Victory in Challenge to Will in North Carolina
A court hearing turned into victory in the challenge to Will in North Carolina. A Surry County Superior Court rejected a challenge to the last will and testament in $1 million estate. The challenger was the brother of the deceased testator. The brother alleged the testator was incapable of making the will due to competency. Judge Hinnant granted summary judgment to the family friend named as the estate’s beneficiary under the will. The caveator’s attack was defeated and the caveator’s case was dismissed. The testator, Mr. Creed was 91 at the time of his death. He did not have a...
Read MoreAttested Wills In North Carolina
Testamentary Formalities – Attested Wills In North Carolina In North Carolina, the most common type of will is the attested written will, governed by N.C. Gen. Stat. § 31-3.3. An attested will is witnessed by others. Attest meaning “to declare to be true, to bear witness to, certify”. The statute has four requirements, all of which are necessary for a valid attested written will. (1)First, an attested written will must be signed by the testator and attested by at least two competent witnesses. This means that the person who seeks to create her last will and testament must sign the will, and...
Read MoreSummer Redstone- example of competency challenge
Is Redstone Competent To Take Actions Or Not? At 92 years old, Sumner M. Redstone is currently a director, chairman emeritus, and controlling shareholder of 80% of the voting shares of Viacom and CBS. Redstone will remain in control until he either dies or is declared incompetent. During testimony in the lawsuit concerning his competency, Judge David J. Cowan stated that he was strongly considering Redstone’s motion to dismiss the case, which would leave Redstone in charge of his $42 billion media empire. Manuela Herzer, Redstone’s former lover, brought the suit in Los Angeles, California...
Read MorePlan for Dividing up Assets of Parent’s estate
Issue: How to prevent estate litigation between heirs Parents/Testators- be specific in your gifts. Have a plan for dividing up personal property. Beware of just saying “all my personal property to be divided in equal shares between my four children”. If you do that, you may cause the kids to fight over the same items. Tracy Bennett, a clinical psychologist, experienced this. She learned from the experience and designed methods to help families divide estates. A link to a NY Times article is below. She makes this point: “I ask parents to think just for a second what it would be like on...
Read MoreEstoppel & Challenging last will & testament in NC
Will Caveat Issue: What if the caveator has already accepted property under the will he/she wants to attack? Does the Doctrine of Estoppel apply? Estoppel General Rule: one who accepts the benefits under a will is estopped to contest the will’s validity. Said another way: one who accepts the benefits of a transaction or under an instrument can’t turn around to take a later position inconsistent with that previous transaction/instrument. Estoppel Rule 2/Distinction/Exception: ‘One cannot be estopped by accepting that which he would be legally entitled to receive in any...
Read MoreContesting a Will in NC – Testamentary Capacity
When contesting a will in NC based on lack of capacity, the general rule is: A testator-decedent has testamentary capacity if he: – comprehends the natural objects of his bounty; – understands the kind, nature, and extent of his property; – knows the manner in which he desires his act to take effect; and – realizes the effect his act will have upon his estate. This is the general rule. It means that even if someone is insane, they could still possibly have testamentary capacity. In addition, just because someone cannot read or write, they can still make a will. The...
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