Should I avoid communicating with the other side while a possible will contest is pending, and can anything I say be used against me? – North Carolina

Short Answer

In North Carolina, it is usually wise to limit direct communication with the other side once a will contest (a “caveat”) is likely or has started, because informal statements, texts, emails, and social media posts can become evidence. Anything said can be repeated by witnesses, saved in writing, or used to challenge credibility, even if it was meant to “keep the peace.” Communications about what the deceased parent said or wanted can also create evidence problems and, in some situations, can waive protections that might otherwise limit testimony.

Understanding the Problem

In North Carolina probate disputes, a common question is whether a family member should keep talking with the person offering a later will for probate (or that person’s supporters) while a will contest is pending. The decision point is whether direct contact about the wills, the parent’s capacity, alleged undue influence, or actions taken under a power of attorney can later be used in the caveat case. The concern often increases when there are two wills, a late-in-life change, and disagreement about who should serve as executor.

Apply the Law

North Carolina will contests are typically handled through a caveat proceeding in the estate file, overseen by the Clerk of Superior Court (and sometimes later by a Superior Court judge if appealed or transferred). Even before formal litigation begins, ordinary evidence rules still matter: statements can be admissions, can be used to impeach a witness, and can shape how the court views credibility. In addition, North Carolina has a rule often called the “Dead Man’s Statute” (part of the Rules of Evidence) that can limit testimony by an “interested” person about oral communications with the deceased in certain probate-related disputes, but that protection can be lost if the subject is opened up through discovery responses or testimony without proper objections.

Key Requirements

Assume informal communications are discoverable evidence: Texts, emails, voicemails, letters, and social media posts can be requested in a caveat and used in court to show motive, knowledge, or inconsistent stories.
Avoid “opening the door” on conversations with the deceased: In North Carolina, an interested person’s testimony about the decedent’s oral statements may be restricted in some situations, but answering questions (including written discovery) about those communications can waive that protection.
Understand the caveat’s effect on administration: Once a caveat is filed, the Clerk of Superior Court issues an order that restricts distributions and commissions and focuses the personal representative on preserving assets and handling necessary bills through a notice-and-objection process.

What the Statutes Say

N.C. Gen. Stat. § 31-36 (Effect of caveat on estate administration) – When a caveat is filed, the clerk issues an order limiting distributions and setting procedures for certain payments while the caveat is pending.
N.C. Gen. Stat. § 1-24 (Time during controversy on probate of will or granting letters) – Certain time periods may not count toward limitation defenses while a probate controversy is pending, depending on whether an administrator is appointed and can be sued.
N.C. Gen. Stat. § 31-10 (Beneficiary competent witness; when interest rendered void) – Addresses when a beneficiary can serve as a witness to a will and how an interested witness can affect what they take under the will in certain situations.

Analysis

Apply the Rule to the Facts: The facts describe two wills (an older will and a later will signed shortly before death), concerns about undue influence, and questions about actions taken under a power of attorney when the parent may have had dementia. In that setting, direct conversations with the other side about “what the parent really wanted,” why the later will exists, or what happened during the parent’s decline can create statements that get saved and later used to challenge credibility or to frame the dispute. If communications drift into details of oral conversations with the parent, those statements can also complicate how North Carolina’s limits on testimony about decedent communications apply, especially if later repeated in sworn discovery or testimony.

Process & Timing

Who files: A person with standing (often an heir or beneficiary under an earlier will) files a caveat. Where: The Clerk of Superior Court in the county where the estate is being administered in North Carolina. What: A caveat filing (forms and local requirements vary by county). When: As soon as the grounds are known and before the estate distributes assets; timing can be affected by how and when the will is offered for probate.
Early case phase: The clerk’s caveat order typically limits distributions and requires preservation of assets while the dispute is pending. The parties may exchange information through formal discovery rather than informal back-and-forth.
Evidence phase: Depositions, written discovery (interrogatories and document requests), and witness preparation follow. Statements made earlier in texts, emails, or conversations can become exhibits or impeachment material.

Exceptions & Pitfalls

“I was just trying to be helpful” statements: Apologies, concessions, or guesses (for example, about dementia, influence, or what the parent “must have meant”) can be treated as admissions or used to argue inconsistency later.
Waiving protections about decedent communications: In North Carolina, an interested person may lose the ability to block certain testimony about oral communications with the decedent by answering interrogatories about those communications or by failing to object during a deposition or at trial. Parties sometimes use stipulations before depositions to reduce the risk of accidentally opening the door.
Group conversations create witness issues: When multiple people were present for a conversation with the parent, who can testify (and about what) can depend on who is “interested” in the outcome. Casual family discussions can unintentionally create additional witnesses and conflicting accounts.
Talking to the wrong person: Communications with a proposed executor, a beneficiary, or someone acting under a power of attorney can be relayed and documented. Even if the message is not sent to a lawyer, it can still be discoverable.
Estate-administration missteps during a caveat: Pressuring the personal representative to distribute assets or “advance” inheritances during a caveat can conflict with the clerk’s restrictions and create avoidable hearings and disputes.

Conclusion

In North Carolina, direct communication with the other side during a likely or pending will contest often creates avoidable risk because informal statements can become evidence and can damage credibility. Discussions about what the deceased parent said or intended can also create testimony problems and may waive protections if repeated in sworn discovery or testimony without proper objections. The most practical next step is to route substantive communications through counsel and, if a caveat is being filed, file the caveat with the Clerk of Superior Court promptly so the dispute proceeds through formal rules rather than informal exchanges.

Talk to a Probate Attorney

If a possible will contest involves two wills, concerns about undue influence, or questions about actions taken under a power of attorney, an attorney can help set safe communication boundaries and protect important evidence and 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.