Will Caveat Proceedings
A Legal Moment

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 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.

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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Clifford C. ("Kip") Marshall is a trial attorney with, and President of, Marshall, Roth & Gregory, PC.  Recognized as a "Best Lawyer" (Government Relations Practice) for the past five years, Kip's litigation practice includes will caveat proceedings.
To receive more information on this topic or to suggest topics for future editions of "A Legal Moment," feel free to contact Kip by email ( or telephone (828.281.2100).

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