A last will and testament should reflect an individual’s wishes about what to do with his or her property after death. But not all wills are valid reflections of a person’s estate plan. There are cases in which heirs and others may have questions about a will and wish to challenge it in court. Not everyone has the requisite standing to do so, however, and it’s a process that requires an extensive understanding of North Carolina estate planning laws. If you have questions about will challenges, turn to the dedicated attorneys of Patrick, Harper & Dixon.
Reasons For Will Challenges
Potential heirs are sometimes surprised to find out that they didn’t inherit what they thought they would from a decedent’s estate. In some instances, they didn’t inherit anything at all, and may therefore question whether the will was even valid.
It’s important to point out that while there are many reasons someone may decide to contest a will, not all of those reasons are legally sufficient. Not inheriting from an estate may prompt someone to look into the circumstances of how a will was executed. But one’s inheritance, or lack thereof, isn’t sufficient alone to sustain a challenge. The law will generally presume that a will is valid and reflects the final wishes of the decedent.
In North Carolina, there are only a few legally valid reasons to challenge a will. They include:
- Lack of testamentary capacity
- Undue influence
- Failure to fulfill all statutory requirements
Lack of Testamentary Capacity
Not everyone may execute a valid will. To be valid, the testator must understand his or her actions and the consequences of creating a will. An individual with mental deficiencies, such as dementia, may not fully understand what they are doing when they sign a will. The same goes for an individual under the influence of drugs or alcohol. Anything that reduces or eliminates someone’s ability to comprehend the nature of their estate, or the plan established for it, may cause a lack of testamentary capacity.
Often, unscrupulous individuals will attempt to coerce testators into executing wills they would not otherwise. A common example is a caretaker who suddenly enters the life of an individual when he or she is sick or close to death. That individual then exerts power and influence over the testator, convincing him or her to change the terms of the will.
A judge considering this argument will examine a number of factors to determine if there has been undue influence over the creation of the will, such as:
- The testator’s age at the time the will was created
- Any mental or physical limitations of the testator
- The relationship of the questionable beneficiary (the person who may have exerted undue influence) to the testator
- Whether the beneficiary attempted to isolate the testator
- A comparison of the revised will to a previous one
- Whether the revised will disinherits blood relatives
A will could be fraudulent for numerous reasons. A signature, either of the testator or one of the witnesses, may have been forged. A notary seal could be fake. Pages may have been removed from the will and replaced with fraudulent ones. If you suspect that a will presented for probate is not authentic, contact an attorney.
Lack of Statutory Requirements
State law requires that wills satisfy certain elements in order to be valid. For example, most wills require the signature of two competent witnesses. And, of course, the will has to be signed by the testator. The law imposes a number of statutory requirements, without which the will could be set aside as invalid.
Who May Initiate Will Challenges?
Only an individual with standing may contest a will in North Carolina. That basically means that the challenger has to be an interested party – someone with a pecuniary or beneficial interest who would be adversely affected by the will being probated. This would include:
- Those who would have inherited under a prior version of the will
- Next of kin
- Legal heirs
Procedures For Will Challenges
Will challenges are sometimes called will caveats. A caveat is simply a legal action that disputes the validity of the will. To initiate one, the person contesting the will (known as the caveator) must file the caveat with the clerk of superior court. The caveator must allege the basis for the will challenge, such as one of the grounds mentioned above. During this time, any administration of the will that may have begun is suspended, pending the outcome of the caveat.
The caveator must provide proper notice to all interested parties. To do so, the caveator will send them a copy of the paperwork that was filed with the clerk of court. Notice is an essential part of ensuring that anyone with an interest in the outcome has the opportunity to participate in the caveat proceedings.
A caveat can take up to a year, or longer, to be resolved. But it must be resolved before the estate can be closed. In some cases, a settlement may be reached between the parties. Or those who believe the will is valid can ask the court to dismiss the challenge. Regardless, it will be up to the caveator to present compelling evidence that the will being probated is not valid. Having an experienced estate planning attorney will make a difference.
Contact Our Hickory Will Challenges Attorney
Successfully contesting a will is no simple task. Not only must the caveator present the necessary evidence, but various rules of civil procedure must be followed. At Patrick, Harper & Dixon, we know what’s at stake when it comes to will caveat actions. We can assist you with the process, whether you are the caveator or another interested party. Reach out to us today to get started.