Will Caveats (Will Contests) or colloquilly known as “breaking a will” involve at least two phases in the devisat vel non trial. Devisat vel non is the archaic speak for the questions put to the jury concerning the validity of a will.
So at the trial, something interesting happens:
- the defender of the will, the Propounder, has the burden of proof to show the will that is being questioned was executed properly, then
- the attacker of the will probated, the Caveator, has the burden to show why the will should be over turned, typically by either lack of capacity of testator or undue influence on the testator
In the case of In re Will of McFayden 179 NC 595 (2005) the trial court determined there were three issues, so he trifurcated the trial.
Bifurcation is when the trial is divided so that issues will be presented to the jury one at a time. Trifurcation means there were three issues.
In McFayden, the court trifurcated as follows: 1) determine the validity of an earlier 1995 will, 2) whether testator destroyed a later (2002) will, and 3) the validity of the later (2002) will. A judge’s decision to bifurcate or trifurcate is reviewed by the appellate courts on an abuse of discretion standard.
The reason the older 1995 will was first up, was it was the will that was probated with the clerk. The 2002 will was lost. A lost will has a presumption of being destroyed by the testator (more on that in another discussion).
So the 1995 will had to be determined to be valid. The jury said it was.
So the trial went to the issue of whether the testator destroyed the 2002 will. After the caveators rested their case the court granted the 1995 will supporters/propounders a directed verdict. The case went up on appeals.
Problem on the second issue: there were 4 witnesses who testified with factual evidence that would not permit a directed verdict. (more on directed verdits in a later discussion).
Court of appeals said directed verdict inappropriate because their were factual issues. And factual issues go to the jury.
As for the bifurcation/trifurcation, the appellate courts upheld the trial court. On this issue it said: “In this case, it is clear that the issues concerning the validity of the 1995 will and the [**70] revocation of the 2002 will were separate, distinct and compartmentalized. Therefore, the trial court did not abuse its discretion in severing these trials.”
Bifurcation of will contest in North Carolina. It can be done.
Call Kirk Sanders, Estate Litigation Attorney in NC, at 336-723-7200. Statewide Representation. Sanders is chair of Hendrick Bryant’s Fiduciary Litigation Section with a NC 2015 Top 25 Verdict & Settlement ranking.