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By Ryan McNeill, Attorney at Law

A Last Will and Testament (“Will”) is a legal document directing how a deceased person wishes the assets and properties passing through the court process to be distributed upon death. Most often, these wishes are carried out, the property and assets are distributed, and the estate is finalized. However, if an interested party claims that the Will is invalid, that party may contest the Will in court in certain circumstances.

In basic terms, if an interested party wishes to contest a legal Last Will and Testament and have it found invalid, that party must prove one of the following:

#1: The document is not in compliance with the law.

In order for a Will to be validly executed in North Carolina, the person must sign the document and it must be witnessed or “attested” by two (2) competent witnesses. The person must intend to sign the document as his/her Will and do so by signing it in the presence of a witness. The person must signify to the attesting witnesses that the document is his/her Will by signing it in their presence or by acknowledging to them his/her signature previously signed on it. The attesting witnesses must then sign the Will in the presence of the person making the Will (the two witnesses do not need to sign in the presence of each other). A party may contest a Will claiming that these legal requirements have not been met in hopes of having the document found invalid.

#2: It is not the most recent Will.

The second way to contest a Will is by demonstrating that it is not the most recent document. People change their minds over time and often will change their wishes. Children are born, others pass on. Assets and properties are bought, sold and transferred over time. It is not uncommon for a person to create a legal Will only to make changes to the document periodically. A newly created proper Will takes precedence over any that have been created in the past.

#3: The content of the Will does not reflect the deceased’s will or desire, for example, the individual was unduly influenced to write (or change) their Will.

Another way to contest a Will is to claim that the document does not really reflect the “will,” wishes or desires of the party as another party has exerted “undue influence” or the individual was pressured to change their Will. In North Carolina no single element creates undue influence and instead the courts look at all the relevant facts and circumstances with particular emphasis on the following:

  •  Old age and physical and mental weakness of the person making the will
  • That the person making the will is in the home of the beneficiary and subject to the beneficiary’s constant association and supervision
  • That other have little or not opportunity to see the person making the will
  • That the will is different from and revokes a prior will
  • That the will is made in favor of one with whom there are no ties of blood
  • That the will disinherits the natural beneficiaries of the decedent’s estate
  • That the beneficiary was involved in procuring the will

#4: The Will does not meet the requirements of testamentary capacity.

You may have heard the expression, “being of sound mind and body.”  This phrase goes to testamentary capacity. To contest a Will, a party may claim that the deceased did not understand what they were doing or the impact their actions would have when they wrote and signed their Will. As an example, an individual suffering from dementia might not remember or recognize family members or even recall owning valuable property.

How can an individual prevent their Will being contested once they have died?

To start with, review the four possible grounds for contesting a will, above. The individual should make sure he/she executes the Will properly and keeps the most current version of the Will in a place where the Executor can find it easily. (Destroy old copies/originals or mark them as invalid/replaced as of a specific date.) Working with an estate planning attorney to write the Will can help prevent undue influence claims and ensure testamentary capacity.

Ultimately, communication is the key. The better you communicate with all parties, included and excluded, about your intentions and the existence of your Will and its contents, the less likely it is that someone will contest the Will upon your death. When there is a lack of communication and someone is surprised by the allocation of assets and properties, a person may feel slighted and contest the Will. Try to avoid surprises and this will decrease the likelihood of contestation.

Additionally, be specific and intentional with your distributions in your Will. When you specifically discuss an item and the reason it is going to a particular person, it makes it more difficult to contest capacity. And, in turn, you can be specific in naming who will not be receiving any assets or minimal assets and the rationale for such a decision, which, once again helps establish capacity.

If you are making changes to an existing Will, you can note within the document why you are making those changes, however, you have to be careful about what you specifically say in the will to avoid issues. We strongly recommend reviewing your Will every few years or when major life changes occur (birth, death, marriage, divorce, etc.).  Having fear of a will contest is not a reason to avoid putting a will in place, because ultimately you need your wishes put in writing.

Living Probate

A handful of states, including North Carolina, allow for living probate proceedings where you can go to court to prove the validity of your Will prior to your death. This allows anyone who might contest the Will to present their reasoning in court and you to explain your reasoning.  The idea behind this is also that beneficiaries are much less likely to contest a will during your lifetime because they would have to speak up during this kind of hearing while you are still alive.

Finally, work with a qualified estate planning attorney to ensure that all of the legal requirements have been met and that the Will stands up to judicial scrutiny. Contact Brinkley Walser Stoner for an appointment with an estate planning attorney.