Can someone with a power of attorney legally change or sign a will, and if that happened, is the will invalid? – North Carolina

Short Answer

In North Carolina, a power of attorney does not let an agent make, change, or sign a will for someone else. A valid will generally must be signed by the testator (the person making the will) and witnessed as required by statute. If someone used a power of attorney to sign or “change” a will, that is a major red flag and can be a basis to challenge the will’s validity, depending on what actually happened and how the document was executed.

Understanding the Problem

In North Carolina probate, the key question is whether a will that disinherits a family member is valid when another person held a power of attorney and may have arranged, influenced, or tried to “sign” will changes. The issue often comes up after death when a new will appears and the family learns that the person benefiting from the change also controlled finances or access to the decedent. The practical decision point is whether the will reflects the decedent’s own act and intent, completed with the required signing and witnessing steps, or whether someone else effectively substituted their own decision-making.

Apply the Law

North Carolina treats a will as a personal act. A power of attorney allows an agent to act for someone in many financial and legal matters during the person’s lifetime, but it does not replace the person’s own ability (and requirement) to decide and execute a will. If a will is not executed with the required formalities, it is not valid. Even if the paperwork looks proper on its face, a will can still be set aside in a will contest (a “caveat”) if the evidence shows lack of testamentary capacity or that the will resulted from undue influence, fraud, or similar misconduct.

Key Requirements

Proper execution (formalities): For a typical attested written will, the testator must sign (or direct someone to sign in the testator’s presence) and at least two competent witnesses must attest as the statute requires.
Testamentary capacity: The testator must have the mental ability to understand close family relationships, the nature and extent of property, the plan being made, and the effect of the will on the estate.
Free will (no undue influence/duress): The will must reflect the testator’s voluntary choices, not another person’s pressure, manipulation, or control.

What the Statutes Say

N.C. Gen. Stat. § 31-3.1 (Will invalid unless statutory requirements complied with) – a will is not valid unless it meets the statutory requirements for that type of will.
N.C. Gen. Stat. § 31-3.3 (Attested written will) – sets the signing and witness rules for a standard written will.
N.C. Gen. Stat. § 31-32 (Caveat to will) – allows an interested person to file a caveat and includes the common-form probate time limit (often three years after probate).

Analysis

Apply the Rule to the Facts: The facts raise two separate concerns that often overlap: (1) whether the will was executed correctly (signed and witnessed as required), and (2) whether the will reflects the decedent’s free and informed decision-making. If the sibling truly “signed the will” using a power of attorney, that points to a formal execution problem because a will is not something a power-of-attorney agent can make on the principal’s behalf. If the decedent signed the will personally but the sibling controlled access to the decedent or orchestrated the signing, the issue more often becomes undue influence or lack of testamentary capacity rather than a pure “POA signature” problem.

Process & Timing

Who files: an “interested person” (often an heir who would benefit if the will is set aside, or a beneficiary under a prior will). Where: the Clerk of Superior Court in the county where the estate is administered in North Carolina. What: a caveat (will contest) filing; the clerk’s office has estate files and typically uses AOC estate forms for related probate filings. When: if the will was admitted to probate in common form, a caveat is generally due within three years after the will is probated (subject to exceptions such as certain disabilities).
Once a caveat is filed with the clerk, the dispute is transferred to Superior Court for a jury trial on whether the paper writing is the decedent’s valid will (often framed as devisavit vel non). The clerk’s initial probate paperwork can function as early proof of due execution, and the parties then litigate the grounds for invalidity.
Separately, access to information usually starts at the clerk’s office. After probate, the original will remains in the clerk’s office among court records, and the estate file can be reviewed to learn what was filed, when it was filed, and who is serving as personal representative.

Exceptions & Pitfalls

“Someone else signed” can still be lawful in a narrow way: North Carolina allows someone to sign the testator’s name, but only if the signing occurs in the testator’s presence and at the testator’s direction as part of will execution formalities. That is different from signing “as agent” under a power of attorney.
A self-proving affidavit can make the will look harder to attack at first glance: Many wills include sworn witness statements that support due execution and that the testator was of sound mind and under no undue influence. That does not prevent a contest, but it changes what evidence may be needed.
Do not assume a “bad motive” equals invalidity: A will can disinherit a child for reasons that seem unfair. The legal issue is whether the will meets formalities and reflects the decedent’s capacity and free will at signing.
Filing in the wrong court: North Carolina requires a caveat to be filed with the clerk of superior court; filing it directly in Superior Court can lead to dismissal for lack of jurisdiction.
Delay can harm evidence: Witness memories fade and documents disappear. Early steps usually include obtaining the probate file, getting copies of the will and any prior versions, and identifying the witnesses and drafting attorney.

Conclusion

In North Carolina, a power of attorney does not give an agent legal authority to make, change, or sign a will on someone else’s behalf. A will must comply with North Carolina’s signing and witness requirements, and it can also be set aside if it resulted from lack of testamentary capacity or undue influence. The practical next step is to obtain the estate file from the Clerk of Superior Court and, if the will has been probated in common form, file a caveat within three years from the probate date if grounds exist.

Talk to a Probate Attorney

If a will surfaced that cuts out a family member and the person benefiting also held power of attorney, a will contest may turn on execution details, capacity, and undue influence evidence. Our firm has experienced attorneys who can help review the probate file, explain options, and track deadlines. 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.