If the newest will is invalidated on technical grounds, can the older will still be probated when there are texts and a signed release showing it was meant to be revoked? – North Carolina

Short Answer

Sometimes, but not automatically. In North Carolina, an older will can be probated only if it was not effectively revoked under the revocation rules—or if it was properly revived. Text messages and a signed “release” can help show intent, but they usually do not revoke a will unless they meet the same execution formalities as a will, and they also do not “revive” an older will once it has been revoked.

Understanding the Problem

In North Carolina probate, the core question is whether an older will can control when a newer will cannot be admitted because it fails a required formality. This situation often comes up when a later document was meant to replace an earlier will, but the later document has a technical defect. The decision point is whether the earlier will was actually revoked in a legally effective way, or whether it remained valid and can be offered to the Clerk of Superior Court for probate.

Apply the Law

North Carolina law limits how a will can be revoked and how a revoked will can be brought back. A written will is revoked only by (1) a later writing executed with will-type formalities or (2) a qualifying physical act (like tearing or destroying) done with intent to revoke. If the older will was revoked, North Carolina generally does not treat the failure or later cancellation of the newer will as bringing the older will back; revival requires re-execution of the old will or a new will that incorporates it by reference. Disputes about whether a will was revoked or which will controls are often decided through a caveat proceeding in Superior Court, even though probate starts with the Clerk of Superior Court.

Key Requirements

Valid revocation of the older will: The older will must have been revoked by a later will/codicil or other revocatory writing executed with the same formalities as a will, or by a qualifying physical act done with intent to revoke.
No “automatic revival” rule: If the older will was revoked, it generally stays revoked unless the testator revived it through re-execution or by making a new will that incorporates the old will by reference.
Proper forum for disputes: If interested persons disagree about revocation or validity, the issue typically gets resolved through a caveat (will contest) in Superior Court after filing with the Clerk.

What the Statutes Say

N.C. Gen. Stat. § 31-5.8 (Revival of revoked will) – Limits revival of a revoked will to re-execution or incorporation by reference in a new will (with a narrow exception for certain spouse provisions after remarriage).
N.C. Gen. Stat. § 31-32 (Filing of caveat) – Allows an interested person to file a caveat to challenge probate, generally within three years after probate in common form.

Analysis

Apply the Rule to the Facts: No specific facts are provided beyond the existence of “texts and a signed release” indicating an intent to revoke the older will and the possibility that the newest will is invalid for a technical reason. Under North Carolina’s revocation rules, those texts and the release may be important evidence of intent, but intent alone does not revoke a will unless the revocation happened through a will-formalities writing or a qualifying physical act. If the older will was revoked by a later properly executed instrument (even if only the revocation clause can be proven), the older will usually cannot be probated unless it was later revived in one of the limited statutory ways.

Process & Timing

Who files: An executor named in a will or another interested person. Where: The Clerk of Superior Court (Estates) in the county where the estate is administered in North Carolina. What: An application to probate the offered will (older will, newer will, or both if there is uncertainty), along with the original document(s) if available. When: Typically as soon as possible after death when probate is needed to handle assets and debts.
If there is a dispute: An interested person can file a caveat in the estate file with the Clerk. Once filed, the contest proceeds in Superior Court to decide validity issues (including revocation issues) and which document, if any, is the will.
Outcome: The court determines whether the older will was effectively revoked and whether any later instrument can be admitted. If no will is admitted, the estate is handled as intestate.

Exceptions & Pitfalls

Texts and “releases” usually are not enough by themselves: Messages and informal writings often show intent, but they may not qualify as a revoking instrument because North Carolina generally requires will-type execution formalities for revocation by writing.
Proving revocation can be narrower than proving a whole will: In some disputes, parties may focus on proving that a later will contained a revocation clause (because revocation can take effect at execution). That can defeat the older will even if the later will is not otherwise available or cannot be fully proved.
No “revival because the new will fails” assumption: If the older will was revoked, North Carolina does not generally treat the invalidation of the later document as reviving the older will. Revival must fit the statute.
Pick the right procedure: Use a caveat to challenge validity (including revocation). Use a separate construction/declaratory route only when the fight is about interpreting an admitted will, not whether it is valid.

Conclusion

In North Carolina, an older will can be probated after a newer will fails on technical grounds only if the older will was not effectively revoked, or if it was later revived in a way the law recognizes. Text messages and a signed release can support an argument about intent, but they typically do not revoke or revive a will unless they meet strict requirements. If competing documents or revocation evidence exists, the practical next step is to file (or respond to) a caveat within three years after probate in common form.

Talk to a Probate Attorney

If you’re dealing with competing wills or evidence that a prior will was meant to be revoked, our firm has experienced attorneys who can help clarify whether an older will can still be probated and what deadlines apply. 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.