Short Answer

In North Carolina, you prove a will’s valid execution before the Clerk of Superior Court by showing it met the witness and signature requirements and by supplying the proper proof (self‑proving affidavit or witness/handwriting affidavits). If someone who said they had the original later denies it, you can ask the clerk to compel production or a sworn explanation. If the original cannot be produced, you may offer a copy and additional evidence to admit a lost will.

Understanding the Problem

In North Carolina probate, can you prove the will was properly executed and compel the original when the Clerk of Superior Court is told conflicting stories—especially where the other person once said they held the will but later applied as administrator claiming no will exists?

Apply the Law

North Carolina requires an attested will to be signed by the testator and witnessed by two competent witnesses. A will that includes a valid self‑proving affidavit can usually be admitted without live witness testimony. When an original is withheld or missing, the Clerk of Superior Court can summon the person believed to have it to produce the will or swear under oath where it is. If the original cannot be produced, the clerk may consider a copy and additional proof to establish a “lost will,” including evidence of due execution, contents, and that the original was not revoked by the testator. The clerk is the primary forum, and time‑sensitive orders in these proceedings must be followed.

Key Requirements

• Due execution: Show the testator signed and two witnesses attested in the testator’s presence.
• Self‑proved shortcut (if available): A proper self‑proving affidavit allows probate without witness testimony.
• If not self‑proved: Provide subscribing witness affidavits; if one or none are available, add handwriting proof and any other competent evidence the clerk accepts.
• Compel production: File an affidavit asking the clerk to summon the person believed to hold the will to produce it or swear where it is or how it was disposed of.
• Lost will path: If the original cannot be produced, prove (1) death, (2) due execution, (3) the contents, and (4) loss or destruction not caused by the testator with intent to revoke. Be prepared to overcome the presumption of revocation if the will was last in the testator’s possession and cannot be found.
• Forum and authority: The Clerk of Superior Court (Estates Division) has original, exclusive jurisdiction over probate; the clerk can accept affidavits, continue hearings for good cause, issue summonses, and enforce orders.

What the Statutes Say

• N.C. Gen. Stat. § 28A-2A-4 (Compel production of a will) – Clerk may summon a person to produce the will or swear to its whereabouts/disposition.
• N.C. Gen. Stat. § 28A-2A-8 (Proof of attested wills) – Sets out proof methods, including witness affidavits and handwriting proof when witnesses are unavailable.
• N.C. Gen. Stat. § 31-11.6 (Self‑proving wills) – A will with a compliant self‑proving affidavit is admitted without additional witness testimony.
• N.C. Gen. Stat. § 31-3.3 (Attested written wills) – Signature and two‑witness requirements for an attested will.

Analysis

Apply the Rule to the Facts: Because the other person first said they held the original will but later applied as administrator claiming no will, you can ask the clerk to issue a summons requiring them to produce the will or give a sworn explanation. If the original appears and the will is self‑proved, the clerk can admit it without witness testimony. If the original cannot be produced, you can offer your copy along with affidavits from witnesses or others to prove execution and contents, and evidence to rebut any presumption that the testator revoked the will.

Process & Timing

1. Who files: The interested person (often the named executor or beneficiary). Where: Clerk of Superior Court, Estates Division, in the North Carolina county of the decedent’s domicile. What: (a) Application by affidavit to compel production of a will (no standard AOC form); and (b) if needed, the probate application and supporting affidavits (AOC‑E‑201; AOC‑E‑300/AOC‑E‑301; self‑proved will if available). When: After death; if the named executor has not applied within 60 days, an interested person may seek probate after giving required notice.
2. The clerk issues a summons directing the person believed to hold the will to produce it or swear to its location/disposition by a set date. Service is typically made under civil Rule 4. The clerk may take affidavits or brief testimony; a continuance can be granted for good cause (for example, hospitalization).
3. Final step: If the original is produced, the clerk reviews the proof and, if satisfied, admits the will and issues a Certificate of Probate (AOC‑E‑304). If the original is not produced, the clerk may consider the copy and evidence to admit a lost will; otherwise, the estate proceeds without that will unless further action is taken.

Exceptions & Pitfalls

• Presumption of revocation: If the original was last in the testator’s possession and cannot be found, the law presumes revocation; rebut with evidence showing loss or destruction not caused by the testator.
• Witness availability: If not self‑proved, line up subscribing witnesses early; if one or none are available, be ready with handwriting affidavits and other competent proof.
• Service and enforcement: Ensure proper service of the clerk’s summons; noncompliance can lead to a show‑cause hearing and civil contempt until the person complies or accounts for the will.
• Contested validity: If an interested party files a caveat or raises devisavit vel non at the hearing, the clerk must transfer the case to Superior Court.
• Continuances: Hospitalization or similar good cause may justify a continuance, but keep the clerk updated and document the reason.

Talk to a Probate Attorney

If you’re dealing with a missing original will, contradictory statements, or proving a will’s execution, 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.