A will caveat is a challenge to the validity of a will that has been submitted for probate to the clerk of superior court. “The purpose of a caveat is to determine whether the paper writing purporting to be a 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, 173 S.E.2d 1, 5 (1970).
A caveat proceeding is not a typical civil action, but is instead a special proceeding in rem. The will itself – not the property devised by the will – is res at issue. The Superior Court presides over caveat proceedings before a jury, and the issue for the jury is the question of devisavit vel non – “he devises or not.”
There are many potential grounds for a caveat. Most commonly the challenger, or caveator, alleges that the will was procured by undue influence or that the testator did not have testamentary capacity.
In some cases, only one writing will be in issue; in other cases, the caveator may present another writing as the purported valid will. It is also possible for three or more writings to be in issue.
The jury may decide that one of the wills is valid. If not, the estate will be administered by intestate succession. Whatever the scenario, there may be multiple questions of fact for the jury. Caveats are filed with the Clerk of Superior Court. Filing with clerk is a jurisdictional requirement. Casstevens v. Wagoner, 99 N.C. App. 337, 339, 392 S.E.2d 776, 778 (1990) (ordering dismissal of caveat proceeding initiated in the Superior Court rather than with the Clerk of Court).
If you need help with the filing of a Will caveat, contact our office to schedule a consultation with an attorney that practices in the field of estate litigation.
Hopler & Wilms, LLP
2402 S. Miami Blvd., Suite 203
Durham, NC 27703
(919) 244-2019
law@hoplerwilms.com
