by David Inabinett
When someone passes away, the will they leave behind is supposed to settle questions about
who inherits what and who will serve to oversee that process. But in real life, wills are not
always accepted without dispute. Family members or others who expected or desire to inherit
sometimes believe the will is unfair, invalid, or the product of outside pressure. In North
Carolina, the law provides a process for contesting a will. It is a serious step that requires
meeting strict legal standards and deadlines, however one that is surprisingly easy to initiate
through the Clerk of Superior Court’s office.
The technical term for challenging a will in North Carolina is filing a “caveat.” This is done in the
Superior Court of the county where the will is probated. Only people with a real financial stake
— such as heirs who would inherit if there were no will, or people named in a prior version of the
will — are allowed to bring a caveat. This is referred to as having “standing” to bring the caveat.
One cannot successfully contest a will simply because they are unhappy with it. There must be
a recognized legal reason. The most common reasons include:
● The person making the will did not have the mental capacity to understand what they
were doing. Under state law, a testator must understand the nature of their property, who
their natural heirs are, and what the will directs as to that distribution. This is often
called “testamentary capacity,” which must be determined by a jury.
● The will was the product of undue influence. For example, if an individual was
pressured or manipulated by a caregiver or family member to change their will in that
person’s favor, or isolated and restricted such that certain family members or
“natural objects of their bounty” were caused to be estranged from their loved one,
these can be factors in proving undue influence.
● Fraud or forgery, such as tricking the testator about what they were signing or falsifying
signatures.
● Failure to follow the formal requirements for making a will. North Carolina law requires a
written will, signed by the testator, and witnessed by at least two competent witnesses.
A homemade or “holographic” will must be entirely in the testator’s own handwriting and
signed by them.
Challenging a will is not only legally complex given the primary party who could actually verify
the validity of his or her intent expressed in a will is now deceased, along with potentially the
individuals who previously witnessed or notarized the will, it can also be quite expensive,
lengthy, and emotionally draining. Litigation will require medical records, expert testimony, or
witness accounts of the testator’s medical or mental condition and circumstances surrounding
the will’s procurement and execution at or around the time it was signed. Courts also start with
the presumption that a properly signed and witnessed will is valid. Once that burden is satisfied
by the “propounder” or supporter of the will, then the burden of proof is on the “caveator” or
person contesting the will, to show it was the product of undue influence or lack of testamentary
capacity.
For many families, experiencing a will caveat proceeding may also have a personal cost. These
cases often deepen rifts among siblings or relatives. That is why some people choose
mediation or settlement instead of a full trial. But in cases of clear fraud, exploitation, or lack of
capacity, a caveat may be the only way to protect the rightful heirs.
The key point is that North Carolina law provides a path to contest a will, but it is a difficult and
expensive one. People with concerns about a will or their loved one’s health or ability to make a
will should not wait. Timing is critical before assets begin to be distributed pursuant to a will that
may be the subject of undue influence, fraud or lack of testamentary capacity. They should talk
with an attorney who practices probate litigation and understands the legal requirements for
making a valid last will as soon as possible to understand their rights, the evidence they might
need, and the deadlines they must meet. Considerations might also be given prospectively to
avoid probate and the public administration of one’s estate entirely through the use of a
revocable trust, pay on death designations on accounts or a combination of strategies.
Schedule an appointment with a family law attorney at Brinkley Walser Stoner today to discuss your situation.