Short Answer

Yes. In North Carolina, a surviving spouse can contest (caveat) a will based on lack of testamentary capacity. You must file the caveat with the Clerk of Superior Court after the will is probated, and typically within three years of probate in common form. Dementia alone does not void a will; the question is whether your spouse understood the essentials of making a will at the time it was signed.

Understanding the Problem

In North Carolina probate, can a surviving spouse challenge a recently probated will by filing a caveat, claiming the decedent lacked capacity because of dementia? Here, the will disinherited the spouse and named a niece as executor.

Apply the Law

North Carolina allows any “interested” person to file a caveat (will contest) with the Clerk of Superior Court. The case then goes to Superior Court for a jury to decide whether the paper is the decedent’s will. Testamentary capacity means that, at the time of signing, the testator could: identify close family, understand the nature and extent of their property, know how the will disposes of it, and appreciate the effect of that act. Capacity is judged at the moment of execution; medical diagnoses like dementia are relevant but not conclusive. While a caveat is pending, the personal representative must preserve the estate and generally cannot make distributions without court-approved procedures. A disinherited spouse may also pursue an elective share, which has a shorter filing deadline and can be pursued alongside a caveat.

Key Requirements

• Standing: You must be “interested in the estate,” which includes a surviving spouse whose rights change if the will is set aside.
• Capacity standard: Prove that, at signing, the decedent could not recognize close relations, understand their property, or understand and intend the will’s effect.
• Timing: File a caveat after probate in common form and within three years of that probate, or before the clerk’s hearing if probate is sought in solemn form.
• Forum: File the caveat with the Clerk of Superior Court; the case is tried by a jury in Superior Court.
• Burden of proof: The propounder first shows due execution; the caveator then must prove invalidity (such as lack of capacity) by the greater weight of the evidence.
• Estate freeze rules: While a caveat is pending, the personal representative must preserve assets and follow notice procedures before paying limited items.
• Spousal safety net: An elective share claim must be filed within six months after letters issue and can proceed even if a caveat is pending.

What the Statutes Say

• N.C. Gen. Stat. § 31-32 (Filing a caveat; who and when) – Any interested party may file; includes the general three-year window after probate in common form.
• N.C. Gen. Stat. § 31-33 (Transfer; notice; jury) – Clerk transfers the case to Superior Court for jury trial and issues notices to interested persons.
• N.C. Gen. Stat. § 31-36 (Estate during caveat) – Limits distributions; requires asset preservation and sets notice/hearing for certain payments.
• N.C. Gen. Stat. § 30-3.4 (Elective share procedure; deadline) – Spouse must petition within six months after letters issue; proceeding is before the Clerk.

Analysis

Apply the Rule to the Facts: As the surviving spouse, you are “interested” and may file a caveat. The core question is whether your spouse had testamentary capacity when the new will was signed; the dementia diagnosis and cognitive impairment records are relevant evidence, but the jury will focus on the signing date. Because the will disinherited you and a niece serves as executor while claiming there are no assets, the caveat will pause distributions and require the estate to be preserved while evidence is gathered. Separately, you can pursue an elective share within six months of the issuance of letters even while the caveat moves forward.

Process & Timing

1. Who files: Surviving spouse (caveator). Where: Clerk of Superior Court in the county where the will was probated. What: File a written caveat to the will and pay the statutory fee; the Clerk will transfer the case to Superior Court for jury trial and issue notices to interested parties. When: Generally within three years after probate in common form; if probate is sought in solemn form by petition, file the caveat before the clerk’s hearing.
2. Discovery and preservation: After transfer, use civil discovery (medical records, drafting attorney file, witnesses to execution) to prove lack of capacity at the time of signing. During the caveat, the personal representative must preserve assets and may only pay limited items after filing notice and, if objected to, a hearing with the Clerk.
3. Parallel relief for a spouse: If disinherited or inadequately provided for, file a verified petition for elective share with the Clerk within six months after letters issue. The Clerk will determine the elective share and can order recovery from responsible persons if needed. Consider also applying for a year’s allowance with the Clerk; short statutory deadlines apply.

Exceptions & Pitfalls

• Probate in solemn form can cut off later caveats if you do not appear or raise the issue at the clerk’s hearing.
• A dementia diagnosis alone is not enough; focus proof on the decedent’s understanding at the time of execution.
• Bring forward any earlier or later scripts purporting to be wills in the same caveat; holding them back can bar later probate attempts.
• While the caveat is pending, do not expect distributions; the estate is largely frozen and only limited payments may be approved after proper notice.
• Missing the six-month elective share deadline can forfeit that remedy even if a caveat remains pending.

Talk to a Probate Attorney

If you’re dealing with a last-minute will that disinherited you and questions about your spouse’s capacity, 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.