You’ve heard the story before. Someone dies and they leave behind a will, which surprises at least one of their loved ones. This person feels slighted, cheated, abandoned, or indignant. Maybe, they think, the will was influenced by the shady tactics of others. Maybe the person who made the will had no idea what they were doing. Either way, the will should be challenged. The question then becomes: how does one go about challenging a will?
In NC, a challenge to a will is called a “caveat.” There are only a few bases upon which one may bring a caveat. Perhaps the will is invalid because it was procured by undue influence or duress. Perhaps the person making the will (the “Testator”) lack the requisite mental capacity to execute the will at the time it was signed. Or, perhaps the will was not validly executed as required by NC law.
Undue influence means that the Testator was influenced to make the will and that the person doing the influence either had them over a barrel or used isolation and deceit to convince them to execute the will. Duress means that the person doing the influencing use overtly threatening behavior to influence the Testator to sign the will. In either case, the rationale is that the Testator would not have executed the will in question had the influencer not used threats or deceit. Thus, the will should not stand.
To make a will in NC, the Testator must understand what they’re doing. This means that they must have a clear idea of their assets and their heirs, and also understand the effect of the will that they are executing at the time they sign it. Just because someone has “diminished capacity” doesn’t mean that they lack testamentary capacity. As long as they understand what’s going on and the effect of the will’s execution at the time of signing, the will is valid. That being said, it is best to proceed with an abundance of caution if the Testator is known to have di minished capacity.
Lastly, a will in NC must be signed by the Testator in the presence of two attesting witnesses (the Testator and witnesses must be over 18). If there is a failure in the signing of the will, it is considered invalid.
Now that you know the basis upon which a will can be challenged, you can effectuate your challenge by filing a caveat in the county where the estate process (probate) has commenced. The caveat will freeze the probate process until a superior court can determine the validity of the will.
Proceed with Caution
Before you challenge a will, it is important to understand the effect of the will’s invalidation. For example, let’s say Bob wants to challenge his father’s will made in 2020 because it left him out. Bob goes through the caveat process and is successful in getting the will thrown out. However, there was a prior will made by his father in 2000 that also disinherited Bob. Bob has just gone through a whole trial just to achieve the same result.
If you have questions about challenging a will, give the experienced attorneys at McIntyre Elder Law a call or schedule your FREE CONSULT online at: mcelderlaw.com.
If we can help you preserve assets before major changes in the law we would be glad to do so and would offer a FREE consult to sit down and discuss asset protection. Give s a call to schedule your free consult today or schedule online at: mcelderlaw.com. For a list of local numbers to our offices see below:
- Charlotte: 704-749-9244
- Shelby: 704-259-7040
- Hendersonville: 828-233-5991
Brenton S. Begley
Elder Law Attorney
McIntyre Elder Law
“We help seniors maintain their lifestyle and preserve their legacies.”