COVID-19 Update – Our firm is fully operational. Read the Latest
The CARES Act earmarks $350 billion to a loan program titled “PPP” designed to keep small business workers employed… https://t.co/fxWPGoIDPX
Client Alert: What Businesses Need to Know About the Paycheck Protection Program https://t.co/R7OWaPGhHF https://t.co/pGvN8nlEtW
The CARES Act: Business Tax Changes to Improve Liquidity https://t.co/MvXzMylVP1
In order to set aside a Will after a person has died, a Caveator (the person attacking the Will) has three courses of action under the law. First, he can assert that the Testator (the person making the Will) was incompetent mentally to make a Will. This claim is mostly a medical issue, but the competency can also be proved by lay witnesses who can testify about a person’s ability to know who their family is, what their property consists of, and how they wish to dispose of it at death. Secondly, they can allege that the Will was procured by “undue influence.” Finally, they can allege that the Will was not executed properly such as failing to follow the appropriate North Carolina Statutes in the formality of the signing of the Will.
In this brief article, we will discuss only the second prong of attack, which is undue influence.
Undue influence has been defined in North Carolina as “a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.” That definition is helpful, but the Courts go on to give us various factors they consider as indicators of undue influence having been exerted by someone on a Testator who is making a Will. Those factors include:
In order to succeed in a Will Caveat action asserting undue influence, a Caveator is not required to show by evidence the existence of each and every factor described above. Rather a combination of these factors taken as a whole can show undue influence where just one of the factors alone might be insufficient.
In a recent North Carolina Court of Appeals case, the Propounder of a Will was also the primary caregiver to the person who had signed the Will, and there was substantial evidence that she had prevented other family members and close friends from visiting the Testator before the signing of the Will. Such evidence can certainly cause a jury to come to the conclusion that the Will in question was the subject of undue influence. However, that factor alone might not be enough unless it was also true that the Will in question disinherited other natural heirs and differed from a prior Will in a significant way.
The point is that when trying to prove undue influence, the more of the seven factors stated above that are present in a Will Caveat, the more likely a jury would conclude a Will was procured as the result of undue influence.
John Narron is a Board Certified Family Law Specialist and has been practicing law in North Carolina since 1977, with a practice concentration in all manner of civil disputes that frequently involve complex equitable distribution proceedings, alimony trials, will caveats, employment disputes, personal injury trials and negotiations, and a wide variety of commercial business disputes. John has served as a mediator in more than 200 family law disputes in Wake County, Franklin County, Johnston County, Wayne County, Guilford County, Forsyth County, and Pender County....LEARN MORE