The Old No Contest Clause (fiduciary litigation attorney)
The Old No Contest Clause (a/k/a in terrorem clause)- In this situation, the testator, anticipating one of the beneficiaries might challenge the will and how little they’re getting compared to what they thought they’d get, puts one of these clause in his or her will. The No Contest Clause basically says “If any of my beneficiaries challenges my Last Will And Testament or a term herein, then they shall receive nothing from my estate.” However, the presence of a no contest clause does not exactly mean that a beneficiary will lose their inheritance if the...
Read MoreContesting a Will, but Which Will
Contesting a Will & the Deadman’s Statute – the case of In Re Will of Lamparter, 348 N.C. 45 (1997) The NC Decededent had a typed up Last Will and Testatment. Later the decedent wrote a handwritten codicil (Addendum) to that Last Will. But later, after passing, someone found an undated 8 page handwritten document purporting to be the Last Will. Did it revoke the prior will? So the typed Last Will was probated. Thus the challengers of that typed will, the caveators, said the handwritten will (holographic will) was the Last Will and should govern the estate. Problem/Issue:...
Read MoreDiscovery in Will Contests
When the probate litigation lawyers at Hendrick Bryant file a Will Contest (will Caveat), we also file discovery requests per the N.C. Rules of Civil Procedure. If the case is based on capacity of the testator at the time of execution of the Last Will & Testament or if it’s based on Undue Influence on the testator, then medical records are vitally important. So we ask for medical records around the time the will was executed and beforehand. These requests include: Medical & health records and bills from {DATE} to her Date of Death, including: medical records doctors notes...
Read MoreBreaking A Will & Bifurcated Trials
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...
Read MoreHow to challenge a Change of Beneficiary Form when person didn’t have capacity?
FAQ: What if the decedent allegedly signed a Transfer on Death (a/k/a Paid on Death Beneficiary, life insurance policy, annuity contracts, Totten Trust, Joint Account with Right of Survivorship) or a deed before they died? An improper change of beneficiary on a bank account, life insurance policy, or brokerage accounts can be as devastating, or greater, than a bad will. Similar rules apply to challenging the document as there are with Will Contests (aka Will Caveats). You will need to prove this was an invalid gift based lack of mental capacity or undue influence. Did the decedent have the...
Read MoreProcess to Contest a Will
FAQ: What is the process to challenge a will in NC? Answer: In North Carolina, to contest a will there is the following general process: 1) Caveat filing. This is the complaint to be filed by the attorneys for the caveators or challengers of the will. It’s filed in Superior Court in the county where the will was probated. This has to be filed within 3 years of the time of death/probate of will. 2) Bond paid to the clerk for the Caveat. Not a large bond typically. 3) Order to suspend estate except for maintenance. This keeps the assets of the estate from being distributed prior to the trial....
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