A will contest, also known as a “caveat”, occurs when someone, a “caveator”, challenges the legal validity of the will of a deceased will-maker, a “testator”, during, or within a limited period after, probate of the testator’s estate. Contesting a will can be risky and expensive, and caveat cases are often complex. Fewer than 5% of wills are contested, and most contests are unsuccessful.
In the following, we’ll discuss who may contest a will in North Carolina and the three most common grounds for invalidating a will by a caveat.
A North Carolina statute provides that “any party interested in the estate” may enter a caveat to the probate of the will. North Carolina courts have construed “interested in the estate” to mean that a caveator must have some pecuniary or beneficial interest in the testator’s estate that may be detrimentally affected by implementing the contested will.
Interested parties, potential caveators, include:
Failure to Comply with Formalities – North Carolina statues recognize three distinct kinds of wills and provide that no will is valid unless it complies with the statutory requirements for making a will of its kind. So, a will is often challenged on the grounds that it does not satisfy the applicable requirements. The three kinds of North Carolina wills, and the basic requirements for making each, are:
Lack of Testamentary Capacity – At the time of making a valid will of any kind, the testator must have had “testamentary capacity”. A North Carolina statute provides that the testator must have been “of sound mind”. Under North Carolina law, a testator is presumed to have had the necessary testamentary capacity. So, in order to successfully challenge the validity of a will, a caveator must prove, by a preponderance of the evidence, that the testator lacked such capacity.
Proving that the testator was old, feeble, intellectually weak or physically infirm, or that the testator’s physical and/or mental health had declined significantly during the months preceding the making of a will, is not enough. As a North Carolina court explained, there must be “specific evidence” that, at the time the will was made, the testator did not understand at least one of four essential facts:
Evidence offered to prove lack of testamentary capacity may include testimony by the testator’s family, friends and caregivers describing irrational conduct of the testator around the time the will was made and/or by doctors explaining any prior diagnoses and treatment of the testator’s medical conditions such as dementia, Alzheimer’s disease or psychosis. But, even when such evidence is offered, proving that a testator probably did not understand one of the four essential facts listed above when the will was made is still a high bar.
Undue Influence – A caveator arguing that a will is invalid because of undue influence must prove, by a preponderance of the evidence, that a person (the “influencer”) somehow coerced, or otherwise wrongfully took advantage of their relationship with, a vulnerable testator and thereby caused the testator to make a will that benefited the influencer, did not reflect the testator’s true desires as to the disposition of their property and would not have been made but for the influencer’s conduct.
North Carolina courts have described the kinds of facts and circumstances during the time leading up to and when a will was made, and facts about a will itself, that may be relevant in determining whether there was undue influence:
If you have any questions about or need legal assistance in connection with a potential or pending will contest, call or contact us online at Kelly & West and arrange for a free consultation.
“Reggie Kelly is a fantastic attorney with fantastic paralegals. My wife and I have been using him and his firm since 1983 when we first purchased property in Harnett County 37 years ago. He offers excellent legal advice and guidance. He never gets in a hurry to get us out the door because of his next appointment. He always takes the time needed to check out all of the issues that might come up. Reggie Kelly is a proud American and he loves our country and he wants everyone to do well. Reggie Kelly is an even finer person than he is a fantastic attorney and we are very fortunate to also be able to call him and his wife Cheryl our friends. We give him a 10 STAR Review!”