This opinion results from an appeal of the trial court's dismissal of a declaratory action seeking a determination of whether Daniel Abitol's ("decedent") son, Noah Abitol ("Noah"), is a beneficiary of decedent's estate as an after-born child. Michael Abitol ("plaintiff") is the brother of Decedent, executor of his estate and the appellant. The facts read much like the recitals of a Bar examination question.

Decedent married Hasnaa Abitol ("defendant Hasnaa") in 2018. Decedent had a child from a previous relationship named Ava Abitol. Defendant Deborah Clark ("defendant Clark") had been appointed to be the guardian of Ava's estate.

Decedent executed a Last Will and Testament ("Will") dated 1/25/2018 and simultaneously executed the 2018 Daniel Solomon Abitol Revocable Trust ("Trust") along with the 2018 Ava Marie Abitol Special Needs Trust ("SNT") for Ava Abitol, who has a disability and is its sole beneficiary, established within the testamentary Trust. This will left any residuary to the Trust. Plaintiff is the trustee of both the SNT and the Trust. The Trust included provisions allocating trust property to various family members, with the remaining balance of the Trust to be distributed to the SNT. The Trust used the term "children", but did not define the term.

On 11/19/2018, decedent amended the Trust to distribute certain Trust property to defendant Hasnaa upon decedent's death. Subsequently, decedent and defendant Hasnaa successfully underwent in vitro fertilization treatments to conceive a child which resulted in multiple fertilized embryos. The couple selected a specific embryo for implantation prior to decedent's death.

On 5/10/2020, decedent died unexpectedly from a heart condition, plaintiff then submitted decedent's will for probate and qualified as Executor of the estate on 6/17/2020.

After decedent's unexpected death, defendant Hasnaa completed the in vitro fertilization process giving birth to Noah on 3/16/2021. This was 10 months and 6 days after decedent's death and DNA evidence confirmed that Noah is the biological child of the decedent.

Decedent had a life insurance policy with a face value of $1,000,000.00 and Ava named as the sole beneficiary in force at the time of his death. Defendant Clark petitioned the trial court to establish a new Special Needs Trust for Ava to receive the life insurance proceeds due to the failure to name the SNT as a beneficiary on the life insurance policy consistent with decedent's planning instead of to Ava individually without including plaintiff or decedent's estate as parties. This resulted in an order to establish a new special needs trust for Ava ("Court Ordered SNT") with defendant Clark appointed as the trustee. Ava Abitol's mother has been receiving payments from this trust for the benefit of Ava.

While managing the decedent's estate, the plaintiff filed a declaratory action in Superior Court seeking a ruling on four issues:

(1) Noah's right to inherit as an after-born child.

(2) requesting modification of the Trust to include Noah as equal beneficiary with Ava.

(3) reconciling the 2018 SNT with the Court Ordered SNT.

(4) ... (this issue was resolved prior to the hearing in this matter).

In response, defendant Clark moved to dismiss all claims, contending that the first claim should fail for lack of statutory or common law authority for "carving out an intestate share of the estate to a child born more than ten (10) lunar months after the decedent's death." Defendant Hasnaa, individually and as guardian of Noah, moved for judgment on the pleadings, arguing that as DNA evidence can be used to establish that a decedent is the father of a child who is born out of wedlock within one-year of the decedent's death therefore this evidence may be used to allow a child to inherit under these facts apparently contending that as she was widow, the marriage was terminated and the child was born out of wedlock. The trial court ruled that Noah did not have a right to inherit and granted the motion to dismiss for plaintiff's first claim in his complaint.

The plaintiff's contentions were that the trial court should not have their claim for declaratory judgment dismissed by concluding that there was no genuine controversy concerning Noah's right to inherit; that the pleaded facts in the complaint support a finding that Noah is an "after-born child" under N.C.G.S. § 31-5.5 (2023); and that plaintiff is entitled to a declaration that Noah can inherit under N.C.G.S. §29-19(b)(3) (2023) because he was born after the marriage was terminated. Appellee defendant Hasnaa also contended that the trial court should not have dismissed the complaint and requested that the Court of Appeals apply equity principles to allow Noah to inherit from his father's estate.

Both plaintiff and defendant Hasnaa argued on appeal that the trial court erred in dismissing plaintiff's request for declaratory judgment and finding that there was no justiciable controversy and the Court of Appeals agreed:

"This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400 (2003).

After going through a lengthy review of the parties' opposing contentions as to whether a controversy existed, the Court of Appeals inevitably concluded one did exist and stated:

Pursuant to N.C.G.S. § 29-9, "[l]ineal descendants and other relatives of the intestate born within 10 lunar months after the death of the intestate shall inherit as if they had been born in the lifetime of the instate and had survived him" N.C.G.S. § 29-9 (2023). Defendant argued, and apparently this trial court agreed, that this statute operates as a bar for any child born more than 10 months from the intestate's death. This argument is incorrect. The statute merely confirms that one born within 10 months SHALL inherit, it does not exclude other possibilities. Thus, the statute does not act as a bar to this claim. Accordingly, because an actual controversy exists between the parties and Noah and Ava's rights would be impacted through this litigation, and there is no statutory bar to prevent this matter from being litigated, the trial court erred in dismissing plaintiff's request for declaratory relief.

In view of our determination, we decline the parties' invitation to go further in resolving this matter and remand the matter to the trial court to fully determine the facts and issues not only with respect to this issue but the other matters pending in this case.

The statutes as written predate the scientific developments that have occurred with respect to in vitro fertilization and postponed gestation. Implicit in the statutory recognition of a 10-month potential gestation period set out in N.C.G.S. Section 29-9 is perhaps an unstated presumption that may have existed prior to these scientific developments that any child born outside of that period was likely to not be the decedent's offspring. This certainly seems to be the unstated thrust of the trustee's arguments. The Court of Appeals did not delve into this concern and deftly avoided the issue by determining that the statute simply did not explicitly exclude births occurring outside of the 10-month statutory period and implicitly leaving the issue of paternity as an evidentiary issue before the trial court rather than a statutorily presumptive one. It is interesting to observe that in MidFirst Bank v. Brown, COA22-283 (2022) the Court of Appeals applied the legal doctrine of expressio unius est exclusio alterius which if applied here, would have led to the opposite result. The North Carolina Supreme Court reversed MidFirst Bank on other grounds.

We note that N.C.G.S. Section 31-5.5 deals with the effect on a will by after-born or after-adopted children.

(a) A will shall not be revoked by the subsequent birth of a child to the testator, or by the subsequent adoption of a child by the testator, or by the subsequent entitlement of an after-born child born out of wedlock to take as an heir of the testator pursuant to the provisions of G.S. 29-19(b), but any after-born, after-adopted or entitled after-born child born out of wedlock shall have the right to share in the testator's estate to the same extent the after-born, after-adopted, or entitled after-born child born out of wedlock would have shared if the testator had died intestate unless:

(1) The testator made some provision in the will for the child, whether adequate or not;

(2) It is apparent from the will itself that the testator intentionally did not make specific provision therein for the child;

(3) The testator had children living when the will was executed, and none of the testator's children actually take under the will;

(4) The surviving spouse receives all of the estate under the will; or

(5) The testator made provision for the child that takes effect upon the death of the testator, whether adequate or not.

(b) The provisions of G.S. 28A-22-2 shall be construed as being applicable to after-adopted children and to after-born children, whether legitimate or entitled children born out of wedlock.

(c) The terms "after-born," "after-adopted" and "entitled after-born" as used in this section refer to children born, adopted or entitled subsequent to the execution of the will.

Removing the 10-month hurdle presented by the trustee's unsuccessful contentions in this case, this statute does create a carve-out of the decedent's estate assets. It should be observed that it is highly unlikely that such issues will appear in in a title examination of a decedent's real property unless raised in a proceeding in the estate prior to the search.