Probate Q&A Series

Can I contest a will that gives a portion of my parent’s estate to my sibling’s spouse against my interests? – North Carolina

Short Answer

Yes. In North Carolina, a child or other person with a direct financial stake can challenge a will by filing a “caveat” in the Clerk of Superior Court. You generally have up to three years after the will is probated in common form to file, and the case is tried before a jury in Superior Court. Typical grounds include undue influence, lack of capacity, fraud, or improper execution. If probate is in solemn form with notice, you must act before or at that hearing.

Understanding the Problem

In North Carolina, can you challenge a will that leaves part of your parent’s estate to your sibling’s spouse? You, as an interested child, want to know if and how to contest that plan after the will is probated. One key fact: your sibling held a power of attorney and allegedly moved funds before death.

Apply the Law

North Carolina allows an “interested person” to contest a will through a caveat. The caveat is filed with the Clerk of Superior Court in the county where the will was probated and then transferred to Superior Court for a jury trial. Core grounds include improper execution, lack of testamentary capacity, undue influence (often relevant when a fiduciary like an agent under a power of attorney benefits), fraud, or revocation. If the will was probated in common form, the filing deadline is generally three years from probate. If the estate seeks probate in solemn form with notice, any challenge must be raised before or at that hearing.

Key Requirements

  • Standing: You must be “interested in the estate,” such as a child who would benefit if the will is set aside.
  • Timing: File within three years after probate in common form; act before or at the hearing if probate proceeds in solemn form with notice. Tolling can apply for legal disability.
  • Forum and effect: File the caveat with the Clerk of Superior Court; the case is transferred to Superior Court. During the caveat, the personal representative must preserve, not distribute, estate assets.
  • Grounds: Lack of capacity, undue influence, fraud/forgery/mistake, improper execution, or revocation. A fiduciary relationship at the time of execution that benefits the fiduciary can raise a presumption of undue influence.
  • Burdens of proof: The will’s proponent must show proper execution; the challenger then must prove invalidity on a recognized ground.

What the Statutes Say

Analysis

Apply the Rule to the Facts: As a child, you are an interested person with standing to file a caveat. If a will favoring your sibling’s spouse is probated in common form, you generally have three years to file; if the estate seeks solemn-form probate with notice, you must object before or at that hearing. Your sibling’s prior role as power of attorney and alleged financial control can support an undue influence claim, especially if that fiduciary relationship existed when the will was executed. A will contest will not, by itself, recover assets already moved outside the estate.

Process & Timing

  1. Who files: An interested person (e.g., a child). Where: Clerk of Superior Court in the county where the will was probated. What: A written caveat and the filing fee (per court cost schedule). When: Within three years after probate in common form, or before/at a solemn-form hearing if noticed to you.
  2. The Clerk opens the caveat, notes it in the will record, and transfers the case to Superior Court for a jury trial. The personal representative is restricted from distributing assets and must preserve the estate; routine administration and certain payments can continue with required notices. Discovery and pretrial procedures follow; timelines vary by county.
  3. Resolution occurs by jury verdict on the will’s validity or by a court-approved settlement. The judgment returns to the Clerk, who continues administration consistent with the ruling (e.g., under a prior will or intestacy if the challenged will is set aside).

Exceptions & Pitfalls

  • If the will was admitted in solemn form with proper notice, later caveats are barred; objections had to be raised at that hearing.
  • Living-probate orders (pre-death validations) can bar parties to that proceeding from later caveating the will after death.
  • Nonprobate transfers (e.g., joint accounts with survivorship, beneficiary designations, revocable trusts) are not controlled by the will; separate civil claims may be necessary to address alleged POA abuse or constructive fraud.
  • Standing matters: you must show a direct, immediate financial interest that would be harmed by the will.
  • Service and notice must comply with procedural rules; missing them can delay or derail the challenge.

Conclusion

In North Carolina, you can contest a will that benefits your sibling’s spouse if you have a direct financial interest. File a caveat with the Clerk of Superior Court in the county of probate and be prepared to prove grounds like undue influence or lack of capacity. The case is tried in Superior Court, and the estate is preserved while it’s pending. Next step: file the caveat with the Clerk within three years of probate in common form (or before/at any noticed solemn-form hearing).

Talk to a Probate Attorney

If you’re dealing with a potential will contest or suspected undue influence in North Carolina, 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.