Will Contest

In North Carolina a will contest is a lawsuit in Superior Court designed to invalidate a will. A will is a document in which a testator documents instructions as to how their estate should be handled once they pass away. When drafted and executed in a manner that is consistent with North Carolina law, a will is a legally enforceable document that will be admitted to probate. However, if a family member or other interested party believes that the will does not truly reflect the wishes of the testator because they question the circumstances surrounding its creation or execution, they have the right to object to it by initiating a will contest. In North Carolina a will contest is also referred to as a will caveat. G.S. § 31-32. Will contest litigation must be brought in the Superior Court because in North Carolina the Superior Court serves as the probate court and has jurisdiction over estate matters. G.S. § 28A-3-1.

Procedure for Contesting a Will in North Carolina

In order to contest a will in North Carolina, the objectant (caveator) must have standing to do so by being an interested party. This means that only those who have a financial interest in the matter have the right to initiate a will caveat. Beneficiaries, heirs, and beneficiaries of a prior will have standing.

To initiate the will caveat, within 3 years of when an application was filed to admit the will to probate, an objectant may file a caveat with the Clerk of the Superior Court. G.S. § 31-32. There must be legal grounds for the objection such as lack of testamentary capacity, undue influence, or improper execution.

Lack of testamentary capacity. North Carolina law requires that a testator not have been mentally incompetent at the time they executed the will. Note that what is at issue is the testator’s capacity at the time of executing the will. Even if they had occasional memory lapses or other health issues and even if they were mentally incapacitated at the time of death, they could still have made a valid will if they had a sound mind at the time the will was executed.
Undue influence. Undue influence occurs when a testator was illegally influenced into executing a will they would not have otherwise made. The influence must have been more than simple influence. The circumstances must have been such that the offender intentionally and illegally took advantage of a vulnerable testator for their own benefit.
Improper execution. A will can be contested on the grounds that it was not properly drafted and executed in accordance with the requirements of North Carolina law.
Duress. If the testator did not make the will of their own free will because they were forced to, the will would not be valid.

Initiating the will caveat also puts interested parties on notice of the objection. Once the caveat is filed, the Clerk of the Superior Court will execute an order stopping the estate proceeding and transferring the case to the Superior Court of that county.

Consequences of a Will Contest in North Carolina

If the objectant prevails and the will is determined to be invalid, then either a prior or later valid last will and testament would be probated or the decedent’s estate would be distributed according to North Carolina’s law of intestate succession. In other words, the state of North Carolina establishes who will receive the decedent’s property based on degree of relatedness. For example, if a decedent has a surviving spouse and children, they would be first in line to inherit.

Penalty Clause for Contest in North Carolina

A “penalty clause,” also referred to as an “in terrorem clause,” is a provision in a will that results in a forfeiture by a beneficiary if the beneficiary contests the will. The purpose of penalty clauses is to discourage beneficiaries from tying up a will in costly litigation and circumventing the goals of the testator as expressed in the will. In North Carolina forfeiture clauses in wills are generally enforceable unless there is probable cause for the will caveat.

Costs of a Will Contest

The fees associated with a will caveat are typically paid for by the estate as the law provides that if the challenge has merit, the estate will have to also pay the fees incurred by the objector. N.C. Gen. Stat. § 6-21(2)