Short Answer

In North Carolina, you prove undue influence with circumstantial evidence showing the signer was susceptible, the beneficiary had an opportunity and a willingness to influence, and the will’s terms look like the product of that influence. Fraud requires proof that false statements or concealment caused the will to be signed. After the will’s formal execution is shown, you must prove undue influence or fraud by the greater weight of the evidence. If a fiduciary (like a power of attorney) benefited and that relationship existed when the will was signed, a presumption of undue influence can arise.

Understanding the Problem

In North Carolina probate, can you prove undue influence or fraud to set aside a newly signed will? Here, a niece questions a will her uncle signed after his only child died. The brother-in-law held power of attorney and drafted a new will that favored himself. The question is what evidence a niece needs to bring a will contest and how a court will evaluate it.

Apply the Law

Undue influence means the will reflects someone else’s will—not the signer’s free choice. Courts look at surrounding facts because direct proof is rare. Common indicators include weakened intellect, isolation by a beneficiary, a sudden departure from prior plans, and the beneficiary’s role in getting the will signed. Fraud in this context is either (1) fraud in execution (tricking the signer about what they are signing) or (2) fraud in inducement (false statements that cause different gifts). A will contest (called a “caveat”) is filed with the Clerk of Superior Court; it is then tried in Superior Court, typically by a jury. A caveat must be filed within three years of probate in common form, or before the Clerk’s hearing if probate proceeds in solemn form. A notarization is not required for a valid will; notarization mainly makes a will “self-proved,” which changes how it is proved, not whether it is valid.

Key Requirements

• Undue influence elements: Show (1) the signer was susceptible, (2) the beneficiary had an opportunity, (3) the beneficiary had a disposition to exert pressure, and (4) the result indicates undue influence.
• Red-flag factors: Advanced age/illness, isolation, drastic change from prior plans, disinheriting close kin, and the beneficiary arranging or procuring the will’s execution.
• Fiduciary presumption: If a fiduciary relationship (e.g., power of attorney) existed when the will was executed and the fiduciary gained a new or larger benefit, the law presumes undue influence unless rebutted. A power of attorney created at or after the will’s signing does not trigger the presumption.
• Fraud proof: Show a false statement or concealment intended to deceive that actually caused the will to be signed (inducement) or proof the signer was misled about the document itself (execution).
• Evidence types: Medical records and caregiver notes; testimony from friends, neighbors, and witnesses; drafting circumstances; earlier wills; communications showing isolation or pressure; handwriting/notary irregularities; and financial records inconsistent with claims made to the signer.
• Burdens: Once due execution is shown, the caveator must prove undue influence or fraud by the greater weight of the evidence; the fiduciary presumption shifts the duty to produce rebuttal evidence but not the ultimate burden.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Caveat timing and who may file) – File a caveat within three years of probate in common form; minors/incompetents have extended time.
• North Carolina Gen. Stat. § 31-33 (Procedure after caveat) – Clerk transfers the will contest to Superior Court for jury trial.
• North Carolina Gen. Stat. § 31-36 (Asset preservation during caveat) – Personal representative must preserve assets and generally cannot distribute while the contest is pending.
• North Carolina Gen. Stat. § 28A-2A-7 (Probate in solemn form) – If a will is probated in solemn form, any challenge must be raised before or at the Clerk’s hearing.

Analysis

Apply the Rule to the Facts: The brother-in-law held power of attorney and drafted a new will favoring himself. If that fiduciary relationship existed when the will was signed, and he gained a larger share, a presumption of undue influence may arise. The new will’s departure from prior expectations, lack of independent counsel, and potential isolation of the uncle support susceptibility, opportunity, and disposition. Conflicts between the executor’s statements and pension records may support fraud or procurement evidence if the misstatements influenced the uncle or conceal material facts.

Process & Timing

1. Who files: An “interested” person (such as an heir-at-law or beneficiary under a prior will). Where: File a caveat with the Clerk of Superior Court in the county where the estate is probated. What: Caveat pleading and filing fee; the Clerk will open/flag the estate and transfer the matter to Superior Court. When: Within three years of probate in common form, or before the Clerk’s hearing if probate proceeds in solemn form.
2. After filing, the Clerk transfers the case to Superior Court for a jury trial. The personal representative must preserve assets and generally cannot distribute them during the contest; limited payments (e.g., taxes, liens, funeral bills) may be allowed with notice and a chance to object, typically within 10 days.
3. In Superior Court, ordinary civil discovery applies. The jury decides whether the writing is the decedent’s will. The court enters judgment admitting or denying probate and returns the file to the Clerk for administration consistent with the judgment.

Exceptions & Pitfalls

• Mere persuasion or kindness is not undue influence; you need evidence that someone overbore the signer’s free will.
• A power of attorney created at or after the will signing does not create the fiduciary presumption; timing matters.
• Not having a notary does not invalidate a will; it affects whether the will is “self-proved” and how it is proved.
• Some testimony about communications with the decedent may be limited by evidence rules; use neutral witnesses and records.
• File the caveat with the Clerk (not directly in Superior Court) to avoid dismissal for lack of jurisdiction.
• If minors or incompetent persons are interested parties, their filing period may be extended; ensure proper notice and representation.

Talk to a Probate Attorney

If you’re dealing with a will that may have been procured by undue influence or fraud, 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.