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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Resulting Trusts in North Carolina

Many potential clients with whom I speak believe that the person who has legal title to a piece of real property has an interest that is unlikely to be successfully challenged. In many cases, however, this is far from the truth. There are several types of situations in which a person who has been wrongfully deprived of title to property can regain it or be entitled to money damages for their loss. One of the most common situations is when a person provides funds for the purchase of property and title to that property is taken in another person’s name.

A resulting trust arises “when a person becomes invested with the title to real property under circumstances which in equity obligate him to hold the title and to exercise his ownership for the benefit of another. A trust of this sort does not arise from or depend on any agreement between the parties. It results from the fact that one person’s money has been invested in land and the conveyance taken in the name of another.” Teachey v. Gurley, 214 N.C. 288, 292, 199 S.E. 83, 86-87 (1938).[3] 784*784 The trust is created in order to effectuate what the law presumes to have been the intention of the parties in these circumstances—that the person to whom the land was conveyed hold it as trustee for the person who supplied the purchase money. Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222 (1957).

The classic example of a resulting trust is the purchase-money resulting trust. In such a situation, when one person provides the funds to purchase property, title to which is taken in the another person’s name, a resulting trust commensurate with his interest arises in favor of the one furnishing the funds. There are two possible ways to form a resulting trust based on the time at which consideration is paid. Either the consideration is paid before or at the time legal title passes, or it is paid after such time pursuant to an earlier agreement between the parties.

Evan Lohr is a North Carolina estate dispute attorney and has successfully represented individuals pursuing resulting trust claims. He can be reached at (919) 348-9211 or evan@lohrnc.com.