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Contesting a Will

After losing a loved one, the prospect of battling their estate out in court is difficult to imagine. However, there are times when the document being offered for probate is questionable enough—whether in substance, form or otherwise—that potential heirs will challenge a will’s validity before the court. Whether you are trying to probate a will under attack by a potential heir(s), or are an interested party challenging the document, it is important to be aware of the procedure required to contest a will.

 The procedure for contesting a will is called a will “caveat” in North Carolina. The law permits any party with an interest in the estate to file at the clerk of court’s office a caveat with the deceased’s estate.

It all Begins With Probate

Procedurally, what happens is this: Once a person dies, their estate administrator applies for the will to be admitted to probate with the local clerk of superior court. The clerk will schedule a probate hearing and issue a summons to all interested parties in a case letting them know in case they wish to appear and be heard. At this probate hearing, the estate administrator presents witnesses and evidence in order to prove the will’s authenticity before the clerk.

Deadline for Filing a Caveat

Anyone wishing to contest the will must file a caveat with the will’s probate case within three (3) years of the date the administrator applied the will to probate. If the person wishing to contest the will is a minor, they have three (3) years from the date of them reaching age 18 to file the challenge.

Grounds for Filing a Caveat

There are two main grounds on which a person can contest a will: form and substance. Contesting a will because of its form alleges that the will does not comply with North Carolina’s requirements for a legally binding will. For example, if the will did not have the required number or type of witnesses when it was executed, the will can be contested as to form. Meanwhile, contesting a will because of its substance involves a challenge as to the will’s content. This can mean you raise a question as to the deceased’s capacity to sign off on the will, the validity of their signature on the document, or raise the issue that the deceased may have been coerced or unduly influenced to sign the will.

Factors/Burden of Proof for Succeeding on a Caveat

The most common grounds on which wills are challenged are that the will was signed via another party’s undue influence, or that the deceased lacked the mental capacity to execute the will at the time they signed it. In order to successfully challenge a will, the person must prove that these allegations are “more likely than not” true. This is a much lower burden than the “beyond a reasonable doubt” burden required in a criminal trial.

However, meeting this burden of proof can be difficult. North Carolina’s so-called “dead man’s statute” generally prohibits a party with an interest in the will from testifying about anything the deceased told them about the document.

To establish undue influence, the person contesting the will must be able to show that the deceased was subject to influence; that the influencer had the opportunity and disposition to exert influence; and that the ensuing will indicates improper influence.

Factors the courts can consider in weighing whether improper/undue influence exists in a will include the deceased’s old age and physical and/or mental weakness; whether the deceased was under the would-be influencer’s constant supervision and association in the deceased’s home; the extent to which the deceased was isolated from other people besides the influencer; whether the will differs from and revokes a previously-executed will; whether the new will disinherits the deceased’s natural heirs; and more.

Procedure for Filing a Caveat

Once the caveat is filed, the clerk of court transfers the case to superior court so that it may be resolved via jury trial. All interested parties are notified of the caveat and are given a chance to appear at the case’s initial “alignment” hearing before the superior court. This alignment hearing gives all interested parties the opportunity to align themselves with either the parties challenging the will, or those trying to probate the will.

After this hearing, the caveat case proceeds much like any other civil lawsuit as to discovery and trial or potential settlement. The clerk of court will enter an order staying, or halting, the will’s probate case for as long as the caveat case is pending. This means that the estate’s assets cannot be distributed until the caveat is resolved. If a settlement is reached, the court must approve the settlement agreement in order for it to be effective.

If you or your loved ones are facing a dispute over a will, please contact Arnold &Smith PLLC for a consultation with one of our estate law attorneys in Charlotte, Mooresville, or Monroe.