Who Can File a Caveat In North Carolina?

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Any party 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 the will under North Carolina law.  North Carolina G.S. 31-32(a).  

Who Is “Interested In the Estate” Under North Carolina Law?

A person is considered “interested in the estate” under North Carolina law if they have “some pecuniary or beneficial interest in the estate that is detrimentally affected by the will” that is the subject of the caveat.  See In re Will of Calhoun, 47 N.C. App. 472, 475 (1980).

Interested persons in the estate generally include:

  • Heirs at law
  • Next of kin
  • Beneficiaries under an earlier will
  • Beneficiaries under a later purported will

 

For example, in In re Will of McFayden, 179 N.C. App. 595 (2006), a testator’s neighbors filed a caveat action challenging a 1995 will, under which they were not beneficiaries, in favor of a 2002 will in which they were listed as beneficiaries.  Typically, a caveat in North Carolina is filed to challenge a later will that excludes beneficiaries of an earlier will or the intestate heirs of the decedent.

Preservation Of the Right To File a Caveat In North Carolina

No Notice

If a person entitled to receive notice does not receive notice and an opportunity to participate in a caveat proceeding, that person is not estopped to file a caveat under North Carolina law in a later proceeding.  Of course, the person must have standing and otherwise be within the timeframe to file a caveat.

Prior Probate

If the challenged will was already probated by petition before the clerk in solemn form, no properly served interested party who failed to contest that probate may thereafter file a caveat of the will.  See North Carolina G.S. 31-32(c).

What Are the Grounds To File a Caveat?

Typically, the grounds to file a caveat are undue influence (which we have written about here) and lack of testamentary capacity (which we have written about here).  For other potential grounds, read How To Challenge a Will In North Carolina.

Alignment Of the Parties In a Caveat Proceeding

Caveat proceedings in North Carolina have the “caveator” and the person defending the validity of the will, called the “propounder.”  Other interested persons must align themselves as parties in the proceeding either with the caveator or the propounder according to their respective interests in the outcome.  The alignment of the parties is done with an alignment hearing.  North Carolina G.S. 31-33(b).

If an interested party does not show up after receiving notice of the alignment hearing, the judgment must dismiss that interested party from the proceeding.  The interested party is bound by the proceeding, even if they chose not to participate.

More Probate Information For North Carolina