Submitted by kirksanderslaw on
When challenging a will (called a “will caveat”) in North Carolina, some of the factors include whether the witnesses were interested. By interested, the Courts are looking to see if the witness benefits by inheriting under the will. This could lead to a conflict of interest.
North Carolina General Statute §31-10. Beneficiary competent witness; when interest rendered void. Discusses this as follows:
(a) If a witness is a person whose spouse will inherit has the following issues: “A witness to an attested written or a nuncupative will, to whom or to whose spouse a beneficial interest in property, or a power of appointment with respect thereto, is given by the will, is nevertheless a competent witness to the will and is competent to prove the execution or validity thereof.
However, if there are not at least two (2) OTHER witnesses to the will who are disinterested, the interested witness and the interested witness's spouse and anyone claiming under the interested witness shall take nothing under the will, and so far only as their interests are concerned the will is void.
(b) A beneficiary under a holographic will may testify to such competent, relevant and material facts as tend to establish such holographic will as a valid will without rendering void the benefits to be received by the beneficiary thereunder.
A holographic will is a will written entirely by the decedent-testator (will maker). It can’t be typed.
Another factor for consideration, though the Courts won’t necessarily rule it out, is whether the witness is a felon. The old rule was felons are not competent. However, that is not the rule, but the felon-witness’ convictions may be used as a factor in challenging and determining a will is not valid.
Call Kirk Sanders at Sanders Law Firm, PLLC 336-724-4707 to discuss your will challenges or for assistance defending the will as the propounder. Please note you have three (3) years from the date the will was probated to challenge the will or the claim is barred.