Ever wondered how a legal challenge to the validity of a will unfolds? Wesley White of McIntyre Elder Law is here to unravel the intricacies of will caveats and shine a light on the often-misunderstood process. We journey into the fascinating world of will validation, exploring common grounds for a challenge like the testator's lack of capacity or undue influence during the signing. Wesley speaks to the heart of these issues, providing important lessons for anyone grappling with estate planning or an impending will caveat.
Our discussion takes a riveting turn as we delve into real-life scenarios that might lead to a caveat. Imagine a situation where an elderly individual under the influence of a manipulative caretaker signs off their property. Or what if a will was forged, bearing signatures that the deceased never signed? Wesley breaks these down in plain language, giving you a whole new perspective on the significance of last wills and testaments. Get ready for an episode that’s not only informative but also a legal roller coaster that will undoubtedly expand your understanding of will caveats.
Speaker 1:
Hey everybody, this is attorney Wesley White with McIntyre Elder Law. Today I wanted to talk to you about kind of a unique topic which some of you may have heard about, but it's called a will caveat. Most of you have probably heard of a last will in testament. Many of you probably have one, or your parents have one, or you've had a loved one pass away and they've had to, or you or somebody else has had to, probate that will at the courthouse. But some of you might be familiar with the fact that you can actually challenge the validity of a will or you can actually have someone challenge the validity of your will, and so that's why it's important to make sure that you do have a valid will. But let's talk a minute about what it is to challenge a will and what the procedure or what takes place if a will is actually being challenged.
Speaker 1:
In North Carolina, challenging the validity of a will is called a caveat. That's C-A-V-E-A-T and what that is. That allows someone it might be the heir of an estate or the relative or loved one of the person who passed away to come into court and try to tell the court that hey, this will here is not valid, and there's typically a couple, three basis to say that a will is not valid. One of the first basis of challenging a will is to say that the will is not valid because the person who signed it didn't actually have the capacity to sign the will. Best example would be if someone with advanced dementia who doesn't even know what their name is, what day of the week it is, what year it is, they don't really have the capacity to sign a will, and what we call that is we say that they have lack of testamentary capacity. They weren't in the right mind to be able to make that will. So if you ever come across a will that was signed by someone that had advanced dementia maybe they were in a coma, they had amnesia, anything that would not allow them to understand what they were signing that will could be challenged. You could file a caveat based on them lacking the capacity to sign the will Just one way.
Speaker 1:
Another way is if the will was signed, but it was signed under undue influence. Best example would be let's say somebody moves in with your elderly mother, a caretaker, for example and they're the only person who's been around your mother for months and years on end. They pay their bills, they feed them dinner, they bathe them and essentially they say, hey, I'm not going to feed you and bathe you and take care of your house unless you sign this will, leaving everything to me. Well, mom may have good mental capacity to sign it, she may understand what she's signing, but she was influenced unduly. She was unduly influenced by that caretaker. Basically, she's held hostage. If I don't sign this will, I'm not going to get dinner tonight, I'm not going to get my house taken care of, I'm not going to get a bath. And so if a situation like that happened, you or a loved one could file a caveat on the basis of undue influence, because it's not right. The circumstances under which that will were signed is not right. You always want to have a will signed without any duress, without any influence. You do it freely of your own will. And then, lastly, you can also contest a will by means of a caveat If the will itself is fraudulent.
Speaker 1:
An example of that would be is if, literally, someone forged a signature on a will and got a notary to forge the notary as well, and obviously that's clearly fraud, because a will a valid will in North Carolina must be signed by the person making that will, it has to be witnessed by two people and it has to be notarized. And if those three things didn't happen, if somebody just you know, an estranged cousin forges your loved one's name on that will, that's fraud, and a caveat can be brought on the basis of fraud as well. Often we see caveats based on all three things. You might have a situation where there was undue influence, there was a lack of capacity and there was some fraud involved, and so it's important when you get into the area of probate, if you, if you think a loved one's will has any issue, if you think it's not valid, if somebody exerted some undue influence over your loved one and calls them to leave all their property, all their money, all their things that they worked their whole life for, to one person who normally wasn't around. Maybe they left it all to a church or just something. That doesn't seem right. That might be right for a caveat.
Speaker 1:
And here at here at McIntyre Elder Law, we, we litigate caveats and we do challenges to wills all the time.
Speaker 1:
It's a, it's a, it's a ugly necessity, but sometimes you find yourself in that situation.
Speaker 1:
But that's why it's also important that, if that, if you are doing a will. Make sure that your will has everything buttoned up, make sure the eyes are dotted, the T's are crossed, that you, that you are signing this will in front of witnesses and that you are of clear mental capacity. No one's making you do it. And then, that way down the road, when you pass away, no one's going to come in and try to challenge your will on the basis of one of these issues that I've talked about. Come see us here at the firm and we can help you with a caveat. We can help you defend against the caveat filing and we can help you make sure that you have your estate planning squared away so that you have peace of mind that when things, when it comes time to probate your estate, things are going to go smoothly and your wishes are going to be carried out just as you wrote them down. Until next time, I hope everyone has a good holiday season, thanks.