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The Will Caveat and Estate Litigation

One of the most common reasons people begin estate litigation in North Carolina is because they want to file a will caveat. The term “will caveat” simply means a challenge to the validity of a last will and testament filed with the probate court. (In North Carolina, the probate court is called the Clerk of the Superior Court.) Here’s what you need to know about will caveats in North Carolina.

Interested Parties and the Will Caveat

Only someone who is an interested party in the probate case can file a will caveat. The person challenging the will has to have some kind of pecuniary interest in the estate that is negatively affected by the will that has been filed. This generally means that only people who stand to inherit from the will, a previous will, or from the estate should the will be found to be invalid, can challenge it in court. This broad definition includes the legal heirs of the testator, next of kin, as well as people named in earlier wills.

Grounds

You can’t simply challenge a will because you don’t like it or you aren’t happy with its terms. You must have a legally recognized reason, known as grounds. For a will caveat, the grounds typically involve one of the following:

  • Undue influence. A person who makes a last will and testament has to be of sound mind. Undue influence occurs when other people pressure the person making the will to include various terms or clauses. If the person making the will, called the testator, wouldn’t normally include those provisions in the will unless unduly influenced by others, this is grounds for revoking the will.
  • Lack of capacity. Sometimes a person will make a last will and testament when he or she is not of sound mind. This can also be a basis for will caveats. A person who lacks capacity cannot make a valid will. Lack of capacity exists when, for example, a person is unable to understand the property he or she owns, or is unable to grasp the effect the choices he or she makes in the last will and testament will have on the estate.

Will Caveat Trials

A valid will needs to meet specific requirements under North Carolina law. Once a court determines that the will has complied with these requirements, it then falls to the person filing the will caveat to show that the will is invalid. This means that the person filing the will caveat has to provide evidence to show that the will is invalid. If you have any questions about challenging a will, or need advice about the possibility of doing so, you should contact our offices as soon as possible.

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