Short Answer

In North Carolina, an heir or other interested person can contest a will by filing a “caveat” with the Clerk of Superior Court. You generally must file within three years after the will is probated in common form. To prove undue influence, show the parent was susceptible, the influencer had the opportunity and a disposition to control, and the will reflects that influence; a presumption can arise if a fiduciary (like a power of attorney) benefited and helped procure the will. While the caveat is pending, the court restricts estate distributions.

Understanding the Problem

You want to know whether you can challenge a North Carolina will—and how to prove undue influence—when a sibling with a power of attorney pressured a parent to change their estate plan. This question is about filing a will contest (a caveat) and meeting the proof needed to set aside a will for undue influence in the Clerk of Superior Court and Superior Court.

Apply the Law

In North Carolina, a will contest (caveat) begins at the Clerk of Superior Court. The case then goes to Superior Court for a jury to decide whether the paper is the testator’s true last will. The caveator must prove undue influence by the greater weight of the evidence. Factors include the testator’s vulnerability, isolation, departure from prior plans, and the beneficiary’s involvement. When a fiduciary relationship exists at the time of signing and the fiduciary benefits and helps procure the will, the law recognizes a presumption of undue influence that the will’s proponent must rebut.

Key Requirements

• Standing (Interested Person): You must have a direct financial stake (e.g., heir, beneficiary under a prior will, or someone who benefits if the challenged will is set aside).
• Timing: File your caveat within three years after probate in common form, or before/at a solemn-form hearing if one is scheduled.
• Grounds—Undue Influence: Show susceptibility, the influencer’s opportunity and disposition to control, and that the will’s terms reflect that improper influence.
• Fiduciary Presumption: If a fiduciary (e.g., an agent under a power of attorney) existed when the will was signed, actively procured it, and benefited, a presumption of undue influence can arise.
• Forum & Procedure: File the caveat with the Clerk of Superior Court; the case transfers to Superior Court for a jury trial.
• Estate Freeze During Case: The court restricts distributions and commissions and preserves assets while the caveat is pending.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Who may file; three-year caveat deadline) – Sets who can caveat and the general three-year limit after probate in common form; tolling for certain disabilities.
• North Carolina Gen. Stat. § 31-33 (Transfer and notice) – Clerk transfers caveat to Superior Court; requires notice to interested parties.
• North Carolina Gen. Stat. § 31-36 (Orders during caveat) – Limits distributions and authorizes asset-preservation orders while the caveat is pending.
• North Carolina Gen. Stat. § 32C-1-116 (Judicial relief—powers of attorney) – Allows court-ordered accountings and other relief against an agent suspected of misuse.

Analysis

Apply the Rule to the Facts: As a child of the decedent, you are an interested person with standing to caveat. A sibling who served as power of attorney and moved money from the disabled child’s account provides evidence of a fiduciary relationship, opportunity, and a disposition to benefit themselves. Pressure to change the will in that sibling’s favor suggests active procurement and a will that reflects improper influence. If a will for the deceased parent has been probated, file a caveat; if the living parent is being pressured now, preserve evidence and seek court relief against the agent, with any caveat to be filed after the parent’s death.

Process & Timing

1. Who files: An interested heir or beneficiary. Where: Clerk of Superior Court in the county where the will was probated. What: File a written “Caveat” to the will and pay the filing fee. When: Generally within three years after probate in common form, or before/at any solemn-form hearing.
2. The Clerk opens the caveat, issues notice, and transfers the case to Superior Court. Expect discovery (medical and financial records, witnesses) and pretrial motions; timing varies by county.
3. A jury decides validity. The judge enters judgment admitting or rejecting the will and returns the matter to the Clerk. If set aside, an earlier valid will or intestacy controls, and administration proceeds accordingly.

Exceptions & Pitfalls

• Probate in solemn form or a prior “living probate” order can bind parties who had notice, limiting later challenges.
• The fiduciary presumption typically requires the fiduciary relationship to exist when the will was signed; a power of attorney created after the will usually won’t trigger the presumption.
• File the caveat with the Clerk of Superior Court—filing directly in Superior Court can lead to dismissal for lack of jurisdiction.
• Gather proof early: bank records, the agent’s accounting, communications, witness observations, and prior estate plans.
• Serve all required parties properly to avoid notice or timing issues.

Talk to a Probate Attorney

If you’re dealing with a suspected undue influence and need to contest a North Carolina will, 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.