When the validity of a deceased person's Last Will and Testament is called into question, the person bringing the claim (Caveator) will file a Will Contest (a.k.a. Caveat Proceeding). The Caveator is one who claims that a Will that has been offered for probate was not executed according to law or is not the deceased person's most recent Will. For example, there may be more than one Will in existence with different beneficiaries. Another example would be when the Caveator argues a will should be discarded because a Will was made by one lacking the required level mental capacity.

In a Caveat Proceeding, the party offering a Will for Probate is the Propounder. The Propounder has the initial burden of establishing a Will was executed according to the law. In particular, the Propounder must show the maker of a Will had the necessary mental capacity to understand and communicate his wishes. This is usually not a difficult burden since the law assumes a person has adequate mental capacity to make a valid Will.

If the Propounder can show that the maker of the Will had adequate mental capacity, then the burden of proof shifts to the Caveator to either: (1) rebut this showing of capacity; (2) show the Will was revoked by a later Will; or (3) prove the Will was obtained by undue influence.

To refute capacity, a Caveator must show the maker of a Will did not know the following: (1) the nature and extent of their property; (2) the natural objects of their bounty; (3) the manner in which he/she wants their desires to take effect; and (4) the consequences of their Will. Evidence of irrational behavior or other evidence of impaired mental status is relevant to a dispute over capacity.

The validity of a Will can also be attacked by claiming the Will was made under undue influence. This argument is based on the claim that a beneficiary exercised or had someone exercise such influence over the maker of a Will so as to substitute the influencing person's desires for the deceased person's free will. Several factors are relevant to the issue of undue influence. Among these factors are: (1) old age or illness; (2) the person signing the Will lived under the control and supervision of the beneficiary; (3) the Will revokes a prior Will; (4) the Will is made in favor or someone with no blood ties; (5) it disinherits family; and (6) the beneficiary hired the lawyer to draft the will or otherwise procured its execution. Undue influence is often an issue when a fiduciary relationship existed between the maker of a Will and the beneficiary under the Will. In such cases, a presumption of undue influence may arise because of the special relationship. This sometimes occurs when a person having a power-of-attorney is named as the beneficiary under a Will. For a recent North Carolina Supreme Court opinion on the law regarding undue influence, please see In the Matter of the Will of John Jones.

If a Caveator succeeds in proving a Will is not valid, then that Will is treated as if it never existed. In such cases, if an earlier Will existed, then it may be revived and control. If no earlier Will existed, then the assets of the deceased person are distributed according to complex intestate transfer rules set forth in North Carolina General Statutes.

The attorneys at Brady Morton, PLLC are experienced at handling estate litigation, including Caveat Proceedings. There are deadlines governing when you must bring a Caveat Proceeding/Will Contest; therefore, if you feel you have a case, please contact one of our North Carolina estate litigation attorneys today. We can be reached by calling 919-782-3500 or through our online contact form. At Brady Morton, PLLC the initial consultation is free and we can often handle Will Contests on a contingency fee or deferred fee basis.