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Can I Challenge a Will?

Challenging a Will in North Carolina

Losing a loved one can be one of the most challenging events in our lives. The grief experienced at the loss is often compounded when it is discovered that someone took advantage of your loved one’s mental or physical state to change their will. When that happens, there are specific steps you can take to challenge the validity of the will.

How does a will get challenged?

Once a will is submitted for probate with the clerk of court, an “interested party” can file a document with the clerk called a caveat, which challenges the validity of the will. The “interested party” is called the caveator, and the person who originally submitted the will for probate is called the propounder. Notice is given to all other interested persons (devisees, legatees, heirs, etc.), and they are all given a chance to participate.

The caveat proceeding takes place in Superior Court in North Carolina in front of a jury. The jury has to decide if the will is actually the last written wishes of the deceased party.

Who is allowed to challenge a will?

Under North Carolina law (N.C. Gen. Stat. § 31-32), “any person entitled under such will, or interested in the estate, may appear in person or by attorney before the clerk of the superior court and enter a caveat to the probate of such will.” The phrase “interested in the estate” means anyone having some pecuniary or beneficial interest in the estate that is detrimentally affected by the will. This would include heirs at law, next of kin, and those who claim under an earlier or later purported will.

Are there deadlines to filing a caveat in North Carolina?

Yes. Under N.C. Gen. Stat. § 31-32, a caveat must be filed at the time the will is being submitted for probate or three years thereafter. If the caveator is a minor, disabled or imprisoned, they can challenge the will within three years after the removal of their disability. For instance, once a minor turns 18, they would have three additional years to challenge a will.

What do you have to show to win a caveat?

The most common grounds to challenge a will are that the deceased person lacked testamentary capacity or that the will was obtained by undue influence. Both of these have to be proved to the jury by “greater weight of the evidence,” meaning you just have to show that it is more likely than not the case. This is a much easier burden than the criminal burden of “beyond a reasonable doubt.”

To establish undue influence, you have to prove that:

The decedent was subject to influence
The beneficiary has a disposition to exert influence; and
The resulting will indicates undue influence
Some factors (called “Andrews Factors”) that can be considered include:

Old age and physical and mental weakness;
That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision;
That others have little or no opportunity to see him;
That the will is different from and revokes a prior will;
That it is made in favor of one with whom there are no ties of blood;
That it disinherits the natural objects of his bounty;
That the beneficiary has procured its execution.
In re will of Andrews, 299 NC 52 (1980); NCJI 860.20
To establish lack of testamentary capacity, you have to show that one of the following is not true of the decedent at the time they executed the will:

Decedent comprehends the natural objects of his bounty;
Decedent understands the kind, nature and extent of his property;
Decedent knows the manner in which he desires his act to take effect; and
Decedent realizes the effect his act will have upon his estate.
In re Estate of Whitaker, 144 NC App 295; In re Will of Priddy, 171 NC App 395

North Carolina law presumes that the decedent had testamentary capacity when they executed the will, and it is up to the caveator to prove by greater weight of the evidence that the decedent lacked testamentary capacity. (see In re Will of Jarvis, 334 NC 140).

As is the case in other jurisdictions, under North Carolina law, even an insane person during a “lucid interval” can make a valid will. (see Matter of Will of Maynard, 64 N.C. App. 211, 227, 307 S.E.2d 416, 428 (1983)).

Can you testify about what the decedent told you about his will?

As a general matter, no. North Carolina has a so-called “dead man’s” statute, that will prevent an “interested person” from testifying about any communication they had with the deceased. As a general matter, any of the parties in a will dispute will be considered interested persons.

If a will is challenged, is there any way to settle the dispute short of trial?

Yes. The parties can enter into an agreement called a “family settlement agreement” that can provide for a disbursement of the decedent’s estate in any number of ways according to what the parties agree to. While caveat proceedings are not automatically submitted to mediation, we find that mediation of caveats can be a good way to resolve the dispute. 

How are the costs and attorneys’ fees for will disputes paid?

For most will disputes, the estate of the decedent will wind up paying the attorneys fees for both sides. N.C. Gen. Stat. § 6-21(2) provides that “in any caveat proceeding…the court shall allow attorneys’ fees for the attorneys of the caveators only if it finds that the proceeding has substantial merit.” A caveat has substantial merit if there is sufficient evidence to support the claim. (see Dyer v. State, 331 N.C. 374, 377, 416 S.E.2d 1, 2 (1992). In practice, attorney fees are usually taxed against the estate of the decedent.

Dana Wilson
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