Aug122025
Probate Q&A Series

What evidence do I need to show undue influence or lack of capacity when signing a will? — North Carolina

Short Answer

In North Carolina, you prove lack of capacity with evidence that, at the time of signing, the person didn’t understand who their family/beneficiaries were, what they owned, how the will worked, or its effect. You prove undue influence with facts showing the signer was vulnerable, the beneficiary had the chance and motive to pressure them, and the will’s terms reflect that pressure. Useful evidence includes medical records near the signing date, testimony from people who observed the signer and the signing process (including the drafting attorney and witnesses), prior wills, and proof of isolation or beneficiary “procurement.” A will contest (caveat) generally must be filed within three years after the will is probated in common form.

How North Carolina Law Applies

North Carolina presumes a person has capacity to make a will. The challenger (the caveator) must overcome that presumption. Capacity means the signer, at the time of signing, understood the natural objects of their bounty (who would normally receive), the kind and extent of their property, how they wanted the will to work, and the effect of the will on their estate. Evidence right around the signing date carries the most weight; evidence from a reasonable time before and after can be considered too. Someone might have good and bad days (lucid intervals), so a general diagnosis or age alone is not enough—you need specifics tied to the signing.

Undue influence focuses on whether another person overrode the signer’s free will. Courts look for a combination of red flags, such as the signer’s frailty, isolation from others, beneficiary involvement in arranging or attending meetings, sudden changes from prior plans, disinheritance of close family without a clear reason, gifts to non‑relatives, and evidence the beneficiary “procured” the will. You do not need “smoking gun” proof; these cases are usually proven by circumstantial evidence and witness testimony.

In some situations, if a fiduciary relationship (for example, agent under a power of attorney) existed at the time of signing and that fiduciary benefited under the will, a presumption of undue influence can arise, shifting the burden to the will’s proponent to rebut it. Note that a power of attorney created at the same time as, or after, the will may not trigger this presumption. Regardless, the caveator always has the ultimate burden to prove undue influence by the greater weight of the evidence.

Key Requirements

  • Lack of capacity: Show that at the time of signing the testator failed at least one of these: understood who would normally inherit; knew the kind/extent of assets; knew how the will operated; or understood its effect on the estate.
  • Undue influence: Show the signer was susceptible; the beneficiary had the opportunity and a disposition to exert pressure; and the will’s terms reflect improper influence.
  • Common evidence: Medical and cognitive records near the signing date; treating physician and expert opinions; testimony from friends, family, caregivers; drafting attorney and witness testimony; prior wills/codicils; emails, letters, calendars; evidence of isolation, gatekeeping, or beneficiary “procurement.”
  • Burden of proof: After the proponent shows proper execution, the caveator must prove lack of capacity or undue influence by the greater weight of the evidence. A fiduciary who benefits at the time of signing may face a rebuttable presumption of undue influence.
  • Standing and forum: An “interested” person (heir or beneficiary with a financial stake) files a caveat with the clerk; the case is transferred to Superior Court for a jury trial.

Process & Timing

  1. Will is probated in common form by the clerk. The three‑year caveat window typically starts at that probate.
  2. File a caveat with the clerk of superior court in the county of probate. You can’t caveat before the will is probated.
  3. The clerk transfers the case to Superior Court for a jury trial and notes the caveat on the will record. All interested parties get notice.
  4. While the caveat is pending, the personal representative may not distribute assets or take commissions; they must preserve assets and can only pay certain items (taxes, funeral, liens, timely claims, etc.) after giving notice and absent objection.
  5. Discovery: Subpoena medical records, depose the drafting attorney and witnesses, interview caregivers and friends, gather prior estate plans, financial statements, emails, and calendars. Consider retaining a physician or forensic psychologist to give an opinion based on records.
  6. Trial: The jury decides the single question—whether the paper is the decedent’s will (devisavit vel non). If the will is set aside, either an earlier valid will controls or the estate passes under intestacy.
  7. Deadlines: Most caveats must be filed within three years after probate in common form. If the will is being probated in solemn form by petition, the challenge must be filed before or raised at that hearing. Different rules apply if “living probate” was done before death, which can bar later caveats by parties to that proceeding.

What the Statutes Say

Exceptions & Pitfalls

  • Mere persuasion, kindness, or unequal gifts do not prove undue influence by themselves. You need evidence that the beneficiary’s will replaced the testator’s free choice.
  • Capacity must be assessed at the time of signing. General forgetfulness or a diagnosis in the months around the signing is not enough without specifics tied to the will execution.
  • Lucid intervals matter: a person with cognitive decline can still have capacity during a clear period—evidence near the signing date is key.
  • Fiduciary presumption: A fiduciary benefiting under the will signed while the fiduciary relationship existed can trigger a presumption of undue influence—but that presumption may not apply if the fiduciary role began at or after the will signing.
  • Timing traps: You cannot caveat before the will is probated in common form, and the three‑year deadline generally runs from that probate. When probate proceeds in solemn form by petition, you must challenge before or at the hearing.
  • While the caveat is pending, distributions are frozen. If you need to pay taxes, funeral expenses, liens, or timely claims, follow the notice-and-approval process with the clerk to avoid objections.

Helpful Hints

  • Request the drafting attorney’s file and speak with the subscribing witnesses; they can describe the signer’s alertness, privacy of meetings, and who brought the signer to the office.
  • Gather medical records 3–6 months before and after the signing date; include neuro/cognitive testing, medication lists, and hospital records.
  • Collect prior wills, beneficiary change forms, emails, texts, calendars, and notes that show a sudden, unexplained change from past plans.
  • Identify and interview people with regular contact with the signer (caregivers, neighbors, clergy); lay observations about memory, orientation, and decision‑making are valuable.
  • Map a timeline of the beneficiary’s involvement: Who scheduled appointments, attended meetings, or screened calls? That chronology helps juries see influence.
  • Consider retaining a physician or forensic psychologist to give an opinion based on the medical record if treating doctors are unavailable or neutral.
  • Act promptly. Track the three‑year caveat deadline and special rules if the will is moving forward in solemn form.

Disclaimer: This article is general information about North Carolina law, not legal advice. Reading it does not create an attorney‑client relationship.

Talk to a Probate Attorney

If you’re dealing with a disputed will or think a loved one was pressured or lacked capacity, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.