How do I challenge a will when there are two different wills filed for the same person and the court hasn’t accepted either one yet? – North Carolina

Short Answer

In North Carolina, the usual way to challenge which will (if any) controls is to file a caveat in the decedent’s estate file with the Clerk of Superior Court. A caveat moves the dispute into a Superior Court case for a jury trial on whether a document is the decedent’s valid last will. When there are competing wills, the goal is typically to have the court decide the validity of the competing documents in one caveat proceeding so the estate can move forward under the correct instrument (or under intestacy if no will is valid).

Understanding the Problem

In a North Carolina probate case, what happens when two different documents are filed as the decedent’s will and the Clerk of Superior Court will not proceed until a hearing determines which document is valid (or whether no will is valid)? The decision point is how to trigger the correct court process to decide which writing, if any, is the decedent’s last valid will so the estate administration can move forward under the right authority.

Apply the Law

North Carolina treats a will contest as a specific type of proceeding called a caveat. A caveat is filed with the Clerk of Superior Court in the estate file and then transferred to Superior Court for a jury trial. The central question in the case is whether the document offered is the decedent’s valid will (often framed as whether the decedent “did make a will or not,” and if so, which one). When multiple writings are in play, North Carolina practice is to bring the competing scripts forward in the caveat so the court can determine which, if any, is valid as the last will.

Key Requirements

Standing (an “interested party”): The person filing must have a real stake in the outcome (for example, an heir who would inherit if there is no valid will, or a beneficiary named in one of the documents).
Timely caveat filing: A caveat is commonly filed at the time a will is offered for probate or within the statutory time window after probate in common form. Even when the Clerk has not “accepted” a will yet, timing still matters because probate steps can move quickly once a document is admitted.
Proper service and party alignment: After filing, the caveat must be served on interested parties, and the court holds an alignment hearing so parties line up as supporting or opposing the will(s). The case then proceeds like civil litigation toward trial.

What the Statutes Say

N.C. Gen. Stat. § 31-32 (Filing of caveat) – Allows an interested party to file a caveat to challenge probate of a will and sets the basic timing rules.
N.C. Gen. Stat. § 31-33 (Cause transferred to trial docket) – Requires the Clerk to transfer the caveat to Superior Court for a jury trial and addresses service and alignment of parties.
N.C. Gen. Stat. § 31-36 (Effect of caveat on estate administration) – Limits distributions while the caveat is pending and outlines how certain estate expenses may still be handled with notice and an opportunity to object.

Analysis

Apply the Rule to the Facts: Here, two different wills appear in the court record under different entries, and the Clerk will not move forward until a hearing determines what document, if any, is valid. That fact pattern fits the purpose of a caveat: it is the procedure used to litigate will validity issues (including whether a later document revoked an earlier one) and to have the Superior Court determine which writing is the valid last will. Because competing scripts are involved, the practical objective is to ensure the competing documents are addressed in a single caveat proceeding so the jury can decide which, if any, controls.

Process & Timing

Who files: An interested person (commonly an heir or a beneficiary under one of the documents). Where: The Clerk of Superior Court in the county where the estate is pending (the decedent’s estate file). What: A caveat filed in the estate file, identifying the will(s) being challenged and the grounds (for example, improper execution, lack of capacity, undue influence, fraud/duress, or revocation issues). When: Often at the time a will is offered for probate or within three years after probate in common form, subject to limited disability extensions under the statute.
Transfer and service: After the caveat is filed, the Clerk transfers the matter to Superior Court for a jury trial. The caveat must be served on interested parties, and the court schedules an alignment hearing so parties are formally aligned as supporting the propounder(s) or the caveator(s).
Litigation toward trial: The case proceeds with civil-case tools (pleadings, discovery, motions). The propounder generally must first prove due execution of the will being offered; challengers then try to prove grounds that make the will invalid. If the jury (or court) finds a will valid, the estate typically proceeds under that will; if no will is found valid, the estate proceeds as an intestate estate.

Exceptions & Pitfalls

Not putting all competing documents in front of the court: When multiple writings may be wills, North Carolina practice strongly favors having the competing scripts addressed in the caveat so the court can decide which, if any, is the last will. Holding back a document can create serious procedural problems later.
Confusing “construction” with “validity”: If the real dispute is what a valid will means (interpretation), that can be a different type of court action than a caveat. But when the dispute is whether a document is a valid will at all, a caveat is usually the correct path.
Service and alignment mistakes: Caveat cases have strict service and party-alignment steps. Missing an interested party or failing to follow the required service rules can delay the case and create arguments about whether the judgment binds everyone.
Estate administration limits during the dispute: A caveat can pause distributions and limit what the personal representative can do without notice. Planning for bills, asset preservation, and required accountings becomes important while the case is pending.

For more background on the procedure, see opened probate using an older will and respond when a relative files something in court claiming the will is not valid.

Conclusion

In North Carolina, when two different wills are filed for the same person and the court will not proceed, the usual way to challenge which document controls is to file a caveat in the decedent’s estate file with the Clerk of Superior Court and litigate validity in Superior Court. The case focuses on whether a document was properly executed and whether any defenses (like lack of capacity, undue influence, or revocation) make it invalid. The key next step is to file the caveat in the estate file, typically within the three-year statutory window tied to probate in common form.

Talk to a Probate Attorney

If there are competing wills in a North Carolina estate file and the Clerk will not move forward until a hearing decides what document is valid, our firm has experienced attorneys who can help explain the caveat process, required notices, and the timelines that can control the case. 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.