Challenges to a Last Will and Testament aka Caveat Proceeding

Scenario: A person dies, also known as the Decedent or Testator, and leaves a last will and testament. However, beneficiaries/heirs, either by intestate or by prior wills, think the will maker, aka the Testator, would not have made the will the way he or she did had they been of right mind.

What do you do?

There is a process in North Carolina called a Caveat Proceeding. That's a challenge of the will.

Grounds for challenging the Last Will and Testament are:

(1) incapacity/incompetency of the testator. This means the testator was not of sufficient mental capacity to make a will and express how he or she wanted to distribute their assets. Severe dementia and insanity are just two examples. and/or

(2) testator was under undue influence. This means some one or several people had such control and influence over the testator that he or she executed the will and its terms not by the testator's volition and design, but by those other parties/beneficiaries.

Time limits to file a Caveat Proceeding or will challenge: 3 years from the probating of the will with the clerk.

Who can file a will caveat? Any person entitled under such will or interested in the estate. This could be someone who would or should have inherited by the intestate statutes or a beneficiary under the prior will which the beneficiary contends was done when the testator was competent and not under undue influence.

The statute is provided here.

§ 31-32. When and by whom caveat filed

At the time of application for probate of any will, and the probate thereof in common form, or at any time within three years thereafter, any person entitled under such will, or interested in the estate, may appear in person or by attorney before the clerk of the superior court and enter a caveat to the probate of such will: Provided, that if any person entitled to file a caveat be within the age of 18 years, or insane, or imprisoned, then such person may file a caveat within three years after the removal of such disability.

I have successfully defended Will Caveats where my client was the respondent. In addition, I have litigated matters where parties are in disagreement as to whom should inherit from the decedent.

Call me to discuss your issues.

Also, don't wait until 3 years, because the later you wait, the more likely the estate would have been completed, then we're chasing the money and trying to get it back from the purported heirs.

Call Kirk Sanders, to be your estate litigation/trial planning attorney, estate lawyer. Sanders Law Firm in NC will protect your rights to inherit as you should, whether as challenger of a will or propounder of the will. 336-724-4707.