How to Challenge a Will in North Carolina

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A will can be contested in a North Carolina probate proceeding on a number of grounds.

  • Lack of Proper Formalities. A will can be contested in North Carolina for not complying with the requisite formalities.  Three types of wills are permitted under North Carolina law: (1) an attested written will (31-3.3); (2) a holographic will (31-3.4); and a nuncupative will (personal property only)(31-3.5).

 

An attested written will is a written will signed by the testator and attested by at least two competent witnesses. The testator must, with intent to sign the will, do so by actually signing the will or by having someone else in the testator’s presence and at the testator’s direction sign the testator’s name thereon. The testator must signify to the attesting witnesses that the instrument is the testator’s instrument by signing it in their presence or by acknowledging to them the testator’s signature previously affixed thereto, either of which may be done before the attesting witnesses separately.  The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.  N.C. Gen. Stat. § 31-3.3

 

A holographic will is a will entirely in the testator’s handwriting, subscribed by the testator, or with the testator’s name written in or on the will in the testator’s own handwriting, and “found after the testator’s death among the testator’s valuable papers or effects, or in a safe-deposit box or other safe place where it was deposited by the testator or under the testator’s authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator’s authority for safekeeping.”  A holographic will does not need an attesting witness.  N.C. Gen. Stat. § 31-3.4.

 

A nuncupative will is a will (1) made orally by a person who is in that person’s last sickness or in imminent peril of death and who does not survive such sickness or imminent peril, and

(2)  Declared to be that person’s will before two competent witnesses simultaneously present at the making thereof and specially requested by the person to bear witness thereto.  N.C. Gen. Stat. § 31-3.5.

 

If a will was not executed with the proper formalities, it can be contested and found invalid under North Carolina law.

 

  • Undue Influence. A will can be contested on the grounds of undue influence.  Undue influence consists “of evidence by [the] caveator of that combination of facts, circumstances and inferences from which a jury could find that the purported last will and testament is not the product of testator’s free and unconstrained act, but rather that it is the result of an overpowering influence exerted by someone on the testator sufficient to overcome testator’s free will and agency and to substitute for it the will and wishes of that other person, so that testator executed a will that he otherwise would not have executed.”
    In re Will of Andrews.

 

Several of the factors that are relevant on the issue of undue influence include:

 

  1. Old age and physical and mental weakness.
  2. That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision.
  3. That others have little or no opportunity to see him.
  4. That the will is different from and revokes a prior will.
  5. That it is made in favor of one with whom there are no ties of blood.
  6. That it disinherits the natural objects of his bounty.
  7. That the beneficiary has procured its execution.” In re Will of Mueller.

 

In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.

 

  • Lack of capacity. A testator is required to have capacity to make a will.  In order to have testamentary capacity, a testator must (1) comprehend the natural objects of his bounty; (2) understand the kind, nature and extent of his property; and (3) know the manner in which he desires his act to take effect, and realizes the effect his act will have upon his estate.  In re Will of Smith. 

 

A caveator must show more than a general decline in the months leading up to the execution of the will.  There must be evidence that the testator lacked testamentary capacity at the time the will was executed.  i.e., his knowledge of his property, to whom he was giving it, and the effect of his act in making a will.  Typically, lack of testamentary capacity is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.   A will can be declared void if lack of capacity can be proven.

 

  • A will can also be contested in North Carolina on the grounds that it has been revoked.  A written will can be revoked by: (1) a later will, or (2) by being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it.  N.C. Gen. Stat. § 31-5.1A nuncupative will or any part thereof may be revoked by a later nuncupative will or by a subsequent written will or codicil or other revocatory writing executed with the required formalities.  N.C. Gen. Stat. § 31-5.2.

 

Once a will is revoked, it cannot be revived by a later document revoking the revocation document.  The will can only be revived by reexecution.  In re Will of McCauley.

 

How long do I have to contest a will in North Carolina?

 

An interested party generally has three years from the probate of the will to contest the will.  In North Carolina a will contest is called a caveat to the will.   N.C. Gen. Stat. § 31-32.

 

 

 

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