Short Answer

In a North Carolina will contest (caveat), gather the will’s self-proving affidavit or witness affidavits from the Clerk’s file to prove due execution, then collect medical and lay witness evidence addressing capacity or undue influence. The Clerk transfers the case to Superior Court for a jury trial, and the probate file’s affidavits serve as prima facie proof of proper execution. While the case is pending, the personal representative must preserve assets and follow court-directed notice before paying certain bills.

Understanding the Problem

In North Carolina, how do you collect and use affidavits and other evidence when someone files a caveat to challenge a will in Superior Court? Here, the decedent’s estranged daughter has filed a caveat. The beneficiary–executor wants to defend the will, move the case forward, and comply with asset‑preservation rules while the contest is pending.

Apply the Law

When a caveat is filed with the Clerk of Superior Court, the Clerk transfers the case to Superior Court for a jury trial. The propounder (the side defending the will) first proves the will’s due execution. If that showing is made, the burden shifts to the caveator to prove grounds such as lack of capacity, undue influence, fraud, duress, or improper execution. Affidavits used at probate—like a self‑proving affidavit or subscribing witness affidavits—are accepted as proof of execution, and if witnesses are unavailable, handwriting affidavits can substitute. While the caveat is pending, the Clerk typically orders the personal representative to preserve assets and follow specific notice procedures before paying listed expenses.

Key Requirements

• Prove due execution: Use the will’s self-proving affidavit or affidavits of the subscribing witnesses; if needed, add handwriting affidavits and proof of witness unavailability.
• Burden then shifts: After proper execution is shown, caveators must prove invalidity (e.g., lack of capacity or undue influence) by the greater weight of the evidence.
• Use the probate file: Affidavits and proofs taken by the Clerk at probate are treated as prima facie evidence of execution at trial.
• Asset preservation: During the caveat, the personal representative must not distribute assets, must preserve property, and must give formal notice before paying certain bills.
• Forum and timing: Caveats are jury trials in Superior Court; a caveat must be filed within three years of probate in common form.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Caveat; timing and who may file) – Caveat must be filed within three years after probate in common form by an interested party.
• North Carolina Gen. Stat. § 31-33 (Transfer to Superior Court) – Clerk transfers caveat to Superior Court for jury trial.
• North Carolina Gen. Stat. § 28A-2A-8 (Proof of attested will) – Allows proof by subscribing witnesses or by handwriting/unavailability affidavits if witnesses cannot testify.
• North Carolina Gen. Stat. § 31-36 (Duties during caveat) – PR must preserve assets and give notice before paying specified expenses while the caveat is pending.

Analysis

Apply the Rule to the Facts: Because a caveat has been filed, expect transfer to Superior Court and a jury trial. First, secure and use the probate file: the self‑proving affidavit or subscribing‑witness affidavits support due execution. Next, prepare capacity and undue‑influence evidence: medical records, the drafting attorney’s file, pharmacy/primary‑care notes, and testimony from neighbors or caregivers. Given the pending contest and a life estate in the home, the personal representative must preserve assets and follow notice rules before paying listed bills.

Process & Timing

1. Who files: The caveator files the caveat with the Clerk; the propounder then defends. Where: Clerk of Superior Court (filing), then Superior Court for trial in the same North Carolina county. What: Pull the probate file (self‑proving affidavit or AOC‑E‑300/E‑301 witness affidavits), request medical and non‑medical records, and line up witness statements. When: Immediately after notice of the caveat; for any bill payments, serve a Notice of Intent and allow a 10‑day objection period before paying listed expenses.
2. Conduct discovery: subpoena the drafting attorney, subscribing witnesses, and relevant medical, pharmacy, banking, and phone records; take short, focused depositions; gather sworn statements from neutral observers; and prepare the hearing‑impaired beneficiary with reasonable accommodations.
3. Pretrial and trial: use affidavits and deposition excerpts to narrow issues or support/oppose summary judgment (used cautiously in caveats). At trial, present the Clerk’s probate proofs for execution, plus medical and lay evidence on capacity/undue influence. Final judgment admits or rejects the will; the case returns to the Clerk for administration consistent with the judgment.

Exceptions & Pitfalls

• Self‑proved wills ease proof of execution but do not bar a caveat; still build a full record on capacity and undue influence.
• If a subscribing witness is unavailable, pair handwriting affidavits with clear proof of unavailability; incomplete showings stall admission.
• Do not distribute assets or make major transactions without guidance; obtain the Clerk’s approval where needed and follow the notice‑and‑objection process for payments.
• Keep communications professional; document and preserve any messages related to alleged threats or coercion and channel disputes through counsel and the court.
• Coordinate reasonable accommodations for a hearing‑impaired beneficiary so the jury can assess testimony fairly.

Talk to a Probate Attorney

If you’re dealing with a North Carolina will caveat and need to collect affidavits, medical records, and witness evidence while protecting estate assets, 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.