A will is a foundational estate planning document. However, according to Gallup, only 46 percent of US adults have a will. It’s best to create and then update your will every 2 to 3 years. You may even need to revoke and redraft it entirely occasionally. Usually, voiding or revoking a will is a purposeful act on the part of the will-maker. But what voids a will in North Carolina? Are there laws that automatically void a will in specific situations? Let’s look at the details of a will, when to update it, and when the state may void your will entirely.

What Is in a Will?

A will—more formally known as a last will and testament—provides instructions about who should receive a person’s money and property after death. It also includes who they would like to care for their minor children. A basic will should specify the following: 

Who receives personal assets and the amounts of each of the following:

• Property, bank account balances, investments, business interests, and personal possessions
• An executor or person responsible for making sure to carry out instructions
• Guardian arrangements for minor children

When a person passes away, their will goes through a legal process called probate, usually in a probate court in the county where they lived. However, if a person dies intestate (without a will), the court must follow state laws that distribute their assets and appoint executors and guardians. 

Most people want to make their own decisions about such important matters rather than leaving decisions up to the state. Yet state law will determine what will happen if a person does not have a will. 

Creating a basic will can be simple and inexpensive. You should update your will as life events and circumstances dictate. Many people change their will in the following situations:

• Get married or divorced
• Have a child
• Accumulate more wealth
• Buy new property
• Retire
• Move to another state or country
• Gain or lose family members

The will-maker might also have a change of heart about beneficiaries or a guardianship arrangement due to a personal falling out or changes in the circumstances of a beneficiary or potential guardian. 

Estate planning attorneys generally recommend revisiting—and possibly updating—a will every few years. Even if the will-creator has not experienced a major life event, periodic reviews ensure an accurate representation of intentions.

Revoking a Will by Operation of Law

State law may provide that a will is revoked, in part or in full, if certain events take place, such as the following: 

• If a person gets divorced or has their marriage annulled, any part of the will that refers to their spouse, or the spouse’s family, automatically revokes. 
• A new will or codicil including provisions contradicting provisions in the old will or codicil. 
• A beneficiary’s interest is revoked under a “slayer statute” if the beneficiary kills the will-maker. 

Updating a Valid Will

Amendments to a will are made using a legal document called a codicil. Like the execution of a will, executing a codicil requires the will-maker to sign the will or codicil in the presence of a proper witness. Usually, this means at least two witnesses. 

Codicils are an anachronism dating to the time before computers when drafting a new will by hand was more onerous. Nowadays, creating a new will containing the amended portions is easier than before.

The American Bar Association also cautions that codicils can lead to confusion or legal challenges if they create ambiguities when read together with the provisions in the original will. 

Using a codicil to make minor changes to a will—such as changing the executor—does not necessarily revoke it. However, always work with an estate planning attorney to provide proper documentation of any changes you make to a will.

Executing a New Will

Your estate planning lawyer may advise you that a codicil is not worth the potential problems it can cause and instead recommend that you make a new will.

You must properly execute a new will following state law. In addition, the will should contain language that clearly states your desire to revoke all prior wills.

However, there may be instances where the will-maker wants only some prior wills revoked. For example, they may need a separate will for property owned in a foreign country.

Destroying a Prior Will: Do You Need Proper Witnesses?

The fastest way to revoke a will is to destroy it physically. States have different definitions of what qualifies as the destruction of a will.

In North Carolina, you may revoke a written will or any part of it by:

• Writing a subsequent written will or codicil or other revocatory writing executed written by following NC proper statutes for written wills
• Destroying previous wills through burning, tearing, canceling, or obliterating. You must do this yourself or ask another person to do it in your presence. (1)

Most state laws provide that you must destroy the will with the intent and purpose of revocation. So accidentally destroying a will may not revoke it. 

You may revoke a spoken will (usually dictated on your deathbed) in the following ways:

• By a subsequent nuncupative will
• By a subsequent written will or codicil

Electronic wills may have different definitions for revocation by destruction. For example, Florida says you can revoke an electronic will or codicil when deleting, canceling, rendering unreadable, or obliterating it.

A  state may assume that if no one can locate a will, the will-maker destroyed it. However, most states have processes by which lost wills may be proven by using copies of previous wills and one or more disinterested witnesses. If the intent is to revoke a will, it is best to consult an experienced estate planning attorney.

If the destruction of a will does not comply with state law requirements, the court may rul improper destruction and treat it as though it is still in effect. When somebody destroys an old will, they typically make a new one. However, if the will-maker does not legally revoke an old will and creates a new one, the existence of multiple wills could lead to litigation. 

What if the Validity of the Will is In Question?

After a person dies, the probate court will first assess the overall validity of the will, including whether the will-maker properly executed it.

In North Carolina, several factors can potentially void a will. Consulting with an attorney specializing in North Carolina estate planning and probate law is crucial for accurate and up-to-date advice. 

Here are some common factors that can void a will in North Carolina:

Lack of Testamentary Capacity

The testator (the person making the will) must have a sound mind or mental capacity to understand the nature and extent of their assets, comprehend the distribution plan outlined in the will, and be aware of the individuals who would naturally inherit from their estate.

For example, if a doctor finds a person “not of sound mind” and unable to complete a basic competency test, a judge may later declare the will invalid. If a court determines that the testator lacked mental capacity when making the will, it could invalidate the document.

Undue Influence

If someone exerts undue influence over the testator, causing them to make decisions against their own free will, others may challenge the will. This type of influence typically involves a family member or friend using manipulation, coercion, or pressure that overpowers the testator’s independence and judgment.

Fraud

If a court sees proof that the testator was deceived or misled into making or signing a will, they may invalidate the will due to fraud. For example, if someone intentionally presents a false will for the testator’s signature, the court may declare it void.

Improper Execution

Wills in North Carolina must meet specific legal requirements to be legally binding and valid. The testator must sign the will in the presence of two competent witnesses who also sign the document. If those involved do not follow state statutes for will-making, the will may be deemed invalid.

Revocation

A will-maker may explicitly revoke a will by executing a new will or by physically destroying the existing will with the intention to revoke it. Additionally, a subsequent marriage or divorce can automatically revoke parts of the will that pertain to the former spouse.

Contradiction with State Laws

Certain provisions in a will may contradict North Carolina state laws or public policy. In such cases, the court may invalidate those specific provisions while upholding the rest of the will.

It’s crucial to consult with a qualified attorney who can provide guidance based on your specific circumstances. They can offer advice tailored to North Carolina laws and ensure that your estate planning documents meet all the legal requirements.

If you had the necessary mental capacity at the time of making the will, and whether there was any undue influence or fraud involved. If a court finds the will invalid, they may set it aside entirely or partially.

What if Family Members Contest Your Will in Court?

Suppose family members contest your will in court because the state has revoked a portion of it. In that case, the outcomeof a will contestation will depend on various factors, including the jurisdiction’s laws. However, here are some general considerations:

State Laws and Revoked Provisions

If the state revoked a portion of your will, it typically means the specific provision is no longer enforceable. This could happen if the attorney’s office or state law deems the provision illegal, against public policy, or otherwise invalid. In such cases, the court will exclude the revoked portion and distribute the estate according to the remaining valid provisions or intestacy laws if no valid provisions remain.

Contesting the Will

If family members contest the will, they may have to provide evidence or arguments to support their claims. They could argue that the revoked provision was essential to your intent or that the revocation was improper or invalid. The court will evaluate these arguments and consider the evidence presented by both sides.

Mediation or Settlement

In some cases, parties may engage in mediation or settlement discussions to reach a compromise and avoid a lengthy and costly court battle. Mediation can provide an opportunity for family members to find common ground and negotiate a resolution that is acceptable to all parties involved.

Court Decision

Ultimately, the court will make a decision based on the evidence, applicable laws, and legal arguments presented. The court may uphold the remaining valid will provisions, distribute the estate according to intestacy laws if the will is fully invalidated, or determine an alternative distribution if it finds the will partially invalid.

It’s essential to consult with a qualified attorney who specializes in estate planning and probate law to understand the specific legal processes and implications that apply in your jurisdiction. Laws vary and professional advice tailored to your circumstances will provide the most accurate guidance.

Thinking of Changing Your Will? Talk to an Estate Planning Lawyer

Whether making minor changes to your will or destroying the old one and starting from scratch, any revocation of your will must comply with state law. Otherwise, a court might not recognize your final wishes. If this happens, the state may settle your estate according to intestate laws bringing your loved ones additional stress and potential conflict. For best results, update your estate plan every few years, considering new milestones and changes in the applicable law.

Get in touch with us at Vail Gardner Law to discuss changes to your estate plan. We can help you create a will and draw up other essential legal documents, such as powers of attorney, medical healthcare advanced directives, living trusts, and more. Get started planning your future today.