- with readers working within the Consumer Industries industries
We all know that a person can control who will own his or her property after death by signing a will. But when questions arise about the circumstances surrounding the signing or creation of a will, what can be done to challenge it?
The validity of a will is formally challenged in what is known as a caveat proceeding. A caveat proceeding is effectively a type of lawsuit that addresses whether a will that has been admitted to probate should be declared void.
Caveat Proceedings Generally
A caveat must be filed with the Clerk of Superior Court. Caveat actions have their own special procedures (different from many other types of lawsuits) found in Chapter 31 of the North Carolina General Statutes. A caveat action can be filed by any "interested person" as that term is defined in Chapter 31. "Interested persons" include potential heirs to the estate in question (that is, family members who would receive property from the deceased person in the absence of a will) or beneficiaries named in a lost, destroyed, or prior will.
The Differences Between Probate in Common Form and Probate in Solemn Form
Most often, caveat actions are filed after a will has been admitted to "probate in common form" (or filed with certain paperwork) with the Clerk of Superior Court. After a will is admitted to probate court, a challenger of that will, known as a "caveator," may learn facts or circumstances they believe would void the will. When a will has been probated in common form, the caveator has three years from the date of the probate application to file a caveat action.
On rare occasions, wills are offered for probate in "solemn form." When a will is offered for probate in solemn form, the Clerk will notify all interested parties of the request to probate the will. The Clerk then gives all interested parties an opportunity to appear in court and state if they wish to challenge the will. If any person contests the will, the Clerk will convert the matter to a caveat action. If none of the interested parties served appear and contest the will, the probate in solemn form is binding and none of the parties served can come back later to contest the will.
Ways To Challenge The Validity of a Will
The most common challenges to a will's validity include: (1) lack of testamentary capacity; (2) undue influence; and (3) fraud.
1. Lack of Testamentary Capacity
To prove that a person who signed a will (known as a "testator") lacked capacity to execute the will, the caveator must prove that the testator: (1) did not know who her heirs would be if she did not have a will, (2) did not understand the nature and extent of her property, (3) did not understand the nature of signing a will; and (4) did not realize the effect signing a will would have upon her estate. Generally speaking, a mere showing of poor physical health or mental decline is not enough to show a lack of testamentary capacity.
Additionally, the fact that the testator showed some signs of dementia prior to or shortly after the execution of the will is also not enough, standing alone, to show a lack of testamentary capacity. These cases regularly rely on evidence from medical records, treating physician testimony, evidence and testimony from friends and family members who saw the testator regularly, and evidence about the will's execution from the lawyers who drafted the document. They require significant efforts in the discovery phase of the lawsuit to appropriately gather or refute evidence from all types of sources.
2. Undue Influence
In order to void a will on the basis of undue influence, a caveator must prove that at the time the will was signed, the testator was under coercion or influence which caused her to leave her property in a way she otherwise would not have done.
Factors considered by our Courts when determining whether undue influence occurred include:
- (a) old age and physical and mental weakness;
- (b) whether the testator lived in the home of the person accused of undue influence and was subject to his constant association and supervision;
- (c) whether others had little or no opportunity to see the testator;
- (d) whether the challenged will is different from and revokes a prior will;
- (e) whether the challenged will was made in favor of someone with whom there is no blood kinship;
- (f) whether the challenged will disinherited the testator's direct family members; and
- (g) whether the person accused of undue influence is the one responsible for getting the challenged will signed.
No single factor is necessarily required or sufficient to establish undue influence. Instead, all of these factors are subject to consideration in determining if undue influence was present. Similar to a caveat action based on lack of testamentary capacity, caveat actions based on undue influence rely on evidence from treating physicians, friends and family members, and the professionals involved in preparing the challenged will. Caveators frequently bring a caveat action that alleges both a lack of testamentary capacity and undue influence.
3. Fraud
Fraud is the least common way to challenge a will's validity. Claims for fraud usually arise when a third party convinces the testator to sign a will by telling her that the document is something other than a will, such as a release form at the hospital. There is a heightened pleading standard for fraud that requires information about the alleged fraud to be included in the initial filing. This also makes it more challenging for caveators to bring a fraud-based caveat action without significant investigation before the caveat is filed.
Conclusion
Once a caveat proceeding is brought, the case will eventually be set for a jury trial in Superior Court. In most cases, the burden of proof ultimately rests with the caveator. This means that the caveator must prove his or her case to the jury by a preponderance of the evidence. After all of the evidence and testimony have been heard at trial, the jury renders a verdict either in favor of or against the caveator. If the caveator wins, then the decedent's estate will pass through a prior valid will (if they had one) or, if there was no prior will, through intestacy. If the caveator loses, then the challenge is dismissed and the will originally admitted to probate controls how the decedent's estate will be distributed.
These cases can be emotionally taxing on the parties and challenging to argue before a jury. It is essential to have specialized representation from trial lawyers who know how to appropriately handle and leverage the distinct complexities of an action, popularly called "contesting a will," when dealing with these situations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
