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 rule is pretty basic and is summed up as follows: does the will maker know what he has? Does he know who he wants his property to go to? Does he understand that the will is what is going to gift his property?
Furthermore, in NC jurisprudence, there is a presumption which exists that every testator-decedent has the requisite capacity to make a will. In other words, if a will is executed properly, then the Court begins with the position that the will was signed by a competent person. Because of this presumption, the caveator, the person challenging the will, bears the burden of proving that such capacity was lacking.
If you have a Will Contest /Will Caveat in North Carolina, Kirk Sanders has experience representing both propounders (defenders of the probated will) caveators (challengers of the probated will).
Call 336-723-7200 to discuss representation by Will Contests Attorneys in NC.
