QUESTIONS & ANSWERS
Estate Litigation FAQs
How Are Powers of Attorney Abused?
People are sometimes forced to turn over control of their
finances to a trusted person, usually a friend or family
member, through a document known as a power of attorney.
The granting of a power of attorney is not to be done
lightly, for it gives the holder of the power broad powers
over the grantor’s assets. North Carolina common law
imposes a strict fiduciary duty requiring the holder of the
power of attorney to only use the power to benefit the
grantor of the power.
Powers of attorney are occasionally abused. The most common
way this occurs is by the holder of the power giving some or
all of the grantor’s property to themselves or to a member
of their family. Another possible abuse of a power of
attorney is to transfer assets into an account that is
payable to the holder of the power when the grantor dies.
Sometimes transfers like this are entirely proper.
Sometimes they are nothing more than stealing. Whether the
transfer may be contested or challenged will depend on
whether the transfer of the grantor’s property benefited the
grantor or furthered some purpose of the grantor’s.
It is sometimes difficult to know whether a theft has been
committed using a power of attorney. Often the person who
is trusted enough to be made power of attorney is the same
person who is named as executor of the estate in a will. In
this situation it may be necessary to file a petition to
remove the executor so that an impartial person can be
appointed to take over the estate so that questions about
possible misuse of the power of attorney may be
investigated.
Fortunately, the abuse of the power of attorney usually
leaves a paper trail. An experienced attorney can often
recover copies of all of the relevant documents. These
documents can be used to perform a forensic accounting to
determine whether a power of attorney has been misused.
If it is found that a power of attorney has been abused,
North Carolina law allows the injured party to recover
punitive damages as well as actual damages. If the abuse of
the power of attorney claim is brought in connection with an
estate it is often possible to have the lawyers’ fees paid
or reimbursed by the estate.
How Do You Contest a Will?
Sometimes people take advantage of an elderly person’s trust
and cause them to write a will disinheriting members of the
elderly person’s family. Often the wrongdoer is a family
member, friend or caretaker of the elderly person. North
Carolina law provides important protections for persons who
are wrongfully written out of a will.
Anyone interested in contesting a will should remember the
old cliché that this is still a free country. Under North
Carolina law citizens are pretty much free to leave their
property to whomever they choose.[1]
The recent incident where Leona Helmsley in New York left
millions of dollars to her cat is an excellent example of
this freedom. Before deciding to contest a will it is
important to ask yourself whether the will is what the
writer of the will actually wanted.
Will contests are based on a number of grounds. One common
ground is that the person who wrote the will (called the
testator) was not competent to write a will. Many elderly
people suffer from dementia. Thus, a diagnosis of dementia,
by itself, may not resolve the question of whether the
testator was mentally competent to write a will. The
question which must be resolved is whether the testator was
competent under North Carolina law. Resolving this question
often involves the examination of the testator’s medical
records and the use of expert witnesses in the areas of
medicine, psychiatry or psychology.
Another common ground for challenging a will is the doctrine
of undue influence. Undue influence must be more than just
convincing the testator to write a will in a certain way.
The influence must be so strong that it unfairly deprives
the testator of free will. Proof of undue influence often
involves medical evidence as well as proof that the will was
a result of unfair coercion exercised by the person
receiving the property.
Under North Carolina law wills may also be challenged for
failure to meet the statutory requirements for a will or for
fraud. If a will is challenged, North Carolina law allows
the challenging party to ask that their attorneys’ fees be
paid out of the estate.
[1] An important limitation on this freedom is discussed in the section on protection of husbands and wives below.
Are Handwritten Wills Enforceable?
Handwritten wills are called holographic wills. North
Carolina law recognizes the validity of handwritten wills if
the statutory requirements are met.
How Are Husbands and Wives Protected.
North Carolina law does limit testamentary freedom in that
it does not allow a person to completely disinherit their
husband or wife. North Carolina law does this by allowing
husbands and wives to file what is called a “dissent” from
their spouse’s will to claim the spouse’s yearly allowance
and the spouse’s elective share. A husband or wife’s right
to an elective share may be waived by a valid premarital
agreement or separation agreement.
How Are Children Protected?
North Carolina law does not provide protection for the
children of a testator as it does for the husband or wife of
a testator. Generally, a child’s only recourse if their
parent writes them out of their will is described in the
section on Will Contests.
Are Contracts to Make a Will Enforceable?
North Carolina law may enforce contracts to make a will.
These contracts usually arise out of two fact patterns. The
first is where a person agrees to care for an elderly person
in exchange for an agreement that the elderly person will
will property to the care taker. The second is where a
husband and wife agreed on a joint estate plan that involves
each party writing a will in a certain way. A contract to
make a will regarding personal property may be oral. North
Carolina law requires that a contract to make a will
involving real property must be memorialized in a writing
signed by the person to be charged.
How Do You Remove the
Trustee of a Trust?
Trusts are a common device used to
manage assets of an estate. The use of a trust allows a
person to control their money and/or property after their
death. Trusts are managed by trustees. North Carolina law
places strict fiduciary duties on trustees. Trustees do not
always fulfill their duties. This can occur through
inattention to the trust’s business, improper investment or
improper use of estate property or outright theft. If a
trustee does not fulfill their fiduciary duties, then a
petition can be filed with the clerk of court seeking the
trustee’s removal. A trustee may also be required to pay
damages to the trust. In some instances the trustee may be
required to pay punitive damages as a result of wrongdoing.
If an action is brought arising out of the wrongdoing of the
trustee it is possible to have the trust pay the attorneys’
fees associated with the legal action.
How Do You Remove the
Executor or Administrator of an Estate?
North Carolina law places strict fiduciary
duties on administrators and executors of estates.
Executors and administrators of estates do not always
fulfill these fiduciary duties. This can occur through
inattention to the estate, improper investments, improper
use of the estate property or outright theft. If an
executor or an administrator of an estate does not fulfill
their fiduciary duties then a petition can be filed with the
clerk of court seeking their removal. An executor or
administrator may also be required to pay damages to the
estate. In some instances punitive damages may be awarded
against an executor or administrator for wrongdoing. If a
claim is made by an estate that an executor or administrator
has acted improperly it is possible to ask the court to have
the estate pay the attorneys’ fees associated with the legal
action.
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