Contesting a Will ("Will Caveats")
North Carolina law provides a procedure to challenge the validity of a
Will on the basis of testamentary capacity, undue influence or fraud,
among others.
A
2014 study by the Center on Wealth and Philanthropy at Boston College
estimates that over the next 55 years the baby boomer generation will
transfer nearly $60 trillion to their heirs and beneficiaries – the
greatest transfer of wealth from one generation to the next in U.S.
history. Attendant with this transfer of wealth, together with our
growing elderly population, North Carolina lawyers are seeing
substantial increases in the filing of proceedings (called “Will
Caveats”) challenging the validity of a Last Will and Testament.
“The purpose of a Caveat is to determine whether the paper writing
purporting to be the Will is in fact the last Will and Testament of the
person for whom it is propounded.” In re Spinks, 7 N.C. App. 417, 423
(1970).
Challenges to a Will most commonly deal with questions
involving the testator’s testamentary capacity or a beneficiary’s “undue
influence” over the testator. In some cases, only one “will” may
be at issue while in others, the caveator may present another document
purporting to be the testator’s valid Will. A jury must then
decide whether one of the Wills – or none – is valid. (If no Will
is found to be valid then the testator’s estate will be administered by
the laws of intestacy.)
Although there are numerous grounds upon which to attack a
Will, the three most common grounds are: the testator lacked
testamentary capacity, the execution of the Will was procured by undue
influence, or that the intent of the testator has been denied due to
fraud.
Testamentary Capacity
In North Carolina, every individual is presumed to possess
the requisite capacity to make a Will. A person possesses such
capacity if he or she (1) comprehends the natural objects of their
bounty (who their loved ones, heirs and beneficiaries are); (2)
understands the nature and extent of their property; (3) knows the
manner in which they desire their property to be distributed; and (4)
understands the consequences of the distribution scheme. Those who
challenge a testator’s capacity to make a Will must prove, by the
greater weight of the evidence, that the testator lacked the
testamentary capacity to make a valid Will.
Persons do not have to be "senile" to lack testamentary
capacity. A testator may lack the testamentary capacity based on the
factors listed above despite exhibiting minimal signs of mental
infirmity. Similarly, testators can exhibit signs of dementia and still
have testamentary capacity under the law. Courts have held that
testators' temporary or periodic memory loss and confusion does not
eliminate the possibility that they had the testamentary capacity at the
time of their execution of their Will. Some of the most hotly
contested caveat cases arise in the gray area between lucidity and
mental incompetence.
Undue Influence
Undue influence is a special type of erosion of a
testator’s testamentary capacity. It arises when a third party, rather
than an organic mental disruption, substitutes his or her intent for the
testator’s.
The North Carolina Supreme Court has stated that “it is
impossible to set forth all the various combinations of facts and
circumstances that are sufficient to make out a case of undue influence
because the possibilities are as limitless as the imagination of the
adroit and the cunning. The very nature of undue influence makes it
impossible for the law to lay down tests to determine its existence with
mathematical certainty.” In re Will of Jones, 362 N.C. 569, 575
(2008)(internal citations omitted).
However, courts have looked to the following factors to
support a finding of undue influence: (a) old age and physical and
mental weakness of the testator; (b) the person signing the paper is in
the home of the beneficiary and subject to his or her constant
association and supervision; (c) others have little or no opportunity to
see him; (d) the Will is different from and revokes a prior will; (e)
it is made in favor of one with whom there are no ties of blood; (f) the
Will disinherits the natural objects of the testator’s bounty; and/or
(g) the beneficiary has procured the execution of the Will.
Fraud
Fraud is most often found in the inducement of the testator
to execute a Will, or a codicil to an existing Will, as a result of
another’s significant misrepresentation. To nullify a Will on the
basis of fraud, courts require a party to prove: (a) that an
individual made a misrepresentation to the testator or concealed an
important fact from the testator that he or she had a duty to disclose,
(b) the misrepresentation or concealment was intended to deceive, (c)
the misrepresentation or concealment was reasonably relied upon by the
testator, (d) the misrepresentation or concealment did, in fact, deceive
the testator; and (e) the caveator was damaged as a result of the
intentional misrepresentation or concealment.
A Will Caveat must be filed within three (3) years of the
probate of the Will to be contested. The general order of a caveat
proceeding is that upon the death of the testator, the Will is
submitted (propounded) to the Clerk of Court for probate. The
burden is initially on the propounder of the Will to establish that the
document offered is the testator’s last Will and Testament and was
executed according to law. Assuming the propounder meets this
burden, an “interested party” (the “caveator”) then files a caveat with
bond with the Clerk challenging the validity of the Will.
The administration of the estate under the Will is then
suspended pending the outcome of the caveat. The Clerk transfers the
Will contest to the Superior Court docket for trial by jury. The
Superior Court calls a hearing to “align” the interested persons.
Interested persons (devisees, legatees, heirs, etc.) are given notice
and opportunity to participate in the caveat, and are “aligned” with the
propounder or caveator. A jury trial may occur, and a verdict
rendered, on the issue of devisavit vel non (“he devises or
not”). Thereafter, the Clerk’s jurisdiction over the estate
administration resumes and the Estate is administered in accordance with
the verdict.
In addition, North Carolina provides a statutory settlement
procedure that allows the interested parties to a Will to enter into a
“family settlement agreement” any time prior to entry of judgment in the
action, even before a lawsuit is filed. Because the North
Carolina statute allows settlement by the “parties,” an heir or other
interested person who wishes to participate in the settlement agreement
must join in the caveat proceeding. The statute requires the court
itself to enter judgment in accordance with the agreement.
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This
article contains general, condensed summaries of what an individual
should know about Will contests and should only be used for information
purposes. There exists many additional factual and legal issues which
can not be adequately addressed in this format or may be unique to the
situation in which you find yourself. Before your choose to
propound a Will or seek to challenge one, you should contact a lawyer to
discuss the requirements, costs and fees associated with the proposed
action.
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