Short Answer

In North Carolina, you challenge a will by filing a caveat and proving a valid ground such as improper execution, lack of testamentary capacity, undue influence, fraud, duress, mistake, or revocation. Useful evidence includes medical and caregiving records, testimony from the drafting attorney and witnesses, prior estate-planning documents, communications showing isolation or pressure, and documents about how the will was executed. File the caveat with the Clerk of Superior Court; most challenges must be brought within three years after the will is probated in common form.

Understanding the Problem

In North Carolina probate, a surviving spouse can ask: “What evidence do I need to file a will challenge, and where and when do I do it?” As the surviving spouse, you want the court to review whether your late spouse’s will is valid. The decision point is whether you have admissible proof for a recognized ground and can file your challenge with the Clerk of Superior Court after the will is probated.

Apply the Law

North Carolina law lets an “interested” person (including a surviving spouse) contest a will by filing a caveat with the Clerk of Superior Court. The case is then tried in Superior Court, often to a jury. The propounder of the will first shows proper execution; the challenger must then prove a ground to set the will aside. Common grounds include: failure to meet execution formalities, lack of testamentary capacity, undue influence, fraud, duress, mistake, or revocation. Most caveats must be filed within three years after probate in common form; if the estate seeks probate in solemn form, you must raise your challenge before the clerk’s hearing.

Key Requirements

• Standing: You must be “interested in the estate” (a surviving spouse qualifies) to file a caveat.
• Timeliness: File within three years after probate in common form, or before the clerk’s hearing in a solemn-form proceeding.
• 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 trial.
• Recognized grounds: Point to a valid ground (execution defect, lack of capacity, undue influence, fraud, duress, mistake, or revocation) and gather evidence that fits that ground.
• Admissible proof: Use medical and caregiving records, lay and professional testimony, drafting-attorney files, execution-witness testimony, prior wills, and communications that show pressure, isolation, or sudden changes.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Caveats; timing; who may file) – Sets who can file a caveat and the general three-year window after probate in common form.
• North Carolina Gen. Stat. § 31-33 (Procedure; transfer; summons) – Clerk files the caveat, issues summons, and transfers the matter to Superior Court for trial.
• North Carolina Gen. Stat. § 28A-2A-7 (Probate in solemn form) – If probate proceeds in solemn form, you must raise the will’s validity before or at the clerk’s hearing.
• North Carolina Gen. Stat. § 31-3.3 (Attested will execution requirements) – Lists execution formalities that, if unmet, can support an execution-defect challenge.

Analysis

Apply the Rule to the Facts: As a surviving spouse, you have standing to file a caveat. Start by collecting proof tied to a recognized ground. For lack of capacity, focus on medical records and lay witness observations near the signing; for undue influence, gather evidence of isolation, who arranged the lawyer meeting, who was present, and any drastic changes from prior wills; for execution defects, obtain the drafting attorney’s file and witness testimony. File your caveat with the Clerk of Superior Court before the deadline.

Process & Timing

1. Who files: The surviving spouse (caveator). Where: Clerk of Superior Court in the North Carolina county where the will was probated. What: A written caveat initiating a will contest; request issuance of summons to interested parties. When: Generally within three years after probate in common form, or before the clerk’s hearing if the estate seeks probate in solemn form.
2. The clerk files the caveat, issues summons, and transfers the case to Superior Court for a jury trial. Expect discovery (medical records, witness depositions, drafting-attorney file) and pretrial motions. Timelines vary by county docket.
3. After trial (or court-approved settlement), the Superior Court enters judgment admitting or denying the will. The clerk then resumes administration consistent with the judgment.

Exceptions & Pitfalls

• Missed deadlines: A will probated in solemn form binds properly noticed parties if no timely challenge is raised at the hearing.
• Living probate: If a court declared the will valid before death and you were a bound party, you may be barred from later caveating.
• Burden and proof: After the will’s due execution is shown, you must prove your ground by the greater weight of the evidence; capacity is presumed, and self-proved wills supply prima facie execution.
• Multiple writings: Offer all known scripts (prior or later wills/codicils) in the caveat; holding one back can bar later probate of that document.
• Notice and service: Ensure proper service on all interested parties; defective notice can complicate or limit outcomes.

Talk to a Probate Attorney

If you’re dealing with a dispute over your spouse’s will and need to understand what evidence will make or break a challenge, 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.