Three of the Most Common Reasons to Contest a Will In North Carolina

As part of the probate process, the validity of a person’s will must be confirmed. When the will is deemed legitimate, property and assets can then be distributed to the appropriate heirs. If you believe that your loved one’s will is not valid, you have the right to contest it in probate court. Of course, you cannot simply challenge a will on the grounds that you do not like what it says.

To successfully contest a will in North Carolina, you must demonstrate that it suffers from a material defect. This raises an important question: What are the grounds to challenge a will in North Carolina? In this blog post, our Charlotte probate lawyers highlight three of the most common reasons why wills are challenged in Mecklenburg County.

People have wide latitude to make their own will. After all, the point of a will is to give a person the power to control their own estate. That being said, not everyone has the right to draft (or revise) their will. Under North Carolina law (NC General Statutes § 31-1), “any person of sound mind, and 18 years of age or over, may make a will.” A person who is not of “sound mind” lacks testamentary capacity in the eyes of the law.

Lack of testamentary capacity is one of the most common grounds raised in order to challenge the validity of a will in Mecklenburg County, North Carolina. Unfortunately, a not-insignificant share of people lose legal capacity in their final years. It could be because of Alzheimer's disease, dementia, or simply the general effects of advanced aging.

If a person wrote or revised their will after they lost “sound mind” that document is not valid in North Carolina. Family members and other interested parties have the legal right to challenge the latest version of the will on the grounds that the decedent’s lack testamentary capacity at the date the document was written or revised.

You also have the right to challenge the validity of a will on the grounds of undue influence. The concept of undue influence is similar, but not identical to lack of testamentary capacity. A person who lacks capacity cannot make any changes to their will in North Carolina. They are no longer in a position or state of mind to do so.

In contrast, a person subject to undue influence may technically be of sound mind. They may still be able to write or revise their will. However, they may be being coerced or improperly influenced by a person to change their will in a manner that they would not have done otherwise.

Most often, undue influence cases involve allegations that a vulnerable person changed their will towards the end of their life due to improper pressure from a close family member, friend, or associate. If you believe that your loved one’s will was altered due to undue influence, contact our North Carolina probate litigation lawyer for immediate help.

You always have the right to challenge a will on the grounds that it is fraudulent. You can argue that the will is simply a forgery—meaning that it was never actually written or signed by the decedent. Alternatively, you can contest a will on the grounds that a key term was fraudulently altered after your loved one’s death.

As extreme as it sounds, fraud actually happens more than many people realize. A 2020 study published in the Duke Law Journal concluded that “cutting against the conventional wisdom, it discovers that counterfeit donative instruments are a serious problem.” The study argues that lawmakers should take action to reduce will fraud and trust fraud.

If you believe that your loved one’s will is a forgery or that it was fraudulently altered after their passing, it is imperative that you take immediate legal action. Call an experienced North Carolina probate litigation attorney who can review the matter, gather all relevant evidence, and take action to contest the will in the appropriate court.

At Arnold & Smith, PLLC, our North Carolina estate and probate lawyers have the skills and experience to represent you and your family in contested will cases. If you have any questions about challenging a will, we can help. Contact us right away for a confidential, no commitment consultation. Our law firm represents clients throughout the entire region, including in Charlotte, Mooresville, Statesville, Newton, Salisbury, China Grove, Kannapolis, Gastonia, and Cleveland.