By Cowles Liipfert

By Cowles Liipfert

The North Carolina General Statutes contain very detailed procedures for establishing or contesting the validity of wills.  Wills must be “probated,” that is, found by the Probate Court (the Clerk of Superior Court) to be properly executed and valid, before an Executor or other personal representative will be appointed to settle a decedent’s estate.    

There are two different procedures for determining the validity of a will, called 1) probate in common form, and 2) probate in solemn form.

Probate in Common Form

Almost all the time, wills are probated in common form, which is a relatively simple and inexpensive procedure in which a will is approved by the Probate Court when the paperwork is correct.  The clerk of superior court must notify by mail all devisees whose addresses are known, but no formal hearing is required at that time.  

Since those individuals have not been given an opportunity to contest the will, a will which has been probated in common form may be later challenged by persons who have legal standing to do so.

Occasionally a will which has already been probated in common form is superseded by a later dated will.  Most jurisdictions permit a later-discovered will to be admitted to probate, even though a previously-probated will has not been set aside. There are no specific procedures in the North Carolina General Statutes dealing with the situation.  The clerk of court is vested with exclusive original jurisdiction over wills, but will caveats or probates in solemn form can eventually be determined by a superior court judge. North Carolina case law appears to require the first will to be set aside before the second will can be admitted to probate, since the probate of the second will is considered to be a collateral attack upon the probate of the first will. This presents a conundrum, or a chicken-or-egg problem, concerning how one should proceed.

Since there are no specific procedures in the General Statutes, different counties may vary slightly in dealing with later-dated wills.  We suggest filing the second will with the clerk of superior court, who may decline to proceed until a caveat or probate in solemn form of the first will has been concluded.  But the upshot is that the first will can be set aside, and the second will can eventually be probated.

When an interested party contests the validity of a probated will, he or she must file a “caveat” with the Clerk of Superior Court.  When the caveat proceeding has been filed, the Clerk of Superior Court orders the Executor to suspend the estate administration pending the outcome of the caveat proceeding.

A will caveat generally must be filed at the time of probate or within three years thereafter.  If, however, a Caveator is under 18 years of age or is legally incompetent, then a caveat may be filed at any time within three years after that individual has reached 18 years of age, or within three years after his or her disability has been removed.  

Caveats may be filed only by persons who are interested in the estate, such as heirs at law or next of kin, or individuals who claim under an earlier or later document which purports to be the will of the Decedent.  If an original document purporting to be a will cannot be found, but a copy is available, there is a rebuttable presumption that the will was revoked, but the absence of the original document does not necessarily defeat the standing of those who present a copy of the lost will for probate.   A copy of the missing will may be presented to the Court for probate, and evidence must be presented to support a finding that the original will was not revoked by the testator.

The validity of a purported will may be challenged for various reasons, but the most common are (a) undue influence, or (b) lack of testamentary capacity.  A later-dated instrument purporting to be a will may be a third reason.

Some wills contain provisions intended to discourage will caveats, which provide that anyone that challenges the will, will forfeit any benefits which he or she would receive under the will.  These are called “in terrorem clauses” and are intended to scare away any would-be challengers.  Those forfeiture provisions may or may not be enforceable: if a court finds that a will caveat was in good faith and with probable cause, the in terrorem clause would likely be deemed to be unenforceable. 

Probate in Solemn Form

If a person who files a will for probate wants to settle the issue of the document’s validity up-front, instead of having to hold his or her breath for three years to see whether the Will will be contested, the procedure for settling the matter sooner, rather than later, is called “Probate in Solemn Form.”

The person applying for probate of a will may file a Petition for Probate in Solemn Form, instead of relying on a Probate in Common Form, the less formal procedure which was discussed above.

Under a Probate in Solemn Form, the Clerk of Court issues a summons to all parties interested in the estate and schedules a hearing at which the petitioner presents the evidence necessary to probate the will (i.e., to certify its validity).  This is in contrast to a Probate in Common Form, where there is no hearing at this point.

If any interested party wants to contest the validity of the will, he or she must either (a) file a will caveat before the hearing, or (b) present facts at the hearing (called “devasavit vel non”) pertinent to the validity of the will, after which the Clerk will transfer the matter to Superior Court, to be heard as a caveat proceeding.

If no interested party contests the validity of the will at the hearing before the Clerk, the probate in solemn form becomes binding, and no interested party who was properly served in the proceeding may file a subsequent contest or caveat of the probated will.

If someone has initially initiated a Probate in Common Form, he or she would not be barred from later applying for a Probate in Solemn Form.