Grounds for Contesting a Will: Undue Influence

Posted on Oct 31, 2014 in News

One of the claims to contest a will is Undue Influence. This post will discuss the Undue Influence challenge as grounds for contesting a will in North Carolina.

North Carolina courts defines Undue Influence as the fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.

The law requires that in order to state a prima facie case on the issue of undue influence, a caveator must prove the existence of 4 factors:

(1) a person who is subject to influence (this is in reference to the Testator or Will Maker);

(2) an opportunity to exert influence;

(3) a disposition to exert influence; and

(4) a result indicating undue influence.

The North Carolina Supreme Court has identified 7 factors to demonstrate and prove the issue of undue influence:

(1) old age and physical (eg. sickness) and mental weakness (eg. stroke effected, dementia, etc.) of the testator making the will;

(2) the person executing the will is in the home of the beneficiary and subject to the beneficiary’s constant association and supervision;

(3) others have little or no opportunity to see the person executing the will (exclusion or seclusion of the Testator);

(4) the will is different from and revokes a prior will (it needs to be substantially different, many people make new wills mainly to change a prior will);

(5) the beneficiary is not a blood relative (a stranger in blood);

(6) the will disinherits the natural objects of the person’s bounty (disinherits children, spouse, close family); and

(7) the beneficiary procured the will’s execution (beneficiary under the challenged will drafted the document or hired an attorney and helped in the direction of how the will was drafted).

However, the above list is not exhaustive, as it is impossible to set forth all the various combinations of factors which make out a case of undue influence.

It can be difficult to prove the existence of undue influence, so North Carolina courts  recognize it must usually be proved by evidence of a combination of circumstantial evidence such as surrounding facts and inferences, from which a jury could find that the person’s act was not the product of his own free and unconstrained will, but instead was the result of an overpowering influence over him by another.

Direct proof of undue influence is not required and is rarely available; circumstantial evidence may be considered. In fact, the more adroit and cunning the person exercising the influence, the more difficult it is to detect the badges of undue influence and to prove that it existed. Accordingly, each surrounding fact and circumstance, though standing alone may have little import, when each fact is looked at together, it may permit an inference that a testator’s/testatrix’s wishes and free will had been overcome by another.

Kirk Sanders is a NC licensed attorney who represents Propounders (defenders of a challenged will) & Will Caveators (challengers to a will).


Undue Influence