The Who, What, When, Where, and Why? of Will Caveats
Attorney Jane Dearwester
Clients often ask us to draft a Last Will and Testament that is so strong and straightforward that it can never be challenged. We have to explain to them that ANY will can be challenged (not necessarily successfully) by interested parties in an estate proceeding known as a Will Caveat. Family members and heirs have various methods to challenge the validity of a will in North Carolina.
This blog will identify and discuss the WHO/WHAT/WHEN/WHERE/WHY of Will Caveat proceedings in North Carolina.
WHO Can Bring a Will Caveat Action?
In North Carolina, General Statute §31-32(a) defines who may challenge a will that has been offered for probate. An “interested party” is a person who has “some pecuniary or beneficial interest in the estate that is detrimentally affected by the will” that is the subject of the caveat proceeding. This includes heirs at law (parents, children, and extended family), or those who were named in an earlier or later purported will. The party initiating the Caveat action is called the Caveator. The person who filed the will, or purported will, of the decedent is called the Propounder.
WHAT is a Will Caveat Proceeding?
A Will Caveat proceeding is not a typical civil action, but is instead a special proceeding in rem. The will itself – not the property devised by the will – is the res at issue. The action’s purpose is to determine whether or not the document offered to the probate court represents the valid Last Will and Testament of the Decedent. While probate and estate proceedings lie within the jurisdiction of the Clerk of Superior Court in North Carolina, the statutes relating to Will Caveat proceedings give exclusive jurisdiction of a Caveat action to the Superior Court; and the issues of fact, or devisavit vel non (Latin translation: “he devises or not”), are decided by a jury. Once the jury delivers its verdict, the Court enters an order with the jury’s findings and transfers the matter back to the Clerk. Once the contested Caveat proceeding is resolved in Superior Court, estate administration resumes under the jurisdiction of the Clerk of Superior Court based upon the Court’s findings regarding the will that was offered to probate by the Propounder.
WHERE is a Will Caveat Filed?
A Will Caveat is filed within the estate proceeding with the Clerk of Superior Court in the county where the decedent died. If the decedent died elsewhere, the will and any any caveat proceeding should be filed in the county where the decedent lived prior to his/her death. The Caveator must pay a $200 filing fee and must make sure all interested parties are served with a copy of the action.
WHEN Must Interested Parties File a Caveat to Change a Will?
A Caveat action must be filed at the time of probate or within three (3) years thereafter pursuant to N.C.G.S. §31-32(a).
WHY Would an Interested Party File a Caveat?
Interested parties may file a Caveat for different reasons – but usually it’s because they do not like the will that has been offered to probate by the Propounder. Individuals are free to change their wills multiple times over their lifetime – for any reason. So, some family members may have had a discussion with a family member about disposition of their assets where the person promises to leave assets to them upon their death, but then their actual will reflects a different plan.
The two main reasons for filing a Will Caveat are:
(1) undue influence and
(2) lack of testamentary capacity.
Undue influence is when a person who was close to the decedent and in a position of influence over him/her manipulates the decedent to change his/her will in that person’s favor. This fraudulent influence over the testator/decedent can serve to invalidate a will that is procured by undue influence. The Caveator alleging undue influence must show (1) that the testator/decedent was subject to influence; (2) that the beneficiary had the opportunity to exert influence; (3) that the beneficiary was inclined to exert influence; and (4) that the resulting will was a product of that undue influence. While there is not an exhaustive list of factors that a Court can consider, the most common factors that North Carolina courts consider are: old age and physical and/or mental weakness of testator; that the person signing the document is in the home of the beneficiary and subject to the beneficiary’s constant company and supervision; that the beneficiary sequesters the testator away from other friends and family; that the will is different from and revokes a prior will; that the will disinherits next of kin in favor of the beneficiary who is not a blood relative.
Lack of testamentary capacity is a basis for a Will Caveat proceeding based on the cognitive status of the person making the will (the Testator). In order to succeed on a claim of lack of testamentary capacity, the Caveator has the burden of proof to show that the Testator (1) did not comprehend the natural objects of his bounty (didn’t understand what assets s/he owned at the time the will was made); (2) did not understand the kind, nature and extent of his/her property; (3) or realizes that the purported will disposes of his/her property and the effect that act has on the estate. The law presumes that a person has capacity to execute a will, so the Caveator has to present evidence to rebut that presumption by a preponderance of the evidence.
Avoiding Will Caveats
The only way to avoid a Will Caveat from being filed after your death in North Carolina is to commence a Living Probate proceeding under N.C.G.S. §28A-2B-1, et seq. This proceeding is much like a Will Caveat proceeding, but the Testator brings the proceeding prior to his or her death to validate his/her will and to alleviate family quarrels after his/her death. At the close of a Living Probate action, all heirs are forever barred from bringing a Will Caveat after the Testator’s death.
McIntyre Elder Law Can Help
Understanding the who, what, when, where, and why of Will Caveat proceedings in North Carolina is essential for anyone involved in estate planning or probate disputes. While any will can be challenged, knowing the legal standards for undue influence and lack of testamentary capacity helps families prepare and protect their loved ones’ wishes. Consulting with an experienced North Carolina estate attorney can help ensure your will is properly executed and less vulnerable to future challenges.
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Don’t wait until it’s too late—take control of your future today!
Attorney Jane Dearwester
Estate Planning & Elder Law Attorney
McIntyre Elder Law
Hendersonville, NC
