Harvell and Collins discussed a recent will caveat trial where the firm successfully challenged a 2012 will based on execution defects, leading the jury to set it aside and reinstate an earlier 1999 will that split the estate equally. The case involved complex factual development, disputed medical evidence about the testator’s capacity, and strategic litigation choices including dismissing a capacity claim and focusing on execution flaws; the firm anticipates seeking attorney’s fees and costs. The hosts emphasized the importance of properly prepared wills, legal representation at execution, and timely challenges within statutory periods.

Practice Areas and Firm Introduction

• Harvell and Collins focus primarily on trusts and estates and litigation in federal and state courts; they refer out specialty matters (e.g., securities, IP) when appropriate. [01:06]

• The hosts encourage potential clients to call for a consult (252-726-9050) and note consultations are an easy first step. [00:42]

Will Caveats — General Principles

• Will caveats are serious; courts and clerks protect the integrity of last wills and testaments and are reluctant to alter them. [03:34] [04:01]

• Will caveats require careful vetting before filing: gather facts, medical records, and witness interviews to ensure the case has substance and validity. Discovery and evidentiary development often take months. [03:07] [07:10]

• If a caveat reaches trial it must be tried before a jury; this is a required jury trial in the state and cannot be waived. This stems from the historical importance of wills. [16:54] [17:23]

• The statute of limitations for challenging a will probated in common form is three years from acceptance into probate. Caveats filed earlier or cases involving solemn form differ in timing. [36:12] [36:35]

Recent Case: Background and Procedural History

• The caveat was originally filed around 2020 by another attorney; delays (including COVID) caused the matter to proceed to trial several years later in Onslow County in December (trial held second week of December). [07:37] [08:33]

• The decedent (mother) died in 2019 and had four children; the contested 2012 will left $1 to the challenging client and divided the rest equally among the other three children (thirds). The challenger alleged undue influence and lack of capacity. [09:02] [09:30]

• Upon taking the file, Harvell and Collins began obtaining medical records and conducting discovery; opposing counsel fought production of medical records but they were ultimately obtained and were a mix of supportive and undermining entries regarding capacity. [11:51] [12:17]

Evidence and Legal Theories Considered

• Two primary claims: undue influence and lack of testamentary capacity. On summary judgment, the court dismissed undue influence (insufficient evidence), leaving lack of capacity for trial. [18:16] [19:15]

• Medical records showed dementia-like presentation beginning roughly one year before the 2012 will execution; some medical notes indicated decision-making ability at times (mixed evidence), which complicated capacity proof. Capacity for wills requires a relatively low threshold (understanding assets, beneficiaries, and disposition). [12:17] [13:13]

• Allegations included family members feeding the testator misleading information (e.g., accusations about the challenger stealing trivial items) that may have soured the testator’s view of the challenger; direct proof of such undue influence was weak. [13:40] [14:10]

Trial Strategy and Key Evidentiary Issues

• The propounder (party asserting the will is valid) bears the initial burden to prove proper execution of the will; if proven, burden shifts to the caveator to demonstrate invalidity (e.g., lack of capacity). [20:39] [21:08]

• Execution technicalities are crucial: this will was prepared by a friend (not a lawyer), involved a notary with an incorrect acknowledgment format, and had inconsistent witness testimony (one attesting witness alive who changed her story multiple times; another witness deceased). These execution defects became the central attack. [21:52] [22:20] [24:38]

• Typical will proof is straightforward (short witness testimony), but here the execution proof extended for hours due to conflicting witness accounts and procedural irregularities. [23:43] [25:08]

Trial Decisions and Tactics

• The court denied a directed verdict motion. After propounder rested, Collins chose to withdraw the lack of capacity claim (avoiding admission of mixed medical evidence that could have both helped and hurt) and focus on execution defects for the jury. This was a strategic, deliberated decision after consulting colleagues and weighing risks. [27:01] [28:00] [28:29]

• The only question the jury considered was whether the will was executed consistent with North Carolina law (based on the verdict sheet and jury instructions). Collins argued failure to meet statutory requirements for a valid attested will. [29:24] [29:50]

Verdict, Settlement Posture, and Fees

• The jury returned a verdict finding the contested will was not executed in accordance with North Carolina law (after being out about two hours), giving the challenger a win. [30:20] [30:44]

• Shortly before trial, an earlier will was located that left the estate divided 25% to each child; this prior valid will became effective after the contested will was set aside, resulting in the challenger receiving 25% instead of $1. [30:44] [31:12]

• The defendants offered nothing at mediation and rejected a settlement offer while the jury deliberated; because the challenger prevailed, a motion for recovery of attorney’s fees and costs under N.C. Gen. Stat. §6-21 was pursued, and the court typically awards fees to a prevailing caveator (particularly where settlement efforts were minimal). A hearing on fees was scheduled. [31:12] [31:39] [32:05]

• If a caveator brings a caveat with reasonable grounds but does not prevail, fees and costs may still be recoverable under the statute; however, winning makes recovery more likely. [32:33]

Practical Lessons and Recommendations

• Properly executed wills drafted by competent attorneys significantly reduce risk of successful caveats; Harvell and Collins’ own executed wills are stored securely and designed to withstand challenges. [39:48] [40:15]

• Early legal involvement, careful attention to who is present at execution, avoidance of suspicious circumstances, and gathering medical evidence when capacity is a concern are essential preventive steps. [40:40] [33:54]

• The case illustrated how execution defects (not merely capacity or influence) can be determinative—highlighting the importance of procedural compliance in will execution. [34:22] [38:29]

Miscellaneous

• Jury duty is underscored as an important civic function; post-trial juror communication revealed failure to call the notary as a critical factor influencing the jury. [35:18] [36:12]

• The hosts reiterated contact information and encouraged listeners to seek counsel for estate planning. [00:42] [41:18]