December 10, 2017
Potential heirs are sometimes surprised to find that they are not receiving the amount or type of property they anticipated from a deceased relative’s estate. If the decedent lacked testamentary capacity or was improperly influenced to change their will, there may be cause to bring an action to contest the validity of the will.
North Carolina law requires that a person be of sound mind to create a will. If a person didn’t know what property they owned, who their heirs were, or that they were creating a will, they may have lacked testamentary capacity, which would render the will invalid.
Who Can Contest a Will?
Any interested party can contest a will within three years of the application of the will for probate. Typically an interested party is either someone who stood to inherit under a previous will or someone who would inherit under North Carolina’s intestacy laws if the will was declared invalid.
If you would not inherit under the intestacy laws or a previous will, contesting the will won’t benefit you. Even if the decedent made you promises about receiving certain property, these statements won’t be enforceable to change a written will.
How to Challenge a Will
The law will presume that the decedent had the required testamentary capacity when creating the will. You will have to prove that the testator lacked capacity, either due to fraud, duress, or under influence.
What’s important is the testator’s capacity at the time of creating the will. Even if they had occasional memory problems or other health issues, they could still make a valid will if they had a sound mind at the time the will is created.
A jury will decide issues of testamentary capacity. Sometimes you may be better off attempting to negotiate a settlement. This is done by agreeing to a property distribution with the other interested parties, whether they are the surviving spouse, children, or other relatives of the heir. This isn’t always possible, but can be a way to reduce the risks and costs or contesting the will.
If you have questions about the validity of a loved one’s will, consult with an estate planning attorney. You may have a limited time period to contest the will and make a claim for property of the estate.
The lawyers at King Law can help you plan for what happens after you’re gone, and we’re here to help you get a better sense of where you stand. We invite you to come in and talk with one of our attorneys in person during a consultation. Our number is 888-748-KING (5464).