When a person passes away and has a will, often his or her property is distributed to the beneficiaries and the estate is closed. However, in some circumstances a party may contest the will. In North Carolina, the formal name for this challenge is a caveat proceeding.
Caveat proceeding
This proceeding addresses whether a will that has been admitted to probate should be considered void. Any interested person can bring this type of action. An interested person may be a potential heir to the estate or beneficiaries who were named in a previous will, a will that was destroyed or a lost will.
The proceedings can begin after the will has been admitted to probate. The challenger is called a caveator and he or she has three years from the probate application to bring the action.
Challenge reasons
Most often, the will is challenged for a lack of testamentary capacity, undue influence or fraud. A lack of testamentary capacity means that the person who created the will did not understand the nature and extent of his or her property or did not understand the nature of signing a will and its effect on his or her estate. Generally, physical or mental decline alone is not sufficient to prove lack of testamentary capacity.
Undue influence means that that the person who created the will was under coercion. The court may consider factors such as old age, whether the person who created the will lived with the person accused of undue influence or was under his or her supervision and other issues.
Fraud means that the person who created the will was told that it was something other than a will and that is why he or she signed it.
An experienced estate planning attorney can provide advice and representation for will contests.
