How Do You Challenge a Will?



How Do You Challenge a Will?

How Do You Challenge a Will?


           Let’s say that a loved one has passed, and a family member is submitting their will for probate. The only issue is you don’t think that the will is valid. Maybe your loved one was incompetent when they signed the will. Maybe the will being submitted was fraudulently induced. Something is not right, and you want to challenge it. But how do you go about doing so? What legal grounds do you need to make such a challenge?

Lingo and Procedure   

           A challenge to a will in North Carolina is called a caveat proceeding. The person bringing the caveat is called the caveator. This person must be an interested party. An interested party is any person entitled under the will or interested in the estate. Thus, any person who has property or pecuniary interest in the decedent’s estate or any person who may be materially injured by the submission of the purported will to probate, may bring a caveat. The person who submits the purported will to probate is called the propounder. The propounder must be given notice of the proceeding and will be the adverse party to the caveator.  

           Notice must also be given to the heirs, legatees, and devisees i.e. any other person who is entitled under the will or who would be entitled to the decedent’s estate through intestate succession (typically next of kin). The caveator must, typically, bring the caveat proceeding within three years of the submission of the purported will to probate. Otherwise, the claim will be barred.

           In North Carolina, a challenge to a will cannot be brought until the testator—the person making the will—has passed away.

Grounds and Burden

           To successfully challenge a will in North Carolina, the caveator must prove to a jury, by the greater weight of the evidence, that the testator lacked testamentary capacity or that the will was created as a product of undue influence.

           Testamentary capacity means that the testator was of legal age and sound mind to make a will. In North Carolina, the legal age is 18 and up. Sound mind is a more amorphous topic. In simple terms, it means that the testator was competent at the time he executed the will. The legal standard for competence is: the testator must understand the nature and situation of his property and the also understand who will inherit such property. The testator must also know the manner in which he would like to distribute his property and the effect the making of the will is going to have on his estate. Thus, they have to know what they’ve got, who’s going to get it, how it’s going to get to them, and what that means for his estate as a whole.

           Undue influence means that: the testator was subject to influence; the influencer was in a position whereby they could exert influence upon the testator, and the will is a product of such influence. It is not enough that the influencer was persuasive. After all, simply persuading someone is not illegal. The influence must be “a fraudulent influence, or such an overpowering influence as amounts to a legal wrong.” In re Mcneil, 749 S.E.2d 499, 502 (N.C. Ct. App. 2013). In other words, “it is the substitution of the mind of the person exercising the influence for the mind of the testator, causing him to make a will which he otherwise would not have made.” Id.

           To determine whether there has been undue influence, the court looks at the following factors:

           1. Old age and physical and mental weakness;

           2. That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision;

           3. That others have little or no opportunity to see him;

           4. That the will is different from and revokes a prior will;

           5. That it is made in favor of one with whom there are no ties of blood;

           6. That it disinherits the natural objects of his bounty;

           7. That the beneficiary has procured its execution.

Id. at 503.

           Not all of the factors must be proven but if enough of the factors are met, the weight of the evidence will tip the scales in the caveator’s favor.

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           If you think that your loved one lacked testamentary capacity or their will was a product of undue influence, do not hesitate to give McIntyre Elder Law a call. Our experienced attorneys are here to answer your questions.

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Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165

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in Estate Planning, Litigation, Probate by Greg McIntyre Comments are off
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