estate? Did the executor breach her fiduciary duty?

The plaintiffs were the grandchildren of Frances Longest (the testator), who died in June 2011. Ms. Longest left half of the estate to her daughter Bonnie Kirk, the grandchildren’s aunt. Ms. Longest will named Bonnie Kirk as the executrix of her estate. Longest left the other half of her estate to Lacey and Lucas, whose mother had passed away.

The problem arises when for two and a half years, Bonnie Kirk (the aunt) refused to distribute estate assets to Lacey and Lucas.

The Alamance County Clerk of Court removed Bonnie Kirk as executrix of Ms. Longest’s estate for breach of fiduciary duty due to her failure to distribute estate assets, and Lacey and Lucas received a partial distribution.

Bonnie Kirk’s defense and reasons claimed for withholding the money — Bonnie Kirk believed the two grandchildren had stolen from Longest during her lifetime. Further Bonnie Kirk accused one of the grandchildren of poisoning Ms. Longest.

As for the murder/poisoning accusation, the evidence was that Ms. Longest was in her nineties with deteriorating health before she died. One of her grandchildren would occasionally bring her food. Bonnie Kirk believed that the testator’s health got worse after she’d eaten a stew that a grandchild made for her.

Several months after the testator died, Bonnie Kirk cleaned out Ms. Longest’s refrigerator. She obtained some of the food that she believed Lacey had prepared, mashed it up in a blender and sent it to a toxicology lab. [first issue: why not leave it in its container to maintain the items’ integrity][second issue: once Bonnie Kirk blended it, how do we know Bonnie Kirk didn’t taint the items being tested?]

The toxicology report said that the food showed an elevated level of cesium. Cesium is a salt that, in very large quantities, can be lethal. Based on this, Bonnie Kirk unilaterally concluded that a grandchild had poisoned Ms. Longest.

The granchildren’s attorney argued that Bonnie Kirk never bothered to get an expert to interpret the toxicology report for her.

Trial issue: Experts who testified described at least two glaring problems with the cesium poisoning theory: (1) it wasn’t clear where or who was the source of the cesium. It could have  come from the blender used by Bonnie Kirk. (2) the levels of cesium in the food were far, far below a level that could ever be fatal.

“There are lots of other sources that could have explained this amount of a natural occurring element in this food, but it made for a very dramatic case,” argued the grandchildren’s attorney.

The grandchildren sued Kirk for breach of fiduciary duty, and one grandchild sued for defamation.

Alamance County Superior Court Judge G. Wayne Abernathy granted Lacey summary judgment on the issue of liability for defamation, and a jury awarded her $50,000 in presumed damages and $100,000 in punitive damages on that claim.

The jury also found that Bonnie Kirk breached her fiduciary duty as executrix, and the jury awarded both grandchildren $6,569 in compensatory damages for the lost benefit caused by the delay in the estate distribution. The jury also awarded each $300,000 in punitive damages, later reduced to $250,000 each due to the state’s statutory cap on punitive damages. Abernathy also awarded Lacey and Lucas $106,161 in attorneys’ fees and costs, on top of a total verdict of $663,138.

Ms. Kirk asserts that there was evidence that was not admissible at court that would have supported her case. Further, she made attempts with law enforcement to investigate the underlying death as a homicide.


Court: Alamance County Superior Court

Case number: 12 CVS 1982

Judge: G. Wayne Abernathy

Amount: $763,138 (reduced by statute to $663,138)

Date of verdict: Feb. 24, 2014

Most helpful expert: Stan Atwell of Carruthers & Roth P.A., Greensboro (expert on fiduciary duties of executrix)

Collectability of the judgment? Execution is in process against assets which are sufficient to cover the judgment.

Call Kirk Sanders at 336-724-4707 if you need to discuss a breach of fiduciary duty matter.

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