In North Carolina, there’s a process to challenge the validity of a will. North Carolina laws are in place to give interested parties the opportunity to question a will. A will challenge, or will caveat, has specific procedures that need to be followed. Here’s what you need to know about how to contest a will in North Carolina:
You must have the standing to challenge the will
Only an interested party may challenge a will. A person with standing is any person who stands to gain or lose from the probate of the will. If you’re a family member who would inherit if the will isn’t valid, you have standing. In addition, any person or entity named in the current will or named in any prior wills also has standing. If you have an interest in the outcome, you can file a caveat to challenge the will.
To challenge a will, you must file your caveat with the clerk of court
Challenging a will in North Carolina begins with filing the will caveat with the clerk of superior court. It’s important to file the caveat with the appropriate clerk and in the right court. The court can dismiss a caveat that isn’t appropriately filed. Once you file the caveat, the other interested parties have a chance to respond and participate in the proceedings.
You must notify all interested parties
It’s up to you to notify all of the other interested parties that you’re contesting the will. You must serve them with a copy of the caveat paperwork. Providing service of the paperwork ensures that all of the parties have the opportunity to access the courts and participate in the proceedings.
There are a few legal grounds to challenge a will
There are only a few grounds to challenge the sufficiency of a will. They include:
Lack of capacity
Lack of capacity means that the person who makes the will doesn’t understand what they’re doing when they make the will. It means that they don’t understand their decisions and the impacts of their decisions on the disposition of their estate. There’s a presumption that a person who makes a will has the capacity to understand the choices they’re making. Even a person with some mental difficulties may understand the situation long enough to make an effective will.
The other common ground for a will challenge is undue influence. To demonstrate undue influence, the person who files the will must show that the will creator was open to influence. They must show that a person with access to the will creator tried to exert influence over them. Finally, the person who challenges the will must show the result of the influence is that the will is different than it may have been without the person’s influence.
To decide if undue influence impacts the result of the will, the jury may consider a number of factors. These factors include:
- The age of the person who makes the will
- Physical and mental vulnerabilities of the will creator
- Whether the beneficiary lives with the will creator
- If the beneficiary supervises the will creator
- Attempts by the beneficiary to isolate the will creator
- Revocations of prior wills
- Changes from prior wills
- Bequests to someone without blood ties
- Disinheriting blood relatives
- Whether the beneficiary helps create the will
A jury decides the case
It’s up to a jury to decide whether the will represents the wishes of the creator. The parties can’t agree to waive the jury. They also can’t stipulate to any facts. A judge can award summary disposition and dismiss the will challenge if the case is clear, but summary disposition in a will case is very rare.
The burden of proof
The jury decides the case by the greater weight of the evidence. That means they decide if the will more likely than not represents the wishes of the will’s creator. Essentially, the jury sides with the person that they think is more likely to be correct.
You may mediate the case with other interested parties
If you’re a party to a will caveat, you may mediate the case with other interested parties. You can agree on a resolution to the case that follows the terms of the will, or you can settle on different terms that you create with the other parties. Not all will caveats use mediation as a case resolution tool. You have the right to reject mediation and try your case before a jury.
You have three years to bring a will challenge
If you think a will may be invalid, you have only a limited amount of time to challenge it. You have three years from the time that probate begins in the case. If you’re under a disability, a minor or in prison, you have three years from the time your disability ends.
Practically, it’s important to bring your will contest as soon as possible. When you file your will contest, distribution of the estate stops until the contest resolves. If you don’t file your caveat until distribution is underway, you risk the added difficulty of needing to find and retrieve assets that have already been distributed to third parties.
The court may order the estate to pay attorneys fees
A will party may be costly for the estate. In most cases, the court charges the cost of the will caveat to the estate. That means the prevailing party’s award is reduced by the costs of attorney fees to all of the parties involved. If the caveat has no merits, the court can refuse to order payment of attorney fees. In addition, the court may order the person who files the caveat to pay a bond that can cover the costs of the caveat in the event that the caveat has no merits.
Each case is different, and will caveat cases are often complex. An experienced will caveat attorney will be able to help you navigate through all the requirements to get the best outcome for you and your family. For a consultation to learn more about will caveats in North Carolina, call our office today at 919-787-7711 or fill out our contact form.