A will may look official and still fail in probate. In North Carolina and South Carolina, a will may be invalid if it was not properly signed and witnessed, the person making it lacked testamentary capacity, or the document resulted from undue influence or fraud. A will may also be denied probate if it was revoked before death. Whether a defect affects the entire will or only one provision depends on state law and the evidence surrounding its creation.
What Are the Legal Requirements for a Valid Will in North Carolina?
Under North Carolina General Statutes Section 31-3.3, a standard written will must be signed by the testator, the person making the will, and attested by at least two competent witnesses.
The testator must sign in the witnesses’ presence or acknowledge a signature already placed on the document. Each witness must then sign in the testator’s presence, although the witnesses do not have to sign in each other’s presence.
Notarization is not ordinarily required to make the will valid. A notarized self-proving affidavit can, however, make it easier to establish the will during probate.
North Carolina also recognizes holographic wills. These wills must be written entirely in the testator’s handwriting and signed or subscribed in that person’s handwriting. Witnesses are not required for a qualifying holographic will.
What Are the Legal Requirements for a Valid Will in South Carolina?
South Carolina Code Section 62-2-502 generally requires a will to be:
- In writing
- Signed by the testator or by someone acting in the testator’s presence and at the testator’s direction
- Signed by at least two people who witnessed the signing or the testator’s acknowledgment of the signature or will
A South Carolina will does not have to be notarized simply to be valid. Notarization may make the will self-proved, which can reduce the proof needed when the document is submitted to probate.
Unlike North Carolina, South Carolina does not generally recognize an unwitnessed handwritten will merely because it is written and signed by the testator.
Can Lack of Testamentary Capacity Invalidate a Will?
Yes. North Carolina law permits a person who is at least 18 and “of sound mind” to make a will. South Carolina similarly requires the testator to be legally eligible and of sound mind.
Testamentary capacity generally means the testator understood that they were making a will, knew the general nature of their property, and recognized the people who would ordinarily be expected to receive it. The testator must also be able to understand how these points relate to the distribution being made.
A dementia diagnosis does not automatically invalidate a will. The central question is whether the testator had sufficient capacity when the will was signed. Medical records, witness accounts, attorney notes, and evidence of the testator’s conduct near the signing date may become important.
When Does Undue Influence Make a Will Invalid?
Undue influence occurs when someone overcomes the testator’s free will and causes the document to reflect the influencer’s wishes. Suspicion or an unexpected inheritance is not enough by itself.
Courts may examine the testator’s vulnerability, the alleged influencer’s access and control, involvement in preparing the will, and a significant departure from an established estate plan. For example, concerns may arise when a caregiver isolates a dependent testator and arranges a new will that provides the caregiver with most of the estate.
How Can Fraud Affect a Will?
Fraud may invalidate a will when the testator was intentionally deceived about the document or a fact that materially affected its terms. This could occur if someone falsely tells the testator that they are signing another type of document. Fraud may also involve deliberate falsehoods used to persuade the testator to disinherit someone.
The person challenging the will must connect the deception to the document or the disputed provision.
Can a Will Become Invalid Through Revocation?
A valid will can lose its legal effect if the testator later revokes it. Under North Carolina General Statutes Section31-5.1, revocation may occur through a properly executed later document or through an intentional physical act, such as burning, tearing, canceling, or destroying the will.
South Carolina permits similar methods. A later will may revoke an earlier one expressly or only to the extent the two documents conflict. Contrary to the old rule that the “newest will always takes precedence,” a later document may supplement rather than completely replace an earlier will.
Get Legal Guidance Before an Invalid Will Affects Probate
Questions about a will’s validity can determine who receives estate property and who has authority to administer the estate.
If you are concerned about a will submitted for probate, or you want to ensure your own will satisfies North or South Carolina law, contact Monk Law Firm, PLLC. We can review the document, explain how the applicable law affects it, and help you determine the appropriate next step.