Oct312025
Probate Q&A Series

Can I compel witnesses to provide affidavits or testimony to validate a contested will? – North Carolina

Short Answer

Yes. In North Carolina, once there is an active probate matter or will contest, you can use subpoenas to require subscribing witnesses, the notary, and others to testify or produce documents. You generally cannot force someone to sign an affidavit, but you can compel sworn deposition or court testimony and, at the probate stage, the Clerk may accept witness affidavits taken before a notary.

Understanding the Problem

In North Carolina probate, can an heir ask the court to require the two shipping-center witnesses and the notary to give sworn statements or testify about how a parent’s will was signed? Here, the heir would be disinherited by the will and believes undue influence may be involved.

Apply the Law

North Carolina law allows you to compel testimony and documents in an estate proceeding and in a will contest (called a “caveat”) by using subpoenas. At initial probate, if the will is not self-proved, the Clerk may accept subscribing-witness examinations in person or by affidavit before a notary. If the will is contested, the case moves to Superior Court, where full discovery applies. The caveator (the challenger) must act within the statutory time limits. The propounder must first prove due execution; then the challenger presents grounds such as undue influence or lack of capacity.

Key Requirements

  • Standing: You must be an “interested” person (for example, an heir at law who would take if the will is set aside).
  • Active proceeding: There must be a pending probate hearing before the Clerk or a filed caveat in Superior Court to use subpoena power.
  • Proper tool: Use a Rule 45 subpoena for testimony, depositions, or documents. Courts can order compliance and address objections.
  • Affidavits at probate: The Clerk may accept subscribing-witness affidavits taken before a notary; however, you typically cannot force a person to sign an affidavit—compel a deposition or in‑court testimony instead.
  • Timing: If the will was probated in common form, file any caveat within three years of probate; if probate is in solemn form, object before or at the hearing.
  • Forum and burdens: The Clerk handles initial probate; contested matters go to Superior Court. The propounder proves due execution first; the challenger then offers evidence on issues like undue influence.

What the Statutes Say

Analysis

Apply the Rule to the Facts: As the sole heir who would be disinherited, you have standing to challenge the will. If the will was already probated in common form, you can file a caveat and then use subpoenas to require the shipping‑center witnesses and the notary to sit for depositions or testify and produce any related documents. If the will is not self‑proved and still at the probate stage, the Clerk may accept witness examinations by affidavit, but if a witness refuses to provide an affidavit, you can compel sworn testimony instead.

Process & Timing

  1. Who files: The interested heir (caveator). Where: Clerk of Superior Court (Estates Division) in the county where the will was probated. What: File a caveat to the will; pay the filing fee; service follows under the civil rules. When: Within three years after probate in common form, or raise the issue before/at a solemn-form hearing.
  2. After filing, the Clerk transfers the case to Superior Court. Parties are aligned, and discovery opens. Use Rule 45 subpoenas to depose the subscribing witnesses and the notary, and request documents (drafting notes, sign-in logs, notary journals, and communications).
  3. Trial before a jury on devisavit vel non. The propounder first proves due execution; you then present evidence (for example, circumstances at the retail signing and any undue influence indicators). Judgment admits or rejects the will.

Exceptions & Pitfalls

  • If the will is self-proved, the Clerk can admit it without live witness testimony; you still may challenge it by caveat.
  • You cannot force someone to sign an affidavit; instead, use a subpoena to compel a deposition or court testimony.
  • A witness who refuses to testify can be deemed “unavailable,” and the will may still be proved by other competent evidence; plan discovery accordingly.
  • You cannot file a caveat before there is a probate; wait until the will is admitted in common form, or object in a pending solemn‑form proceeding.
  • Improper service or missing the three‑year deadline can bar your challenge.

Conclusion

In North Carolina, you can compel subscribing witnesses, notaries, and others to give sworn testimony or produce documents once a probate matter or caveat is pending. At probate, the Clerk may receive witness affidavits, but refusal to sign an affidavit does not block you from compelling testimony. If the will was admitted in common form, file a caveat with the Clerk of Superior Court within three years and use subpoenas to obtain the evidence you need.

Talk to a Probate Attorney

If you’re dealing with a will you believe was improperly executed or influenced, 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.