15 May Contesting a Will in North Carolina (Part I)
For most people, it is difficult to imagine battling it out in court over the estate of a loved one after their unfortunate passing. But when a document is offered for probate that seems questionable – whether in form, in substance, or otherwise – there are procedures in place that allow potential heirs to challenge the validity of a purported will in court.
In North Carolina, that procedure is called a “will caveat.” The law allows any party interested in the estate to file a petition challenging the purported will – called a caveat – in the decedent’s estate file. Once that happens, the Clerk of Court will transfer the case to Superior Court to be resolved by a jury trial.
After the case is transferred, there is an initial hearing – called an alignment hearing – at which all interested parties, after receiving notice from the Court, may appear and align themselves with either the caveator (the one challenging the purported will) or the propounder (the one trying to probate the purported will). If an interested party does not want to participate in the proceeding, they need not appear at the alignment hearing. They will simply be dismissed from the case, though they will remain bound by the result.
After the alignment hearing, the case proceeds through discovery and trial much like any other civil lawsuit. While the case is pending, the Clerk will enter an order that stays many aspects of the estate administration, including preventing any distributions of estate assets to beneficiaries of the challenged will until the caveat is resolved.
Like many civil cases, will caveat proceedings are frequently resolved by settlement before trial. By law, however, the settlement agreement must be approved by the Court in order to be effective. If approved, the settlement binds all interested parties, including those who chose not to participate in the proceeding.
There are several grounds on which purported wills can be challenged. For example, a document may be challenged on the grounds that it is not, in fact, the valid will of the decedent, or because it does not comply with statutory requirements. Caveators may also challenge the validity of a purported will on the grounds that the decedent lacked the capacity to understand what he or she was doing when the document was signed, or that the decedent was unduly influenced by another to execute the will. I will address some of these common challenges in more detail in subsequent posts.
In the meantime, if you or your family become involved in a dispute over a will, please give us a call at 919.967.0504 for a free initial consultation. We have substantial experience representing both propounders and caveators in will caveat proceedings in counties all across the State, and we would be pleased to help you understand your family’s rights.
Parry & Tyndall, PLLC
Attorneys at Law