Losing a loved one is never easy. But when you believe that someone took advantage of your loved one to change their will, the grief can be even more unbearable.
Fortunately, in North Carolina, there is a legal process which allows you to question and challenge the validity of a will. The process, called a will caveat, has specific requirements that must be met in order to take a will challenge to court.
Can I Challenge A Will?
You can challenge a will only if you have an interest in the outcome of the will. In order to challenge a will, a person must have “standing,” which essentially means that they must stand to gain or lose from the probate of the will.
Any person or entity that is named in the current will, or in any prior will, has standing to challenge the will. In addition, if you are a family member who would inherit assets from the deceased’s estate if the current will is declared invalid, then you would also have standing.
How Do I Challenge A Will?
To challenge a will in North Carolina, you must file a will caveat with the Clerk of Superior Court. Once the will caveat has been filed, you must notify the other interested parties of your decision to contest the will through service of caveat paperwork. The service of paperwork will give all of the other interested parties an opportunity to know of the challenge and participate in the court proceedings.
If it is a clear case of undue influence or lack of capacity, discussed below, then a judge can award a summary disposition and dismiss the case. In most cases, however, the will caveat will be left to a jury to decide. Interested parties may also consider mediation, rather than going to court, to resolve the will caveat.
Under What Circumstances Can A Will Be Challenged?
In North Carolina, there are a handful of situations in which a will can be challenged, lack of capacity and undue influence being the most common.
Lack of Capacity
If the person who made the will did not understand what they were doing at the time they made the will, then they lacked capacity to create a valid will. Lack of capacity does not mean, however, that the person making the will doesn’t understand the impact of their decisions on the distribution of their assets after death. Even someone with mental disabilities or mental incapacity may understand what they are doing long enough to make an effective will.
Undue influence is another common reason for challenging a will in North Carolina. To prove that a will was obtained through undue influence, the person challenging the will must show that:
- The maker of the will was subject to influence;
- The beneficiary to the will had access to exert influence over them; and
- The terms of the will indicate that there was undue influence.
When Must I Challenge A Will?
If you believe a will to be invalid, you should contest the will as soon as possible. Upon filing the will caveat, the distribution of the estate under probate is paused until the challenge is ultimately resolved. If assets have already been distributed under the will, then you may have to track down assets that have already been given to other beneficiaries.
Legally, however, you have three years from the time probate of the will begins. If you are a minor at the time, have a disability or are serving a prison sentence, then you have three years from the time your disability ends, you come of age or your prison sentence has been served.
Contact A Wilmington Estate Planning Attorney
A will caveat can be complex, costly and time consuming. If you believe that a loved one was wronged or that they lacked the mental capacity to create a valid will, then you should consult with an estate planning attorney prior to taking legal action.
Contact the estate planning attorneys at Rountree Losee at 910-763-3404 for a consultation.