Probate Q&A Series

How can I challenge a will that I suspect is forged and get it thrown out? — North Carolina

Short Answer

In North Carolina, you challenge a will by filing a “caveat” in the estate file within three years after the will is admitted to probate in common form. The case is transferred to Superior Court for a jury to decide whether the paper is truly the decedent’s will. The will’s proponent must first show the will was properly executed; then you must prove forgery (or other invalidity) by the greater weight of the evidence. While the caveat is pending, the clerk issues orders that suspend distributions and require the personal representative to preserve estate assets.

How North Carolina Law Applies

North Carolina uses a focused process called a will “caveat” to test whether a probated will is valid. Forgery is a recognized ground to set a will aside. After a will is probated in common form, any interested person may file a caveat in the clerk’s office of the county where the estate is pending. The clerk transfers the dispute to Superior Court, and a jury decides the single ultimate issue: did the decedent make a will, and is this writing that will?

At trial, the will’s proponent must first prove proper execution. If they do, you must then show the signature or attestation is not genuine, or that the document is otherwise not what it purports to be. In forgery disputes, evidence often includes handwriting comparison by qualified experts, testimony from the drafting attorney and witnesses, document forensics on ink and paper, notary and witness records, and inconsistencies between the will and the decedent’s known practices. Once a caveat is filed, the clerk orders the personal representative to preserve the estate and bars distributions until the case is resolved.

Key Requirements

  • Who can file: You must be “interested” in the estate (for example, an heir, a beneficiary under another will, or someone who would benefit if the challenged will is set aside).

  • Deadline: Generally three years from the date the will is probated in common form. Limited extensions apply for minors or incompetent persons. You cannot file a caveat before a will is probated.

  • Burdens of proof: The proponent first proves due execution. Then you must prove invalidity (such as forgery) by the greater weight of the evidence. A self-proved will or prior witness affidavits create prima facie evidence of proper execution, which you can overcome with stronger proof.

  • What counts as forgery evidence: Signature comparisons, expert handwriting analysis, testimony from subscribing witnesses and the drafting lawyer, the lawyer’s file and drafts, metadata for the document, notary details, the decedent’s medical and location records on the signing date, and chain-of-custody of the original will.

  • Estate freeze: Once a caveat is filed, the clerk issues an order restricting distributions and commissions and directing preservation of assets. Necessary taxes, liens, and certain bills may be paid only after notice and (if objected to) a hearing.

Process & Timing

  1. Confirm probate status and calendar deadlines: A caveat is only allowed after the will is admitted to probate. Mark the three-year deadline from the probate date.

  2. File the caveat with the clerk in the estate file: Include grounds such as forgery and identify interested parties. The clerk will transfer the case to Superior Court and note the caveat in the will record.

  3. Clerk’s preservation order: The clerk issues an order under which no distributions or commissions are allowed, accountings must continue, and the personal representative must preserve estate assets. The personal representative may pay limited items (taxes, liened debts, certain pre‑death bills, timely claims, and professional fees) only after filing a notice of intent and giving parties a 10‑day objection window; if objections are filed, the clerk holds a hearing.

  4. Service, alignment, and case management: All interested parties are served. The court aligns parties as propounders or caveators. A party may move to require a bond from a caveator if the estate faces risk; the court decides based on statutory factors.

  5. Discovery and motions: Exchange documents, subpoena the drafting attorney and subscribing witnesses, obtain the original will for forensic review, and engage handwriting/document experts. Depositions and pretrial motions follow the Rules of Civil Procedure.

  6. Resolution: The case may resolve by jury verdict, summary judgment in limited situations, or a court‑approved family settlement agreement that results in entry of judgment. The judgment either sustains the will (often as solemn‑form probate) or sets it aside. If set aside, the court may determine whether another script is the true will; otherwise, the estate passes by intestacy.

  7. Administration resumes: After judgment, the matter returns to the clerk for continued administration consistent with the court’s ruling.

What the Statutes Say

  • North Carolina Gen. Stat. § 31-32 — Sets who may file a caveat and the three‑year filing window after probate in common form, with limited extensions for disabilities.

  • North Carolina Gen. Stat. § 31-33 — Requires the clerk to transfer the caveat to Superior Court for jury trial, addresses notice to interested parties, alignment, and motions (including bond).

  • North Carolina Gen. Stat. § 31-36 — Governs estate administration while a caveat is pending: freezes distributions, requires preservation of assets, and outlines the notice/objection process for limited payments.

  • North Carolina Gen. Stat. § 31-3.3 — Lists execution requirements for an attested written will (testator signature and two competent witnesses).

  • North Carolina Gen. Stat. § 31-3.4 and § 31-3.5 — Define holographic (handwritten) and nuncupative (oral) wills, which have different proof requirements relevant in forgery disputes.

  • North Carolina Gen. Stat. § 31-11.6 — Explains self‑proving wills; a proper self‑proving affidavit creates prima facie evidence of due execution, which a caveator may rebut with stronger proof.

  • North Carolina Gen. Stat. § 31-35 — Allows use of affidavits when witnesses are unavailable; those affidavits are prima facie evidence of due execution.

  • North Carolina Gen. Stat. § 28A-2A-7 — Probate in solemn form. If a will is probated in solemn form with proper service and no timely challenge, later caveats by served parties are barred.

  • North Carolina Gen. Stat. § 28A-2A-12 — Effect of probate: a will admitted to probate stands as the will unless reversed on appeal or declared void in a proper proceeding.

  • North Carolina Gen. Stat. § 28A-2B-4 — Living probate: an order declaring a will valid generally bars later caveats by parties to that proceeding, with a narrow path to seek leave to file based on clear and convincing evidence of severe undisclosed duress or coercion.

Exceptions & Pitfalls

  • Missed deadline: If you miss the three‑year window after common‑form probate, your challenge is typically time‑barred. Tolling is narrow and fact‑specific.

  • Probate in solemn form or living probate: If the will was probated in solemn form (with proper notice) or validated in a living‑probate proceeding, you may be barred from filing a caveat later.

  • Accepting benefits: Taking distributions under the will may limit your ability to challenge it, unless you would have received the same benefits regardless.

  • Not presenting other wills: If you know of another will, present it in the caveat. Failing to do so can result in intestacy or bar you from later offering that will.

  • Estate expenses and bond: A party may ask the court to require a bond from a caveator if the estate may suffer harm, and courts may award attorneys’ fees in some circumstances. Understand potential cost exposure before filing.

  • Filing too early: You cannot file a caveat until a will is admitted to probate. If you suspect a forged document is circulating, monitor the estate and act promptly once probate occurs.

Helpful Hints

  • Get and preserve the original will for inspection. Photocopies and scans can miss key forensic details.
  • Move quickly to file the caveat and ask the clerk to enter the preservation order so assets are safeguarded during the case.
  • Request the drafting attorney’s file, including drafts, emails, intake notes, and signing‑ceremony details. Subpoena subscribing witnesses early.
  • Engage a qualified handwriting/document examiner to compare known signatures and analyze the original document.
  • Collect corroborating records: the decedent’s location, medical status, and communications on the signing date; notary and witness availability; and chain‑of‑custody history.
  • If necessary expenses must be paid during the caveat, use the notice‑and‑objection process with the clerk to avoid improper distributions.

Talk to a Probate Attorney

If you’re facing a suspected forged will and need to file a caveat or defend one, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney–client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.