Contesting a Will, but Which Will

Posted on Oct 27, 2015 in challenging a last will and testament, Contesting a 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: when was the holographic will written and signed?

One of the issues was the Deadman’s Statute. That N.C. Statute Rule 601 of NC Rules of Evidence says interested parties testimony is invalid or incompetent when (1) that such witness is a party, or interested in the event, (2) that his testimony relates to a personal transaction or communication with the deceased person, (3) that the action is against the personal representative of the deceased or a person deriving title or interest from, through or under the deceased, and (4) that the witness is testifying in his own behalf or interest.

Now there’s an exception to the Deadman’s Statute that allows  beneficiaries to testify as to the three material elements of a holographic will: (1) the testator’s handwriting, (2) the testator’s signature, and (3) what the testator considered to be his place for keeping valuable papers

Problem in Lamparter case is that the court allowed the interested parties, the caveators, to testify as to the decedent wishing to change his will and when he executed the holographic will. The N.C. Supreme Court said that testimony was not allowable evidence. The case was sent back to the trial court for a new caveat trial.

Call Kirk Sanders, NC Fiduciary Litigation Attorney to represent you in your Will Contest case.