While navigating the emotional aftermath of a loved one’s passing, the legal complexities surrounding wills can be challenging. If you question the validity of a will, join us for a clear and straightforward explanation of why writing a rock-solid will helps you avoid those contesting wills in North Carolina.

We will cover important aspects of a will contest so that you understand how it all works and why it is best avoided.

What is a Will Contest?

When someone passes away, the probate court considers the will submitted by the family or friends. Interested parties who believe the will is invalid or unfair can contest its validity. When a will goes through contestation, the probate court places most of the administration work done by the court and the executor on hold. This hold is called a suspension.

Contesting a will can be complex and challenging, especially for individuals unfamiliar with the legal intricacies involved. That’s why writing a will and ensuring your family knows where to find it matters.

Contesting Wills: What Grounds Do I Need?

You can contest a will in North Carolina on several grounds. These include the following:

1- Improper Execution of the Will:

Improper execution of a will is one of the legal grounds upon which a person may contest a will. Proper execution refers to the legal requirements that must be met for a will to be valid.

According to North Carolina law, you’ll need to be careful when creating a will to ensure its validity. A will must generally meet the following criteria to be properly executed:

Testamentary Intent:

The person creating the will (the testator) must intend to make a will and dispose of their property upon their death.

Mental Capacity:

The testator must be of sound mind and, when creating and signing the will, understand the following:

  • Nature of their assets
  • Effects of creating a will
  • Who their beneficiaries are
Voluntary Act:

The creation and signing of the will must be a voluntary act of the testator, free from any undue influence, coercion, or fraud.


The testator (will maker) must sign the will in the presence of at least two competent witnesses who are not beneficiaries of the will. These witnesses must also sign the will in the presence of the testator and each other. (This may vary depending on the type of will.)


The testator’s signature must be affixed at the end of the will. A will challenge can be legally complex, involving careful examination of the circumstances surrounding the will’s creation and signing. A court will sometimes declare the will partially or entirely invalid. Other times, the court may alter or disregard portions of the will.

2- Lack of Testamentary Capacity

Lack of testamentary capacity means the person making the (will maker) did not have the mental capacity to understand what they were doing when creating the will.

In North Carolina, testamentary capacity refers to the individual’s ability to comprehend the following:

  • The nature and extent of their assets
  • Relationships between those who would naturally be beneficiaries
  • The implications of including or excluding specific individuals from their will

For a will to be valid, the testator (will maker) must have the cognitive ability to make informed decisions about their estate and to comprehend the overall significance of the document they were executing.

The assessment of testamentary capacity often considers the

  • Testator’s medical records
  • Cognitive state at the time of will creation
  • Any evidence indicating their understanding of the distributional effects of the will

3- Undue Influence

Undue influence occurs when someone exerts pressure or influence over the testator to change the will. When an individual manipulates or coerces the testator, they influence their decisions. They cause the will-maker to create a will that does not accurately reflect their true intentions.

This can often lead to an unequal distribution of assets or benefits to certain beneficiaries, favoring the influencer. To contest a will based on undue influence in North Carolina, it must be demonstrated that the influencer significantly impacted the testator’s decisions, overpowering their free will.

The burden of proof lies with the party challenging the will. It may include evidence such as the testator’s vulnerability, the influencer’s actions, and the sudden changes in the will’s provisions. The legal process surrounding undue influence is intricate.

Seeking legal counsel now, during estate planing, can help prevent a successful will challenge later.

4- Fraud

Contesting a will in North Carolina due to fraud involves alleging that deceptive tactics were employed to manipulate the testator’s intentions. This could include presenting false information or misrepresenting facts to induce the testator to create a will they would not have otherwise drafted. Contesting a will on grounds of fraud involves providing substantial evidence of the deceitful actions that directly influenced the will’s contents, leading to an unjust distribution of assets.

5- Forgery

In cases where a will’s authenticity is doubted, contesting it on the basis of forgery becomes relevant. This occurs when there are suspicions that the testator’s signature or portions of the will were falsified. Evidence such as handwriting analysis and expert opinions may be part of this type of will challenge. In North Carolina, those contesting a will need to demonstrate that the document was altered without the testator’s knowledge or consent.

6- A Mistake

If mistakes or errors led to inaccurate provisions, others may contest your will. Contesting a will based on a mistake involves arguing that the testator misunderstood or misinformed about certain will aspects, which affected their true intentions. To avoid this thorough examination of the circumstances under which you created a will, it’s crucial to write a legal will attested to with witnesses before a notary.

7- A Will Revocation

Challenging a will due to its revocation centers on asserting that the willmaker deliberately canceled or annulled a previously valid will before creating a new one. If others present evidence you intended to revoke the old will through explicit statements, actions, or the creation of a subsequent will that contradicts the initial one, they may have a case. If they can demonstrate that you intended to replace or nullify your prior testamentary wishes, your will may not stand.

Who Must Prove the Will is Valid?

The burden of proof in a will contest lies with the propounder (the person who presents the will for probate). They must prove the due execution of the will, demonstrating that it was properly signed and witnessed according to legal requirements.

Once the due execution is established, the burden of proof shifts to the caveator (the person contesting the will) to prove the grounds for the caveat, such as lack of testamentary capacity or undue influence.

Those with a legally written will, attested to by two witnesses and notarized, generally face fewer will challenges.

What is a “Caveat” Legal Process?

Contesting a will in North Carolina involves a legal process known as a caveat. A caveat is essentially a formal objection filed with the appropriate court by an individual seeking to challenge the validity of a will.

This process initiates a legal proceeding wherein the court thoroughly examines the grounds for contesting the will.

The party filing the caveat, often called the “caveator,” must provide substantial evidence supporting their claims to proceed with the challenge. Once they file the caveat, the court notifies all interested parties, including beneficiaries and potential beneficiaries mentioned in the will.

The caveat suspends all the probate proceedings under the will, except for actions necessary to:

  • Preserve the property
  • Collect debts
  • Pay taxes and debts that constitute liens against the decedent’s property

The clerk of court has the authority to allow these necessary actions to proceed.

The legal caveat process then unfolds through hearings, presentation of evidence, and legal arguments. This ultimately leads to a court decision regarding the validity of the contested will.

Preventing a contestation of a will and the caveat procedure involves careful estate planning with an experienced attorney.

Time Frame Limits

A will caveat must be filed within three years of the court probating the will. However, someone with a legal disability, such as being a minor or someone lacking mental capacity begins the time limit when the disability is removed.

Who is an “Interested Person?”

Only an interested person can contest a will. An interested person has a financial or beneficial interest in the estate that would be adversely affected by the will. A named executor is not an interested person.  However, intestate heirs, who would inherit without a will, are considered interested persons.

Financial Bond

The court may require a bond, a form of financial security, and determine the amount. When making this decision, the court considers factors such as whether the estate may suffer irreparable damage or harm from the caveat. The court also looks at whether the caveat has substantial merit.

Will Contestation Trial by Jury

After the initial filing with the clerk, the matter transfers to the superior court for trial. All interested parties receive notice, ensuring they know about the will contest. This is crucial to allow all parties to present their arguments and evidence.

In North Carolina, neither party can waive a trial by jury when contesting a will. This means that a jury of individuals hear the case and decide based on the evidence.

Costs of Will Contestation

The potential costs and attorneys’ fees of a potential will contestation can be a deterrent. In North Carolina, you may charge costs and attorney’s fees to the proceeding, including the decedent’s estate. The court may also apportion fees among the parties. A court may only allow attorneys’ fees for the caveator if the proceeding had “substantial merit.”

Seeking the guidance of an experienced attorney practicing in estate law can prevent most contestations. A knowledgeable estate planning attorney can provide personalized advice and ensure your interests stay protected after your passing.

What If the Will Contains a “No Contest” Clause?

A “no contest” clause, also known as an “in terrorem” clause, is a significant provision you can include in a valid North Carolina will. This clause is a deterrent against potential challenges to the will’s validity. Essentially, it states that if a beneficiary contests the will and is unsuccessful, they could forfeit their inheritance or receive a reduced share.

The purpose of the no-contest clause is to discourage beneficiaries from pursuing unwarranted or frivolous challenges to the will. It promotes the testator’s intended distribution of assets and minimizes the legal fees of disputes.

However, it’s important to note that North Carolina law places certain limitations on enforcing no-contest clauses. This discourages no-contest clauses from unfairly preventing legitimate challenges.

Therefore, whether to include such a clause and its potential consequences warrant careful consideration. Finding legal advice during the estate planning process can help you make the best decisions about what to include in a will.

Our Experienced Estate Planning Attorneys Can Help

Our experienced estate planning attorneys can help guide you through the intricate process of creating a valid will in North Carolina. With a deep understanding of the state’s laws and an empathetic approach, our legal team is dedicated to providing you with the knowledge you need to create a solid and well-written last will and testament.

Contact us today to schedule a consultation and take the first step toward making your plans today!

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