Will Caveats a/k/a Will Contests

We litigate claims involving undue influence and incapacity of the testator of a will. These will caveat cases challenge whether the Testator of the probated Last Will & Testament made that document knowingly and freely.

Medical records, transaction history, past wills and testaments, witnesses to the documents, are just a part of building the case for a jury trial regarding devisat vel non (Latin for “is the will valid”).

Why Challenge a Will?

The will being probated is not the valid, true testamentary intention of the dead person. Will contests have become prevalent and include the following factors:

  • People live longer lives and develop and subsist with physical & mental illnesses. Dementia, strokes, seclusion of the testator all are factors in these types of cases.
  • Families live further apart,
  • Subsequent marriages pit step parents against children of born prior to the subsequent marriage, and
  • Opportunities to download will forms from quasi-legal website businesses and fill them out in secrecy.

For more information on different challenges to a will, see my website completely devoted to will contests: www.willcaveat.com/what-is-a-will-caveat/

For a discussion of what is Undue Influence, see www.willcaveat.com/grounds-contesting-will-undue-influence/

Since the 1990’s, will caveat litigation has been a major focus of Kirk’s legal practice. This extensive experience greatly benefits his clients as he guides them through the litigation process, which is often foreign to most clients. He can analyze the strengths and weaknesses of your case. His experience in these cases benefits his clients, whether attacking or defending the probated will.

What is a will contest?

A will challenge is contesting the validity of the probated* will. A caveat, also referred to as a will challenge, is filed against the probated will based on undue influence, lack of testamentary capacity, fraud, forgery, duress, revocation, or failure to follow testamentary requirements. *What is probate? Probate means the will is filed for estate administration.

What happens after a Will Caveat is filed in NC?

The Clerk of Court must transfer the file to the Superior Court trial division for trial by jury. The Caveator (Challenger) must serve all the interested parties with the caveat complaint.

Once all the parties received notice, they either will choose to align with the caveators (parties that  are challenging the validity of the will) or the propounders (parties that defend the validity of the probated will). If you are an interested party, you need to align with one side or the other to participate in the will contest litigation. If you don’t, you have no interest in the outcome of this litigation.

The parties will then proceed with the discovery process and ultimately a trial. What is discovery in NC? Discovery is the process of sending written questions (Interrogatories), request for production of documents, depositions (oral examination of witnesses under oath), and subpoenas to 3rd persons for materials (banks, medical providers, etc.).

Who can Contest a Will? Who can file a will caveat?

Only an interested party can file the will challenge. This includes someone who would have inherited under a prior will or inherit per NC’s laws of intestate succession.

What is the statute of limitations for a will caveat in NC?

A caveat proceeding must be filed within 3 years of probate of the will in the clerk’s office. If not filed in that period, the challenge will be barred. The sooner one files, the more likely there will be recovery of estate assets. NCGS 31-32 https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_31/GS_31-32.pdf *What is probate? Probate means the will is filed for estate administration.

What is the process to contest a will?

Once the caveat complaint is filed with the Clerk of Court, the Clerk transfers the file to the Superior Court trial division, then the parties choose to be aligned as caveators or propounders, the parties proceed through the discovery process (eg. depositions, written discovery), argue motions before the court, then hold a trial by jury if the case does not get settled. Will Caveats can only be tried by juries. Bench trials are not allowed. Kirk Sanders and his team have tried jury trials in will caveats to verdict.

What happens to the Estate assets during the will caveat litigation?

The Clerk of Court will file an order requiring the executor to preserve the assets of the estate. The executor must protect the property, including pursuing claims to regain assets or prosecute claims (eg. Contract disputes, wrongful death claims). Distribution of assets to beneficiaries is not allowed until there is a final determination by either family settlement agreement, trial, or dispositive motion. Accountings are still required to be filed with the clerk by the executor. Debts such as taxes and funeral bills will need to be paid. This is pursuant to N.C.G.S. 31-36.

What does devisat vel non mean?

It is a jury charge to determine the question of fact as to the validity of an alleged last will & testament. It is a jury judgment, not a clerk of court probate decision. Technically, the Latin meaning is “s/he bequeaths or not”.
Call Attorney Kirk Sanders to discuss your will caveat case at 336-768-1515

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Kurtz Whitley Guy Sanders & Rainey, PLLC
One Salem Tower 119 Brookstown Ave
Suite 400
Winston-Salem, NC 27101

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