December 9, 2017
Any person of sound mind at age 18 years or older may make a will in North Carolina. § 31-1. Most wills go through probate without any disputes or contested issues. However, in some cases there may be some disagreements over the validity of the will and which heirs be entitled to certain property.
A will can be contested if the person creating the will lacked testamentary capacity or that the testator was improperly influenced by someone when creating the will. This situation usually arises in one of two scenarios:
- First, this can happen if there was a previous will that contradicted a later will. Heirs under the previous will may claim that the testator lacked capacity when creating the second will.
- Second, if an heir would inherit assets under North Carolina’s intestacy laws, but was disinherited under the will, they may claim that the will is invalid and that property should be distributed based on the intestacy laws.
What is Testamentary Capacity?
Testamentary capacity has been defined in North Carolina case law to require that the testator be able to do all of the following:
- comprehend the natural objects of his bounty
- understand the kind, nature and extent of his property
- know the manner in which he desires his act to take effect, and
- realize the effect his act will have upon his estate.
Testamentary capacity needs to exist at the time the will is created. If all of these factors are met, then the testator had sound mind and the will is valid.
Procedure for Challenging a Will
Any interested person can challenge a will within three years of the time of application for probate of the will. An interested person could be a potential heir under a previous will or the intestacy laws.
The law will presume that testamentary capacity exists, and the person contesting the will has to prove that the decedent lacked capacity when the will was created. Evidence that a person was experiencing health or memory problems is generally insufficient. There will need to be evidence that they either didn’t understand the nature of the property, who their heirs were, or that they were actually creating a will.
You can also attempt to negotiate a settlement with the other interested parties. The property can be distributed in a compromise that all parties agree to. Otherwise, a jury will decide whether the decedent had testamentary capacity to create a valid will.
King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively and compassionately on behalf of our clients each day. We serve the Upstate of South Carolina and Western North Carolina. Call 888-748-KING (5464) today for a consultation.