What’s a Will Caveat

What is a Will Caveat?

A will caveat (also known as a Will Contest, Will Challenge, or Will Attack) is a court proceeding which challenges the validity of a person’s last will and testament. The litigation is called a caveat.

The persons defending the will are called the propounders.

If you are in need of an attorney to handle your will caveat case or estate litigation. Please contact 336-724-4707 to discuss your matter.

In most states this stops the estate administration until the caveat hearing.

Please note that the topics and information in this website may vary depending on the State where the potential caveat case is to occur.

There are time limitations to file a will caveat. If not filed within the time period described by the laws of the state where the deceased person resided, then the challenge is barred.

Why challenge a Will?

First there must be legal grounds to challenge a will. Often a person who disagrees with the wording of the will, was disinherited, or had an inheritance drastically reduced per a prior will or intestate  wills is the person to file a caveat.

What are grounds for challenging a Will?

There are several different grounds for challenging a will. The main ones are:

●Testamentary Capacity

●Undue Influence

●Fraud

●Sham Will

●Execution Formalities for a Will

These examples are described in greater detail below. Case examples are discussed in greater detail in the WillCaveat.com blogs.

Who may contest the Will?

The general rule is someone must have a beneficial interest in the estate if the will is invalidated.

Example: a child was a beneficiary in a prior will but is not a beneficiary in the later, probated will.

Five Main Challenges in a Will Contest:

  • Testamentary Capacity: the testator (maker of the will) lacked capacity to make the will. A common argument is incompetency, but mere incompetency is not always conclusive.

The definition of testamentary capacity: having the mental competency to execute a will at the time the will was signed and witnessed. To have testamentary capacity the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other “natural objects of his/her bounty.” Inherent in that capacity is the ability to resist the pressures or domination of any person who may try to use undue influence on the distribution of the testator’s (will writer’s) estate.

  • Undue Influence: The amount of pressure which one uses to force someone to execute a will leaving assets in a particular way, to make a direct gift while alive, or to sign a contract.

The elements of undue influence that need to be proved are:

(1)   A person who is subject to influence; (2) an opportunity to exert influence; (3) a disposition to exert influence; AND (4) a result indicating undue influence.

The key element is that the influence was so great that the testator (will writer), donor (gift giver), or party to the contract had lost the ability to exercise his/her judgment and could not refuse to give in to the pressure.

Evidence of such dominance of another’s mind may result in invalidation of the will, gift, or contract by a court if the will, gift, or contract is challenged. Factors include: the influencing party’s participation in preparation of the will, excluding other relatives, being present when the testator and the attorney meet are all evidence of undue pressure, and an imbalance or change in language which greatly favors the person exercising the influence are factors in finding undue influence.

  • Failure of Execution: A will must be executed with the formalities required by law. The general rule is that there be a written document, signed by the testator, with witnesses’ signatures, acknowledgement and attestation language. An exception: some jurisdictions recognize handwritten wills (holographic wills)
  • Fraud: A will may be challenged if fraud is involved.
  • Sham Will: A will is fake and was never signed by the testator.

Kirk Sanders is a NC attorney who litigates will challenge cases.