Contesting a Will in North Carolina (Part 2)

Contesting a Will in North Carolina (Part 2)


In my last post, I talked about the procedure for challenging a will in North Carolina, called a “will caveat.” As discussed briefly in that post, there are several grounds on which interested parties who question the validity of a purported will can challenge the document in court. In this post, I will address some of the more common arguments in a bit more detail.

One issue that is litigated in these cases on occasion is the argument that the will offered for probate was not, in fact, a document signed by the decedent. The caveator (the person challenging the will) may take issue with the authenticity of the signature on a typewritten will. More frequently, this argument is raised when the document submitted for probate is a handwritten will (referred to as a “holographic will”). If authenticity of the writing is seriously contested, the parties will likely need to retain handwriting experts to compare the handwriting on the document against prior handwriting samples of the decedent and offer their opinions at trial.

Wills are also challenged on the grounds that they do not satisfy the specific statutory requirements that must be met in order for a will to be valid. For example, even if a will is typed up by a lawyer and signed by the decedent, its validity may be challenged if it is not also properly attested and signed by at least two competent witnesses. Not surprisingly, issues can arise when one or more of the witnesses to the will are also beneficiaries. Another issue that can arise with a holographic (handwritten) will is a dispute regarding where the document was found. The statute requires that a holographic will have been found among the decedent’s valuable papers or in some other safe place that indicates the decedent’s desire for the document to be preserved as a disposition of his or her property. Given that, the circumstances surrounding where the document was found, and by whom, can be the subject of litigation.

By statute, a will can be revoked, either by a subsequent written document or by the original being destroyed with the intent to revoke. Accordingly, some cases involve multiple documents being brought forward for probate, and a resulting dispute regarding the decedent’s intent with regard to revocation.

In addition to issues regarding authenticity and other statutory requirements, wills are also frequently challenged on the grounds that the decedent lacked the capacity to understand what he or she was doing when the document was signed. The focus of the inquiry is the decedent’s capacity at the time the document was signed. Arguments frequently arise, however, regarding the admissibility of evidence of the decedent’s mental and other health conditions both before and after that date. The inquiry of testamentary capacity sufficient to support a will focuses on whether the decedent was aware of the identity of his or her heirs, the nature and extent of his or her property, and the effect that the will would have on his or her estate. Evidence of a general weakened physical or mental condition is not enough to invalidate the will. Even a person with a diagnosable mental condition or declining cognitive abilities can, in a moment of lucidity, be found to have the requisite testamentary capacity to execute a will. Caveats that focus on testamentary capacity frequently require analysis of medical records and the testimony of doctors.

Finally, even when the decedent had the mental capacity to understand the significance of the will, a caveat can be pursued on the basis that the decedent was unduly influenced by another – usually a beneficiary of the will – to execute the document. Undue influence is more than just persuasion. It requires an overpowering level of influence, such that the action of making the will was, in effect, the action of the beneficiary, rather than the exercise of the decedent’s free will. As a result, claims of undue influence require analysis of a variety of factors, including the relationships between and among the relevant parties, as well as the decedent’s health and overall condition at the time of the will signing (which may indicate the person’s susceptibility to undue influence).

Will caveat proceedings can be complicated, fact- and expert-intensive, and hotly contested, particularly when the decedent’s estate is significant. If you or your family become involved in a dispute over a will, you need to consult promptly with experienced counsel to make sure you understand your rights. 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. If you would like to find out more, give us a call at 919.967.0504 for a free initial consultation.

Alan Parry
Parry & Tyndall, PLLC
Attorneys at Law