A Last Will and Testament is a solemn document, which directs the distribution of a person’s estate to those whom they wish to devise it. To create a valid will in North Carolina, the general rule is that a will must be in writing, signed by the testator, and attested by at least two competent witnesses. By complying with these requirements, the Testator can devise their property in the way they intend. It is their right to do so.
Though the creation of an estate plan, including a Last Will and Testament, is designed to facilitate the orderly administration of an estate, sometimes factual circumstances arise that may result in questioning the validity of a purported Last Will and Testament.
For instance, suppose John always promised his daughter, Jane, that she would receive the family farm upon his passing. John dies, and leaves everything to his cousin, with whom he has not had a relationship in years. John signed the will one month before he died. It turns out the John had been suffering from dementia at least one year before he died, and thus before he signed the will. In addition, the cousin arranged for John to meet with the lawyer regarding the will, drove John to the appointment, and sat in the meeting with the lawyer.
Some people may think, “Well, the will is a will, sorry Jane.” But upon hearing these facts, a lawyer should counsel a client regarding the possibility of challenging the purported will by caveat. A will caveat, also known as a will contest, is a lawsuit where persons interested in the estate of a decedent challenge the validity of the document offered into probate as the decedent’s Last Will & Testament. A will may be invalidated on a number of grounds, such as lack of testamentary capacity, undue influence, and failure to comply with the formalities of creating a will. If the party challenging the will, the caveator, prevails, the purported will is set aside, and the prior valid will is admitted to probate. If there is no prior will, the decedent’s estate will be administered under the laws of intestacy.
Jane, the daughter and lineal blood descendant of John, would be wise to consult an attorney to decide whether she should file a caveat. The fact pattern above, which is all too common, poses issues concerning John’s lack of capacity and the cousin’s undue influence. Assuming John had a prior valid will that left the family farm to Jane, Jane would take the farm if she prevails in the caveat. If John did not have a prior will and John died with no spouse and no other children, Jane would take everything under the laws of intestacy.
Everyone wants the assurance that their estate will pass orderly and to those whom they wish to devise it, though far too often people delay in doing so, presuming they can “take care of it tomorrow.” Do not neglect tending to these very important matters, as there may come a day when you are unable to do so. When preparing your last will and testament, trust, or other estate planning document, it is vital that you confer with an attorney experienced in these areas. Harvell and Collins, P.A. is always eager to counsel its clients regarding the advisability of estate planning, tailoring its services to the needs of each client.
Samuel K. Morris