Who Has the Legal Authority to Make or Revise a Will in North Carolina?

A last will and testament is the foundational estate planning document. It is recommended that every adult makes a will. Among other things, you can use your will to express your final wishes, leave assets to your heirs, and name an executor for your estate. As life inevitably brings changes, you can revise your will accordingly.

This raises an important question: Who can make or change a will in North Carolina? The short answer is that an adult with legal capacity has the authority to draft or revise a will. In this blog post, our Charlotte wills and estates lawyers provide a more detailed explanation of the key things to know about North Carolina’s law on wills.

You have considerable discretion to determine what happens to your estate. You can use your will to decide what you want to do with your property and assets. At the same time, North Carolina law has certain requirements for wills. To start, under NC General Statutes § 31-1, “any person of sound mind, and 18 years of age or over, may make a will.” In effect, this means two things:

• A minor cannot make a will in North Carolina. You must be at least 18 years of age before you can write a will.
• You cannot write or change a will if you do not have “legal capacity” under North Carolina law. A person who lacks sound mind does not have the authority to draft or will or to make changes to their document.

As long as you are an adult of sound mind, you can change your will as many times as you want/need. Of course, most people do not want to make revision after revision to their will. Once they have the right structure in place, they feel a sense of peace and comfort knowing that their family will be protected. Typically, wills are revised for one of two reasons:

• Change in Circumstances: A major life event, such as a marriage, divorce, or birth of a child, may warrant the revision of a will. As long as you are of sound mind, you have the right to change your will to account for new things that have come into your life.
• Change of Mind: You do not need a big event to justify revising your will. If you changed your mind, you can revise your will—at least assuming that you have legal capacity under North Carolina state law.

As noted previously, there are two requirements to make a will in North Carolina: You have to be an adult and you have to be of sound mind. While the first factor (18+) is straightforward, the soundness of mind factor can sometimes be quite complicated. It is not uncommon for people to lose their legal capacity (sound mind) towards the end of their life.

A person who is no longer of sound mind, lacks testamentary capacity. If they do not yet have a will, they cannot make one. If they already have a will, it can no longer be revised. How does North Carolina determine if a person has testamentary capacity to make a will? Courts are instructed to consider a number of different factors, including:

• Whether or not the individual understood the kind, nature, and extent of the property and assets that he or she owned; and
• Whether or not the individual understood the consequences of their actions when they wrote or revised the will.

Very broadly defined, a person has a “sound mind” if they “know what they are doing.” If they do not reasonably understand cause and effect, they may not have the sound mind necessary to make or change a will. Should a dispute arise on this issue, courts will consider a wide range of different evidence to assess testamentary capacity.

At Arnold & Smith, PLLC, our Charlotte estate planning attorneys are focused on helping people navigate complex legal matters. If you have any questions about drafting or revising a will, we would be more than happy to help. Call our law firm today or send us a message online to get a confidential review and evaluation of your case. From our Charlotte office, Monroe office, and Mooresville office, we serve communities throughout the region, including in Mecklenburg County, Union County, Stanly County, and Cabarrus County.