Jan52026
Probate Q&A Series

What evidence do I need to prove a will should be set aside? – North Carolina

Short Answer

In North Carolina, a will is usually set aside through a will contest called a caveat, and the evidence must match the legal ground being claimed (most often lack of testamentary capacity, undue influence, or improper execution). Evidence commonly includes the will and probate file, witness testimony about the signing, medical and caregiving records around the signing date, and facts showing pressure or control over the person who made the will. If the will was admitted to probate in common form, the probate paperwork can count as prima facie evidence that the will was properly executed, so the contesting party typically needs stronger, specific proof to overcome it.

Understanding the Problem

In North Carolina probate, the key question is: what proof is needed to convince the court that a deceased person’s will should not control the estate because the will is not valid. The actor is an interested person challenging the will, and the relief sought is an order that the will is invalid (or that probate should be undone in limited situations). The timing often matters because the evidence must focus on the circumstances at or very near the date the will was signed and admitted to probate.

Apply the Law

North Carolina law generally treats a will as valid once it is admitted to probate, but it can be challenged in a caveat proceeding. In a caveat, the person offering the will for probate (the “propounder”) has an initial burden to show the will was executed with the required formalities. If that showing is made, the burden typically shifts to the challengers (the “caveators”) to prove, by the greater weight of the evidence, that the will is still invalid based on a recognized ground such as lack of capacity or undue influence. If the will was self-proved, the self-proving affidavit can reduce the need for live witness testimony on execution, which can affect what evidence is most important to gather.

Key Requirements

  • A legally recognized ground to invalidate the will: Evidence must fit the theory—commonly improper execution, lack of testamentary capacity at signing, undue influence, fraud/duress, or revocation.
  • Proof tied to the right time period: The most persuasive evidence usually focuses on the date the will was signed (and the surrounding days or weeks), not general history.
  • Competent, specific evidence (not just suspicion): Courts look for concrete facts from documents and witnesses, including disinterested witnesses when possible.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, an interested person wants to contest a will involving a deceased person’s estate in North Carolina. The evidence needed depends on the ground for setting the will aside, but it usually starts with the probate file (to see how the will was admitted) and then builds outward to proof about the signing ceremony, the person’s mental condition at signing, and whether anyone pressured or controlled the person. If the probate file includes affidavits or a self-proving affidavit, the challenge often needs detailed, specific evidence to overcome the presumption that the will was properly executed.

Process & Timing

  1. Who files: An “interested person” (often an heir or a beneficiary under a prior will). Where: The Clerk of Superior Court in the county where the estate is being administered in North Carolina. What: A caveat (will contest) filing that challenges whether the document is the valid last will. When: Often within a limited window after probate; procedures and deadlines can be strict and can vary based on how the will was probated.
  2. Early evidence collection: Obtain the probate file (including any witness affidavits), the original will and any self-proving affidavit, and identify the attesting witnesses and the notary (if any). Then gather records tied to the signing date (medical, caregiving, facility logs, communications) and identify disinterested witnesses who interacted with the decedent near that time.
  3. Litigation phase: The case typically proceeds with sworn testimony and document exchange, and disputed fact issues may be tried in Superior Court (often to a jury). The outcome is a judgment either upholding the will or setting it aside (in whole or in part, depending on the issue).

Exceptions & Pitfalls

  • Probate paperwork can create an uphill climb: If the will was admitted with affidavits taken by the clerk, those materials can serve as prima facie evidence of proper execution, so a challenge needs focused proof that undermines execution, capacity, or freedom of choice.
  • “They seemed confused” is usually not enough: For capacity claims, courts look for specifics tied to the legal concept of testamentary capacity (understanding family relationships, property, and what the will does) at the time of signing, not general decline months earlier.
  • Undue influence requires more than an unfair result: Evidence is stronger when it shows opportunity and motive plus active involvement in the will-making process (for example, isolating the decedent, controlling access, arranging the lawyer meeting, being present for instructions, or pushing for a change).
  • Witness issues matter: If a beneficiary served as a witness and there were not enough disinterested witnesses, the gift to that witness (or the witness’s spouse) may be affected even if the will itself is otherwise valid.
  • Limited “set aside probate” power by the clerk: Outside a caveat, the clerk’s ability to revoke probate is narrow and generally focuses on defects apparent on the face of the probate record or situations where the court was misled, not ordinary disputes about capacity or undue influence.

Conclusion

In North Carolina, evidence to set aside a will must match a recognized ground for invalidity and must focus on the time the will was signed. The starting point is the probate file and the will itself, including any self-proving affidavit or witness affidavits that may serve as prima facie proof of proper execution. From there, persuasive evidence often includes testimony from the attesting witnesses and disinterested third parties, plus records showing lack of capacity or undue influence near signing. The next step is to file a caveat with the Clerk of Superior Court within the applicable time limit after probate.

Talk to a Probate Attorney

If a will contest is being considered in North Carolina and the question is what evidence is needed to set the will aside, our firm has experienced attorneys who can help evaluate the available proof, identify missing records and witnesses, and explain the timelines for filing. 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.