Lack of Capacity to Make A Will In North Carolina

One of the grounds upon which a North Carolina will may be successfully contested is that the testator (person making the will) lacked the mental capacity to do so. In North Carolina, a person has sufficient capacity to make a will if he  (1) comprehends the natural objects of his bounty; (2) understands the kind, nature, and extent of his property; (3) knows the manner in which he desires his act to take effect; and (4) realizes the effect his act will have upon his estate. In re Womack, 53 N.C.App. 221, 280 S.E.2d 494, disc. rev. denied, 304 N.C. 391, 285 S.E.2d 837 (1981); see generally 13 Strong’s N.C. Index 3d, Wills, § 22; Wiggins, Wills and Administration of Estates in North Carolina, § 43 (2d Ed.1983). The law presumes that a person who made a will possessed capacity to do so, and those who allege otherwise have the burden of proving by the preponderance or greater weight of the evidence that he lacked such capacity. In re York, 231 N.C. 70, 55 S.E.2d 791 (1949).

Proving a lack of capacity is often difficult and typically requires medical records of the testator. In order to have standing to bring a successful case, a plaintiff must have been named a beneficiary under a prior will revoked by the contested will or have been an heir at law of the testator prior to the will’s execution. Contact North Carolina probate litigation attorney Evan Lohr at (919)348-9211 or evan@lohrnc.com to discuss your potential case.

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