A Guide to Wills, Estate, Trust and Guardianship Litigation
I. Will Contests Also Known as Will Caveats
Under North Carolina Law a will can be contested based on several grounds. In recent years the rise of blended families and late in life marriages has caused an increase in the complex issues that arise in the distribution of estates. Some of the grounds on which wills can be challenged are:
- Proper execution. In North Carolina one can create a self-proving will, a written will, a hand written will, and, in very limited circumstances, an oral will. Each of these types of wills has its own set of rules to determine the validity of the will. A will can be challenged in court if it does not comply with these rules.
- Mental competence. In North Carolina a will is invalid if it was executed at a time when the testator was incompetent. Proof of mental incompetence can be difficult and often involves a duel between the medical experts on each side.
- Undue influence. Sometimes a person is mentally competent, but they are not able to protect themselves from a family member or caregiver who exercises undue influence over that person. If this is proven to occur then the will, or even particular provisions in a will, were procured by undue influence are invalid under North Carolina law. These cases can be difficult to prove.
- Fraud. A will is invalid if it was procured by false statements made to the testator.
- Ambiguous wills. Sometimes wills have provisions which are not clear and which must be construed by the courts. In North Carolina some of these proceedings can be brought before the Clerk of Court and some proceedings must be brought in Superior Court.
It is important to act quickly if you are concerned about the validity of a will. It you wait too long you may find that all of the assets of the estate have been distributed from the estate. This will make it much more difficult to protect your interests if the will is found to be invalid.