Guide to Contesting a Will in NC

Losing a loved one is hard enough without having to fight over their will. As seasoned probate lawyers, we know from experience just how frustrating and upsetting estate disputes can be. 

When you’re left out of a will or disagree with the distribution of the estate, it’s normal to feel angry or betrayed. You may wonder if the will was unfair or if someone pressured them to change it.

We also know that in your grief and confusion, you probably don’t even know where to start.

Thankfully, with the help of a trusted lawyer, you may be able to challenge the will in probate court to reach a settlement.

To help you through this difficult time, we’ll walk through the basics of how will contests work in NC. We’ll go over the timeline and deadlines, the process for filing a dispute, when you may have a real case, and some alternatives to consider.

Who Can Contest a Will in North Carolina?

Under North Carolina law, any interested party can challenge the validity of a will after it is submitted for probate. An interested party typically refers to someone who stands to inherit under either a previous will or the state’s intestacy laws if the current will is ruled invalid.

If you do not stand to inherit under intestacy statutes or a prior will, contesting the probated will generally does not benefit you financially. Even if the deceased person made verbal promises about assets you would receive, those statements are unenforceable for altering a written will after death.

How Long Do You Have to Contest a Will?

There are strict statutes of limitations on contesting a will in North Carolina. A caveat, or notification of your intent to contest, must be filed with the court clerk within 3 years of the will being admitted to probate.

If you want to argue the will was improperly executed, you must file the caveat within 3 years of when the will was presented for probate.

Grounds for Contesting a Will

We typically see challenges on four major grounds:

Lack of Testamentary Capacity

To execute a valid will, the testator must have possessed testamentary capacity. Essentially, the decedent must have been of sound mind. Factors like mental illness, dementia, Alzheimer’s, or intoxication could undermine capacity. The burden of proof falls on the contesting party to demonstrate a lack of capacity.

Undue Influence

Undue influence occurs when someone pressures the testator to make decisions against their wishes. Evidence of undue influence includes changes to wills that radically differ from previous versions, excluding close family members, or a “too good to be true” inheritance for a new friend or caretaker.

Improper Execution

North Carolina has specific laws about how a will must be executed to be valid. A will must be signed by the testator and two competent witnesses. If execution errors occur, like missing signatures or an unwitnessed will, it can potentially be invalidated.

Fraud and Forgery

Fraudulent wills can also be challenged. Signs of forgery include differences in handwriting or font, inaccurate personal details about the testator, or exclusion of close family members. Handwriting analysis by forensic experts can provide evidence of forgery.

How a Probate Attorney Can Help With Your Contest

Contesting a will is a complex legal process with strict deadlines. An experienced probate litigation attorney can protect your rights in several key ways:

• Reviewing the will and gathering evidence to assess the strength of your contest
• Filing the caveat before the deadline to preserve your rights
• Guiding you through the discovery process of collecting documents and deposing witnesses
• Representing you in probate court evidentiary hearings
• Presenting testimony from expert witnesses regarding capacity or undue influence
• Negotiating settlements on your behalf if appropriate

With so much at stake, having a knowledgeable lawyer in your corner can make all the difference.

The Will Contest Process in North Carolina

Once a will enters probate, you can file a caveat with the probate court in the county where the decedent lived. This preserves your right to contest.

Once filed, the clerk of court transfers the case from the probate court to the superior court for resolution by jury trial. All interested parties are notified of the caveat filing and called before the superior court for an initial alignment hearing.

At this alignment hearing, interested parties have the chance to pick sides – either aligning with the parties contesting the will or with those seeking to probate the will as valid. After sides are chosen, the caveat case proceeds similarly to a normal civil lawsuit with discovery, depositions, motions, and potential settlement negotiations.

While the caveat is pending, the clerk of court issues an order to stay (halt) the original probate case. This prevents the distribution of estate assets until the caveat challenge is resolved. If the parties reach a settlement agreement, the superior court judge must approve it to take effect. Otherwise, the case proceeds to a jury trial for a binding decision on the will’s validity.

Having an experienced estate litigation attorney represent you during this complex court process is highly recommended.

No Contest Clauses: Are They Enforceable?

Some wills contain “no contest” or “in terrorem” clauses threatening to disinherit anyone who contests the will. In North Carolina, these clauses are generally enforceable unless you had probable cause to bring the contest. Experienced counsel can advise if you have valid grounds so as not to risk losing your inheritance.

Don’t Let It Get Messy – Our Guidance Helps Avoid Will Contests

If you are worried about the will being challenged, the team at Apple Payne Law, PLLC can assist you in covering your bases proactively to help maximize your success in court, as well as to help you draft your estate plans to minimize the potential of challenges.

Schedule a consultation with our firm to thoroughly evaluate your potential case at no charge. We will advise you on sound legal strategies and provide the counsel needed to minimize conflict, maximize value to the estate, and uphold your rights.