Short Answer

In North Carolina, you challenge a probated will by filing a “caveat” and proving, by the greater weight of the evidence, either (1) the signer lacked testamentary capacity, or (2) the will was the product of undue influence. The case is tried to a jury in Superior Court after you file the caveat with the Clerk of Superior Court. If the will was admitted in common form, you generally have three years to file. A caveat also freezes distributions while the case proceeds.

Understanding the Problem

You want to know how, in North Carolina probate, you can prove undue influence or lack of capacity to set aside a will. Here, an older will was admitted to probate instead of a newer one. Your goal is to contest the admitted will by showing it should not stand because the signer lacked capacity or was unduly influenced.

Apply the Law

North Carolina resolves will challenges in a “caveat” proceeding. The propounder of the will first shows due execution. Then the challenger must prove lack of testamentary capacity (the signer didn’t understand family, property, what the will does, or its effects) or undue influence (someone overbore the signer’s free will) by the greater weight of the evidence. The Clerk of Superior Court receives the caveat, then transfers the case to Superior Court for a jury trial. If the will was probated in common form, the deadline to caveat is three years from probate; if probate in solemn form is sought with notice, objections must be raised before or at the clerk’s hearing.

Key Requirements

• Standing (interested party): You must have a direct financial stake (for example, heir, prior beneficiary, or person under a later will).
• File the caveat on time: File within three years after probate in common form, or before/at the hearing if probate in solemn form is sought.
• Burden framework: The propounder proves due execution; you then prove undue influence or lack of capacity by the greater weight of the evidence.
• Lack of capacity test: Show the testator did not understand the natural objects of bounty, the nature and extent of property, how the will disposes of it, or the effect of the act.
• Undue influence proof: Show vulnerability, the influencer’s opportunity and disposition to control, and an unnatural result; a fiduciary relationship benefiting the fiduciary can raise a presumption you can use.
• Forum and effect: File with the Clerk of Superior Court; the case is tried by a Superior Court jury; during the caveat, the personal representative is restricted from distributing estate assets.

What the Statutes Say

• North Carolina Gen. Stat. § 31-32 (Caveat; timing and procedure) – Caveats are filed with the clerk; three-year period after probate in common form; transfer to Superior Court.
• North Carolina Gen. Stat. § 28A-2A-7 (Probate in solemn form) – Notice-based probate; objections must be raised before/at the hearing or they are barred for properly served parties.
• North Carolina Gen. Stat. § 31-36 (Estate restrictions during caveat) – Limits distributions and payments while a caveat is pending.
• North Carolina Gen. Stat. § 32C-1-116 (Judicial relief re: powers of attorney) – Separate avenue to challenge power-of-attorney conduct or instruments.

Analysis

Apply the Rule to the Facts: Because an older will was probated, you likely qualify as an “interested party” and may file a caveat within three years of that probate. You would gather medical, witness, and drafting-attorney evidence to show either lack of capacity (failed the four-part capacity test) or undue influence (circumstances showing an overborne will, including any fiduciary control by a beneficiary). If a more recent will or even a copy exists, offer it in the caveat so the jury can determine the true last will. During the caveat, ask the clerk to apply the statutory restrictions on estate distributions.

Process & Timing

1. Who files: An interested heir/beneficiary. Where: Clerk of Superior Court in the county where the will was probated. What: File a written caveat and pay the filing fee; request restrictions on distributions during the caveat. When: Within three years after probate in common form; if probate in solemn form is pending, file before the clerk’s hearing or raise the issue at the hearing.
2. The clerk files the caveat in the estate, enters restrictions on the personal representative, and transfers the case to Superior Court. Parties align, engage in discovery, and the matter is scheduled for a jury trial. Timelines vary by county and court calendars.
3. The Superior Court enters judgment either sustaining or setting aside the will (and, if multiple scripts are presented, determines which is the decedent’s last will). The estate then proceeds under that judgment.

Exceptions & Pitfalls

• Probate in solemn form with proper service closes the door to later caveats; objections must be timely at that hearing.
• If a later or different will exists, present it in the caveat; holding it back can bar you from offering it later.
• Undue influence often relies on circumstantial proof; document who arranged the will signing, who was present, isolation of the signer, sudden changes, and fiduciary control.
• Capacity for wills is a specific four-part standard; a prior incompetency order creates a presumption but can be rebutted by evidence of capacity at signing.
• Challenges to a power of attorney or coerced property transfers use a separate civil action; the clerk generally lacks jurisdiction over those damages claims.

Talk to a Probate Attorney

If you’re facing a will that may be invalid due to undue influence or lack of 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.