Short Answer

In North Carolina, you can challenge an alleged verbal (nuncupative) will by objecting at the Clerk of Superior Court’s hearing before the will is admitted to probate, or by filing a caveat in Superior Court within three years after probate. Oral wills are valid only in narrow circumstances and can dispose of personal property only. If statutory requirements—like last illness, two simultaneous witnesses, and tight timing rules—are not met, the will should not be admitted.

Understanding the Problem

In North Carolina probate, can you stop the Clerk of Superior Court from admitting an alleged verbal will and, if it’s admitted, how do you contest it? A probate petition for the verbal will is already pending. This question focuses on the steps and standards for opposing an oral will that was never signed.

Apply the Law

North Carolina recognizes nuncupative (oral) wills, but only in strict, end-of-life circumstances. The Clerk of Superior Court oversees probate. Before an oral will can be admitted, the Clerk must give written notice to the surviving spouse (if any) and next of kin, who may oppose probate. If admitted, any interested person may bring a will contest (caveat) in Superior Court, generally within three years of probate.

Key Requirements

• End-of-life setting: The spoken will must be made in the maker’s “last sickness” or when the maker was in imminent peril of death and did not survive.
• Two simultaneous witnesses: The maker must declare the words to be their will while both witnesses are present and specifically request them to witness it.
• Proof of terms: Two competent witnesses must testify to the will’s terms; at least one must also testify about last sickness or imminent peril.
• Tight timing: The oral will must be probated within six months of being spoken unless reduced to writing within 10 days, which allows later probate.
• Scope limit: An oral will can pass only personal property, not real estate.
• Mandatory notice: The Clerk must send written notice to the surviving spouse and next of kin before any oral will is admitted, giving them the chance to oppose.

What the Statutes Say

• North Carolina Gen. Stat. § 31-3.5 (Nuncupative wills) – Defines oral wills and core execution elements.
• North Carolina Gen. Stat. § 28A-2A-10 (Proof of nuncupative will) – Notice, witness testimony, and strict timing for probate.
• North Carolina Gen. Stat. § 31-3.2 (Property passing by will) – Oral wills pass personal property only.
• North Carolina Gen. Stat. § 31-32 (Caveat; time to file) – Caveat generally must be filed within three years after probate.

Analysis

Apply the Rule to the Facts: Because a petition to probate a verbal will is pending, the surviving spouse and next of kin must receive notice and may oppose admission at the Clerk’s hearing. You can argue any missing element: for example, the statements were not made during last sickness or imminent peril; the two witnesses were not simultaneously present; or the will’s terms cannot be proved by two competent witnesses. If more than six months passed without the will being reduced to writing within 10 days, it cannot be probated. Any real estate is outside an oral will and would pass by a valid written will or intestacy.

Process & Timing

1. Who files: Surviving spouse, heirs, or any interested person. Where: Clerk of Superior Court in the decedent’s county of domicile. What: File a written objection to probate (and be prepared to examine/cross-examine witnesses) before or at the noticed hearing on the nuncupative will. When: At or before the Clerk’s hearing set after statutory notice.
2. If the Clerk admits the oral will, file a caveat. Where: With the Clerk of Superior Court; the case is transferred to Superior Court. What: Caveat pleading and Estate Proceeding Summons (AOC‑E‑102), served under Rule 4. When: Generally within three years of the date the will is probated.
3. Litigation proceeds in Superior Court (jury may decide). Expected outcome is an order upholding or setting aside the oral will. The Clerk then administers the estate consistent with the ruling and issues the appropriate letters.

Exceptions & Pitfalls

• A defective written will cannot be treated as an oral will; the oral will must stand on its own elements.
• Only personal property can pass by an oral will; do not concede that real estate is controlled by it.
• If more than six months have passed and the will was not put in writing within 10 days, it cannot be admitted.
• Witness issues matter: two competent witnesses must have been simultaneously present and asked to witness the will; an interested witness can testify but their benefit may be void absent sufficient disinterested witnesses.
• Do not ignore the Clerk’s notice—failing to object at the hearing may force you into a later, more involved caveat proceeding.

Talk to a Probate Attorney

If you’re dealing with an alleged verbal will and need to act quickly to protect your rights, 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.