How can I challenge a will if I suspect it was executed under undue influence and improper witnessing? – North Carolina

Short Answer

In North Carolina, you challenge a will by filing a “caveat” with the Clerk of Superior Court. You generally must file within three years after the will is probated in common form, or before the clerk’s hearing if the will is being probated in solemn form. The case then goes to Superior Court for a jury to decide whether the will was properly executed and free of undue influence. Improper witnessing and undue influence are accepted grounds.

Understanding the Problem

You’re in North Carolina, you are the intestate heir, and a will you didn’t know about has surfaced. You want to know if you can challenge it based on undue influence and concerns about how it was witnessed. The immediate questions are: can you file a caveat to stop the will, where do you file, and when must you act?

Apply the Law

North Carolina uses a caveat proceeding to test whether a paper writing is the decedent’s valid last will. The Clerk of Superior Court handles filing and immediately transfers the case to Superior Court for a jury trial. The propounder must first show the will was executed with legal formalities; then the challenger must prove a defect such as undue influence or improper execution by the greater weight of the evidence. If the will is being probated in common form, you typically have three years from probate to file; if it is in solemn form, you must file or raise the issue before the clerk’s hearing.

Key Requirements

• Standing (“interested person”): You must have a direct financial interest affected by the will (for example, an heir who would take under intestacy but is cut out by the will).
• Timely filing: File a caveat within three years after probate in common form, or before the clerk’s solemn-form hearing.
• Proper forum: File the caveat with the Clerk of Superior Court in the county of probate; the clerk transfers the case to Superior Court for a jury trial.
• Execution formalities: An attested will must be signed by the testator and attested by at least two competent witnesses who sign in the testator’s presence; notarization is not required for validity (it is used to make a will self-proved).
• Burdens of proof: The propounder first proves due execution; the caveator then proves undue influence or improper execution by the greater weight of the evidence. A self-proved will satisfies initial proof unless rebutted.
• Undue influence standard: The influence must overwhelm the testator’s free will so the document reflects someone else’s intent; juries look at factors like vulnerability, opportunity to control access, sudden changes from prior plans, disinheritance of natural heirs, and who procured the will.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Caveat; time; by whom) – Who may file a caveat and the typical three-year deadline after common-form probate.
• North Carolina Gen. Stat. § 31-33 (Procedure on caveat) – Filing with the clerk, transfer to Superior Court, notice, and jury trial.
• North Carolina Gen. Stat. § 31-3.3 (Attested written wills) – Required execution and witness formalities.
• North Carolina Gen. Stat. § 28A-2A-7 (Probate in solemn form) – How to raise validity challenges before the clerk’s solemn-form hearing.

Analysis

Apply the Rule to the Facts: As the sole intestate heir who would be disinherited, you have standing to file a caveat. If the will was signed at a retail shipping center, that does not by itself invalidate it; what matters is whether two competent witnesses signed in the testator’s presence and the testator signed. If the same notary simply notarized to make it self-proved, the will can still be challenged for undue influence, especially if a beneficiary arranged the signing or restricted access to the testator. File within the applicable deadline.

Process & Timing

1. Who files: An interested person (e.g., an heir). Where: Clerk of Superior Court in the North Carolina county where the will was probated. What: A caveat (short pleading identifying parties, your interest, and grounds). When: Typically within three years after common-form probate; or file/raise the issue before a solemn-form probate hearing.
2. After filing: The clerk transfers the case to Superior Court for a jury trial and issues notices to interested parties. During the caveat, the personal representative is restricted from making distributions and must preserve estate assets; necessary bills and taxes can be paid with court oversight.
3. Resolution: The jury decides whether the paper is the decedent’s valid will. If set aside, an earlier valid will (if any) may control; otherwise, the estate passes by intestacy. The Superior Court’s judgment returns the case to the clerk to continue administration consistent with the verdict.

Exceptions & Pitfalls

• You cannot file a caveat before a will is actually admitted to probate in common form; there must be a probate to challenge.
• If the will is being probated in solemn form and you miss the chance to file or raise the challenge before the clerk’s hearing, you may be bound by that judgment.
• A will does not have to be notarized to be valid; notarization mainly creates a self-proved will, which streamlines proof at probate but does not immunize the will from undue influence claims.
• Improper witnessing focuses on legal formalities (signature and two witnesses in the testator’s presence), not the location of signing or whether witnesses are related.
• Service and notice rules apply after filing; failure to participate when notified can affect rights.

Talk to a Probate Attorney

If you’re dealing with a suspicious will and need to contest it 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.