Will Contests a/k/a Will Caveats are a mysterious kind of case in the civil litigation realm. They are unique. Lawsuits challenging a wills validity are an in rem proceeding. This means it’s a lawsuit describing the power a court may exercise over property. Colloquilly will contests are called breaking a will
Typically, these are emotionally charged cases, much like a domestic case. Most times family members are pitted against each other. For example, siblings vs. siblings. Children vs. stepparent, cousins vs. cousins, etc.
The procedure to follow in a will contest in North Carolina is outlined In the General Statutes of North Carolina. N.C.G.S. Chapter 31. See also In re Will of Brock, 229 NC 482 (1948).
The right to challenge a Last Will and Testament is also governed by the same N.C. General Statutes chapter.
Who can challenge a will? It has to be an “interested party” who has a direct pecuniary interest in the estate. Presumably this caveator would be adversely affected by the will.
It also includes: heirs under a prior will, intestate heirs (heirs who would inherit by law not under a will).
Then there is the question, that arises, what if the caveator wouldn’t have inherited on the will before the will being challenged? It is likely they could still challenge the probated will as long as they inherited on an earlier will or by intestacy. Nonetheless, that caveator is looking at not one but two will caveat cases.
Questions that arise in the situation described above include: How many years between the two wills? Were they drafted by the same attorney? And the key: was there a reason for the caveator being disinherited in the subsequent wills?
Other interested parties: Purchasers of an heir. Assignees of an heir.
Of course, once the above questions have been answered, the next step is to determine if the caveator has already accepted benefits under the will? An advancement?
If you’ve signed a receipt and release to the estate, then there are “grave” problems too.
For your fiduciary litigation needs, call Kirk Sanders at 336-723-7200. He chairs the Fiduciary Litigation Section at Hendrick Bryant.