Will Caveat Actions
Misunderstandings and disputes about the contents of wills and trusts are common, unfortunately. Some serious disagreements may lead to legal challenges to a loved one’s will. A lawsuit challenging the validity of a will is known as a will caveat or contested will. These types of legal challenges can be time-consuming and emotionally draining since they often pit family members against one another. Whether you have concerns about the validity of a will or you are a beneficiary to an estate that someone else is contesting in North Carolina, you will need trusted legal guidance.
Our attorneys at Brady Cobin Law Group, PLLC have more than 35 years of experience helping people litigate complex issues involving wills, trusts and estates. Based in Raleigh, our law firm concentrates our practice on estate matters and elder law, including will contests. We have the extensive experience and resources to help you seek a resolution to the matter. Through careful estate planning, our attorneys work to prevent disputes and avoid family heartaches before they occur.
Call us or contact us through our online contact form to discuss how we can assist you.
What is a Will Caveat Action?
A will caveat is a legal action challenging the validity of a will. A caveat may be filed with the clerk of court after a will is submitted for probate. Filing a caveat is the first step in a will contest.
Once a will caveat is filed, the contested will case is transferred to the Superior Court. It leads to a special court proceeding known as a caveat proceeding. While the challenge to the will is pending, the clerk orders the estate executor to suspend administration of the estate until the caveat is resolved.
The focus of the hearing is to determine whether the document purporting to be a will is in fact the last will and testament of the deceased. In some instances, two or more documents purporting to be the last will and testament may exist.
The caveat proceeding concerns legitimacy of the will itself.
There are numerous grounds for a caveat. A will contest is frequently based on a claim that the person lacked testamentary capacity and was incompetent at the time the will was prepared. North Carolina law presumes that a person has the capacity to write a will until proven otherwise. A person executing a will must have sufficient mental competence to understand what he or she was doing when signing a will. Another basis for contesting a will is that the person was unduly influenced by another.
A knowledgeable will contest attorney at Brady Cobin Law Group can review the basis for a caveat to the will in which you have an interest.
If the caveator provides specific evidence to support the claim of lack of capacity or fraud and the court agrees, then the will shall be voided. If no other valid will exists, then the person is found to have died without a will or died intestate. North Carolina laws of intestate succession direct the distribution of assets and property of the deceased individual. The legal term for this is dying intestate.
Who Can File Caveat To A Will?
The deceased’s next of kin or any interested party to the estate who has a pecuniary or beneficial interest that is adversely affected by the will may file a caveat petition within three years of the application for probate. The person may appear in person or be represented by an attorney.
The person who files the challenge is known as the caveator. More than one caveat may be filed. The person who defends the validity of the will is known as the propounder.
When considering a will contest, you must consider the following elements:
- Capacity of the person who made the will—North Carolina requires that you must be 18 or older and be of sound mind to write a will. People are allowed to make changes to a will. However, if a person had diminished mental capacity when the will was changed, there may be reason to challenge whether the revised document is valid. Any will caveat proceeding will examine the competency of the person who wrote the will.
- Undue influence or fraud—Caretakers and people in positions of trust may take advantage of an elderly person’s diminished mental capacity to improperly pressure an elderly person to change a will. If a will contest is based on undue influence, the person filing the caveat will need to present evidence that the person making the will was not acting of his or her own free will and that a caretaker or guardian was abusing a position of trust and exerting undue influence. The factors that the court may consider to support a claim of undue influence include old age and mental weakness, that the person who made the will is subject to the supervision of the person who is the beneficiary, that the purported will favors one with no blood ties and that the will revokes a prior will.
- Fraud—The person making the will executed the document under fraudulent terms.
- Improperly Executed Will—A will must be signed and witnessed by two other parties. A will that was not properly witnessed or made in accordance with North Carolina law may be found to be invalid.
The person who filed the caveat is required to serve notice on all interested parties to the estate and offer an opportunity to participate in a hearing and be aligned by the court with the person challenging the will or with the propounder who submitted the will to the court for probate.
Some wills have a provision that a beneficiary who files a caveat forfeits any inheritance under the will.
How Long Can a Caveat Stay on a Will?
A caveat proceeding can take a year or longer to complete and must be resolved in order for an estate to be closed. This can be frustrating to a person seeking to close an estate in a timely fashion. A will contest can be resolved by a negotiated settlement or by a jury.
The court has to determine whether the will that has been submitted for probate is the valid last will and testament of the deceased.
How to Remove a Caveat?
The parties may reach a settlement.
The person who filed the caveat may ask that it be removed.
A propounder may ask the Superior Court to issue a summary judgment, recognizing the validity of the will and dismissing the caveat.
The court may find during a caveat proceeding that the challenge to the will is not supported by evidence and dismiss the caveat.
The executor of the decedent’s estate may file a petition and ask the court to remove a caveat after a hearing on the matter.
Why Do I Need a Will Contest Attorney in Raleigh?
A will caveat is a special kind of legal proceeding. It is important to be represented by an experienced Raleigh estate litigation lawyer who understands the grounds for will contests in North Carolina.
Our goal as will caveat attorneys is to help individuals in North Carolina make well-informed decisions about your rights as an interested party to a will or estate and under what circumstance a will challenge is appropriate. We understand it can be an emotional process and strain family ties. We want you to have the peace of mind that you are in experienced hands and that everything is done correctly, whether you are challenging a will or defending a will that has been submitted for probate.
Our compassionate attorneys at Brady Cobin Law Group have built our legal practice by offering quality legal service and time-tested guidance regarding estate planning, probate administration, estate litigation and North Carolina probate law. Regardless of the issue regarding a will dispute, our attorneys at Brady Cobin Law Group have the knowledge and hands-on experience to help. Call or contact us online to learn how we can help you.
We needed to update our wills from another state. We were told by others that we should contact Brady Cobin. This turned out to be better than we expected – not only did we take a better direction than we thought would work, but they were also able to arrange all the pertinent estate planning items into a complete package.
We found their explanations of the many possible documents and ways that they could be written to be consistent and easy to understand. Legal matters are not our forte, but we are confident that we (and our heirs) will be well protected and able to manage affairs without undue concern.