Kelly & West News

Things You Should Know About Will Contests

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.

Who may contest a will?

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:

• Beneficiaries named in the will being probated, 
• Beneficiaries named in any prior will of the testator,
• Beneficiaries named in any purported subsequent will of the testator, and
• Family members who would inherit property from the testator’s estate under North Carolina’s intestacy laws if there was no valid will.

What are the most common grounds for will contests?

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:

1. Attested Written Will – a written will signed by the testator, or by someone else in the testator’s presence and at the direction of the testator, and attested by at least two witnesses.  The testator must signify to the witnesses, separately or together, that the instrument is testator’s will by either signing the will in their presence or acknowledging to them the testator’s signature thereon.  Each witness must sign the will in the presence of the testator.
2. Holographic Will –  a will written entirely in the testator’s handwriting and either subscribed by the testator or with the testator’s name written in or on it in the testator’s handwriting.  No attesting witness is required to a holographic will.  Note that, in addition to the will’s meeting these statutory requirements, a North Carolina court will most often require testimony confirming that the holographic will was found after the testator’s death in a safe place where the testator kept valuable papers or effects (e.g. a safe deposit box) or in the possession or custody of a person, firm or corporation with which it was deposited by the testator for safekeeping.
3. Nuncupative Will (applicable to bequests of personal property only) – a will made orally by a person in their last sickness or in imminent peril of death who does not survive such sickness or peril.  The person must declare that it is their will before at least two witnesses who are simultaneously present  and requested by the person to be witnesses thereto.

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:

1. Who the testator’s closest living family members were,
2. The kind, nature and extent of the property owned by the testator,
3. To whom the testator’s will would leave the testator’s property, and/or
4. The effect that making the will would have on the testator’s estate.

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:

• The testator is old and/or physically or mentally weak,
• The influencer is constantly with and caring for the testator,
• Family and friends have little or no opportunity to see the testator, 
• The influencer arranges for the preparation of the will,
• The will differs from and revokes a prior will,
• The will favors the influencer or another person who has no ties to the testator by blood or marriage, and/or
• The will disinherits and excludes the testator’s heirs such as a spouse or children.

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.