If you expect to inherit from a loved one but find out you’ve disinherited, you may feel shocked and disbelieving. Especially if your loved one is a beloved parent, you may wonder what happened. As time passes, it’s normal to think about what possible recourse you have in the matter. If you suspect foul play or fraud, you may consider seeking legal recourse. Let’s look at valid reasons to file a dispute and see how long you have to contest a will in North Carolina.
What is a Last Will and Testament?
A Last Will and Testament lays out an individual’s final requests. It is a solemn document that affirms a person’s last wishes and desires before leaving this earth. One of the most critical functions of a will is to lay out who will inherit and what they will inherit. However, if family members get greedy, there are ways they may trick you out of your inheritance.
How Long Do I Have to Contest a Will?
You may contest a will in NC if you have legal grounds and three years have not passed. The statute of limitations for filing your contest is short, considering the probate process itself can last months or even years when an administrator drags their feet. There may also be multiple creditors or other issues that drag out estate administration proceedings.
Who Can Contest a Will?
First, you must have something to gain or lose by contesting the will. A court will dismiss your dispute if you file because a friend promised you her mother’s inheritance. Even if she promised that her mother would leave her estate to your non-profit organization, your friend’s word is only hearsay.
However, if your non-profit organization existed as an heir in a previous version of the will, you may have standing for a will contest. You would need to prove that one of a limited number of circumstances contributed to the probate court’s approval of the wrong will.
How Does a Probate Court Choose the “Valid” Will?
The probate court is in charge of settling an individual’s estate. One of their first roles is investigating any wills brought forth by family members as the valid will. Once the judge looks at the evidence, they decide which will is valid and “probate” the will. Probating a will means that the probate judge has agreed that the will is valid.
On What Legal Grounds Can I Contest a Will?
A will contest is only possible in some circumstances. You don’t have a legal case to contest a will because your mother told you something on her deathbed that turned out to be false according to her will. North Carolina law recognizes these reasons for legally contesting a will:
Incapacity or Incompetence
A will written during a time of incapacitation or medical incompetence is not valid. If your mother is in a nursing home with dementia and decides to rewrite her will, the new will may not hold up in court. Depending on her state of mind at the time of the writing, the court could declare the will invalid. If another previous will exists and the doctors in charge of her case agree that she was incompetent upon the writing of the newer will, the older will may stand.
If your brother decides to rewrite the will, backdate the document, and have your mother sign it, he commits fraud. Fraud is an intentional ploy to gain financially using lies or subterfuge. If your mother’s will gives her entire retirement account to you but then you find out that the court probated a will giving the entire amount to your sister, you may wonder if she forged a signature.
Another way family members may distort the intentions of the deceased is by exerting undue influence upon their wishes. In other words, they convince them to change the will in a way that undermines their actual intentions. Perhaps your daughter’s boyfriend puts pressure on your mother (her grandmother) with a threat of violence. Or maybe your mother’s friend manipulates her with false promises. In these situations, individuals abuse the trusting nature of the testator.
Problems with Witnesses
A will in North Carolina must be signed by two witnesses. Individuals don’t have to get a last will and testament notarized for it to be a valid will. However, they do need two witnesses to sign the document in their presence. If you can prove that the testator’s witnesses are invalid, then the will is invalid. A witness testifies that to the best of their knowledge, the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.
If you can prove that the witness knew the testator was under the undue influence of another, their witness signature is invalid and so is the will. If your uncle is a witness on the document but you can prove that he was overseas during the time he supposedly signed the will, you have valid grounds to contest the validity of the will.
If a testator writes a will in their own handwriting, it may hold up in court as valid. However, unclear language or intentions may cause a court to throw the will out. If another valid will exists, then the court will probate that will. The estates of those who write wills without the help of an experienced estate planning attorney often face this type of scrutiny from a judge.
Another Valid Will
If a probate court receives two separate wills from family members, they must investigate and determine which will to probate. A court moves forward once they probate a will. However, if you find another valid will that was written later, you may contest the will in probate court. The probate court will then decide which will to probate as valid.
How to File a Will Contest in NC
You may challenge a will with the probate court while probate is ongoing. However, once the administrator completes their duties and the court declares the probate settled, you must file a will caveat to challenge the will. You can work with your attorney to file the caveat with the clerk of superior court.
We Can Help
If you need help writing a valid will that will stand up in probate court or if you need to dispute the validity of a will, we can help. Our experienced estate planning attorneys are well-versed in North Carolina estate planning, probate, and estate administration laws. Whatever estate planning issues you face, we stand ready to work with you to find solutions. Contact us today for an initial consultation and find out how we can help.