Estate Litigation - Articles – General Information on Estate Planning and Probate Law

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IMPORTANT INFORMATION ABOUT WILL CONTESTS (a.k.a. CAVEAT PROCEEDINGS)

A Will Contest (a.k.a. Caveat Proceeding) is a type of lawsuit that relates to a dispute over the terms or validity of a deceased person's Last Will and Testament. In such cases, the party bringing the claim is called the Caveator. The Caveator is one who claims that a Will that has been offered for probate was not executed according to law or is not the deceased person's most recent Will. For example, there may be more than one Will in existence with different beneficiaries. Another example would be when the Caveator argues a will should be discarded because a Will was made by one lacking the required level mental capacity. If you have questions regarding Will Contests or other estate litigation, please feel free to contact Travis K. Morton at travis@travismorton.com.

In a Caveat Proceeding, the party offering a Will for Probate is the Propounder. The Propounder has the initial burden of establishing a Will was executed according to the law. In particular, the Propounder must show the maker of a Will had the necessary mental capacity to understand and communicate his wishes. This is usually not a difficult burden since the law assumes a person has adequate mental capacity to make a valid Will.

If it appears the maker had capacity, the burden of proof then shifts to the Caveator to either: (1) rebut this showing of capacity; (2) show the Will was revoked by a later Will; or (3) prove the Will was obtained by undue influence.

To refute capacity, a Caveator must show the maker of a Will did not know the following: (1) the nature and extent of his property; (2) the natural objects of his bounty; (3) the manner in which he wants his desires to take effect; and (4) the consequences of his Will. Evidence of irrational behavior or other evidence of impaired mental status is relevant to a dispute over capacity.

Another way to attack a Will is to argue it was made under undue influence. This argument is based on the claim that a beneficiary exercised such influence over the maker of a Will so as to substitute the influencing person's desires for the deceased person's free will. Several factors are relevant to the issue of undue influence. Among these factors are: (1) old age or illness; (2) the person signing the Will lived under the control and supervision of the beneficiary; (3) the Will revokes a prior Will; (4) the Will is made in favor or someone with no blood ties; (5) it disinherits family; and (6) the beneficiary hired the lawyer to draft the will or otherwise procured its execution. Undue influence is often an issue when a fiduciary relationship existed between the maker of a Will and the beneficiary under the Will. In such cases, a presumption of undue influence may arise because of the special relationship. This sometimes occurs when a person having a power-of-attorney is named as the beneficiary under a Will.

If a Caveator succeeds in proving a Will is not valid, then that Will is treated as if it never existed. In such cases, if an earlier Will existed, then it may be revived and control. If no earlier Will existed, then the assets of the deceased person are distributed according to complex intestate transfer rules set forth in North Carolina General Statutes.

The attorneys at Brady, Nordgren, Morton & Malone, PLLC are experienced at handling estate litigation, including Caveat Proceedings. There are deadlines governing when you must bring a Caveat Proceeding/Will Contest; therefore, if you feel you have a case, please contact one of our attorneys at Lawyers@BradyNordgren.com, as soon as possible. At Brady, Nordgren, Morton & Malone, PLLC the initial consultation is free and we can often handle Will Contests on a contingency fee or deferred fee basis.

At Brady, Nordgren, Morton & Malone, PLLC the initial consultation is free and we can often handle Elective Share cases on a contingency fee or deferred fee basis. Contact us at Lawyers@BradyNordgren.com.