Challenging a Will on the Grounds of Undue Influence in North Carolina

A will contest is a formal objection to the document. In North Carolina, a will can be challenged on several different grounds, including fraud, forgery, lack of capacity, and undue influence. If an elderly, sick, or otherwise vulnerable person's will is drafted or altered because of improper pressure from another person, it might not reflect their true last wishes. A probate court can invalidate a will on the grounds of undue influence. Here, our Charlotte probate litigation attorneys explain the key things to know about contesting a will on the grounds of undue influence in North Carolina.

As a starting point, it is important to emphasize that our state has a statute of limitations for contesting a will. In North Carolina, the first step to challenging the validity of a will is "filing a caveat." If you wait too long to file a caveat to a will, you likely miss out on your chance to contest it. Under N.C. Gen. Stat. § 31-32, you must initiate your contest of a will within three years of the date it will be admitted to probate.

To be clear, you should not wait to take action. If you are preparing to contest a will on the grounds of undue influence in North Carolina, it is imperative that you start building a case as early as possible. An experienced Charlotte, NC, probate litigation attorney can review the will and help you gather and organize all of the evidence and information that you need to file a successful challenge.

Undue influence cases can be complicated. By definition, undue influence can be difficult to define. Further, in most circumstances, the parties who are guilty of undue influence make some effort to conceal their actions. Here is how North Carolina defines undue influence in a will contest case:

"Undue influence occurs when a person's professed act is not his own but is, in fact, the act of the person exerting the influence."

In effect, this means that influence is undue if a vulnerable person makes a decision that they would not have made otherwise because of the conduct of the influencer.

Undue influence can be difficult to prove. In some cases, families may have a strong suspicion that a will was changed due to improper influence, but they may not be sure if they have all of the evidence that they need to proceed with a legal claim. To determine whether or not undue influence occurred, North Carolina courts are instructed to consider the totality of the circumstances. Some key factors include:

• The age of the testator
• The physical and mental health of the testator
• The relationship between the alleged undue influencer and the testator
• The opportunities that the alleged undue influencer had to pressure changes to the will
• Any other factors deemed relevant to the case

Notably, North Carolina is very clear that "mere persuasion" is not undue influence. A person is allowed to change their mind, even if they only did so after being convinced by another party. Undue influence must be something beyond mere persuasion. It must involve some form of improper pressure to convince an elderly or otherwise vulnerable person to make a decision that does not align with their true intent.

If you are contesting a will because of undue influence in North Carolina, you have the burden of proving the case. As explained in the North Carolina Pattern Jury Instructions for Civil Cases, anyone who is challenging a will on these grounds "must prove, by the greater weight of the evidence," that the will in question was "procured by undue influence." The Bottom Line: If you are contesting a will in North Carolina, you must present a strong and compelling case. A skilled probate litigation attorney can help.

At Arnold & Smith, PLLC, our North Carolina probate litigation lawyers are skilled, results-focused advocates for people and families. If you have questions about contesting the validity of a will on the grounds of undue influence, we are here to offer guidance and legal advice. Contact us right away for a completely confidential initial consultation. With office locations in Charlotte, Mooresville, and Monroe, we provide estate litigation services throughout the region, including in Mecklenburg County, Iredell County, Union County, and Gaston County.