Article 1. Execution of Will.

§ 31-1. Who may make will.

Any person of sound mind, and 18 years of age or over, may make a will.

History. 1811, c. 280; R.C., c. 119, s. 2; Code, s. 2137; Rev., s. 3111; C.S., s. 4128; 1953, c. 1098, s. 1; 1965, c. 303; 1969, c. 39.

Legal Periodicals.

For article on drafting and probate of wills, see 23 N.C.L. Rev. 306 (1945).

For comment on the 1953 amendments to this Chapter, see 31 N.C.L. Rev. 444 (1953).

For article on medication as a threat to testamentary capacity, see 35 N.C.L. Rev. 380 (1957).

For case law survey on wills and administration, see 41 N.C.L. Rev. 530 (1963).

For article, “The Contracts of Minors Viewed from the Perspective of Fair Exchange,” see 50 N.C.L. Rev. 517 (1972).

For note as to the transfer of land by wills in light of Stephenson v. Rowe, 315 N.C. 330 , 338 S.E.2d 301 (1986), see 65 N.C.L. Rev. 1488 (1987).

For article, “Abolishing the Attestation Requirement for Wills,” see 68 N.C.L. Rev. 541 (1990).

For comment on the standard of mental capacity in North Carolina for legal transactions of the elderly, see 32 Wake Forest L. Rev. 563 (1997).

CASE NOTES

Law in this State presumes that every person has sufficient mental capacity to make a valid will, and those persons contesting the will have the burden of proving that the testator lacked the required mental capacity. In re Will of Womack, 53 N.C. App. 221, 280 S.E.2d 494, 1981 N.C. App. LEXIS 2575 , cert. denied, 304 N.C. 391 , 285 S.E.2d 837, 1981 N.C. LEXIS 1495 (1981).

What Constitutes Sufficient Mental Capacity. —

A person has sufficient testamentary capacity within the meaning of the law if he comprehends the natural objects of his bounty, understands the kind, nature, and extent of his property, knows the manner in which he desires his act to take effect, and realizes the effect his act will have upon his estate. In re Will of Womack, 53 N.C. App. 221, 280 S.E.2d 494, 1981 N.C. App. LEXIS 2575 , cert. denied, 304 N.C. 391 , 285 S.E.2d 837, 1981 N.C. LEXIS 1495 (1981).

Burden of Proving Lack of Mental Capacity. —

Wherever one alleges that the maker of a will did not have sufficient mental capacity to make it, then the burden is upon such person to satisfy the jury by the greater weight of the evidence of the truth of his contention and to overcome the presumption of sanity after the formal execution has been established. In re Pridgen's Will, 249 N.C. 509 , 107 S.E.2d 160, 1959 N.C. LEXIS 404 (1959).

Mere ignorance of a technical statute relating to wills does not evidence a lack of testamentary capacity. In re Will of Farr, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970).

Instruction as to Mental Capacity. —

When the court in its charge stated the rule to measure mental capacity in this language: “It is your duty in passing on the mental capacity of M.W. Pridgen to determine with reference to the will in controversy whether when he signed same he had such mental capacity as enabled him to understand the provisions contained in the paper, the extent of the same, and to know that he was giving the property therein bequeathed or devised to the person named therein and that he desired her to have it as written in the paper, to know his relatives and to know and realize that it was his free will and desire that his relatives should not have any property of his other than in the manner devised, or that devised,” it was in substance if not verbatim the rule as stated in numerous decisions by the Supreme Court. In re Pridgen's Will, 249 N.C. 509 , 107 S.E.2d 160, 1959 N.C. LEXIS 404 (1959).

Insane delusion must be distinguished from prejudice, hate, bad judgment, ill will, and any number of other conditions which might be associated with sanity. To be sufficient to invalidate the will, the delusion must have no foundation in fact and must be the product of the testator’s diseased or deranged mind. However, to justify the setting aside of a will on the ground that the testatrix was possessed of an insane delusion, it must also be shown that the insane delusion was actually operative in the production of the will. In re Will of Maynard, 64 N.C. App. 211, 307 S.E.2d 416, 1983 N.C. App. LEXIS 3285 (1983).

Partial Insanity and Insane Delusion Invalidate Will. —

Generally, partial insanity will invalidate a will which is the direct offspring thereof, and a will which is the product of an insane delusion is also invalid for want of testamentary capacity. In re Will of Maynard, 64 N.C. App. 211, 307 S.E.2d 416, 1983 N.C. App. LEXIS 3285 (1983).

Insane Delusion as to One of Essentials of Testamentary Capacity. —

If a person has sufficient mental ability to make a will but is subject to an insane delusion, i.e., monomania, as to one of the essential requirements of testamentary capacity, the will would not be valid. For example, if the testator has an insane delusion as to the objects of his bounty, it would invalidate his will. In re Will of Maynard, 64 N.C. App. 211, 307 S.E.2d 416, 1983 N.C. App. LEXIS 3285 (1983).

Primary object in interpreting a will is to give effect to the intention of the testator. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

Presumption Against Intestacy. —

It is a long-standing policy of the State of North Carolina to construe a will with the presumption that the testator did not intend to die intestate with respect to any part of his property. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

Under earlier prior law it was held that an infant between 18 and 21 could dispose of personal estate by will. Williams' Legatees v. Heirs at Law, 44 N.C. 271 , 1853 N.C. LEXIS 153 (1853).

As to will executed in another state under prior law, see In re Reynolds, 206 N.C. 276 , 173 S.E. 789, 1934 N.C. LEXIS 165 (1934).

§ 31-2. [Repealed]

Repealed by Session Laws 1953, c. 1098, s. 1.

§ 31-3. [Repealed]

Rewritten and renumbered as G.S. 31-3.1 to 31-3.6 by Session Laws 1953, c. 1098, s. 2.

§ 31-3.1. Will invalid unless statutory requirements complied with.

No will is valid unless it complies with the requirements prescribed therefor by this Article.

History. 1953, c. 1098, s. 2.

Legal Periodicals.

For article on what is sufficient subscription, what are valuable papers, what is meant by depositing with someone for safekeeping, and animus testandi, see 2 N.C.L. Rev. 107 (1924).

CASE NOTES

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

Instrument Executed Without Proper Formalities Is Void. —

An instrument which is testamentary in effect but does not follow the prescribed formalities for the proper execution of a will is void. Baxter v. Jones, 14 N.C. App. 296, 188 S.E.2d 622, 1972 N.C. App. LEXIS 2123 , cert. denied, 281 N.C. 621 , 190 S.E.2d 465, 1972 N.C. LEXIS 1119 (1972).

Compliance with Statutory Requirements. —

See Morris v. Morris, 245 N.C. 30 , 95 S.E.2d 110, 1956 N.C. LEXIS 527 (1956). See also Little v. Lockman, 49 N.C. 494 , 1857 N.C. LEXIS 138 (1857); Peace v. Edwards, 170 N.C. 64 , 86 S.E. 807, 1915 N.C. LEXIS 337 (1915); Wescott v. First & Citizens Nat'l Bank, 227 N.C. 39 , 40 S.E.2d 461, 1946 N.C. LEXIS 347 (1946); In re Will of Puett, 229 N.C. 8 , 47 S.E.2d 488, 1948 N.C. LEXIS 410 (1948).

Necessity of Animus Testandi. —

The distinguishing feature of all genuine testamentary instruments, whatever their form, is that the paper-writing must appear to be written animus testandi. It is essential that it should appear from the character of the instrument, and the circumstances under which it is made, that the testator intended it should operate as his will, or as a codicil to it. In re Perry, 193 N.C. 397 , 137 S.E. 145, 1927 N.C. LEXIS 356 (1927).

For a memorandum written and signed by the testator to take effect as his will, it must, among other requisites, show that it was made animus testandi, and where the other formalities have been observed, a “pack” of letters containing a note in his favor, with the indorsement written thereon, and signed by him, a long time prior to his death, “I want S.W. have this pack,” will not operate either as a valid holograph will or codicil. In re Perry, 193 N.C. 397 , 137 S.E. 145, 1927 N.C. LEXIS 356 (1927).

Where the animus testandi appears as doubtful the question is for the jury. In re Will of Harrison, 183 N.C. 457 , 111 S.E. 867, 1922 N.C. LEXIS 298 (1922).

Otherwise Where Animus Testandi Conclusively Presumed. —

Where propounders introduce ample evidence that the paper-writing was in the handwriting of deceased and there is no evidence to the contrary, and the paper-writing is dispositive on its face and unequivocally shows the intention of deceased that it should operate as his will, the animus testandi is conclusively presumed, and it is error for the court to submit the question of such intention to the jury over the objection of propounders. In re Rowland's Will, 206 N.C. 456 , 174 S.E. 284, 1934 N.C. LEXIS 209 (1934).

Codicil to a Will. —

In North Carolina, a codicil to a will must be executed with the same formalities as the will. Consequently, a testamentary instrument that fails to follow the prescribed formalities is void. Leggett v. Rose, 776 F. Supp. 229, 1991 U.S. Dist. LEXIS 19544 (E.D.N.C. 1991).

Writing Drafted from Dictations after Testator’s Death. —

A paper-writing drafted by an attorney from a stenographer’s notes taken from dictation of deceased as to the disposition of her property after death, unsigned and unwitnessed, is not admissible as a last will and testament. Kennedy v. Douglas, 151 N.C. 336 , 66 S.E. 216, 1909 N.C. LEXIS 267 (1909).

An agreement to adopt a minor and make her his heir, made between the person desiring to adopt the minor and the minor’s parents, as the respective parties to the agreement, indicates that the instrument is not intended as a will. Chambers v. Byers, 214 N.C. 373 , 199 S.E. 398, 1938 N.C. LEXIS 353 (1938), limited, Lankford v. Wright, 347 N.C. 115 , 489 S.E.2d 604, 1997 N.C. LEXIS 594 (1997).

As to devisability of possibility of reverter before condition broken, see Church v. Young, 130 N.C. 8 , 40 S.E. 691, 1902 N.C. LEXIS 2 (1902).

Question of Fact on Testamentary Formalities Precluded Summary Judgment. —

Material issue of fact existed regarding whether a testator complied with the will formalities required by G.S. 31-3.3 where the evidence tended to show that the testator did not sign the will in the presence of one of the witnesses; that evidence raised material questions of fact on whether the will complied with the testamentary formalities of G.S. 31-1 and G.S. 31-3.3 , so summary judgment in favor of the propounder of the will was improper. In re Will of Priddy, 171 N.C. App. 395, 614 S.E.2d 454, 2005 N.C. App. LEXIS 1213 (2005).

§ 31-3.2. Kinds of wills.

  1. Personal property and real property may be devised by
    1. An attested written will which complies with the requirements of G.S. 31-3.3 , or
    2. A holographic will which complies with the requirements of G.S. 31-3.4 .
  2. Personal property may also be devised by a nuncupative will which complies with the requirements of G.S. 31-3.5 .

History. 1953, c. 1098, s. 2; 2011-284, s. 26.

Effect of Amendments.

Session Laws 2011-284, s. 26, effective June 24, 2011, deleted “may be bequeathed” following “property” in the introductory language of subsection (a); and substituted “devised” for “bequeathed” in subsection (b).

§ 31-3.3. Attested written will.

  1. An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section.
  2. The testator must, with intent to sign the will, do so by actually signing the will or by having someone else in the testator’s presence and at the testator’s direction sign the testator’s name thereon.
  3. The testator must signify to the attesting witnesses that the instrument is the testator’s instrument by signing it in their presence or by acknowledging to them the testator’s signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
  4. The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.

History. 1953, c. 1098, s. 2; 2011-344, s. 8.

Cross References.

As to manner of probate of attested written will, see G.S. 28A-2A-8.

As to witnesses to will, see G.S. 31-8.1 through 31-10.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “by actually signing the will or” for “by signing the will himself or” and “the testator’s” for “his” in subsection (b), and substituted “the testator’s” for “his” twice in subsection (c).

Legal Periodicals.

For comment on the necessity for proof of due execution of a will, see 3 Wake Forest Intra. L. Rev. 12 (1967).

For comment, “Over My Dead Body: The Legal Nightmare and Medical Phenomenon of Posthumous Conception Through Postmortem Sperm Retrieval,” see 34 Campbell L. Rev. 181 (2011).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

For a will to be admitted to probate, G.S. 31-18.1(a)(1) requires that the will meet the requirements of this section and that two of the attesting witnesses testify before the court. In re Will of Everhart, 88 N.C. App. 572, 364 S.E.2d 173, 1988 N.C. App. LEXIS 107 (1988).

In order to prove formal execution of a will by subscribing witnesses, as required by this section, it must appear that the will was signed by the testator or some other person in his presence and by his direction, and subscribed in his presence by at least two witnesses and when the testator does not sign the will in the presence of the witnesses, the signature should be acknowledged by him. In re Will of Franks, 231 N.C. 252 , 56 S.E.2d 668, 1949 N.C. LEXIS 531 (1949). See In re Morrow's Will, 234 N.C. 365 , 67 S.E.2d 279, 1951 N.C. LEXIS 468 (1951).

In order to be a valid written will with witnesses, the same should be signed by the testator or some other person in his presence and by his direction, or the signature should be acknowledged by the testator, and subscribed in his presence by at least two witnesses. Watson v. Hinson, 162 N.C. 72 , 77 S.E. 1089, 1913 N.C. LEXIS 314 (1913).

A codicil must be executed with the same formality as the will. Paul v. Davenport, 217 N.C. 154 , 7 S.E.2d 352 (1940). In accord with main volume. See In re Will of King, 80 N.C. App. 471, 342 S.E.2d 394, 1986 N.C. App. LEXIS 2211 (1986).

Testimony Showing Formal Execution of Will. —

Testimony of one subscribing witness to the effect that he signed the instrument at the request of testator simultaneously with the testator, and testimony of the other that when he signed same it had already been signed by testator, together with testimony that testator stated to the witnesses that the instrument was his will and requested them to sign same, was held sufficient to show formal execution of the will and to support the charge of the court hereon. In re Will of Franks, 231 N.C. 252 , 56 S.E.2d 668, 1949 N.C. LEXIS 531 (1949).

Conformance with Statutory Requirements Is Prima Facie Proof. —

In a caveat proceeding, proof of the formal execution of an attested will in conformity with the statutory requirements establishes prima facie that the offered document is the will of the testator and is sufficient to allow the jury to find that the document is the will of the testator. In re Will of Cooley, 66 N.C. App. 411, 311 S.E.2d 613, 1984 N.C. App. LEXIS 2865 (1984).

Order of Signing and Attestation. —

Some authorities hold that everything required to be done by the testator in the execution of a will shall precede in point of time the subscription by the attesting witness, and that if the signature of the latter precede the signing by the testator the will is void. Until the testator has signed, there is no will and nothing to attest. There are eminent authorities, however, which hold that where the signing of the testator and of the witnesses took place at the same time and constituted one transaction, it is immaterial who signed first. In re Baldwin, 146 N.C. 25 , 59 S.E. 163, 1907 N.C. LEXIS 5 (1907).

Distinction Between Signing and Subscribing. —

The authorities make a distinction between statutes requiring instruments to be signed and those requiring them to be subscribed, holding with practical unanimity in reference to the first class, that it is not necessary for the name to appear on any particular part of the instrument, if written with the intent to become bound; and, as to the second class, that the name must be at the end of the instrument. Peace v. Edwards, 170 N.C. 64 , 86 S.E. 807, 1915 N.C. LEXIS 337 (1915); In re Williams' Will, 234 N.C. 228 , 66 S.E.2d 902, 1951 N.C. LEXIS 446 (1951) (commented on in 30 N.C.L. Rev. 201 (1952)) .

Undated Will. —

The testator’s signature to the will is required though it is not required that the paper-writing be subscribed or dated. Therefore an undated will, when the name of the testator, in his own handwriting, appears in the body thereof, has the same legal effect as those bearing dates and subscribed by the testator. Peace v. Edwards, 170 N.C. 64 , 86 S.E. 807, 1915 N.C. LEXIS 337 (1915).

Where Only One of Inconsistent Wills Dated. —

Where the decedent has left several paper-writings purporting to be his last will, containing the opening declaration, as to each, that the testator made the same as his “last will and testament,” but only one of them bears date and his name subscribed thereto, and each of them making a disposition of his property different from the other, the undated and unsubscribed wills have the same legal effect as the one dated and subscribed, though the testator had indorsed under his signature, thereon, the words “last will”; and in the absence of proof as to which of the wills was the last one, the legal effect is intestacy. Peace v. Edwards, 170 N.C. 64 , 86 S.E. 807, 1915 N.C. LEXIS 337 (1915) (construing former G.S. 31-3 ) .

II.Signing by or for Testator

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

Signing in Presence of Witnesses Not Necessary. —

This section does not require the testator to manually sign his will in the presence of the subscribing witnesses, and the validity of the written instrument in this respect will be upheld if the testator produces the will itself, and acknowledges and identifies it and his signature thereto, at the time the witnesses subscribe their names as such. Watson v. Hinson, 162 N.C. 72 , 77 S.E. 1089, 1913 N.C. LEXIS 314 (1913); In re Fuller's Will, 189 N.C. 509 , 127 S.E. 549, 1925 N.C. LEXIS 343 (1925).

It is not required that testator sign the will in the presence of the attesting witnesses. In re Will of Etheridge, 229 N.C. 280 , 49 S.E.2d 480, 1948 N.C. LEXIS 469 (1948).

It is not necessary that testator sign his will in the presence of the attesting witnesses, but if he does not do so he must acknowledge his signature either by acts or conduct. In re Will of Franks, 231 N.C. 252 , 56 S.E.2d 668, 1949 N.C. LEXIS 531 (1949).

Name of Testator May Be Signed by Another. —

That the name of the testator may be signed to the paper-writing by some other person in his presence and by his direction is expressly authorized by the statute. In re Williams' Will, 234 N.C. 228 , 66 S.E.2d 902, 1951 N.C. LEXIS 446 (1951) (commented on in 30 N.C.L. Rev. 201 (1952)) .

Signature Made for Testatrix in Her Presence. —

An instruction that it was not required that the will should be manually signed by the alleged testatrix if her name was signed thereto by someone in her presence, by her direction, or if such a signature was acknowledged by her as her signature to the instrument presented as her last will, was held correct. In re Will of Johnson, 182 N.C. 522 , 109 S.E. 373, 1921 N.C. LEXIS 262 (1921).

Assistance to Physically Weak Testator. —

Where the testator signified by a nod of his head that the paper writing read to him was his will, and although the testator was severely physically incapacitated, he was mentally alert and able to make known any objection he might have had to the minister signing his name to the will, and this he failed to do; indeed, he placed his hand upon the pen while the minister made his mark, this evidence gives rise to an inference to be resolved by the jury as to whether the will was duly executed according to law. In re Will of Knowles, 11 N.C. App. 155, 180 S.E.2d 394, 1971 N.C. App. LEXIS 1471 (1971).

Assistance by Attorney. —

Attorney’s assisting testator to form his mark and signing testator’s name legibly beside each mark did not disqualify him as a witness. In re Will of Jarvis, 334 N.C. 140 , 430 S.E.2d 922, 1993 N.C. LEXIS 294 (1993).

Evidence that testator made his mark on codicil in the presence of the witnesses indicates that the instrument was his, and is sufficient to imply a request that they attest his signature. In re Will of King, 80 N.C. App. 471, 342 S.E.2d 394, 1986 N.C. App. LEXIS 2211 (1986).

The North Carolina statutes have never required a testator to subscribe his signature to his will. Yount v. Yount, 258 N.C. 236 , 128 S.E.2d 613, 1962 N.C. LEXIS 697 (1962).

Where a will is written on two or more separate sheets, the statute does not require that they be physically attached or that the signature of the testator appear on each sheet. It is sufficient if the signature of the testator appears in any part of the will. In re Roberts' Will, 251 N.C. 708 , 112 S.E.2d 505, 1960 N.C. LEXIS 366 (1960); In re Sessoms' Will, 254 N.C. 369 , 119 S.E.2d 193, 1961 N.C. LEXIS 470 (1961).

Fact Issue. —

Propounder was not entitled to summary judgment in a caveat proceeding because affidavits by blood relatives stated the affiant was familiar with the decedent’s signature and the signature on a will was not the decedent’s. In re Estate of Phillips, 251 N.C. App. 99, 795 S.E.2d 273, 2016 N.C. App. LEXIS 1312 (2016).

III.Attestation by Witnesses

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

Attestation in Presence of Testator Is Essential. —

It is essential that the will be subscribed in the presence of the testator by at least two witnesses. In re Thomas, 111 N.C. 409 , 16 S.E. 226, 1892 N.C. LEXIS 195 (1892).

Material issue of fact existed regarding whether a testator complied with the will formalities required by G.S. 31-3.3 where the evidence tended to show that the testator did not sign the will in the presence of one of the witnesses; that evidence raised material questions of fact on whether the will complied with the testamentary formalities of G.S. 31-1 and G.S. 31-3.3 , so summary judgment in favor of the propounder of the will was improper. In re Will of Priddy, 171 N.C. App. 395, 614 S.E.2d 454, 2005 N.C. App. LEXIS 1213 (2005).

If the subscribing witnesses signed a will in a room adjacent to the room in which testator was lying in bed, but the testator was in a position where he did see or could have seen them subscribe their names, the attestation was in compliance with law. In re Pridgen's Will, 249 N.C. 509 , 107 S.E.2d 160, 1959 N.C. LEXIS 404 (1959).

Witnesses Need Not Sign in Presence of Each Other. —

See In re Will of Franks, 231 N.C. 252 , 56 S.E.2d 668, 1949 N.C. LEXIS 531 (1949). See also Watson v. Hinson, 162 N.C. 72 , 77 S.E. 1089, 1913 N.C. LEXIS 314 (1913); In re Will of Johnson, 182 N.C. 522 , 109 S.E. 373, 1921 N.C. LEXIS 262 (1921).

Witnesses are not required to sign in the presence of each other; only in the presence of the testator. In re Long's Will, 257 N.C. 598 , 126 S.E.2d 313, 1962 N.C. LEXIS 380 (1962).

Where the judge told the jury that if the signatures of the witnesses “were subscribed thereto at the request of the testator and in his presence and in the presence of each other” they would answer the issue of execution of the will “Yes,” this was error, and a new trial was required even though all the evidence tended to show that the witnesses did sign in the presence of each other. In re Long's Will, 257 N.C. 598 , 126 S.E.2d 313, 1962 N.C. LEXIS 380 (1962).

Where witness who signed the will in a location different from the other two witnesses testified and stated in her affidavit that she was a witness to the testator’s mark at the request of the testator, who declared the document to be his will, the trial court did not err in finding that witness was an attesting witness. Brickhouse v. Brickhouse, 110 N.C. App. 560, 430 S.E.2d 446, 1993 N.C. App. LEXIS 565 (1993).

The attestation by witnesses must be on the sheet of paper containing the testator’s signature, or else upon some paper physically connected with that sheet. In re Baldwin, 146 N.C. 25 , 59 S.E. 163, 1907 N.C. LEXIS 5 (1907).

Signing of Copy. —

When a witness who had properly signed as such, no other witness signing, had the will copied upon different paper in the absence of the testator, signed the copy, left it at the home of the testator with the original, who afterwards procured the due attestation and signature of the other witness on the copy, both of which were found among the papers of the testator after his death, but the original was destroyed, the copy is not valid as a will, and evidence that the first draft was identical with the copy is incompetent, the first witness having signed before the testator, and not in his presence, there being no physical connection between the original and copy, and not upon the same paper as that of the signature of the testator. In re Baldwin, 146 N.C. 25 , 59 S.E. 163, 1907 N.C. LEXIS 5 (1907).

Whether Attestation Impliedly Requested Is Question for Jury. —

It is for the jury to determine whether the testatrix impliedly requested the attesting witnesses to attest the will, an implied request being sufficient to submit the question to the jury. In re Kelly's Will, 206 N.C. 551 , 174 S.E. 453, 1934 N.C. LEXIS 239 (1934).

Attestation Sufficient Despite Wavering in Testimony. —

Evidence tending to show that one of the subscribing witnesses signed the will as such in the presence of testatrix and the other subscribing witness warrants the jury in finding that the witness’ subscription met the requirements of this section, notwithstanding that the witness wavered somewhat in her testimony. In re Redding's Will, 216 N.C. 497 , 5 S.E.2d 544, 1939 N.C. LEXIS 24 (1939).

Instrument Held Not Validly Witnessed. —

Where a witness subscribes his name to an instrument during the afternoon, and the purported testatrix signs the instrument the following night, but not in the presence of the witness, the signing of the instrument by the parties cannot be construed as one and the same transaction, and the instrument is not validly witnessed and attested by him, and, upon proof that the instrument was properly subscribed by one other witness, a peremptory instruction in favor of caveators is without error for want of proof that the instrument was subscribed by two witnesses. In re McDonald's Will, 219 N.C. 209 , 13 S.E.2d 239, 1941 N.C. LEXIS 288 (1941).

§ 31-3.4. Holographic will.

  1. A holographic will is a will that meets all of the following requirements:
    1. Written entirely in the handwriting of the testator but when all the words appearing on a paper in the handwriting of the testator are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the testator, and not affecting the meaning of the words in the handwriting, does not affect the validity of the will.
    2. Subscribed by the testator, or with the testator’s name written in or on the will in the testator’s own handwriting.
    3. Repealed by Session Laws 2021-85, s. 1(b), effective July 8, 2021, and applicable to estates of decedents dying on or after that date.
  2. No attesting witness to a holographic will is required.

History. 1953, c. 1098, s. 2; 1955, c. 73, s. 1; 2011-344, s. 8; 2021-85, s. 1(b).

Cross References.

As to manner of probate of holographic will, see G.S. 28A-2A-9.

Editor’s Note.

Session Laws 2021-85, s. 1(c), made the amendments to this section by Session Laws 2021-85, s. 1(b), effective July 8, 2021, and applicable to estates of decedents dying on or after that date.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout subdivisions (a)(2) and (a)(3), substituted “the testator’s” for “his,” or similar language.

Session Laws 2021-85, s. 1(b), inserted “that meets all of the following requirements” in the introductory paragraph of subsection (a); repealed subdivision (a)(3), which read: “Found after the testator’s death among the testator’s valuable papers or effects, or in a safe deposit box or other safe place where it was deposited by the testator or under the testator’s authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator’s authority for safekeeping.”; and made stylistic changes throughout. For effective date and applicability, see editor’s note.

Legal Periodicals.

For case law survey on holographic wills, see 41 N.C.L. Rev. 535 (1963).

For brief comment on the 1955 amendment, see 33 N.C.L. Rev. 597 (1955).

For note on the problem of after-discovered wills, see 47 N.C.L. Rev. 723 (1969).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

Legislative History of Section. —

See In re Will of Gilkey, 256 N.C. 415 , 124 S.E.2d 155, 1962 N.C. LEXIS 469 (1962).

It is not required that a holographic will be dated or the place of its execution stated therein. Pounds v. Litaker, 235 N.C. 746 , 71 S.E.2d 39, 1952 N.C. LEXIS 464 (1952).

A paper-writing in the handwriting of testatrix, duly proven by three credible witnesses, signed by testatrix and found among her valuable papers after her death, which paper-writing contains dispositive words sufficient to dispose of the estate, is valid as a holograph will under this section and G.S. 31-18.2, and it is not necessary that the writing be dated or show the place of execution. In re Parson's Will, 207 N.C. 584 , 178 S.E. 78, 1935 N.C. LEXIS 210 (1935) (citing) In re Will of Lowrance, 199 N.C. 782 , 155 S.E. 876, 1930 N.C. LEXIS 252 (1930).

Words Not in Handwriting of Testator. —

Every word of a holographic will must be in the handwriting of testator, and while words printed on the paper will not invalidate the instrument but will be treated as surplusage if such printed words are not essential to the written words, printed words or letters may not be used to supply any essential part of the instrument. Pounds v. Litaker, 235 N.C. 746 , 71 S.E.2d 39, 1952 N.C. LEXIS 464 (1952).

When all the words appearing on a paper in the handwriting of the deceased person are sufficient to constitute a last will and testament, the mere fact that other words appear thereon, not in such handwriting, but not essential to the meaning of the words in such handwriting, cannot be held to defeat the intention of the deceased, otherwise clearly expressed, that such paper-writing is and shall be her last will and testament. In re Will of Lowrance, 199 N.C. 782 , 155 S.E. 876, 1930 N.C. LEXIS 252 (1930); In re Parson's Will, 207 N.C. 584 , 178 S.E. 78, 1935 N.C. LEXIS 210 (1935) (wherein the unessential words had been printed on the paper before the testator used it) .

Attestation Does Not Invalidate Holographic Will. —

The fact of there being a signature of one subscribing witness to a will of land does not prevent it from being proved as a holographic will; and it is no objection to the probate of a script as a holograph will that it has one subscribing witness, and was intended by the decedent to be proved by subscribing witnesses, which intent was frustrated by the fact that the second attesting witness was incompetent. Hill v. Bell, 61 N.C. 122 , 1867 N.C. LEXIS 65 (1867).

Note Held to Be Codicil. —

A note payable to the deceased, found with his holographic will in a box with his other valuable papers after his death, and endorsed thereon in the handwriting of the deceased and over his signature to his wife to take effect after his death, when proved as G.S. 31-18.2 requires, is to be construed as a codicil to his will, and it is not necessary to such construction that it be physically attached to the holographic will. In re Will of Thompson, 196 N.C. 271 , 145 S.E. 393, 1928 N.C. LEXIS 346 (1928).

Margin Notes. —

Additional words found on a holographic will, which were written in a different pen, were not sufficient to entitle caveators challenging the will to a directed verdict, and the jury was allowed to determine the will’s authorship. In re Will of Allen, 148 N.C. App. 526, 559 S.E.2d 556, 2002 N.C. App. LEXIS 33 (2002).

Handwritten Notations Insufficient, Standing Alone, to Give Meaning to Words Used. —

Superior court properly dismissed the beneficiaries’ will caveat for failure to state a claim for which relief could be granted because the alleged codicil upon which the caveat was based was not a valid holographic codicil on its face where the handwritten notations on the alleged holographic codicil were not sufficient, standing alone, to give meaning to the words used. Hendrix v. Tantemsapya, 259 N.C. App. 465, 817 S.E.2d 31, 2018 N.C. App. LEXIS 476 (2018).

Letter as Will. —

A letter written by the deceased to his brother, signed by him “Brother Alex,” just before the deceased had gone to a hospital for treatment, saying “Brother Richard, take good care of yourself and stay with William at the store. I am going to the hospital on account of not feeling well. I hope God nothing happens, but if it does, everything is yours. Got some money in the bank, but don’t know how much we owe on house . . . I hope in a few days I will come back,” etc., indicates the writer’s present intention to dispose of his property, and is provable as his holograph will. Wise v. Short, 181 N.C. 320 , 107 S.E. 134, 1921 N.C. LEXIS 69 (1921).

Letters written by a member of Armed Forces of the United States which are not offered or proven in the manner or form prescribed are ineffectual as a testamentary disposition of property. Wescott v. First & Citizens Nat'l Bank, 227 N.C. 39 , 40 S.E.2d 461, 1946 N.C. LEXIS 347 (1946).

In Alston v. Davis, 118 N.C. 202 , 24 S.E. 15 (1896), a brother in Texas wrote to his sister in North Carolina that if he got sick or died in Texas he wanted her to have his farm. He simply mailed her the letter. Subsequently he died in Texas and his sister undertook to probate the letter as a holographic will in this State. The question arose whether it had been deposited “with someone for safekeeping”; the court held that this constituted depositing with someone for safekeeping and that the will should be probated. In view of the fact that a testamentary disposition must be accompanied with animus testandi, the decision seems to be clearly unsound, inasmuch as the letter in question discloses no such intention. This conclusion is supported by later decisions of the court which in express terms refuses to follow the doctrine of Alston v. Davis. See Spencer v. Spencer, 163 N.C. 83 , 79 S.E. 291, 1913 N.C. LEXIS 124 (1913).

It is believed that if the writer of the letter indicates clearly that by mailing it to the addressee he intends to deposit it as a will, the letter would be admitted to probate as such. See In re Ledford's Will, 176 N.C. 610 , 97 S.E. 482, 1918 N.C. LEXIS 308 (1918).

II.Testamentary Intent

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

Evidence of Testamentary Intent Is Necessary. —

Before any instrument can be probated as a testamentary disposition there must be evidence that it was written animo testandi, or with testamentary intent. In re Will of Mucci, 287 N.C. 26 , 213 S.E.2d 207, 1975 N.C. LEXIS 1063 (1975).

An instrument may not be probated as a testamentary disposition unless there is evidence that it was written with testamentary intent, that is, that the maker intended that the paper itself should operate as a will or codicil to take effect upon his death. Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826, 1987 N.C. App. LEXIS 3467 (1987).

The maker must intend at the time of making that the paper itself operate as a will, or codicil; an intent to make some foreign testamentary disposition is not sufficient. In re Will of Mucci, 287 N.C. 26 , 213 S.E.2d 207, 1975 N.C. LEXIS 1063 (1975).

Instrument May Not Be Admitted to Probate. —

If there is nothing on the face of the holograph from which a testamentary intent may be inferred or evidence is lacking that the instrument was found among the deceased’s valuable papers or placed by him in the possession of some other person for safekeeping, the instrument may not, as a matter of law, be admitted to probate. In re Will of Mucci, 287 N.C. 26 , 213 S.E.2d 207, 1975 N.C. LEXIS 1063 (1975).

Where Testamentary Intent Must Appear. —

With regard to holographic instruments, the necessary animo testandi must appear not only from the instrument itself and the circumstances under which it was made, but also from the fact that the instrument was found among the deceased’s valuable papers after his death or in the possession of some person with whom the deceased had deposited it for safekeeping. In re Will of Mucci, 287 N.C. 26 , 213 S.E.2d 207 (1975). In accord with the main volume. See Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826, 1987 N.C. App. LEXIS 3467 (1987).

When Intent Issue Is for Jury. —

Where a holographic instrument on its face is equivocal on the question of whether it was written with testamentary intent and there is evidence that the instrument was found among the valuable papers of the deceased the animo testandi issue is for the jury and parol evidence relevant to the issue may be properly admitted. In re Will of Mucci, 287 N.C. 26 , 213 S.E.2d 207, 1975 N.C. LEXIS 1063 (1975).

Although the evidence, when viewed in a light most favorable to the nonmoving parties, clearly indicated that the will, including the handwritten provisions, was found among the testator’s valuable papers and effects, that the handwritten notation evinced a clear intent regarding the desired disposition for the items contained in Article IV, and that those words explicitly showed that the will should be modified to eliminate Article IV, summary judgment was inappropriate because the phrase in the holographic codicil “begin[n]ing 7-7-03” was sufficiently ambiguous to create a genuine issue of material fact as to whether that provision indicated the required present testamentary intent. In re Will of Allen, 371 N.C. 665 , 821 S.E.2d 396, 2018 N.C. LEXIS 1030 (2018).

III.Signature

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

It is necessary that the testator’s name be inserted in his own handwriting in some part of the instrument. Pounds v. Litaker, 235 N.C. 746 , 71 S.E.2d 39, 1952 N.C. LEXIS 464 (1952).

Name in Body of Will Sufficient Signature. —

It is well settled that if the name of the testator appears in his handwriting in the body of the will this is a signing within the meaning of the statute. Hall v. Misenheimer, 137 N.C. 183 , 49 S.E. 104, 1904 N.C. LEXIS 343 (1904); Richards v. W.M. Ritter Lumber Co., 158 N.C. 54 , 73 S.E. 485, 1911 N.C. LEXIS 338 (1911), modified, 159 N.C. 455 , 74 S.E. 1016, 1912 N.C. LEXIS 305 (1912); Boger v. Cedar Cove Lumber Co., 165 N.C. 557 , 81 S.E. 784 (1914); Burriss v. Starr, 165 N.C. 657 , 81 S.E. 929 (1914); Peace v. Edwards, 170 N.C. 64 , 86 S.E. 807, 1915 N.C. LEXIS 337 (1915).

Under this section, a paper-writing in the testator’s handwriting, dispositive on its face, with the name of the testator inserted therein his own handwriting followed by the words “this being my will” is sufficient in form to constitute a holographic will. In re Rowland, 202 N.C. 373 , 162 S.E. 897, 1932 N.C. LEXIS 508 (1932).

Engraved Monogram of Testatrix Not Construed as Signature. —

An engraved monogram of a testatrix, appearing on the instrument offered for probate in solemn form as a holographic will, may not be considered as a part thereof. The monogram is not in her handwriting and may not be construed to be her signature. Pounds v. Litaker, 235 N.C. 746 , 71 S.E.2d 39, 1952 N.C. LEXIS 464 (1952).

Signature Need Not Be Witnessed. —

It is not necessary that the testator’s signature be witnessed if the requirements for a holographic will are established. In re Will of Gilkey, 256 N.C. 415 , 124 S.E.2d 155, 1962 N.C. LEXIS 469 (1962).

IV.Found Among Valuable Papers, etc

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-3 .

Location of Holographic Will. —

The statute requires that a paper-writing sufficient to pass as a holographic will must be found, after the death of the testator, in one of five different places: (1) among the testator’s valuable papers; (2) among the testator’s valuable effects; (3) in a safe-deposit box; (4) in a safe place where it was deposited by the testator or under his authority; or (5) in the possession of a person or firm with whom it was deposited by the testator or under his authority for safekeeping. In re Will of Church, 121 N.C. App. 506, 466 S.E.2d 297, 1996 N.C. App. LEXIS 76 (1996).

Purpose of Requirement That Paper Be Found Among Valuable Papers. —

The requirement of this section that the writing be found after death among testator’s valuable papers was to show the author’s evaluation of the document, important because lodged with important documents, to become effective upon death because left there by the author, thereby establishing the necessary animus testandi. In re Will of Gilkey, 256 N.C. 415 , 124 S.E.2d 155, 1962 N.C. LEXIS 469 (1962).

What Constitutes Valuable Papers. —

Valuable papers consist of such as are regarded by a decedent as worthy of preservation, and therefore in his estimation, of some value. Much depends upon the condition and business and habits of the decedent in respect to keeping his valuable papers. Winstead v. Bowman, 68 N.C. 170 , 1873 N.C. LEXIS 41 (1873).

The requirements of this section that a paper-writing sufficient to pass as a holograph will must be found after the death of the testator among his valuable papers and (now “or”) effects must be liberally construed, and where it is found among the deceased’s papers and effects evidently regarded by him as his most valuable papers, and are in fact valuable, under circumstances showing his intention that that will should take effect as being so found, it is sufficient. In re Will of Groce, 196 N.C. 373 , 145 S.E. 689, 1928 N.C. LEXIS 378 (1928). See also Hughes v. Smith, 64 N.C. 493 , 1870 N.C. LEXIS 154 (1870); In re Williams' Will, 215 N.C. 259 , 1 S.E.2d 857, 1939 N.C. LEXIS 246 (1939).

If a document had been placed among the author’s valuable papers without his knowledge and consent, it would have no validity as a will even though found among the papers after the author’s death. In re Will of Gilkey, 256 N.C. 415 , 124 S.E.2d 155, 1962 N.C. LEXIS 469 (1962).

Writing Found in Drawer with Deeds and Other Papers. —

Where the proof showed that the script propounded as a holograph will was found in a small drawer of a bookcase, in the room which the alleged testator occupied at his death, with his deeds and other papers, it was held to be such a finding “among the valuable papers of the decedent” as will, in connection with the other evidence required by the statute in respect to handwriting, authorize its probate. Cornelius v. Brawley, 109 N.C. 542 , 14 S.E. 78, 1891 N.C. LEXIS 263 (1891).

Writing Found with Other Papers. —

Finding a holographic will in a wooden bowl on the testator’s kitchen counter did not entitle caveators to a directed verdict because other documents of a financial nature were found in the same place, and the testator was a man of limited education. In re Will of Allen, 148 N.C. App. 526, 559 S.E.2d 556, 2002 N.C. App. LEXIS 33 (2002).

Deposit Among Unopened Mail. —

A bona fide controversy existed as to whether a holographic document was found among the valuable papers and effects of the testatrix, where the document was discovered among some unopened mail on a sofa at the testatrix’s home, in a small room which was used as an office. Lenoir Rhyne College v. Thorne, 13 N.C. App. 27, 185 S.E.2d 303, 1971 N.C. App. LEXIS 1152 (1971).

A paper-writing found after testator’s death in the pockets of the clothes he was wearing, with large sums of money and other papers of value was held to be effective as his will. In re Will of Groce, 196 N.C. 373 , 145 S.E. 689, 1928 N.C. LEXIS 378 (1928).

Stored in Separate Pocketbooks. —

Where testator stored valuable belongings in her pocketbooks, which she kept in her bedroom, one pocketbook on the inside of her bedroom door contained insurance papers, the deed to her home and a bank book, and the handwritten document was in another pocketbook, also in her bedroom, in an envelope labelled “This is my Will”, the evidence supported the trial court’s finding that the handwriting was found in a “safe place.” In re Will of Church, 121 N.C. App. 506, 466 S.E.2d 297, 1996 N.C. App. LEXIS 76 (1996).

Need Not Be Found Among Most Valuable Papers. —

The phrase “among the valuable papers and [now ‘or’] effects,” etc., used in this section does not necessarily and without exception mean among the most valuable papers, etc. So the fact that decedent kept valuable papers in a tin box in a bank which were intrinsically more valuable than papers kept in a trunk where the will was found would not prevent the latter from being a depository within the meaning of the section. Winstead v. Bowman, 68 N.C. 170 , 1873 N.C. LEXIS 41 (1873).

Deposit Among Useless Papers and Rubbish. —

In Little v. Lockman, 49 N.C. 495 (1857), the script propounded was found in the drawer of a bureau, among some useless papers and rubbish, and there were valuable papers and effects kept in another drawer of the same bureau. Under such circumstances the court properly held that the script was not found in such a place of deposit as was contemplated by the statute. Hughes v. Smith, 64 N.C. 493 , 1870 N.C. LEXIS 154 (1870).

Evidence of Finding Among Valuables. —

That a holograph script was seen among the valuable papers and effects of the decedent eight months before his death is no evidence that it was found there at or after his death. Adams v. Clark, 53 N.C. 56 , 1860 N.C. LEXIS 153 (1860).

Evidence that the will of the deceased, wholly written and signed by her, was found among her valuable papers after her death, in a desk where she kept her business papers and papers she desired to keep for their sentimental value, and that it was transferred after her death, together with the other papers, to her trunk where they were found, was held sufficient, under the circumstances of the case. In re Will of Westfeldt, 188 N.C. 702 , 125 S.E. 531, 1924 N.C. LEXIS 154 (1924).

Evidence as to whether the document in question was found among the valuable papers and effects of the deceased or in a safe place where it was deposited by her, in satisfaction of subdivision (a)(3) of this section, was sufficient to support the jury’s determination that it was a valid holographic will. Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826, 1987 N.C. App. LEXIS 3467 (1987).

Jury to Determine Intention in Depositing with Valuables. —

It was entirely proper in the judge to leave it to the jury to determine whether, from all the circumstances, they believed that the paper-writing was deposited by the deceased among his valuable papers with the intention that it should be his will. Simms v. Simms, 27 N.C. 684 , 1845 N.C. LEXIS 177 (1845); Hill v. Bell, 61 N.C. 122 , 1867 N.C. LEXIS 65 (1867).

Deposit in a Trunk Left with a Friend for Safekeeping. —

The placing of a holographic will in a trunk, left for safekeeping with a friend, and having it in the larger part of the valuable papers and money of the deceased, will satisfy the requirements of the statute upon the point of deposit. Hill v. Bell, 61 N.C. 122 , 1867 N.C. LEXIS 65 (1867).

OPINIONS OF ATTORNEY GENERAL

Sufficient Signature. — Where the handwriting of a testator in a holographic will can be proved and there are no defects in other respects, it is sufficient signature for the testator in a holographic will to sign or write his name in his own handwriting in the body of the will. See opinion of Attorney General to Honorable Robert Miller, Clerk, Superior Court, Stokes County, 40 N.C. Op. Att'y Gen. 36 (1969).

§ 31-3.5. Nuncupative will.

A nuncupative will is a will

  1. Made orally by a person who is in that person’s last sickness or in imminent peril of death and who does not survive such sickness or imminent peril, and
  2. Declared to be that person’s will before two competent witnesses simultaneously present at the making thereof and specially requested by the person to bear witness thereto.

History. 1953, c. 1098, s. 2; 2011-344, s. 8.

Cross References.

As to manner of probate of nuncupative will, see G.S. 28A-2A-10.

As to revocation of nuncupative will, see G.S. 31-5.2 .

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted “that person’s” for “his,” or similar language.

CASE NOTES

“Last Sickness.” —

Where genuine issues of fact existed as to whether decedent reasonably believed he was in the last stage of a chronic disease and whether he was actually in his “last sickness,” summary judgment was inappropriate. In re Will of Krantz, 135 N.C. App. 354, 520 S.E.2d 96, 1999 N.C. App. LEXIS 1055 (1999).

Nuncupative Wills Not Precluded by Former G.S. 31-3 . —

See Kennedy v. Douglas, 151 N.C. 336 , 66 S.E. 216, 1909 N.C. LEXIS 267 (1909).

§ 31-3.6. Seal not required.

A seal is not necessary to the validity of a will.

History. 1953, c. 1098, s. 2.

§ 31-4. [Repealed]

Repealed by Session Laws 2015-205, s. 3(b), effective August 11, 2015.

History. 1844, c. 88, s. 9; R.C., c. 119, s. 4; Code, s. 2139; Rev., s. 3114; C.S., s. 4132; repealed by 2015-205, s. 3(b), effective August 11, 2015.

Editor’s Note.

Former G.S. 31-4 pertained to the execution of power of appointment by will.

§ 31-4.1. [Repealed]

Repealed by Session Laws 2010-181, s. 1, effective July 1, 2010.

History. 2009-182, ss. 1, 3; repealed by 2010-181, s. 1, effective July 1, 2010.

Editor’s Note.

Former G.S. 31-4.1 pertained to attorneys as beneficiaries.

Session Laws 2010-181, s. 5, provides, in part: “The failure of an attorney to comply with either the affidavit requirement under G.S. 31-4.1 or the drafting disclosure requirement of G.S. 31-4.2 does not invalidate a will or codicil.”

§ 31-4.2. [Repealed]

Repealed by Session Laws 2010-181, s. 2, effective July 1, 2010.

History. 2009-182, s. 2; repealed by 2010-181, s. 2, effective July 1, 2010.

Editor’s Note.

Former G.S. 31-4.2 pertained to attorney’s name on will or codicil.

Session Laws 2010-181, s. 5, provides, in part: “The failure of an attorney to comply with either the affidavit requirement under G.S. 31-4.1 or the drafting disclosure requirement of G.S. 31-4.2 does not invalidate a will or codicil.”

Article 2. Revocation of Will.

§ 31-5. [Repealed]

Rewritten and renumbered as G.S. 31-5.1 by Session Laws 1953, c. 1098, s. 3.

§ 31-5.1. Revocation of written will.

A written will, or any part thereof, may be revoked only

  1. By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills, or
  2. By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in the testator’s presence and by the testator’s direction.

History. 1784, c. 204, s. 14; 1819, c. 1004, ss. 1, 2; 1840, c. 62; R.C., c. 119, s. 22; Code, s. 2176; Rev., s. 3115; C.S., s. 4133; 1945, c. 140; 1953, c. 1098, s. 3; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “the testator’s presence and by the testator’s direction” for “his presence and by his direction” in subdivision (2).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-5 or prior law.

One lacking testamentary capacity is not competent to revoke a prior will. The same degree of mental capacity is necessary to revoke a will as to make one. In re Shute's Will, 251 N.C. 697 , 111 S.E.2d 851, 1960 N.C. LEXIS 520 (1960).

Revocation of Holographic Will. —

It seems clear that a holographic will may be revoked just as an attested will may, i.e., (1) by burning, tearing, canceling or obliterating or (2) by another will, which may be holographic or attested, provided only that the statutory requirements in each case are complied with. No witnesses are necessary on the holographic revocation. See (1908) and 112 Am. St. R. 822, 2 N.C.L. Rev. 110.

Effect of Disposal of Articles Already Bequeathed. —

A bequest of personal property in a trunk which contained the holographic will and other valuable papers of the deceased, after removing certain articles specifically bequeathed to others, is not a revocation of her will by the testatrix. In re Foy, 193 N.C. 494 , 137 S.E. 427, 1927 N.C. LEXIS 388 (1927).

Revocation by Parol Prior to Former G.S. 31-5 . —

See Giles v. Giles, 1 N.C. 377 , 1801 N.C. LEXIS 12 (1801) (decided prior to the enactment of former G.S. 31-5 , where it is held that a will of real estate in writing may be revoked by parol if the words of revocation denote a present intention to revoke) .

Revival by Parol Declaration. —

A revocation of a will of real estate carried completely into effect cannot be revived by any subsequent declaration by parol. Giles v. Giles, 1 N.C. 377 , 1801 N.C. LEXIS 12 (1801).

Issue of Revocation Is for Jury. —

Probate is an in rem action and the issue of revocation raised by caveat is for determination by the jury, and the court may not grant a motion for directed verdict. In re Will of Hodgin, 10 N.C. App. 492, 179 S.E.2d 126, 1971 N.C. App. LEXIS 1656 (1971).

Trial judge does have authority to set aside the verdict in his discretion when the verdict is against the greater weight of the evidence. In re Will of Hodgin, 10 N.C. App. 492, 179 S.E.2d 126, 1971 N.C. App. LEXIS 1656 (1971).

Instruction Held Without Error. —

See In re Gatling's Will, 234 N.C. 561 , 68 S.E.2d 301, 1951 N.C. LEXIS 532 (1951).

II.Subsequent Will or Codicil

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-5 .

Revocatory Paper Must Be a Testamentary Paper. —

Where the writing offered as operating a revocation of the will of the testator contains none of the elements of a testamentary paper, it cannot be helped by evidence aliunde, and hence has no revocatory effect. Davis v. King, 89 N.C. 441 , 1883 N.C. LEXIS 266 (1883).

Presumption as to Second Will. —

A will may be revoked by a subsequent instrument executed solely for that purpose, or by a subsequent will containing a revoking clause or provisions inconsistent with those of the previous will, or by any of the other methods prescribed by law; but the mere fact that a second will was made, although it purports to be the last, does not create a presumption that it revokes or is inconsistent with one of a prior date. Where testator devised a certain part of his lands to L, and by a later will gave his effects to his brothers and sisters, the two wills were not inconsistent and the latter did not revoke the former. In re Wolfe's Will, 185 N.C. 563 , 117 S.E. 804, 1923 N.C. LEXIS 118 (1923).

Presumption Overcome by Evidence. —

Caveators presented sufficient evidence to overcome the presumption that a testator destroyed his 2002 will with the intent to revoke it, and a directed verdict against the caveators was error; inter alia, the testator’s attorney testified that testator never mentioned a desire to change the 2002 will, and there was also evidence that someone moved the testator’s 1995 will after his death. In re Will of McFayden, 178 N.C. App. 704, 632 S.E.2d 520, 2006 N.C. App. LEXIS 1635 , superseded, 179 N.C. App. 595, 635 S.E.2d 65, 2006 N.C. App. LEXIS 2053 (2006).

Revocation by Codicil Not Containing Express Words of Revocation. —

In the absence of express words of revocation, it is a rule of construction that for a codicil to revoke any part of a will its provisions must be so inconsistent with those of the will as to exclude any other legitimate inference than that the testator had changed his intentions. Yount v. Yount, 258 N.C. 236 , 128 S.E.2d 613, 1962 N.C. LEXIS 697 (1962).

Evidence of the preparation of a later dispositive instrument, without evidence that it was ever executed according to the formalities necessary to make it a valid will and without evidence that it contained any words of revocation or provisions contrary to a prior will, duly executed, is insufficient evidence of revocation of the will to justify the submission of the question of revocation to the jury. In re Crawford's Will, 246 N.C. 322 , 98 S.E.2d 29, 1957 N.C. LEXIS 411 (1957).

To establish the revocation of a will by a subsequent writing it is necessary to prove the revocation in the manner required to establish the validity of the paper-writing originally offered for probate. In re Marks' Will, 259 N.C. 326 , 130 S.E.2d 673, 1963 N.C. LEXIS 568 (1963).

Separation Agreement As Renunciation. —

Where a husband executes a will devising and bequeathing all his property to his wife, the spouses thereafter enter a separation agreement in which each “waives and renounces all rights . . . under any previously executed will of the other,” and the husband subsequently dies without having revoked or modified his will, the separation agreement constitutes a valid renunciation which adeems the devise and bequest to the wife. Sedberry v. Johnson, 62 N.C. App. 425, 302 S.E.2d 924, 1983 N.C. App. LEXIS 2925 (1983).

Where caveators could not produce the revocatory writing, and where the decedent’s attorney could not recall writing the will, the trial court erred in granting the caveators summary judgment on the ground that the will revoked an earlier will that had excluded the caveators as beneficiaries. In re Will of McCauley, 356 N.C. 91 , 565 S.E.2d 88, 2002 N.C. LEXIS 550 (2002).

Caveators alleged a second will, the original of which was lost, revoked the testator’s earlier will under G.S. 31-5.1 ; pursuant to G.S. 1A-1-42, the trial court did not abuse its discretion by trifurcating the case on three issues: (1) the validity of the earlier will; (2) whether the testator destroyed the later will; and (3) the validity of the later will, as these issues were separate, distinct, and compartmentalized. In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65, 2006 N.C. App. LEXIS 2053 (2006).

Trial court properly found insufficient evidence to support caveator’s request for a jury instruction on revocation because there was no case precedent where a later-dated letter making no specific reference to a prior will, but merely declaring that the testator had “not written a will,” was considered to be a revocation of a prior will. In re Estate of Lowe, 156 N.C. App. 616, 577 S.E.2d 315, 2003 N.C. App. LEXIS 189 (2003).

When Intent Issue is for Jury. —

Although the evidence, when viewed in a light most favorable to the nonmoving parties, clearly indicated that the will, including the handwritten provisions, was found among the testator’s valuable papers and effects, that the handwritten notation evinced a clear intent regarding the desired disposition for the items contained in Article IV, and that those words explicitly showed that the will should be modified to eliminate Article IV, summary judgment was inappropriate because the phrase in the holographic codicil “begin[n]ing 7-7-03” was sufficiently ambiguous to create a genuine issue of material fact as to whether that provision indicated the required present testamentary intent. In re Will of Allen, 371 N.C. 665 , 821 S.E.2d 396, 2018 N.C. LEXIS 1030 (2018).

III.Physical Destruction

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-5 .

Defacing, Cancellation or Obliteration Alone Insufficient to Show Revocation. —

A paper-writing duly executed as a last will and testament was not revoked, in whole or in part, by defacing, cancellation, or obliteration, unless the testatrix defaced or obliterated the paper-writing, or some portion or portions thereof with the intent thereby to revoke it in whole or in part. Defacement or obliteration, even though shown to be made by testatrix, is not, alone, sufficient to show revocation. In re Will of Hodgin, 10 N.C. App. 492, 179 S.E.2d 126, 1971 N.C. App. LEXIS 1656 (1971).

Material Alteration by Cancellation Necessary. —

In order for there to be a revocation of a will, in whole or in part, under the provisions of this section there must not only exist the intent of the testator to cancel, but there must be the physical act of cancellation; and while it is not required that the words should be entirely effaced where the cancellation is in part, so as to make the same illegible, the portion erased must be of such significance as to effect a material alteration in the meaning of the will or the clause of the will that is challenged on the issue. In re Love's Will, 186 N.C. 714 , 120 S.E. 479, 1923 N.C. LEXIS 320 (1923).

Primary Controlling Clause Unaltered, Effect. —

Where the primary or controlling clause of a will remains unaltered by the obliteration by the testator of words therein and the unobliterated words remaining are sufficient to carry the designated property to the devisee, it will not amount to a revocation within the intent and meaning of this section; nor will the obliteration of the name of another beneficiary be sufficient as to him, when it appears that the intent of the revocation by the testator was dependent upon the successful revocation of a principal devise wherein the erasures were insufficient to effectuate a legal cancellation. In re Love's Will, 186 N.C. 714 , 120 S.E. 479, 1923 N.C. LEXIS 320 (1923).

Interlineations and Annotations Held Insufficient to Show Revocation. —

Where testator, in his own handwriting, makes certain interlineations and annotations upon his will, which had been properly executed, and marks through certain words of the will, and it appears that such alterations are insufficient to constitute a holographic will and were made with the intent of altering the will at some future date in accordance with the notations, but that such alterations were not made with the intent to revoke the will in whole or in part, such interlineations and annotations are insufficient to show a revocation of the will, intent to revoke being essential to revocation by defacement or obliteration of the will by testator under this section. In re Will of Roediger, 209 N.C. 470 , 184 S.E. 74, 1936 N.C. LEXIS 271 (1936).

Presumption of Revocation Where Will Cannot Be Found. —

It being shown that a will was once in existence and last heard of in possession of the testator, but could not be found after his death, a presumption arises that it was destroyed by his consent with intent to cancel it. Such presumption is not conclusive, but it imposes upon the person asserting the will the burden of proving that it was not so destroyed, or that the testator was not of sound mind at the time of such presumed destruction. Scoggins v. Turner, 98 N.C. 135 , 3 S.E. 719, 1887 N.C. LEXIS 237 (1887).

Presumption of Revocation Rebutted. —

Caveators alleged a second will, the original of which was lost, revoked the testator’s earlier will pursuant to G.S. 31-5.1 , as they presented evidence that the testator was not responsible for the loss of the later will, and they rebutted the presumption that it was destroyed; therefore, the trial court erred in granting the propounder of the first will a directed verdict under G.S. 1A-1-50. In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65, 2006 N.C. App. LEXIS 2053 (2006).

§ 31-5.2. Revocation of nuncupative will.

A nuncupative will or any part thereof may be revoked

  1. By a subsequent nuncupative will, or
  2. By a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills.

History. 1953, c. 1098, s. 4.

§ 31-5.3. Will not revoked by marriage; dissent from will made prior to marriage.

A will is not revoked by a subsequent marriage of the maker; and the surviving spouse may petition for an elective share when there is a will made prior to the marriage in the same manner, upon the same conditions, and to the same extent, as a surviving spouse may petition for an elective share when there is a will made subsequent to marriage.

History. 1844, c. 88, s. 10; R.C., c. 119, s. 23; Code, s. 2177; Rev., s. 3116; C.S., s. 4134; 1947, c. 110; 1953, c. 1098, s. 5; 1967, c. 128; 2000-178, s. 5.

Cross References.

As to right of elective share, see G.S. 30-3.1 et seq.

Legal Periodicals.

For survey of 1973 case law on the revocation of wills by subsequent marriage, see 52 N.C.L. Rev. 949 (1974).

CASE NOTES

Will Revoked under Prior Provisions Not Revived by 1967 Revision. —

Where testator’s will made in January 1963 was revoked under former provisions under this section by his marriage in November 1963, the will was not revived by the 1967 revision of this section providing that no will should be revoked by any change in the marital status of the maker. In re Probate of Will of Mitchell, 285 N.C. 77 , 203 S.E.2d 48, 1974 N.C. LEXIS 902 (1974).

Prior Law. —

For cases decided under prior provisions, see Sawyer v. Sawyer, 52 N.C. 133 (1859); Means v. Ury, 141 N.C. 248 , 53 S.E. 850, 1906 N.C. LEXIS 97 (1906); In re Will of Bradford, 183 N.C. 4 , 110 S.E. 586, 1922 N.C. LEXIS 188 (1922); In re Will of Coffield, 216 N.C. 285 , 4 S.E.2d 870, 1939 N.C. LEXIS 145 (1939); In re Tenner's Will, 248 N.C. 72 , 102 S.E.2d 391, 1958 N.C. LEXIS 323 (1958).

§ 31-5.4. Revocation by divorce or annulment; revival.

Dissolution of marriage by absolute divorce or annulment after making a will does not revoke the will of any testator but, unless otherwise specifically provided in the will, it revokes all provisions in the will in favor of the testator’s former spouse or purported former spouse, including, but not by way of limitation, any provision conferring a general or special power of appointment on the former spouse or purported former spouse and any appointment of the former spouse or purported former spouse as executor, trustee, conservator, or guardian. If provisions are revoked solely by this section, they are revived by the testator’s remarriage to the former spouse or purported former spouse.

History. 1953, c. 1098, s. 6; 1977, c. 74, s. 3; 1991, c. 587, s. 1.

CASE NOTES

“Divorce” Is Used in General and Comprehensive Sense. —

In enacting this section the General Assembly used the word “divorce” in its general and comprehensive sense, that is, as denoting a judgment or decree by which a marriage is dissolved or annulled, rather than in its limited and technical sense. Ivery v. Ivery, 258 N.C. 721 , 129 S.E.2d 457, 1963 N.C. LEXIS 464 (1963).

Former Spouse Denied A Testate Disposition. —

Where decedent failed to provide in his will that, even if he divorced the former spouse, she would remain a beneficiary, under G.S. 31-5.4 the former spouse was denied any testate disposition, despite the former spouse’s designation as a beneficiary in the decedent’s pre-divorce will. Gibboney v. Wachovia Bank, N.A., 174 N.C. App. 834, 622 S.E.2d 162, 2005 N.C. App. LEXIS 2587 (2005).

Construction. —

N.C. Gen. Stat. § 31-5.4 plainly provides that divorce revokes only those provisions in a will which are in favor of a former spouse; in this case, the trial court erred by excising all provisions in the the ex-husband’s will that referenced the ex-wife and not solely the provisions that favored her. Parks v. Johnson, 2022-NCCOA-129, 870 S.E.2d 280, 2022- NCCOA-129, 2022 N.C. App. LEXIS 134 (N.C. Ct. App. 2022).

Condition Precedent. —

Provision in will stating, “In the event my wife be not living at the time of my death,” was a condition precedent that could not be interpreted to favor the ex-wife because the residuary was operative only if the ex-wife had died, and necessarily, she would not be alive to benefit from the estate passing to her relatives. Parks v. Johnson, 2022-NCCOA-129, 870 S.E.2d 280, 2022- NCCOA-129, 2022 N.C. App. LEXIS 134 (N.C. Ct. App. 2022).

Ex-husband only intended the residuary devise giving his property to his mother in law and parents to operate if the ex-wife did, in fact, predecease him, and because she did not, the condition went unfulfilled and the residuary devise failed; removing the condition precedent of the ex-wife predeceasing the ex-husband violated the statutes and undermined his intent, and as no other residuary clause existed, the ex-husband’s estate passed by intestacy to his siblings. Parks v. Johnson, 2022-NCCOA-129, 870 S.E.2d 280, 2022- NCCOA-129, 2022 N.C. App. LEXIS 134 (N.C. Ct. App. 2022).

§ 31-5.5. After-born or after-adopted child; children born out of wedlock; effect on will.

  1. A will shall not be revoked by the subsequent birth of a child to the testator, or by the subsequent adoption of a child by the testator, or by the subsequent entitlement of an after-born child born out of wedlock to take as an heir of the testator pursuant to the provisions of G.S. 29-19(b), but any after-born, after-adopted or entitled after-born child born out of wedlock shall have the right to share in the testator’s estate to the same extent the after-born, after-adopted, or entitled after-born child born out of wedlock would have shared if the testator had died intestate unless:
    1. The testator made some provision in the will for the child, whether adequate or not;
    2. It is apparent from the will itself that the testator intentionally did not make specific provision therein for the child;
    3. The testator had children living when the will was executed, and none of the testator’s children actually take under the will;
    4. The surviving spouse receives all of the estate under the will; or
    5. The testator made provision for the child that takes effect upon the death of the testator, whether adequate or not.
  2. The provisions of G.S. 28A-22-2 shall be construed as being applicable to after-adopted children and to after-born children, whether legitimate or entitled children born out of wedlock.
  3. The terms “after-born,” “after-adopted” and “entitled after-born” as used in this section refer to children born, adopted or entitled subsequent to the execution of the will.

History. 1868-9, c. 113, s. 62; Code, s. 2145; Rev., s. 3145; C.S., s. 4169; 1953, c. 1098, s. 7; 1955, c. 541; 1973, c. 1062, s. 2; 1985, c. 689, s. 9; 1995, c. 161, s. 1; 1997-456, s. 55.8; 2011-344, s. 8; 2013-198, s. 14.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “the after-born, after adopted, or entitled after-born illegitimate child would have shared” for “he would have shared” near the end of the introductory paragraph of subsection (a).

Session Laws 2013-198, s. 14, effective June 26, 2013, substituted “children born out of wedlock” for “illegitimate child” in the section heading; substituted “child born out of wedlock” for “illegitimate child” throughout subsection (a); and substituted “children born out of wedlock” for “illegitimate” at the end of subsection (b).

Legal Periodicals.

For comment on sufficiency of life insurance as provision for after-born child, see 29 N.C.L. Rev. 218 (1951).

For note on the inheritance rights of an after-adopted child, see 30 N.C.L. Rev. 276 (1952).

For article on interstate and foreign adoptions in North Carolina, see 40 N.C.L. Rev. 691 (1962).

For casenote: “The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003),” see 26 N.C. Cent. L.J. 116 (2003).

CASE NOTES

Editor’s Note. —

Some of the cases cited below construe former G.S. 31-45 .

For rules under common law and civil law, see Christian v. Carter, 193 N.C. 537 , 137 S.E. 596, 1927 N.C. LEXIS 396 (1927).

A testator is not required to mention by name or make some provision for a child in order to disinherit that child under North Carolina law, even if the child is born or adopted after the will is made. Ladd v. Estate of Kellenberger, 314 N.C. 477 , 334 S.E.2d 751, 1985 N.C. LEXIS 2007 (1985).

After-Born Child Takes Share Unless Provided for or Intentionally Excluded. —

A child born after a will is executed takes as in case of intestacy, unless (1) provision is made for it in the will, or (2) it appears from the will itself that the testator’s failure to make provision was intentional. Wachovia Bank & Trust Co. v. McKee, 260 N.C. 416 , 132 S.E.2d 762, 1963 N.C. LEXIS 716 (1963).

Will Is Only Source of Intent to Exclude. —

The court is limited to the will as the source from which intent to exclude must appear. Wachovia Bank & Trust Co. v. McKee, 260 N.C. 416 , 132 S.E.2d 762, 1963 N.C. LEXIS 716 (1963).

Intent to Exclude Is Not Shown by Will Ignoring All Children. —

Where after-born children, in fact all children, are ignored in a will, the court cannot say the will discloses an intent to exclude after-born children. It is limited to the will as the source from which intent to exclude must appear. Since such intent does not appear from the will, the after-born children of the testator take as in case of their father’s intestacy. Wachovia Bank & Trust Co. v. McKee, 260 N.C. 416 , 132 S.E.2d 762, 1963 N.C. LEXIS 716 (1963).

Entire Will Is Not Revoked. —

While after-born children not provided for in the will of their deceased parent may claim by inheritance their part of the estate, under this section, it does not amount to revocation of the entire will. Fawcett v. Fawcett, 191 N.C. 679 , 132 S.E. 796, 1926 N.C. LEXIS 152 (1926).

After-Born Child of Intestate Shares in Estate. —

This statutory provision clearly assumes and contemplates that an after-born child of an intestate shares in the estate, both real and personal, of such intestate. Byerly v. Tolbert, 250 N.C. 27 , 108 S.E.2d 29, 1959 N.C. LEXIS 439 (1959).

A posthumous child was provided for under her father’s will, though no direct, specific provision was made, where by the residuary clause the will made substantial provision for a class to which the posthumous child was a member. Sheppard v. Kennedy, 242 N.C. 529 , 88 S.E.2d 760, 1955 N.C. LEXIS 609 (1955).

Child Born after Execution of Will but before Execution of Codicil. —

A codicil operates as a republication of the original will and makes it speak as of the date of the execution of the codicil insofar as it is not altered or revoked by the codicil, and therefore a child born after the execution of the will, but before the execution of the codicil, is not entitled to such share in the estate as though testator had died intestate, it being apparent that testator intentionally did not make specific provision for such child. Young v. Williams, 253 N.C. 281 , 116 S.E.2d 778, 1960 N.C. LEXIS 504 (1960).

No Intention to Direct Parent to Make Provision for Child. —

Former G.S. 31-45 was construed as not intending to control a parent as to the provision he should make for his child, but was to apply when by inadvertence or mistake the after-born child had not been provided for. Unless the omission was intentional, or provision was made for the child, either under the will or some settlement or provision ultra, the after-born child took his share, and the statute applied where there were one or more children. Flanner v. Flanner, 160 N.C. 126 , 75 S.E. 936, 1912 N.C. LEXIS 133 (1912).

Adequacy of Provision for After-Born Child. —

While the courts will not inquire into the adequacy of provision made for a child born after the execution of the will within the purport of this section such provision must be of reasonable substance and value in praesenti. Williamson v. Williamson, 232 N.C. 54 , 59 S.E.2d 214, 1950 N.C. LEXIS 400 (1950).

As long as a testator makes some provision in the will for an after-born child, whether adequate or not, the child has no right to take an intestate share of the testator’s estate, and a class gift constituted a provision for an afterborn child, even though the gift was contingent. Mason v. Stanimer, 102 N.C. App. 673, 403 S.E.2d 605, 1991 N.C. App. LEXIS 478 (1991).

“Making Provision” under Former G.S. 31-45 . —

See Meares v. Meares, 26 N.C. 192 , 1843 N.C. LEXIS 117 (1843); King v. Davis, 91 N.C. 142 , 1884 N.C. LEXIS 35 (1884); Thomason v. Julian, 133 N.C. 309 , 45 S.E. 636, 1903 N.C. LEXIS 60 (1903). See also Rawls v. Durham Realty & Ins. Co., 189 N.C. 368 , 127 S.E. 254, 1925 N.C. LEXIS 319 (1925); Nicholson v. Nicholson, 190 N.C. 122 , 129 S.E. 148, 1925 N.C. LEXIS 21 (1925).

Procurement of Insurance. —

Testator had two children, one born before and one after the execution of his will. No testamentary provision was made for either child, but testator, after the birth of the second child, procured a policy of life and accident insurance on his life, making both the children beneficiaries therein. It was held that the procurement of the policy was not such a provision for the after-born child as to prevent such child from participating in his father’s property as heir and distributee. Williamson v. Williamson, 232 N.C. 54 , 59 S.E.2d 214, 1950 N.C. LEXIS 400 (1950).

Knowledge of Testator as to Child En Ventre Sa Mere Immaterial. —

The beneficient provisions of this section are not affected by the presumptive knowledge of the father, from the condition of his wife, that at the time he made the will he must have anticipated the birth, but upon the fact that the child was born thereafter. It is the subsequent birth, not the father’s knowledge, which effects the partial revocation. Christian v. Carter, 193 N.C. 537 , 137 S.E. 596, 1927 N.C. LEXIS 396 (1927).

Applicability of Former G.S. 31-45 to Adopted Children or Illegitimate Children. —

See King v. Davis, 91 N.C. 142 , 1884 N.C. LEXIS 35 (1884); Fawcett v. Fawcett, 191 N.C. 679 , 132 S.E. 796, 1926 N.C. LEXIS 152 (1926); Sorrell v. Sorrell, 193 N.C. 439 , 137 S.E. 306, 1927 N.C. LEXIS 369 (1927). See also 12 N.C.L. Rev. 402 (1934).

§ 31-5.6. No revocation by subsequent conveyance.

No conveyance or other act made or done subsequently to the execution of a will of, or relating to, any real or personal estate therein comprised, except an act by which such will shall be duly revoked, shall prevent the operation of the will with respect to any estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of the testator’s death.

History. 1844, c. 88, s. 2; R.C. c. 119, s. 25; Code, s. 2179; Rev., s. 3118; C.S., s. 4136; 1953, c. 1098, s. 8; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “the testator’s death” for “his death” at the end.

Legal Periodicals.

For article discussing the North Carolina Supreme Court’s interpretation of this section, see 19 Wake Forest L. Rev. 151 (1983).

CASE NOTES

Editor’s Note. —

The cases decided below were decided under former G.S. 31-8 .

Conveyance, etc., Not to Affect Provisions of Will. —

No conveyance or act done after the execution of a will, unless it amounts to a revocation, will affect its provisions. Wood v. Cherry, 73 N.C. 110 , 1875 N.C. LEXIS 28 (1875).

Parol evidence is incompetent to fasten upon a devise of land a constructive or implied trust in favor of another. Former G.S. 31-8 was enacted in view of the decision in Cook v. Redman, 37 N.C. 623 (1843), in which such a trust was upheld. Chappell v. White, 146 N.C. 571 , 60 S.E. 635, 1908 N.C. LEXIS 265 (1908).

§ 31-5.7. Specific provisions for revocation exclusive; effect of changes in circumstances.

No will can be revoked in whole or in part by any act of the testator or by a change in the testator’s circumstances or condition except as provided by G.S. 31-5.1 through 31-5.6 inclusive.

History. 1953, c. 1098, s. 9; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “the testator’s circumstances” for “his circumstances.”

CASE NOTES

Mental Incompetency Does Not Revoke Will. —

The fact that a testator became mentally incompetent to manage his business affairs or to understand the extent of his holdings, even if the mental condition continued to his death would not revoke his will in whole or in part. Abbott v. Abbott, 269 N.C. 579 , 153 S.E.2d 39, 1967 N.C. LEXIS 1112 (1967).

§ 31-5.8. Revival of revoked will.

No will or any part thereof that has been in any manner revoked can, except as provided in G.S. 31-5.4 , be revived otherwise than by a reexecution thereof, or by the execution of another will in which the revoked will or part thereof is incorporated by reference.

History. 1953, c. 1098, s. 10; 1991, c. 587, s. 2.

Legal Periodicals.

For survey of 1973 case law on the revocation of wills by subsequent marriage, see 52 N.C.L. Rev. 949 (1974).

§ 31-6. [Repealed]

Renumbered as G.S. 31-5.3 by Session Laws 1953, c. 1098, s. 5.

§ 31-7. [Repealed]

Repealed by Session Laws 1953, c. 1098, s. 9.

§ 31-8. [Repealed]

Renumbered as G.S. 31-5.6 by Session Laws 1953, c. 1098, s. 8.

Article 3. Witnesses to Will.

§ 31-8.1. Who may witness.

Any person competent to be a witness generally in this State may act as a witness to a will.

History. 1953, c. 1098, s. 15.

Legal Periodicals.

For article, “Abolishing the Attestation Requirement for Wills,” see 68 N.C.L. Rev. 541 (1990).

§ 31-9. Executor competent witness.

No person, on account of being an executor of a will, shall be incompetent to be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.

History. R.C., c. 119, s. 9; Code, s. 2146; Rev., s. 3119; C.S., s. 4137.

CASE NOTES

Purpose of Section. —

This section was intended to give the benefit of an executor’s testimony to every person who should be interested, either in the establishment, or defeat of a paper-writing propounded as a will. Pannell v. Scoggin, 53 N.C. 408 , 1861 N.C. LEXIS 55 (1861).

May Be Examined for Both Parties. —

Under this section one named as executor in a receipt, propounded as a will, though named as plaintiff in an issue devisavit vel non, may be examined as a witness for the caveator as well as for the propounder. Pannell v. Scoggin, 53 N.C. 408 , 1861 N.C. LEXIS 55 (1861).

Competent Even if Subscribing Witness or Interest Later Acquired. —

An executor or administrator cum testamento annexo, who is also a subscribing witness to a will, is competent to testify to the execution thereof; and the same rule applies to one who was competent at the time of the making of the will, but subsequently acquired an interest therein. Collins v. Collins, 101 N.C. 114 , 7 S.E. 687, 1888 N.C. LEXIS 22 (1888).

§ 31-10. Beneficiary competent witness; when interest rendered void.

  1. A witness to an attested written or a nuncupative will, to whom or to whose spouse a beneficial interest in property, or a power of appointment with respect thereto, is given by the will, is nevertheless a competent witness to the will and is competent to prove the execution or validity thereof. However, if there are not at least two other witnesses to the will who are disinterested, the interested witness and the interested witness’s spouse and anyone claiming under the interested witness shall take nothing under the will, and so far only as their interests are concerned the will is void.
  2. A beneficiary under a holographic will may testify to such competent, relevant and material facts as tend to establish such holographic will as a valid will without rendering void the benefits to be received by the beneficiary thereunder.

History. R.C., c. 119, s. 10; Code, s. 2147; Rev., s. 3120; C.S., s. 4138; 1953, c. 1098, s. 11; 1955, c. 73, s. 2; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the last sentence of subsection (a), substituted “the interested witness’s spouse” for “his spouse” and “under the interested witness shall” for “under him shall”; and in subsection (b), substituted “the beneficiary” for “him.”

CASE NOTES

Devise, etc., to Attesting Witness Only Void. —

This section avoids only the devise or bequest to the attesting witness and to his and her wife or husband and privies, and leaves the other dispositions made of the testator’s property in unimpaired force and operation. Collins v. Collins, 101 N.C. 114 , 7 S.E. 687, 1888 N.C. LEXIS 22 (1888).

Interest of One Who Signs, But Not as Witness, Not Avoided. —

One who signs his name on a will in the place where subscribing witnesses usually sign, is not deprived of benefits conferred upon him by the will, if he, in fact, did not sign as a subscribing witness. Boone v. Lewis, 103 N.C. 40 , 9 S.E. 644, 1889 N.C. LEXIS 69 (1889).

Devisee May Testify to Finding Script Among Valuable Papers. —

The widow and devisee of the testator is a competent witness to prove the fact that the script propounded was found among the valuable papers of the deceased. Cornelius v. Brawley, 109 N.C. 542 , 14 S.E. 78, 1891 N.C. LEXIS 263 (1891).

Competency of Witness Is Question of Law. —

If a witness to a will is interested as a legatee thereunder, he is a competent witness to prove the will, the effect being to deprive him of the legacy and it is error in the judge to submit the competency of a witness as a question of fact for the jury. The competency of a witness is a question for the court, to be raised when he offers to testify, and to be determined by the court. McLean v. Elliott, 72 N.C. 70 , 1875 N.C. LEXIS 146 (1875).

Beneficiaries Under Contested Will Generally Are Not Competent. —

The legislature, in enacting subsection (b), did not intend to alter the long standing rule that beneficiaries under a contested will are not competent witnesses to testify as to oral communications with the deceased which tend to answer the ultimate question for the jury in such cases. In re Will of Lamparter, 348 N.C. 45 , 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

Exception to Dead Man’s Statute. —

With regard to a holographic will, an exception to the Dead Man’s Statute has evolved which allows beneficiaries to testify as to the three material elements of a will: the testator’s handwriting, the testator’s signature; and what the testator considered to be his place for keeping valuable players. In re Will of Lamparter, 348 N.C. 45 , 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

Application of Section to Holographic Wills Prior to 1955 Amendment. —

See Hampton v. Hardin, 88 N.C. 592 , 1883 N.C. LEXIS 126 (1883); In re Will of Westfeldt, 188 N.C. 702 , 125 S.E. 531, 1924 N.C. LEXIS 154 (1924).

§ 31-10.1. Corporate trustee not disqualified by witnessing of will by stockholder.

A corporation named as a trustee in a will is not disqualified to act as trustee by reason of the fact that a person owning stock in the corporation signed the will as a witness.

History. 1949, c. 44.

Article 4. Depository for Wills.

§ 31-11. Depositories in offices of clerks of superior court where living persons may file wills.

The clerk of the superior court in each county of North Carolina shall be required to keep a receptacle or depository in which any person who desires to do so may file that person’s will for safekeeping; and the clerk shall, upon written request of the testator, or the duly authorized agent or attorney for the testator, permit said will or testament to be withdrawn from said depository or receptacle at any time prior to the death of the testator: Provided, that the contents of said will shall not be made public or open to the inspection of anyone other than the testator or the testator’s duly authorized agent until such time as the said will shall be offered for probate.

History. 1937, c. 435, s. 1; 1971, c. 528, s. 28; 2011-344, s. 8.

Local Modification.

Guilford: 1937, c. 435, s. 2.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “that person’s will” for “his or her will” near the beginning, and substituted “the testator’s duly authorized agent” for “his duly authorized agent” near the end.

Legal Periodicals.

As to this section, see 15 N.C.L. Rev. 353 (1937).

CASE NOTES

Testator Entitled to Inspect Will. —

In a proceeding by petitioner to inquire into the mental state of respondent, his aged uncle, and to have a trustee appointed for him, the petitioner testified in substance that he was only interested in the welfare of respondent. It was held that respondent was entitled to examine his own will which had been deposited in a sealed envelope with the court clerk for the purpose of showing that petitioner was the principal devisee under the will. In re Gamble, 244 N.C. 149 , 93 S.E.2d 66, 1956 N.C. LEXIS 385 (1956).

Without Written Request. —

Provision of this section requiring written request of testator for permission to withdraw will from depository or receptacle does not apply to his request for inspection of will. In re Gamble, 244 N.C. 149 , 93 S.E.2d 66, 1956 N.C. LEXIS 385 (1956).

§§ 31-11.1 through 31-11.5.

Reserved for future codification purposes.

Article 4A. Self-Proved Wills.

§ 31-11.6. How attested wills may be made self-proved.

  1. Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer’s certificate, under official seal, in the following form, or in a similar form showing the same intent:

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    (c) The sworn statement of any such witnesses taken as herein provided shall be accepted by the court as if it had been taken before such court.

    (d) Any will recognized as valid under G.S. 31-46(1) or (2) and shown by the propounder to have been made self-proved under the laws of the jurisdiction in which the testator was physically present at the time of execution or the place where the testator was domiciled at the time of execution or at the time of death shall be considered as self-proved.

    (e) A military testamentary instrument executed in accordance with the provisions of 10 U.S.C. § 1044d(d) or any successor or replacement statute shall be considered as self-proved.

“I, , the testator, sign my name to this instrument this day of , and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence. Testator We , , the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence. Witness Witness THE STATE OF . COUNTY OF Subscribed, sworn to and acknowledged before me by . the testator and subscribed and sworn to before me by and , witnesses, this day of (SEAL) (SIGNED) (OFFICIAL CAPACITY OF OFFICER)” (b) An attested written will executed as provided by may at any time subsequent to its execution be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths under the laws of this State, and evidenced by the officer’s certificate, under official seal, attached or annexed to the will in form and content substantially as follows: G.S. 31-3.3 “STATE OF NORTH CAROLINA “COUNTY/CITY OF “Before me, the undersigned authority, on this day personally appeared , and , known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn. The testator, declared to me and to the witnesses in my presence: That said instrument is his last will; that he had willingly signed or directed another to sign the same for him, and executed it in the presence of said witnesses as his free and voluntary act for the purposes therein expressed; or, that the testator signified that the instrument was his instrument by acknowledging to them his signature previously affixed thereto. The said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will in the presence of said witnesses who, in his presence and at his request, subscribed their names thereto as attesting witnesses and that the testator, at the time of the execution of said will, was over the age of 18 years and of sound and disposing mind and memory. Testator Witness Witness Witness Subscribed, sworn and acknowledged before me by , the testator, subscribed and sworn before me by , and witnesses, this day of , A.D. (SEAL) (SIGNED) (OFFICIAL CAPACITY OF OFFICER)”

History. 1977, c. 795, s. 1; 1979, c. 536, s. 1; 1981, c. 599, s. 8; 1999-456, s. 59; 2013-91, s. 1(f); 2019-178, s. 3(a).

Editor’s Note.

Session Laws 1977, c. 795, which enacted this Article, provides, in s. 3, that: “This act shall apply to any attested written will in existence on or executed after the effective date of this act [Oct. 1, 1977].”

Session Laws 1979, c. 536, which, effective Oct. 1, 1979, designated the former provisions of the section as subsections (b) and (c) and added subsection (a), and in subsection (b), the amendment substituted “any time subsequent to its execution” for “the time of its execution or at any subsequent date” near the beginning of the introductory paragraph, provided in s. 2, effective May 9, 1979, that: “The execution of an acknowledgment of a will by a testator, and of the affidavits of witnesses, made before an officer authorized to administer oaths under the laws of this State and evidenced by the officer’s certificate substantially in the form set out in G.S. 31-11.6 during the period between October 1, 1977 and October 1, 1979 shall be considered to be a valid execution and attestation of a written will even though the will was not signed and attested under the provisions of G.S. 31-3.3 separately from the execution of the acknowledgment by the testator and the affidavits of the witnesses. Such wills may be probated in accordance with G.S. 31-18.1(a)(4).”

Session Laws 1981, c. 599, which substituted “Any” for “In addition to the procedures for the execution of a will set out in G.S. 31-3.3 , any” at the beginning of subsection (a), provided, in s. 9, that: “The execution of an acknowledgment of a will by a testator, and of the affidavits of witnesses, made before an officer authorized to administer oaths under the laws of this State and evidenced by the officer’s certificate substantially in the form set out in G.S. 31-11.6 if done during the period between October 1, 1979, and the effective date of this act [October 1, 1979], shall be considered to be a valid execution and attestation of a written will regardless of whether or not the will was signed and attested under the provisions of G.S. 31-3.3 separately from the execution of the acknowledgment by the testator and the affidavits of the witnesses. Such wills may be probated in accordance with G.S. 31-18.1(a)(4).”

Session Laws 1981, c. 599, s. 21, provided that the act would not affect pending litigation.

Effect of Amendments.

Session Laws 2013-91, s. 1(f), effective June 12, 2013, in the first sentence of subsection (a), deleted “substantially” following “under official seal, in” and added “or in a similar form showing the same intent” at the end; and added subsections (d) and (e).

Session Laws 2019-178, s. 3(a), effective July 26, 2019, rewrote subsection (d), which read, “(d) Any will executed in another state and shown by the propounder to have been made self-proved under the laws of that state shall be considered as self-proved.”

Legal Periodicals.

For survey of 1977 law on wills, trusts and estates, see 56 N.C.L. Rev. 1152 (1978).

For comment on the seal in North Carolina and the need for reform, see 15 Wake Forest L. Rev. 251 (1979).

For article, “Abolishing the Attestation Requirement for Wills,” see 68 N.C.L. Rev. 541 (1990).

CASE NOTES

Witness’ Failure to Remember Witnessing Will. —

Where the caveators could not produce the revocatory writing, and where one witness did not remember witnessing the will, the trial court erred in granting the caveators summary judgment on the ground that the will revoked an earlier will that had excluded the caveators as beneficiaries. In re Will of McCauley, 356 N.C. 91 , 565 S.E.2d 88, 2002 N.C. LEXIS 550 (2002).

Article 5. Probate of Will. [Repealed]

§§ 31-12 through 31-31.2.

Recodified as Article 2A of Chapter 28A of the General Statutes, G.S. 28A-2A-1 through G.S. 28A-2A-23, by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Editor’s Note.

Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, provides: “Article 5 of Chapter 31 of the General Statutes, G.S. 31-12 through G.S. 31-31.2, is recodified as Article 2A of Chapter 28A of the General Statutes, G.S. 28A-2A-1 through G.S. 28A-2A-23.”

Former G.S. 31-18 was rewritten and renumbered as G.S. 31-18.1 through 31-18.3 by Session Laws 1953-1098, s. 12. Former G.S. 31-23, 31-25, and 31-25.1 were repealed by Session Laws 1987-78, s. 1. Former G.S. 31-26 was renumbered as G.S. 31-18.4 by Session Laws 1953-1098, s. 13.

Article 6. Caveat to Will.

§ 31-32. Filing of caveat.

  1. At the time of application for probate of any will, and the probate thereof in common form, or at any time within three years thereafter, any party interested in the estate, may appear in person or by attorney before the clerk of the superior court and enter a caveat to the probate of such will; Provided that if any person entitled to file a caveat be within the age of 18 years, or incompetent as defined in G.S. 35A-1101(7) or (8), then such person may file a caveat within three years after the removal of such disability.
  2. The caveat shall be filed in the decedent’s estate file. The clerk of superior court shall give notice of the filing by making an entry upon the page of the will book where the will is recorded, evidencing that the caveat has been filed and giving the date of such filing.
  3. If a will has been probated in solemn form pursuant to G.S. 28A-2A-7, any party who was properly served in that probate in solemn form shall be barred from filing a caveat.

History. C.C.P., s. 446; Code, s. 2158; Rev., s. 3135; 1907, c. 862; C.S., s. 4158; 1925, c. 81; 1951, c. 496, ss. 1, 2; 1971, c. 1231, s. 1; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section catchline, which formerly read: “When and by whom caveat filed”; and rewrote the section.

Legal Periodicals.

For brief comment on the 1951 amendment, see 29 N.C.L. Rev. 427 (1951).

For note on the problem of after-discovered wills, see 47 N.C.L. Rev. 723 (1969).

CASE NOTES

Analysis

I.General Consideration

The purpose of a caveat is to determine whether the paper-writing purporting to be a will is in fact the last will and testament of the person for whom it is propounded. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1, 1970 N.C. App. LEXIS 1705 (1970).

Filing of a caveat is the customary and statutory procedure for an attack upon the testamentary value of a paper-writing which has been admitted by the clerk of superior court to probate in common form. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1, 1970 N.C. App. LEXIS 1705 (1970).

Questions as to the construction of a will may be brought in a declaratory judgment action; however, there are limitations to the use of a declaratory judgment action. Thus, a caveat proceeding and not declaratory judgment was appropriate to determine the validity of document. Rogel v. Johnson, 114 N.C. App. 239, 441 S.E.2d 558, 1994 N.C. App. LEXIS 311 (1994).

Statute Gives Right and Outlines Procedure. —

In this jurisdiction the right to contest a will by caveat is given by statute; and the procedure to be followed is outlined in the statute conferring the right. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948).

Section Strictly Construed. —

This section permitting caveats is in derogation of the common law and must be strictly construed. In re Will of Winborne, 231 N.C. 463 , 57 S.E.2d 795, 1950 N.C. LEXIS 491 (1950).

Superior Court Acquires No Jurisdiction When Purported Caveat Is Fatally Defective from Inception. —

Although it is often stated that, when a caveat is filed superior court acquires jurisdiction of whole matter in controversy, such a pronouncement does not alter affirmative statutory requirement that caveat proceedings can only be instituted by due filing of cause before clerk of superior court. When purported caveat is fatally defective from its inception, superior court acquires no jurisdiction over cause. Casstevens v. Wagoner, 99 N.C. App. 337, 392 S.E.2d 776, 1990 N.C. App. LEXIS 507 (1990).

Issue Is Devisavit Vel Non. —

Often the issue devisavit vel non is subdivided, according to the angle or nature of the attack, into ancillary issues, the most common of which are those relating to undue influence and testamentary capacity; but every caveat to a will leads to the simple inquiry devisavit vel non, and the rules of procedure are framed with reference to that feature. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948).

Contest Is a Special Proceeding In Rem. —

The contest of a will by caveat is not an ordinary civil action, but a special proceeding in rem leading to the establishment of the will as a testamentary act under the issue devisavit vel non. The in rem nature of the proceeding dominates the investigation, and in many important respects the parties litigant have little of the usual control over the course of trial on the issue. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948). See In re Will of Westfeldt, 188 N.C. 702 , 125 S.E. 531, 1924 N.C. LEXIS 154 (1924).

Upon the filing of the caveat, the proceeding is transferred to the civil issue docket for trial before a jury. Upon this transfer, notice is given to all interested persons of the challenge, giving them an opportunity to enter and participate in the proceedings to the end that the court may determine whether the decedent left a will and, if so, whether any of the scripts before the court is the will. The proceeding is in rem, in which the court pronounces its judgment as to whether the res, i.e., the script itself, is the will of the deceased. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965).

A caveat is an in rem proceeding, perhaps more strictly so regarded than any other proceeding with which the courts deal. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

The rules peculiar to a caveat stem from the in rem nature of the proceeding. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

A proceeding to contest a will is begun by filing a caveat or objection to probate with the clerk of the superior court, who thereupon transfers the proceeding to the civil issue docket of the superior court to the end that the issue of devisavit vel non may be tried in term by a jury. Brissie v. Craig, 232 N.C. 701 , 62 S.E.2d 330, 1950 N.C. LEXIS 635 (1950) (commented on in 29 N.C.L. Rev. 331 (1951)) .

Contest of Probate Begun by Caveat. —

The proceedings in the matter of the probate of a will is summary and in rem, and the contest of the probate is begun by a caveat under this section. In re Haygood's Will, 101 N.C. 574 , 8 S.E. 222, 1888 N.C. LEXIS 98 (1888).

When Proceeding in Nature of Caveat Necessary. —

Where there is no allegation that the probate of the will was otherwise than in strict accord with the statute, and there is no suggestion that the court was imposed upon or misled, the validity of the will may be attacked only by direct proceeding in the nature of a caveat under this section. In re Will of Puett, 229 N.C. 8 , 47 S.E.2d 488, 1948 N.C. LEXIS 410 (1948) (citing) In re Little’s Will, 187 N.C. 177 , 121 S.E. 453, 1924 N.C. LEXIS 256 (1924).

It is only by a caveat or proceeding in that nature that the validity of a properly probated will, and one without inherent or fatal defect appearing on its face, may be brought in question. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1, 1970 N.C. App. LEXIS 1705 (1970).

The attack upon a will offered for probate must be direct and by caveat. A collateral attack is not permitted. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965); Johnson v. Stevenson, 269 N.C. 200 , 152 S.E.2d 214, 1967 N.C. LEXIS 1044 (1967).

When a paper-writing purporting to be a will is presented to the judge of probate, he takes proof with respect to its execution. If found in order the script is admitted to probate in common form as a will. Thus far the proceeding is ex parte. It stands as the testator’s will, and his only will, until challenged and reversed in a proper proceeding before a competent tribunal. The challenge must be by caveat and be heard in the superior court. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965).

Direct Attack by Caveat Held Adequate Remedy. —

Where the grounds on which plaintiff sought to establish a constructive trust in property disposed of by her parents’ will were equally available as grounds for direct attack on the will by caveat, this right of direct attack by caveat gave plaintiff a full and complete remedy at law, and she was not entitled to equitable relief. Johnson v. Stevenson, 269 N.C. 200 , 152 S.E.2d 214, 1967 N.C. LEXIS 1044 (1967).

Offering Another Will in Another Proceeding Is Collateral Attack. —

Offering another will for probate in another proceeding is a collateral and not a direct attack. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965).

Any Material Script May Be Presented in Caveat Proceeding. —

In a caveat proceeding any interested person may present to the court any script which is material to the issue whether there is a will, and if so, what it is. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965).

Another Purported Will Should Be Offered in Caveat Proceeding. —

Any other script purporting to be the decedent’s will should be offered and its validity determined in the caveat proceeding. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965); In re Will of Burton, 267 N.C. 729 , 148 S.E.2d 862, 1966 N.C. LEXIS 1115 (1966).

Clerk of Superior Court Has Exclusive and Original Jurisdiction. —

Upon the clerk of the superior court the statutes of this State confer exclusive and original jurisdiction of proceedings for probate of wills. By this it is meant that the clerk of the superior court has the sole power in the first instance to determine whether a decedent died testate or intestate, and if he died testate, whether the script in dispute is his will. Walters v. Baptist Children's Home of N.C. Inc., 251 N.C. 369 , 111 S.E.2d 707, 1959 N.C. LEXIS 605 (1959).

When a caveat is filed the superior court acquires jurisdiction of the whole matter in controversy. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965); In re Will of Burton, 267 N.C. 729 , 148 S.E.2d 862, 1966 N.C. LEXIS 1115 (1966).

Scope of Subject Matter Jurisdiction. —

Caveat filed by decedent’s heirs challenging the validity of the will and codicil whereby decedent left her assets to a university barred a later complaint filed by the heirs to the extent the later filed complaint addressed the same issues as alleged in the caveat. Baars v. Campbell Univ., Inc., 148 N.C. App. 408, 558 S.E.2d 871, 2002 N.C. App. LEXIS 30 (2002).

Probate in Common Form Is Valid until Set Aside. —

The probate of a will in common form is valid until set aside. In re Beauchamp's Will, 146 N.C. 254 , 59 S.E. 687, 1907 N.C. LEXIS 35 (1907).

When a will is probated in solemn form it cannot be caveated a second time unless or until the verdict and judgment probating the will in solemn form is set aside upon a motion in the original cause; therefore, the will, if it was first probated in common form, still stands as the last will and testament until declared void in a direct proceeding in the nature of a caveat. In re Will of Burton, 267 N.C. 729 , 148 S.E.2d 862, 1966 N.C. LEXIS 1115 (1966).

Good Faith Claimants Are Protected until Probate Attacked. —

All persons who claim in good faith under a will which has been duly probated in common form as provided by statute are protected by its provisions, until the probate is attacked by a caveat proceeding instituted as provided by this section. Whitehurst v. Hinton, 209 N.C. 392 , 184 S.E. 66, 1936 N.C. LEXIS 486 (1936).

Nonsuit Cannot Be Taken. —

Once the will is propounded for probate in solemn form the proceeding must go on until the issue devisavit vel non is appropriately answered; and no nonsuit can be taken by the propounders or by the caveators. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948). See In re Will of Westfeldt, 188 N.C. 702 , 125 S.E. 531, 1924 N.C. LEXIS 154 (1924); In re Will of Hine, 228 N.C. 405 , 45 S.E.2d 526, 1947 N.C. LEXIS 333 (1947).

Because the caveat proceeding is in rem, the proceeding must go on until the issue devisavit vel non is appropriately answered; nonsuit cannot be taken by the propounders or the caveators. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Propounder Functions as Plaintiff. —

It is the propounder, and not the caveator, who functions as a plaintiff in a caveat proceeding. In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, 1985 N.C. App. LEXIS 3933 (1985), disapproved, Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

An attack upon the validity of a will must be direct and in the form of a caveat. In re Will of Hester, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

The trial court may not exclude from the caveat proceeding consideration of any script offered by an interested party which is relevant to the issue devisavit vel non. However, it does not mandate that the issues relating to all scripts be considered simultaneously. In re Will of Hester, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Burden of Proof. —

Although a caveat proceeding is an in rem proceeding without a plaintiff and a defendant as such, it is the propounder who has the initial burden of proof, namely, to prove that the instrument in question was executed with the proper formalities required by law. Once this has been established, the burden shifts to the caveator to show that the execution of the will was procured by undue influence. In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, 1985 N.C. App. LEXIS 3933 (1985), disapproved, Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

Although a trial court properly granted summary judgment to an executor where there was no evidence of a lack of testamentary capacity, the trial court erred in finding estoppel and no undue influence; a caveator showed that the caveator would have received a bequest in any event and that there were genuine issues of material fact relating to undue influence. In re Will of Smith, 158 N.C. App. 722, 582 S.E.2d 356, 2003 N.C. App. LEXIS 1229 (2003).

Burden of Proof Satisfied. —

In a caveat proceeding the propounders satisfied their burden of showing that there was no genuine issue of fact in controversy and that they were entitled to judgment as a matter of law when they submitted caveator’s release and renunciation in support of their motion for summary judgment. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976).

Filing of Caveat as Ground for Modification of Will. —

Mere fact that a caveat has been filed, standing alone, is not sufficient ground for modification of the dispositive provisions of a will; the outcome of the litigation must be in doubt to such extent that it is advisable for persons affected to accept the proposed modifications rather than run the risk of the more serious consequences that would result from an adverse verdict. Holt v. Holt, 304 N.C. 137 , 282 S.E.2d 784, 1981 N.C. LEXIS 1335 (1981).

Heirs Not Cited under G.S. 31-33 . —

The heirs at law of a deceased testator whose will is duly probated and who have no knowledge of proceedings to caveat the will, and who were not cited under the provisions of G.S. 31-33 , are not estopped to file a second caveat to the paper-writing, nor bound by the former judgment therein sustaining the validity of the paper-writing propounded. Mills v. Mills, 195 N.C. 595 , 143 S.E. 130, 1928 N.C. LEXIS 148 (1928).

Where plaintiffs attempted to initiate purported caveat proceedings directly in superior court as part of attack on validity of a deed, trial court had no subject matter jurisdiction to determine will’s validity. Casstevens v. Wagoner, 99 N.C. App. 337, 392 S.E.2d 776, 1990 N.C. App. LEXIS 507 (1990).

Mere Allowance, Filing, and Recordation of Foreign Order of Probate Is Insufficient. —

A caveat may not be entered to the recordation of an exemplification or authenticated copy of a will and foreign order of probate that has been allowed, filed, and recorded in the office of the clerk, but can only be entered to the probate of such will. In re Will of Lamb, 303 N.C. 452 , 279 S.E.2d 781, 1981 N.C. LEXIS 1184 (1981).

II.Interested Persons

This section affords protection to any interested persons who do not receive notice. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

The right to contest the validity of a writing offered for probate or probated in common form is, by this section, limited to “any person entitled under such will or interested in the estate.” In re Will of Belvin, 261 N.C. 275 , 134 S.E.2d 225, 1964 N.C. LEXIS 440 (1964).

This section permits a person in interest to file a caveat to an alleged will offered for probate, and to contest the validity of such alleged will before it has been admitted to probate. Brissie v. Craig, 232 N.C. 701 , 62 S.E.2d 330 (1950) commented on in 29 N.C.L. Rev. 331 (1951).Walters v. Baptist Children's Home of N.C. Inc., 251 N.C. 369 , 111 S.E.2d 707, 1959 N.C. LEXIS 605 (1959); In re Will of Lamb, 303 N.C. 452 , 279 S.E.2d 781, 1981 N.C. LEXIS 1184 (1981).

Any interested person may challenge the will and contest its validity by filing a caveat setting forth the grounds of the challenge. In re Will of Charles, 263 N.C. 411 , 139 S.E.2d 588, 1965 N.C. LEXIS 1294 (1965).

Caveator had standing to contest a will because, (1) whether the caveator’s claimed interest was upheld, and whether a later will was held invalid and a prior will upheld, the caveator had standing as an heir-at-law, and (2) a propounder’s submission of a prior will did not change the caveator’s status or dissolve the court’s jurisdiction. In re Estate of Phillips, 251 N.C. App. 99, 795 S.E.2d 273, 2016 N.C. App. LEXIS 1312 (2016).

Where a will is probated in common form any interested party may appear and enter a caveat. In re Hedgepeth's Will, 150 N.C. 245 , 63 S.E. 1025, 1909 N.C. LEXIS 36 (1909); In re Thompson's Will, 178 N.C. 540 , 101 S.E. 107, 1919 N.C. LEXIS 497 (1919); Whitehurst v. Abbott, 225 N.C. 1 , 33 S.E.2d 129, 1945 N.C. LEXIS 248 (1945).

Any person who has such a direct, immediate, and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is “a person interested.” In re Thompson's Will, 178 N.C. 540 , 101 S.E. 107, 1919 N.C. LEXIS 497 (1919).

The general rule is that a contestant under this section must have some pecuniary or beneficial interest in the estate that is detrimentally affected by the will. In re Will of Calhoun, 47 N.C. App. 472, 267 S.E.2d 385, 1980 N.C. App. LEXIS 3133 (1980).

Caveators Presented Evidence of Detrimental Affect of Probate. —

As caveators presented evidence that they were devisees in a testator’s later will, but were not included in his earlier will, they presented sufficient evidence that they would be affected detrimentally by the probate of the earlier will and thus had standing to file a caveat regarding that will under G.S. 31-32 . In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65, 2006 N.C. App. LEXIS 2053 (2006).

A caveat to a will may be filed only by persons “entitled under such will or interested in the estate.” And G.S. 31-33 , directing the issue of citations, “to all devisee, legatees, or other parties in interest,” does not enlarge the definition of interest given in this section. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948).

The right to interfere in a question of probate belongs to a party in interest, which must mean some person whose rights will be affected by the probate of the instrument to the prejudice of the party. In re Thompson's Will, 178 N.C. 540 , 101 S.E. 107, 1919 N.C. LEXIS 497 (1919). See Armstrong v. Baker, 31 N.C. 109 , 1848 N.C. LEXIS 156 (1848).

Person Interested Against Will May Both Apply for Probate and File Caveat. —

The probate powers of the judiciary afford a complete remedy to a person interested against an alleged will in instances where those interested for the alleged will do not propound it for probate. He may invoke such remedy by the simple expedient of simultaneously applying to the clerk of the superior court having jurisdiction to have the script probated or proved, i.e., tested, and filing a caveat asking that it be declared invalid as a testamentary instrument. Brissie v. Craig, 232 N.C. 701 , 62 S.E.2d 330, 1950 N.C. LEXIS 635 (1950) (commented on in 29 N.C.L. Rev. 331 (1951)) .

It is immaterial whether those appearing and protesting call themselves interveners, objectors or caveators if they place themselves in opposition to the propounders. By a caveat legal rights are put in stake. In re Rowland, 202 N.C. 373 , 162 S.E. 897, 1932 N.C. LEXIS 508 (1932); In re Will of Puett, 229 N.C. 8 , 47 S.E.2d 488, 1948 N.C. LEXIS 410 (1948).

It takes only one interested person to caveat a will under this section, and it becomes the duty of the clerk thereupon to bring in interested persons under G.S. 31-33 . When they come in they may align themselves as they will. Bailey v. McLain, 215 N.C. 150 , 1 S.E.2d 372, 1939 N.C. LEXIS 220 (1939) (discussed in 18 N.C.L. Rev. 76) .

Purchasers from Heirs May File Caveat. —

The purchasers of land from the heirs of the deceased owner “are interested in the estate” within the intent and meaning of this section. In re Thompson's Will, 178 N.C. 540 , 101 S.E. 107, 1919 N.C. LEXIS 497 (1919).

Beneficiaries under Alleged Prior Will Are Interested. —

Caveators who allege they are beneficiaries under a prior will of deceased made at a time when he possessed mental capacity are, if the facts be as alleged, interested in the estate. In re Will of Belvin, 261 N.C. 275 , 134 S.E.2d 225, 1964 N.C. LEXIS 440 (1964).

Beneficiaries under a prior paper-writing are persons interested within the purview of this section and are entitled to file a caveat to a subsequent instrument probated in common form, notwithstanding they are not heirs of the deceased and are not named as beneficiaries in the writing they seek to nullify. Sigmund Sternberger Found. v. Tannenbaum, 273 N.C. 658 , 161 S.E.2d 116, 1968 N.C. LEXIS 647 (1968).

Beneficiaries Under Alleged Prior Will Failed to Overcome Presumption of the Revocation of the Prior Will. —

Trial court erred by permitting the beneficiaries of the decedent’s first will to proceed in a caveat proceeding against the decedent’s second will without first rebutting the presumption that they lacked standing to caveat attendant to their production of a mere copy of the first will, as the presumption then existed that the decedent had revoked the first will. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, 2003 N.C. App. LEXIS 643 (2003), rev'd, 358 N.C. 143 , 592 S.E.2d 688, 2004 N.C. LEXIS 171 (2004).

Executor. —

A named executor is not a person interested in the event of the caveat proceeding within the meaning of the dead man’s statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Membership in Congregation. —

Membership in a church congregation, albeit distinguished membership, is too tenuous an interest to come within the meaning of the dead man’s statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Inadequacy of Relief Through Caveat Proceeding Entitled Decedent’s Step-grandchildren to Proceed on Tort Claim. —

Superior court erroneously dismissed a claim filed by two of decedent’s step-grandchildren that defendants, two of the decedent’s other step-grandchildren, maliciously caused their step-grandmother to execute a will that left them only nominal bequests, as: (1) the movant step-grandchildren would not be able to obtain adequate relief through a caveat proceeding; and (2) it did not appear that the step-grandchildren could not prove a set of facts supporting their claim which would entitle them to relief. Murrow v. Henson, 172 N.C. App. 792, 616 S.E.2d 664, 2005 N.C. App. LEXIS 1809 (2005).

III.Time Limit

Purpose. —

By this section, the legislature recognized that it is against the sound public policy to allow probate of wills and settlements of property rights thereunder to be left open to uncertainties for an indefinite length of time. In re Will of Johnson, 182 N.C. 522 , 109 S.E. 373, 1921 N.C. LEXIS 262 (1921).

Time Limitation Is Substantive. —

The time limitation contained in this section has been held to be a “substantive” limitation on the right of action. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387, 1980 N.C. App. LEXIS 2757 (1980).

When Probate May Be Caveated. —

The probate of a will in common form, being an ex parte proceeding on application of the propounder, may be caveated at the time of application for probate or at any time within seven (now three) years thereafter by “any person entitled under such will, or interested in the estate.” In re Will of Ellis, 235 N.C. 27 , 69 S.E.2d 25, 1952 N.C. LEXIS 349 (1952).

Prior to the 1907 amendment there was no express period of limitation upon the right to file a caveat to the probate of a will, but it was judicially recognized that the right might be lost by unreasonable delay. Gray v. Maer, 20 N.C. 41 , 1838 N.C. LEXIS 48 (1838); Etheridge v. Corprew, 48 N.C. 14 , 1855 N.C. LEXIS 98 (1855); In re Beauchamp's Will, 146 N.C. 254 , 59 S.E. 687, 1907 N.C. LEXIS 35 (1907); In re Hedgepeth's Will, 150 N.C. 245 , 63 S.E. 1025, 1909 N.C. LEXIS 36 (1909); In re Will of Dupree, 163 N.C. 256 , 79 S.E. 611, 1913 N.C. LEXIS 161 (1913); In re Bateman's Will, 168 N.C. 234 , 84 S.E. 272, 1915 N.C. LEXIS 17 (1915); In re Will of Witherington, 186 N.C. 152 , 119 S.E. 11, 1923 N.C. LEXIS 195 (1923).

Will Probated Over 125 Years Ago. —

Even if the court were to find a valid fraud claim or sufficient state action to support a 42 U.S.C.S. § 1983 claim, the statute of limitations barred plaintiffs’ claims, as plaintiffs were objecting to transfers made under a will probated over 125 years ago. Majeed v. North Carolina, 520 F. Supp. 2d 720, 2007 U.S. Dist. LEXIS 74441 (E.D.N.C. 2007).

Only Extrinsic Fraud Tolls Period of Limitation. —

The general rule is that when a statute creating the right to contest a will and imposing a limitation of time therefor is construed as affixing an inseparable condition to the exercise of the right, that period so limited will not be tolled by fraud other than extrinsic fraud which would vitiate the probate proceeding. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387, 1980 N.C. App. LEXIS 2757 (1980).

A contest not timely instituted based on other than extrinsic fraud is wholly barred although by reason of the wrongful conduct of the propounder, the contestants were not apprised of the situation soon enough to comply with the limitation requirement. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387, 1980 N.C. App. LEXIS 2757 (1980).

Intrinsic and Extrinsic Fraud Distinguished. —

The question of fraud in obtaining the execution of a will, undue influence, forgery, and the like may be submitted to the probate court in a direct attack on the will by caveat. Fraud of this nature is intrinsic fraud. Extrinsic fraud, on the other hand, relates to the manner in which the judgment is procured. It must relate to matters not in issue and prevent a real contest in the trial. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387, 1980 N.C. App. LEXIS 2757 (1980).

Question of Whether Cause Barred as Matter of Law. —

While ordinarily whether a cause is barred by the apposite statute of limitations is a mixed question of law and fact, where the facts are admitted or established, the question of the bar of the applicable statute pleaded becomes a question of law, and when such facts disclose that the action is barred the court may sustain the plea and dismiss the action. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387, 1980 N.C. App. LEXIS 2757 (1980).

Condition Not Subject to Waiver. —

The requirement that caveat proceedings be instituted within seven (now three) years from the probate of the will in common form is a condition attached to the right to file caveat and may not be waived by the parties. In re Will of Winborne, 231 N.C. 463 , 57 S.E.2d 795, 1950 N.C. LEXIS 491 (1950).

Attack on Will for Vagueness and Uncertainty. —

A will is not subject to caveat or collateral attack 27 years after it has been probated in common form; but if the will is void for vagueness and uncertainty it is a nullity and may be attacked directly or collaterally or treated as ineffective, anywhere at any time. Burchett v. Mason, 233 N.C. 306 , 63 S.E.2d 634, 1951 N.C. LEXIS 586 (1951).

Caveat in Spite of Outstanding Life Estate. —

One who is authorized by law to caveat a will is not required to await the falling-in of an outstanding life estate, and such time is not excluded from the computation of period limited in which a caveat to a will may be filed. In re Will of Witherington, 186 N.C. 152 , 119 S.E. 11, 1923 N.C. LEXIS 195 (1923).

Application to Clerk within Time No Excuse for Delay. —

Where parties seeking to caveat a will have forfeited their right to do so by unreasonable delay and acquiescence, the mere fact that they had applied several times when their rights would have been allowed, and the clerk declined and refused to entertain the application because the parties failed to give a proper bond as required by law, does not affect the result, for no caveat is properly constituted until the statutory requirements are met; and if it had been so constituted, the absence of notice issued in reasonable time works a discontinuance. In re Will of Dupree, 163 N.C. 256 , 79 S.E. 611, 1913 N.C. LEXIS 161 (1913).

Married Women. —

Since the enactment of statutes fully emancipating a feme covert from her disabilities, the provisions of this section barring the right to caveat a will after seven years (now three years) with certain exceptions, apply equally to her. In re Will of Witherington, 186 N.C. 152 , 119 S.E. 11, 1923 N.C. LEXIS 195 (1923).

§ 31-33. Cause transferred to trial docket.

  1. Upon the filing of a caveat, the clerk shall transfer the cause to the superior court for trial by jury. The caveat shall be served upon all interested parties in accordance with G.S. 1A-1 , Rule 4 of the Rules of Civil Procedure.
  2. After service under subsection (a) of this section, the caveator shall cause notice of a hearing to align the parties to be served upon all parties in accordance with G.S. 1A-1 , Rule 5 of the Rules of Civil Procedure. At the alignment hearing, all of the interested parties who wish to be aligned as parties shall appear and be aligned by the court as parties with the caveators or parties with the propounders of the will. If an interested party does not appear to be aligned or chooses not to be aligned, the judge shall dismiss that interested party from the proceeding, but that party shall be bound by the proceeding.
  3. Within 30 days following the entry of an order aligning the parties, any interested party who was aligned may file a responsive pleading to the caveat, provided, however, that failure to respond to any averment or claim of the caveat shall not be deemed an admission of that averment or claim. An extension of time to file a responsive pleading to the caveat may be granted as provided by G.S. 1A-1 , Rule 6 of the Rules of Civil Procedure.
  4. Upon motion of an aligned party, the court may require a caveator to provide security in such sum as the court deems proper for the payment of such costs and damages as may be incurred or suffered by the estate if the estate is found to have been wrongfully enjoined or restrained. The court may consider relevant facts related to whether a bond should be required and the amount of any such bond, including, but not limited to, (i) whether the estate may suffer irreparable injury, loss, or damage as a result of the caveat and (ii) whether the caveat has substantial merit. Provisions for bringing suit in forma pauperis apply to the provisions of this subsection.

History. C.C.P., s. 447; Code, s. 2159; 1899, c. 13; 1901, c. 748; Rev., s. 3136; 1909, c. 74; C.S., s. 4159; 1947, c. 781; 1971, c. 528, s. 29; 1973, c. 458; 2011-284, s. 32; 2011-344, s. 8; 2014-115, s. 2.4.

Cross References.

For provisions requiring clerk to transfer issues of fact to civil issue docket, see G.S. 1-301.1 et seq.

Editor’s Note.

This section was amended by Session Laws 2011-284, s. 32, and Session Laws 2011-344, s. 8, in the coded bill drafting format provided by G.S. 120-20.1 . The words “the caveator’s”, as added by Session Laws 2011-284, were not accounted for in the language struck through by Session Laws 2011-344. The amendment by Session Laws 2014-115, s. 2.4, deleted the extraneous words.

Effect of Amendments.

Session Laws 2011-284, s. 32, effective June 24, 2011, throughout the section, deleted “legatees” following “devisees”; and in the first sentence, substituted “the caveator’s inability” for “his inability.”

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, deleted “Bond given and” from the beginning of the section catchline; and rewrote the section to the extent that a detailed comparison is impracticable.

Legal Periodicals.

For brief comment on the 1947 amendment, see 25 N.C.L. Rev. 478 (1947).

CASE NOTES

Court Had No Jurisdiction to Determine Will’s Validity Where Plaintiff’s Attempt to Initiate Caveat Was Part of Attack on Deed. —

Where plaintiffs attempted to initiate purported caveat proceedings directly in superior court as part of attack on validity of a deed, trial court had no subject matter jurisdiction to determine question of will’s validity. Casstevens v. Wagoner, 99 N.C. App. 337, 392 S.E.2d 776, 1990 N.C. App. LEXIS 507 (1990).

Although it is often stated that, when a caveat is filed superior court acquires jurisdiction of whole matter in controversy, such a pronouncement does not alter affirmative statutory requirement that caveat proceedings can only be instituted by due filing of cause before clerk of superior court. When a purported caveat is fatally defective from its inception, superior court acquires no jurisdiction over cause. Casstevens v. Wagoner, 99 N.C. App. 337, 392 S.E.2d 776, 1990 N.C. App. LEXIS 507 (1990).

Clerk’s Findings Not Binding When Issue of Fact Raised. —

Interested parties in a proceeding before a clerk of the Superior Court to probate a will in solemn form are not bound by the findings of the clerk where an issue of fact is raised by the parties. In re Will of Ellis, 235 N.C. 27 , 69 S.E.2d 25, 1952 N.C. LEXIS 349 (1952).

Proceedings Transferred to Civil Issue Docket. —

Where a caveat to a will is duly filed, with the required bond, etc., it is required of the clerk to transfer the proceedings to the civil issue docket for trial of the issue of devisavit vel non, and all further steps are stayed in the matter until its final adjudication, except such as may be necessary for the preservation of the estate. In re Little's Will, 187 N.C. 177 , 121 S.E. 453, 1924 N.C. LEXIS 256 (1924).

When a caveat is filed, the clerk of superior court transfers the proceeding to the civil issue docket of the superior court, to the end that the issue devisavit vel non may be tried by a jury. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

For Trial by Jury. —

When an issue of devisavit vel non is raised by caveat it is tried in the superior court by a jury. In re Will of Chisman, 175 N.C. 420 , 95 S.E. 769, 1918 N.C. LEXIS 86 (1918); In re Rowland, 202 N.C. 373 , 162 S.E. 897, 1932 N.C. LEXIS 508 (1932); In re Bartlett's Will, 235 N.C. 489 , 70 S.E.2d 482, 1952 N.C. LEXIS 422 (1952).

When a caveat is filed and bond given, the clerk does not take testimony, he submits no issue to the jury, but immediately transfers the cause to the superior court in term, which submits to a jury issues necessary to determine the validity of the instrument asserted to be the will of deceased. In re Will of Belvin, 261 N.C. 275 , 134 S.E.2d 225, 1964 N.C. LEXIS 440 (1964).

Which Cannot Be Waived. —

Upon the proper filing of a caveat the cause must be transferred to the civil issue docket where the proceeding is in rem for trial by jury, and neither party may waive jury trial, consent that the court hear the evidence and find the determinative facts or have nonsuit entered at his instance. In re Will of Hine, 228 N.C. 405 , 45 S.E.2d 526, 1947 N.C. LEXIS 333 (1947). See In re Will of Roediger, 209 N.C. 470 , 184 S.E. 74, 1936 N.C. LEXIS 271 (1936).

Upon such trial the propounder carries the burden of proof to establish the formal execution of the will. This he must do by proving the will per testes in solemn form. In re Will of Chisman, 175 N.C. 420 , 95 S.E. 769, 1918 N.C. LEXIS 86 (1918); In re Rowland, 202 N.C. 373 , 162 S.E. 897, 1932 N.C. LEXIS 508 (1932).

Upon the filing of a caveat to a will probated in common form the propounder must prove the will per testes in solemn form, and the burden is upon him to show (1) the formal execution as prescribed by statute; (2) the contents, if the original was not produced; (3) the loss of the original will or that it had not been destroyed by the testator or with his consent or procurement. In re Hedgepeth's Will, 150 N.C. 245 , 63 S.E. 1025, 1909 N.C. LEXIS 36 (1909).

Compliance with this section in respect to bond for costs is prerequisite to the institution of a caveat proceeding, and the mere filing of the caveat without compliance with the statute constitutes no valid attack upon the will and is insufficient to authorize the clerk to issue the required citations to bring interested parties into court. In re Will of Winborne, 231 N.C. 463 , 57 S.E.2d 795, 1950 N.C. LEXIS 491 (1950).

Where caveat is filed without compliance with this section relating to bond, there is no valid caveat, and after the expiration of seven (now three) years the right to file caveat ceases to exist and may not be revived by the giving of a cash bond under an extension of time granted by the court after the expiration of the statutory period. In re Will of Winborne, 231 N.C. 463 , 57 S.E.2d 795, 1950 N.C. LEXIS 491 (1950).

Caveat filed without compliance with bond requirement under this section is not a valid attack upon the will. In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, 1985 N.C. App. LEXIS 3933 (1985), disapproved, Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669 , 360 S.E.2d 772, 1987 N.C. LEXIS 2405 (1987).

Heirs-at-Law Should Have Been Dismissed for Failing to File a Bond After Notice of Caveat Proceeding Was Received. —

Trial judge should have dismissed the heirs-at-law from a caveat proceeding for not filing a bond after they received notice of the proceeding. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, 2003 N.C. App. LEXIS 643 (2003), rev'd, 358 N.C. 143 , 592 S.E.2d 688, 2004 N.C. LEXIS 171 (2004).

A check deposited with the clerk to be held in lieu of bond is insufficient to meet the requirements of this section. In re Will of Winborne, 231 N.C. 463 , 57 S.E.2d 795, 1950 N.C. LEXIS 491 (1950).

Bringing in Interested Persons. —

In this State it takes only one interested person to caveat a will under G.S. 31-32 and it becomes the duty of the clerk, under this section, to bring in interested persons. When they come in they may align themselves as they will. Bailey v. McLain, 215 N.C. 150 , 1 S.E.2d 372, 1939 N.C. LEXIS 220 (1939).

The persons interested are not cited as parties to the proceeding but merely as interested persons to view proceedings and participate if they elect to do so, although no doubt the court, when properly and timely advised, would cause citation to issue to anyone designated by statute as interested who has been omitted. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948).

In a caveat proceeding, neither the grantees in deeds executed by testator prior to his death nor the persons to whom such grantees have conveyed the property, either before or after testator’s death, nor the heirs at law of deceased grantees are necessary parties to the determination of the issue of devisavit vel non when such persons are not beneficiaries under the will nor heirs of testator, and therefore, even if it be conceded they are proper parties, the trial judge, in the exercise of his discretion, is under no legal obligation to order citations to bring them in. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948).

Who Are Necessary Parties. —

Persons who qualify as persons interested in the estate are not necessarily equivalent to necessary parties. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Discretion of Court as to Necessary Parties. —

The decision whether certain persons are necessary parties to the caveat proceeding is within the court’s discretion. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Persons who will share in the estate under the law governing intestacy in case a script which purports to be the will of the deceased is adjudged invalid are proper persons to receive notice and participate in the proceedings within the meaning of this section. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Beneficiaries Under Previous Will. —

Where caveators alleged that probated will was invalid on grounds of undue influence and lack of mental capacity and that they were beneficiaries under a will made at a time when the testator possessed mental capacity, if the facts were as caveators alleged, they were interested in the estate. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Heirs at law who have no knowledge of a caveat proceeding and who were not cited under this section are not estopped to file a second caveat, nor are they bound by the former judgment sustaining the validity of the script. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548 , rev'd, 320 N.C. 738 , 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

When Personal Representative of Executrix Not Necessary Party. —

Where the executrix has fully administered the estate and filed her final account prior to the filing of a caveat, and has died pending the caveat proceeding, it is not necessary that the court appoint a personal representative for the deceased executrix nor an administrator d.b.n. for the estate of the testator so that they may be made parties to the proceeding. In re Will of Brock, 229 N.C. 482 , 50 S.E.2d 555, 1948 N.C. LEXIS 366 (1948).

§ 31-34. [Repealed]

Repealed by Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

History. 1937, c. 383; repealed by 2011-344, s.8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Editor’s Note.

Former G.S. 31-34 pertained to prosecution bond required in actions to contest wills.

§ 31-35. Affidavit of witness as evidence.

Whenever the subscribing witness to any will shall die, or be mentally incompetent, or be absent beyond the State, it shall be competent upon any issue of devisavit vel non to give in evidence the affidavits and proofs taken by the clerk upon admitting the will to probate in common form, and such affidavit and proceedings before the clerk shall be prima facie evidence of the due and legal execution of said will.

History. 1899, c. 680, s. 2; Rev., s. 3121; C.S., s. 4160; 1947, c. 781; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, deleted “insane or” preceding “mentally incompetent.”

Legal Periodicals.

For brief comment on the 1947 amendment, see 25 N.C.L. Rev. 478 (1947).

§ 31-36. Effect of caveat on estate administration.

  1. Order of Clerk. —  Where a caveat is filed, the clerk of the superior court shall forthwith issue an order that shall apply during the pendency of the caveat to any personal representative, having the estate in charge, as follows:
    1. Distributions to beneficiaries. —  That there shall be no distributions of assets of the estate to any beneficiary;
    2. Commissions. —  That no commissions shall be advanced or awarded to any personal representative;
    3. Accountings. —  That the personal representative shall file all accountings required by the clerk of superior court and that the personal representative may pay any applicable filing fees associated with those accountings from the assets of the estate;
    4. Preservation of estate assets. —  That the personal representative shall preserve the property of the estate and that the personal representative is authorized to pursue and prosecute claims that the estate may have against others; and
    5. Taxes, claims and debts of estate. —  That the personal representative may file all appropriate tax returns and that the personal representative may pay, in accordance with the procedures of subsection (b) of this section: taxes; funeral expenses of the decedent; debts that are a lien upon the property of the decedent; bills of the decedent accrued before death; claims against the estate that are timely filed; professional fees related to administration of the estate, including fees for tax return preparation, appraisal fees, and attorneys’ fees for estate administration.
  2. Procedures. —  In regard to payment of any of the items listed in subdivision (5) of subsection (a) of this section, the personal representative shall file with the clerk a notice of the personal representative’s intent to pay those items and shall serve the notice upon all parties to the caveat, pursuant to G.S. 1A-1 , Rule 4 of the Rules of Civil Procedure. If within 10 days of service any party files with the clerk a written objection to that payment, the clerk shall schedule a hearing and determine whether the proposed payment shall be made. If no such objection is filed with the clerk, the clerk may approve the payment without hearing, and upon that approval, the personal representative may make the payment. The parties to the caveat may consent to any such payment, and upon such consent, the clerk may approve the payment without hearing. The clerk may defer ruling on the payment pending the resolution of the caveat.
  3. Preservation of Estate Assets. —  Questions regarding the use, location, and disposition of assets that cannot be resolved by the parties and consented to by the clerk shall be decided by the clerk. When a question has not been resolved by agreement, either party may request a hearing before the clerk upon 10 days notice and shall serve the notice upon all parties to the caveat, pursuant to G.S. 1A-1 , Rule 4 of the Rules of Civil Procedure. Decisions of the clerk may be appealed to the superior court pursuant to G.S. 1-301.3 .

History. C.C.P., s. 448; Code, s. 2160; Rev., s. 3137; C.S., s. 4161; 1927, c. 119; 2009-131, s. 1; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2009-131, s. 1, effective October 1, 2009, and applicable to estates of decedents dying on or after that date, rewrote the section.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the introductory paragraph of subsection (a), substituted “filed” for “entered and bond given”; in subsections (b) and (c), inserted “G.S. 1A-1”; and in subsection (c), added “pursuant to G.S. 1-301.3 ” at the end.

CASE NOTES

Purpose of Section. —

This section is manifestly intended, in cases to which it is applicable, to dispense with the necessity of appointing an administrator pendente lite, and confers very similar forms upon the executor, and more especially when he has entered upon the duties of his office before the caveat is entered. Syme v. Broughton, 86 N.C. 153 , 1882 N.C. LEXIS 164 (1882).

The prosecution of the action in order to collect the debts is evidently sanctioned by the statute and in furtherance of the purpose of its enactment. Hughes v. Hodges, 94 N.C. 56 , 1886 N.C. LEXIS 11 (1886).

Effect of Caveat upon Rights and Duties of Representative. —

The filing of a caveat suspends further proceedings in the administration of the estate, but does not deprive the executor or executrix of the right to the possession of the assets of the estate. Elledge v. Hawkins, 208 N.C. 757 , 182 S.E. 468, 1935 N.C. LEXIS 124 (1935).

The executor is not divested of all his representative powers; nor is the first probate vacated absolutely when the issue touching the will is made up to be tried; nor is there a necessity meanwhile for the appointment of an administrator pendente lite. The function of the executor is suspended only until the controversy is ended, and he is still required to take care of the estate in his hands and may proceed in the collection of debts due the deceased. Randolph v. Hughes, 89 N.C. 428 , 1883 N.C. LEXIS 263 (1883); In re Palmer's Will, 117 N.C. 133 , 23 S.E. 104, 1895 N.C. LEXIS 30 (1895).

In the observance of the mandate to preserve the property the executor may operate and manage the property in the exercise of that degree of care, diligence and honesty which he would exercise in the management of his own property, or he may institute a civil action in which all persons having an interest are made parties and request the court in its equity jurisdiction to authorize such operation, or he may apply to the clerk in his probate jurisdiction for such authorization. C.L. Hardy & Co. v. Turnage, 204 N.C. 538 , 168 S.E. 823, 1933 N.C. LEXIS 190 (1933).

Preservation of Estate Pending Final Determination of Issue. —

Under the provisions of this section, the executor is charged with the preservation of the estate pending final determination of the issue raised by the caveat, unless and until he be removed, and it is error for the court to appoint commissioners to handle the estate. In re Tatum's Will, 233 N.C. 723 , 65 S.E.2d 351, 1951 N.C. LEXIS 385 (1951).

Trial court erred by not freezing and by ordering distributions from a trust to some putative beneficiaries, but not others, during pending litigation because the rightful beneficiaries of the trust were in dispute, the original beneficiaries’ substantial rights were affected by the large sums being distributed from the trust, the wrongful distribution claim, along with all the pending claims, hinged upon undue influence and the decedent’s capacity to execute the purported amendments, the trial court’s order allowing the motion to pay and the pending claims overlapped substantially, and the trustee breached its duty of neutrality by deciding who the rightful beneficiaries were before pending litigation had resolved that issue. Wing v. Goldman Sachs Trust Co., N.A., 274 N.C. App. 144, 851 S.E.2d 398, 2020 N.C. App. LEXIS 738 (2020).

Suspension does not prevent the administrator from suing and being sued. Hargrave v. Gardner, 264 N.C. 117 , 141 S.E.2d 36, 1965 N.C. LEXIS 1125 (1965).

Administrator has authority to defend an action against the estate for collection of an alleged debt. Hargrave v. Gardner, 264 N.C. 117 , 141 S.E.2d 36, 1965 N.C. LEXIS 1125 (1965).

May Be Sued and Sell Land; May Not Pay Legacies. —

An executor, or administrator c.t.a., after the will is proved in common form, may be sued, and by leave of court may sell property to pay debts, but cannot pay legacies or exercise other special powers given in the will, where issues upon a caveat are pending; the right to execute the will is suspended until the determination of the suit. Syme v. Broughton, 86 N.C. 153 , 1882 N.C. LEXIS 164 (1882).

Office of Representative Continued. —

The proper construction of this section is that after probate is granted in common form and there is an executor who acts or an administrator with the will annexed appointed, his office is intended to be continued during a controversy about the will, and he has all the power and is subjected to all the liabilities of an administrator or an executor, except that his right to dispose of the estate according to the provisions of the will is suspended until the final determination of the suit. In re Palmer's Will, 117 N.C. 133 , 23 S.E. 104, 1895 N.C. LEXIS 30 (1895).

Effect of Absence of Order to Suspend Proceeding. —

In the absence of an order to suspend further proceedings upon the filing of a caveat, as provided by this section, the acts of the executor in filing a petition or proceeding with the sale of the land were not void nor were the rights of purchasers affected. Carraway v. Lassiter, 139 N.C. 145 , 51 S.E. 968, 1905 N.C. LEXIS 103 (1905).

The clerk of a superior court cannot enter an order vacating the probate of a will after a caveat has been filed and the cause transferred to the civil issue docket of the superior court for trial in term. In re Will of Hine, 228 N.C. 405 , 45 S.E.2d 526 (1947). See note to G.S. 31-19 .

Where the clerk of the superior court has admitted to probate in common form a purported will and two purported codicils as the last will and testament of a deceased, and caveat has been properly filed as to the second codicil and the cause transferred to the civil issue docket, the clerk may not thereafter upon motion expunge from his records the entire probate proceedings and reprobate the purported will and second codicil on the ground that the second codicil revoked the first. In re Will of Hine, 228 N.C. 405 , 45 S.E.2d 526, 1947 N.C. LEXIS 333 (1947).

Error Held Not Cured by Affirmance of Order. —

Where a clerk is without jurisdiction to make an order in probate proceedings, by reason of the filing of a caveat and the transfer of the cause to the civil issue docket, the error in making the order is not cured by the order of the resident judge of the superior court who heard the motion on appeal and affirmed the order, for the jurisdiction of the superior court in such a case is derivative, and G.S. 1-276 [see now G.S. 1-301.1 et seq.] does not apply. In re Will of Hine, 228 N.C. 405 , 45 S.E.2d 526, 1947 N.C. LEXIS 333 (1947).

§ 31-37. [Repealed]

Repealed by Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

History. 1929, c. 81; repealed by Session Laws 2011-344, s. 8, effective January 1, 2012.

Cross References.

For similar provisions, see G.S. 31-32(b) and G.S. 31-37.1(b).

Editor’s Note.

Former G.S. 31-37 pertained to superior court clerks to enter notice of caveat and final judgment on will book.

§ 31-37.1. Settlement agreement; filing of judgment.

  1. Prior to an entry of judgment by the superior court in a caveat proceeding, the parties may enter into a settlement agreement, which must be approved by the superior court. Upon approval of a settlement agreement, the court shall enter judgment, without a verdict by a jury, in accordance with the terms of the settlement agreement. The consent of interested parties who are not aligned as parties pursuant to G.S. 31-33 is not necessary for a settlement agreement under this section.
  2. When judgment is entered by the superior court in a caveat proceeding, the clerk of superior court shall file a copy of the judgment in the estate file and shall make entry upon the page of the will book where such will is recorded to the effect that final judgment has been entered, either sustaining or setting aside the will.

History. 1989 (Reg. Sess., 1990), c. 949, s. 1; 2011-344, s. 8.

Effect of Amendments.

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section catchline, which formerly read: “Parties may enter into a settlement agreement”; and rewrote the section, which formerly read: “Prior to an entry of judgment by the superior court in a caveat proceeding, the parties may enter into a settlement agreement, whereupon judgment may be entered by the court, without a verdict by a jury, in accordance with the terms of the settlement agreement, either sustaining or setting aside the contested will.”

Article 7. Construction of Will.

§ 31-38. Devise presumed to be in fee.

When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.

History. 1784, c. 204, s. 12; R.C., c. 119, s. 26; Code, s. 2180; Rev., s. 3138; C.S., s. 4162.

Legal Periodicals.

For article, “Does the Fee Tail Exist in North Carolina?,” see 23 Wake Forest L. Rev. 767 (1988).

CASE NOTES

Analysis

I.General Consideration

Section Changes Common-Law Rule. —

The common-law rule that a devise without words of perpetuity or limitation conveyed a life estate only unless there is a manifest intention to convey the fee has been changed by this section. Henderson v. Western Carolina Power Co., 200 N.C. 443 , 157 S.E. 425, 1931 N.C. LEXIS 356 (1931).

The purpose of this section was to change the common-law rule that a devise of lands without words of perpetuity conveyed a life estate only unless there was a manifest intention to convey the fee. Morris v. Morris, 246 N.C. 314 , 98 S.E.2d 298, 1957 N.C. LEXIS 415 (1957); Clark v. Connor, 253 N.C. 515 , 117 S.E.2d 465, 1960 N.C. LEXIS 691 (1960).

This section merely changed the common-law rule that a devise without words of perpetuity or limitation conveyed a life estate only. Thompson v. Ward, 36 N.C. App. 593, 244 S.E.2d 485, 1978 N.C. App. LEXIS 2555 , cert. denied, 295 N.C. 556 , 248 S.E.2d 735, 1978 N.C. LEXIS 1066 (1978).

Section is similar to G.S. 39-1 pertaining to deeds. Hence, what has been held in applying the rule of construction as to wills is pertinent in applying the rule of construction as to deeds. Artis v. Artis, 228 N.C. 754 , 47 S.E.2d 228, 1948 N.C. LEXIS 397 (1948). See Vickers v. Leigh, 104 N.C. 248 , 10 S.E. 308, 1889 N.C. LEXIS 188 (1889).

Section Applies to Real and Personal Property. —

The provisions of this section apply to the disposition by will of both personal and real property. Worsley v. Worsley, 260 N.C. 259 , 132 S.E.2d 579, 1963 N.C. LEXIS 680 (1963); YWCA v. Morgan, 281 N.C. 485 , 189 S.E.2d 169, 1972 N.C. LEXIS 1088 (1972).

The presumption created by this section by its own terms may be overcome by a showing that the will plainly intended to convey an estate of less dignity. Adcock v. Perry, 305 N.C. 625 , 290 S.E.2d 608, 1982 N.C. LEXIS 1344 (1982).

Statutory Presumption of Giving Estate to Spouse Overcome. —

Where testator, after devising his wife a life estate in his realty with remainder over to his children, bequeathed his wife “all or so much of my personal property . . . as she may desire to have and to use or dispose of during her lifetime,” and directed that all personal property not so sold or disposed of should be divided among his children, the residuary legatees, it was held that the expressed intent of the testator negatived the statutory presumption that he gave his personal estate unconditionally to his wife. Worsley v. Worsley, 260 N.C. 259 , 132 S.E.2d 579, 1963 N.C. LEXIS 680 (1963).

Intent of Testator as to Realty. —

The presumption established by this section that a devise of land shall be construed in fee, etc., gives way to the intent of the testator as gathered from the proper construction of the instrument as a related whole. Roberts v. Saunders, 192 N.C. 191 , 134 S.E. 451, 1926 N.C. LEXIS 253 (1926).

A general devise of realty does not pass the fee when it clearly appears from the will that the testator intended to convey an estate of less dignity. Hampton v. West, 212 N.C. 315 , 193 S.E. 290, 1937 N.C. LEXIS 300 (1937); Strickland v. Johnson, 213 N.C. 581 , 197 S.E. 193, 1938 N.C. LEXIS 145 (1938).

The rule that a devise of the “use of” property is the equivalent of a devise in fee . . . Has no application when a will shows an intent to pass an interest that is less than a fee. Cassada v. Cassada, 103 N.C. App. 129, 404 S.E.2d 491, 1991 N.C. App. LEXIS 710 , cert. denied, 329 N.C. 786 , 408 S.E.2d 516, 1991 N.C. LEXIS 641 (1991).

Unrestricted Devise Passes Fee. —

It has been uniformly held, since the passage of this statute in 1784, that an unrestricted devise of real estate passes the fee. Roane v. Robinson, 189 N.C. 628 , 127 S.E. 626, 1925 N.C. LEXIS 3 66 (1925); Barbee v. Thompson, 194 N.C. 411 , 139 S.E. 838, 1927 N.C. LEXIS 117 (1927); Bell v. Gillam, 200 N.C. 411 , 157 S.E. 60, 1931 N.C. LEXIS 3 44 (1931); Stephens v. Clark, 211 N.C. 84 , 189 S.E. 191, 1937 N.C. LEXIS 3 (1937); Strickland v. Johnson, 213 N.C. 581 , 197 S.E. 193, 1938 N.C. LEXIS 145 (1938).

An unrestricted devise of realty, nothing else appearing, constitutes a devise in fee. Elder v. Johnston, 227 N.C. 592 , 42 S.E.2d 904, 1947 N.C. LEXIS 474 (1947).

An unrestricted or indefinite devise of real property is regarded as a devise in fee simple. Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871, 1981 N.C. App. LEXIS 2535 (1981), rev'd, 305 N.C. 625 , 290 S.E.2d 608, 1982 N.C. LEXIS 1344 (1982).

A devise generally or indefinitely with power of disposition creates a fee. But a devise for life with power of disposition creates a life estate only. Hardee v. Rivers, 228 N.C. 66 , 44 S.E.2d 476, 1947 N.C. LEXIS 546 (1947).

Unless a will contains plain and express language, showing that the testator did not intend to devise a fee, the devise will be construed as one in fee simple. Basnight v. Dill, 256 N.C. 474 , 124 S.E.2d 159, 1962 N.C. LEXIS 470 (1962); Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871, 1981 N.C. App. LEXIS 2535 (1981), rev'd, 305 N.C. 625 , 290 S.E.2d 608, 1982 N.C. LEXIS 1344 (1982).

No technical words of conveyance are required in wills. Alston v. Davis, 118 N.C. 202 , 24 S.E. 15, 1896 N.C. LEXIS 36 (1896); Keith v. Scales, 124 N.C. 497 , 32 S.E. 809, 1899 N.C. LEXIS 86 (1899).

Words of Perpetuity Not Required to Create Fee. —

Since this section no words of perpetuity are required and a devise without them will carry the fee unless it appears from the will the testator intended to convey an estate less than the fee. Morris v. Morris, 246 N.C. 314 , 98 S.E.2d 298, 1957 N.C. LEXIS 415 (1957).

II.Rules of Construction

Intention of Testator. —

The testator’s intent gathered from the entire will controls its interpretation. This rule applies to the construction of this section when it appears that the testator devised certain lands without the words of inheritance, and that his intent, gathered from a separate item of the will, was to create a defeasible estate in the first taker, contingent upon his dying at any time, whether before or after the death of the testator, leaving issue surviving him. Rees v. Williams, 165 N.C. 201 , 81 S.E. 286, 1914 N.C. LEXIS 246 (1914).

The intent of the testatrix is her will and must be carried out unless some rule of law forbids it. Wilson v. Spain, 260 N.C. 482 , 133 S.E.2d 189, 1963 N.C. LEXIS 761 (1963).

The basic rule of construction, and the refrain of every opinion which seeks to comprehend a testamentary plan, is that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. Wilson v. Spain, 260 N.C. 482 , 133 S.E.2d 189, 1963 N.C. LEXIS 761 (1963).

The rule, that an unrestricted or general devise of real property, to which is affixed, either specifically or by implication, an unlimited power of disposition in the first taker, conveys the fee and a subsequent clause in the will purporting to dispose of what remains at his death is not allowed to defeat the devise nor limit it to a life estate, as well as all rules of construction, must yield to the paramount intent of the testator as gathered from the four corners of the will. Quickel v. Quickel, 261 N.C. 696 , 136 S.E.2d 52, 1964 N.C. LEXIS 564 (1964).

The rule is elementary that the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. In ascertaining this intention the language used, and the sense in which it is used by the testator is the primary source of information, as it is the expressed intention of the testator which is sought. Clark v. Connor, 253 N.C. 515 , 117 S.E.2d 465, 1960 N.C. LEXIS 691 (1960); Wing v. Wachovia Bank & Trust Co., 301 N.C. 456 , 272 S.E.2d 90, 1980 N.C. LEXIS 1187 (1980).

The cardinal principle to be followed when construing a will is to give effect to the general intent of the testator as that intent appears from a consideration of the entire instrument. Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871, 1981 N.C. App. LEXIS 2535 (1981), rev'd, 305 N.C. 625 , 290 S.E.2d 608, 1982 N.C. LEXIS 1344 (1982).

Primary object in interpreting a will is to give effect to the intention of the testator. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

Presumption Against Intestacy. —

It is a long-standing policy of the State of North Carolina to construe a will with the presumption that the testator did not intend to die intestate with respect to any part of his property. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

Consideration of Will as Whole. —

The intent of the testator must be ascertained from a consideration of the will as a whole and not merely from consideration of specific items or phrases of the will in isolation. Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871, 1981 N.C. App. LEXIS 2535 (1981), rev'd, 305 N.C. 625 , 290 S.E.2d 608, 1982 N.C. LEXIS 1344 (1982).

Ordinary Words. —

Generally, ordinary words are to be given their usual and ordinary meaning, and technical words are presumed to have been used in a technical sense. Clark v. Connor, 253 N.C. 515 , 117 S.E.2d 465, 1960 N.C. LEXIS 691 (1960).

Words with Well-Defined Legal Significance. —

If words or phrases are used which have a well-defined legal significance, established by a line of judicial decisions, they will be presumed to have been used in that sense, in the absence of evidence of a contrary intent. Clark v. Connor, 253 N.C. 515 , 117 S.E.2d 465, 1960 N.C. LEXIS 691 (1960).

Isolated Clauses or Sentences. —

Isolated clauses or sentences are not to be considered by themselves, but the will is to be considered as a whole, and its different clauses and provisions examined and compared, so as to ascertain the general plan and purpose of the testator, if there be one. Clark v. Connor, 253 N.C. 515 , 117 S.E.2d 465, 1960 N.C. LEXIS 691 (1960).

Prior Decisions. —

Little or no aid can be derived by a court in construing a will from prior decisions in other will cases. It is not sufficient that the same words in substance or even literally have been construed in other cases. It often happens that the same identical words require very different constructions according to context and the peculiar circumstances of each case. Clark v. Connor, 253 N.C. 515 , 117 S.E.2d 465, 1960 N.C. LEXIS 691 (1960).

General Interest Prevails over a Particular Interest. —

The provisions of this section, while laying down a rule of construction, still leave the question of the intention of the testator open for construction, and where there is a particular and a general paramount interest apparent in the same will, and they clash, the general interest must prevail. Leeper v. Neagle, 94 N.C. 338 , 1886 N.C. LEXIS 61 (1886).

III.Illustrative Cases

Devise of Use of Property. —

Where testatrix only devised the “use of” the property so long as the beneficiaries “wish to live there,” she “in plain and express words” showed an intent to devise less than the fee. While the courts have held that the devise of the “use of” property is the equivalent of a devise in fee, the rule has no application, when the will shows an intent to pass an interest that is less than a fee. Thompson v. Ward, 36 N.C. App. 593, 244 S.E.2d 485, 1978 N.C. App. LEXIS 2555 , cert. denied, 295 N.C. 556 , 248 S.E.2d 735, 1978 N.C. LEXIS 1066 (1978).

Gift of Personalty with Full Power to Use Is Absolute. —

Where there is no residuary clause in the will and no limitation over so far as the personal property is concerned, a gift of personal property for life to the primary object of testator’s bounty, with power to use “in any way that she may desire” is generally construed to be an absolute gift of the property. Worsley v. Worsley, 260 N.C. 259 , 132 S.E.2d 579, 1963 N.C. LEXIS 680 (1963).

Testator devised to his daughters, B and M, all of his real estate after the death of his widow, and also to his daughter T an equal life interest therein with B and M, “or so long as the said T may remain a widow.” Upon the death of the testator’s widow, B and M took in remainder a fee simple estate, the intent of the testator being to provide for T, who remained unmarried and is now deceased, during her widowhood. Barbee v. Thompson, 194 N.C. 411 , 139 S.E. 838, 1927 N.C. LEXIS 117 (1927).

The clause “I give, devise and bequeath” to named devisee, described realty, standing alone, constitutes a devise in fee simple. Buckner v. Hawkins, 230 N.C. 99 , 52 S.E.2d 16, 1949 N.C. LEXIS 571 (1949).

The words “give, devise and bequeath,” used by a testatrix in devising her property to a husband and wife as tenants by the entireties, in light of the provisions of this section, gave them a fee simple title to the devised property. Basnight v. Dill, 256 N.C. 474 , 124 S.E.2d 159, 1962 N.C. LEXIS 470 (1962).

A devise of real estate to devisees “to do as they like with it,” with subsequent provision that after their death whatever property is left should go to testatrix’ niece, vests the fee simple in the beneficiaries first named. Taylor v. Taylor, 228 N.C. 275 , 45 S.E.2d 368, 1947 N.C. LEXIS 322 (1947).

A devise generally to one person with limitation over to another of “whatever is left” at the death of the first taker is regarded as a devise in fee simple. Taylor v. Taylor, 228 N.C. 275 , 45 S.E.2d 368, 1947 N.C. LEXIS 322 (1947) (citing) Patrick v. Morehead, 85 N.C. 62 , 1881 N.C. LEXIS 203 , 39 Am. Rep. 684 (1881); Carroll v. Herring, 180 N.C. 369 , 104 S.E. 892, 1920 N.C. LEXIS 95 (1920).

“Cash.” —

The word “cash” is not such a technical one that it will have the same definite and precise meaning in all circumstances. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164, 1991 N.C. App. LEXIS 430 (1991), aff'd, 331 N.C. 111 , 413 S.E.2d 797, 1992 N.C. LEXIS 153 (1992).

The word “cash” as used in a will includes bank accounts, both checking and savings and includes certificates of deposit. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164, 1991 N.C. App. LEXIS 430 (1991), aff'd, 331 N.C. 111 , 413 S.E.2d 797, 1992 N.C. LEXIS 153 (1992).

Use of the words “other cash,” as used in a will, will not be interpreted by resorting to a narrow, technical definition or interpretation. Courts must look for the meaning of these words according to the subject treated and the context in which they were used. The intention of the testator is the polar star which must guide the courts in the interpretation of wills. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164, 1991 N.C. App. LEXIS 430 (1991), aff'd, 331 N.C. 111 , 413 S.E.2d 797, 1992 N.C. LEXIS 153 (1992).

“Remaining cash and bonds” included certificates of deposit. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164, 1991 N.C. App. LEXIS 430 (1991), aff'd, 331 N.C. 111 , 413 S.E.2d 797, 1992 N.C. LEXIS 153 (1992).

Devise with Full Power of Disposal. —

A devise to a husband with full power of disposal, but on certain conditions any part undisposed of by him to go to a nephew, vests a fee simple in the husband. Roane v. Robinson, 189 N.C. 628 , 127 S.E. 626, 1925 N.C. LEXIS 366 (1925); Heefner v. Thornton, 216 N.C. 702 , 6 S.E.2d 506, 1940 N.C. LEXIS 364 (1940).

A devise of real estate to testator’s son for his own use and benefit with the expressed intent that it should vest in him absolutely with full right to dispose of it, with limitation over should he die without children surviving, if not disposed of by him during his life, gives the devisee a fee simple title. Lineberger v. Phillips, 198 N.C. 661 , 153 S.E. 118, 1930 N.C. LEXIS 441 (1930).

A will devising to wife all of testator’s property, with full power to manage, control, sell and dispose of it at her discretion, also provided that it was the testator’s will and desire that she should devise whatever property she had not thus disposed of during her natural life, or the proceeds thereof, to the person who had been the “kindest to us in aiding and comforting us in our old age.” It was held that the wife acquired a fee simple title. Weaver v. Kirby, 186 N.C. 387 , 119 S.E. 564, 1923 N.C. LEXIS 255 (1923).

Devise with Limited Power of Disposal. —

A general devise to testator’s wife with subsequent items providing that one half the estate “remaining” at her death should go to his adopted son in fee, and the other half, in the event the wife did not dispose of the residue of the estate by will, to go to the children of L, is held to show an intent to convey an estate of less dignity than a fee simple to testator’s wife, rebutting the presumption that the general devise to the wife should be construed to be in fee, the power of disposition of part of the estate, at least, being limited to disposition by will, and the widow does not have the power to convey the entire estate by deed in fee simple. Hampton v. West, 212 N.C. 315 , 193 S.E. 290, 1937 N.C. LEXIS 300 (1937).

Devise with Power of Disposition Neither Expressed Nor Implied. —

Where the gift to the first taker is in language sufficient, standing alone, to pass a fee simple estate, but no absolute power of disposition is expressed or necessarily implied, the gift is a life estate, provided from other clauses of the will it appears that, at the death of the first taker, testator intends and directs a limitation over to another or others. Andrews v. Andrews, 253 N.C. 139 , 116 S.E.2d 436, 1960 N.C. LEXIS 482 (1960).

Devise for Life with Remainder to Heirs. —

When a devise is to a named person for life with remainder after his death to “his heirs” or “his bodily heirs” or the “heirs of his body,” nothing else appearing, the devisee becomes seized of a fee simple estate upon the death of the testator subject to any prior life estate created by the will. Hammer v. Brantley, 244 N.C. 71 , 92 S.E.2d 424, 1956 N.C. LEXIS 642 (1956).

Devise Vesting Fee in Children. —

A devise of land with provision that the rents should be used by testator’s wife and children until they should become of age, and that the lands should be divided among them all upon the children coming of age or upon the prior death of the widow, with further provision that they should have no right to sell the lands except to each other, was held upon the death of the widow, to vest in fee simple in the children. Langston v. Wooten, 232 N.C. 124 , 59 S.E.2d 605, 1950 N.C. LEXIS 428 (1950).

A devise to testator’s wife of all of this estate absolutely as he held it himself, declaring that she should not be considered as holding it in trust “technically so called, to be enforced by the judge or decree of any court other than her own conscience, judgment, and affection shall prompt her to so regard it,” was in fee absolute. Fellowes v. Durfey, 163 N.C. 305 , 79 S.E. 621, 1913 N.C. LEXIS 172 (1913).

Devise of Proceeds of Land. —

Under this section the fee generally passes upon a devise of the proceeds of land when an intention to separate the income from the principal is not expressed, or where the devise is general and the devisee is given the power of disposition, or a limitation over is made of such part as may not be disposed of by the first taker. Hambright v. Carroll, 204 N.C. 496 , 168 S.E. 817, 1933 N.C. LEXIS 175 (1933).

Devise with Power of Appointment. —

A devise to A, and to such persons as he shall appoint, vests the absolute property in A, without an appointment. But if it be to him for life and after his death to such person as he shall appoint, he must make an appointment in order to entitle that person to anything. The express life estate to him repels the implication of a fee simple for himself. Levy v. Griffis, 65 N.C. 236 , 1871 N.C. LEXIS 75 (1871).

A devise to a trustee in trust for the sole and separate use of a married woman with a power given to her of appointing the estate in fee by deed or will, will vest the trust in her in fee under this section. Levy v. Griffis, 65 N.C. 236 , 1871 N.C. LEXIS 75 (1871).

Estate Tail Converted into Fee Simple. —

There was a devise of lands to wife of testator for life, and at her death or remarriage to their two children, by name, for their natural lives for the heirs of their bodies. It was held that, after the death of the widow, the devise was not a trust created in the children as trustees for the “heirs of their bodies,” and there being no expression in the will to show an intent to create an estate of less degree than fee, it constituted an estate tail, converted by our statute into a fee simple. Washburn v. Biggerstaff, 195 N.C. 624 , 143 S.E. 210, 1928 N.C. LEXIS 162 (1928).

There testatrix stated she “wanted” the land in question to go to her brother and at his death to his three sons and his named grandson, with further provision that at their deaths testatrix “wanted” the land to go to their “children & so on,” the brother took a life estate with remainder to his children and the named grandson in fee under the rule in Shelley’s Case, since it is apparent that testatrix used the word “children” in the sense of an indefinite line of succession and created an estate tail converted into a fee by G.S. 41-1. Wilson v. Spain, 260 N.C. 482 , 133 S.E.2d 189, 1963 N.C. LEXIS 761 (1963).

Fee Simple Defeasible upon Condition. —

Where testator devises realty to grandson, and in the event of death of the latter without children, then the land to descend to other grandchildren, such devise vests a fee simple estate in the first devisee, defeasible only on condition that he dies without leaving heirs of his body. Whitfield v. Garris, 131 N.C. 148 , 42 S.E. 568, 1902 N.C. LEXIS 256 (1902); Whitefield v. Garriss, 134 N.C. 24 , 45 S.E. 904, 1903 N.C. LEXIS 196 (1903).

An estate “loaned” to testator’s daughter R during her natural life and at her death “I lend all of the” designated land “to the lawful heirs of her body, and to the lawful begotten heirs of their bodies if any,” standing alone, would convey the fee simple title, but with the further expression, “in case she should die leaving no lawful issue of her body then I give all the above described land to my son J, and his lawful heirs,” the estate is defeasible in the event of the death of R “leaving no lawful issue of her body.” Jarman v. Day, 179 N.C. 318 , 102 S.E. 402, 1920 N.C. LEXIS 234 (1920).

Language Insufficient to Show Intent to Pass Less Than Fee Simple Estate. —

See Mangum v. Wilson, 235 N.C. 353 , 70 S.E.2d 19, 1952 N.C. LEXIS 405 (1952).

A devise of all testator’s property, employing the words “give, devise, and bequeath” and expressing testator’s desire that the estates devised and bequeathed be held intact as nearly as practicable, by marriage contract if the devisees married, and at the death of the devisees be divided among nephews and nieces, vested an absolute fee simple title in the named devisees. Humphrey v. Faison, 247 N.C. 127 , 100 S.E.2d 524, 1957 N.C. LEXIS 684 (1957).

The language “provided, that if she own the property or any part thereof at her death, the same shall descend to the children born of her body, or the heirs of such children” did not show the intestator’s intention to convey a life estate. An unrestricted or general devise of real property, to which is affixed, either specifically or by implication, an unlimited power of disposition in the first taker, conveys the fee and a subsequent clause purporting to dispose of what remains at his death is not allowed to defeat the devise or limit it to a life estate. Leonard v. Dillard, 87 N.C. App. 79, 359 S.E.2d 497, 1987 N.C. App. LEXIS 2966 (1987); See Osborne v. Hodgin, 98 N.C. App. 111, 389 S.E.2d 629, 1990 N.C. App. LEXIS 301 (1990).

Language Showing Intention to Give Estate in Residuary Devisee of Less Dignity Than Fee Simple. —

See Woodard v. Clark, 234 N.C. 215 , 66 S.E.2d 888, 1951 N.C. LEXIS 441 (1951).

Where an estate is reduced from a life estate to a dower interest, in the event of remarriage, it is a manifest indication of the testator’s purpose to devise his wife an estate of less dignity than a fee simple. Worsley v. Worsley, 260 N.C. 259 , 132 S.E.2d 579, 1963 N.C. LEXIS 680 (1963).

Vested Remainder to Be Divested upon Condition. —

Under a devise of lands to K “his lifetime, then to go to” G and M, “and if they should die without leaving bodily heirs, then to go to the Flow Heirs,” it was held that, after the falling-in of the life estate, G and M take the fee in the remainder defeasible upon their dying without leaving “bodily heirs,” in which event it would go to the ultimate devisees, upon the principles of a shifting use operating by way of an executory devise. Kirkman v. Smith, 174 N.C. 603 , 94 S.E. 423, 1917 N.C. LEXIS 151 (1917).

For precatory words in a will to be regarded as creating a trust in lands devised, the intention of the testator to that effect must clearly appear by interpretation of the instrument, for otherwise these words must be given the ordinary significance of those of that character. Springs v. Springs, 182 N.C. 484 , 109 S.E. 839, 1921 N.C. LEXIS 255 (1921).

Where the testator, after bequeathing or devising property to a person, expresses a wish or desire as to its use or disposition, such expression will not be construed to create a trust in the legatee or devisee unless it clearly appears from the instrument as a whole that testator so intended since the devise or bequest will be deemed absolute in the absence of a clearly expressed intention to convey an estate of less dignity, but precatory words will create a trust when it appears from the instrument as a whole that the testator so intended, provided testator has pointed out with sufficient clearness and certainty both the subject matter and objects of the intended trust. Brinn v. Brinn, 213 N.C. 282 , 195 S.E. 793, 1938 N.C. LEXIS 68 (1938).

Subsequent Expressions Not Affecting Devise of Fee. —

Where a testator devises all of his estate to his wife, clearly and unmistakably in fee, a different intent may not be inferred from subsequent expressions used in the will. Fellowes v. Durfey, 163 N.C. 305 , 79 S.E. 621, 1913 N.C. LEXIS 172 (1913).

An unrestricted devise followed by a provision that in the event the devisee died intestate, testator wished such devisee’s share to descend to her children, vests the fee in the devisee, the precatory words being repugnant to the estate previously devised and sufficient to limit or divest it. Croom v. Cornelius, 219 N.C. 761 , 14 S.E.2d 799, 1941 N.C. LEXIS 142 (1941).

In the absence of a contrary intent expressed in the will an unrestricted or indefinite devise of real property is a devise in fee simple, and a subsequent clause expressing a wish, desire or even direction for the disposition of what remains at the death of the devisee will not be allowed to defeat the devise nor limit it to a life estate. Taylor v. Taylor, 228 N.C. 275 , 45 S.E.2d 368, 1947 N.C. LEXIS 322 (1947).

Where real estate is devised in fee, or personalty bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. Worsley v. Worsley, 260 N.C. 259 , 132 S.E.2d 579, 1963 N.C. LEXIS 680 (1963).

An unrestricted or general devise of real property, to which is affixed, either specifically or by implication, an unlimited power of disposition in the first taker, conveys the fee, and a subsequent clause in the will purporting to dispose of what remains at his death is not allowed to defeat the devise nor limit it to a life estate. Quickel v. Quickel, 261 N.C. 696 , 136 S.E.2d 52, 1964 N.C. LEXIS 564 (1964).

Devise for “Use and Benefit without Let or Hindrance”. —

Where testator left property in trust with power in his wife to demand that trustee turn over property to her “for her own use and benefit without let or hindrance,” upon such demand and compliance therewith, the wife takes and can convey a fee simple, notwithstanding a further provision in the will that a third person should take a life estate in property remaining in the hands of trustees at the wife’s death. O'Quinn v. Crane, 189 N.C. 97 , 126 S.E. 174, 1925 N.C. LEXIS 252 (1925).

Devise to Trustee Granting No Beneficial Interest. —

The rule that a devise of real estate shall be construed to be in fee simple is inapplicable where the testamentary words negative the idea of the investiture of title in fee, or for life, or the granting of any other beneficial interest to the devisee, and express the intent, rather, to impose upon him duties as executor and trustee of an active trust, with directions as to the use of the property and as to how the income shall be applied during his life and after his death. Stephens v. Clark, 211 N.C. 84 , 189 S.E. 191, 1937 N.C. LEXIS 3 (1937).

The construction required by this statute may not be invoked where no estate in fee is attempted to be devised and where the plain intent is not to grant an estate, but to impose a trust and direct the collection of rent for application to a specific purpose. Stephens v. Clark, 211 N.C. 84 , 189 S.E. 191, 1937 N.C. LEXIS 3 (1937) (citing) Young v. Young, 68 N.C. 309 , 1873 N.C. LEXIS 81 (1873); Witherington v. Herring, 140 N.C. 495 , 53 S.E. 303, 1906 N.C. LEXIS 3 2 (1906); Fellowes v. Durfey, 163 N.C. 305 , 79 S.E. 621, 1913 N.C. LEXIS 172 (1913).

Devise Creating Life Estate. —

Testator devised to his wife all of his “estate real and personal,” and by a later paragraph all of the rest of his property “as above stated” during her widowhood, and should she remarry her dower “according to law.” It was held that only a life estate was given to his widow, the statutory presumption of a fee simple title being inoperative. Roberts v. Saunders, 192 N.C. 191 , 134 S.E. 451, 1926 N.C. LEXIS 253 (1926).

A devise for life with power of disposition creates a life estate only. Chewning v. Mason, 158 N.C. 578 , 74 S.E. 357, 1912 N.C. LEXIS 84 (1912); Tillett v. Nixon, 180 N.C. 195 , 104 S.E. 352, 1920 N.C. LEXIS 62 (1920); Alexander v. Alexander, 210 N.C. 281 , 186 S.E. 319, 1936 N.C. LEXIS 82 (1936).

The estate devised being specifically limited to the life of the devisee, the power of disposition does not enlarge the estate devised or convert it into a fee. Hardee v. Rivers, 228 N.C. 66 , 44 S.E.2d 476, 1947 N.C. LEXIS 546 (1947).

Decedent’s unrestricted devise of certain property to plaintiff in Item 2 was a devise in fee simple and the later devise of the property to defendants in Item 7 did not limit plaintiff’s estate to a life estate. Coble v. Patterson, 114 N.C. App. 447, 442 S.E.2d 119, 1994 N.C. App. LEXIS 406 (1994).

Void Restraint on Alienation. —

Where a restraint on alienation was declared void, the devise was unrestricted and vested the fee in the devisee. Williams v. McPherson, 216 N.C. 565 , 5 S.E.2d 830, 1939 N.C. LEXIS 49 (1939).

§ 31-39. Probate necessary to pass title; rights of lien creditors and purchasers; recordation in county where real property lies.

  1. A duly probated will is effective to pass title to real and personal property.
  2. A will is not effective to pass title to real or personal property as against lien creditors or purchasers for valuable consideration from the intestate heirs at law of a decedent, unless the will is probated or offered for probate before the earlier of (i) the date of the approval by the clerk of the superior court having jurisdiction of the decedent’s estate of the final account filed by the personal representative of the decedent’s estate, or (ii) the date that is two years from the date of death of the decedent. If the will is fraudulently suppressed, stolen, or destroyed, or is lost, and an action or proceeding is instituted within the time limitation set forth in this subsection to obtain that will or establish that will as provided by law, the time limitation under this subsection begins to run from the termination of that action or proceeding.
  3. A will duly probated in one county of this State is not effective to pass title to an interest in real property located in any other county of this State as against lien creditors or purchasers for valuable consideration from the intestate heirs at law of a decedent unless a certified copy of the will and a certified copy of the certificate of probate of the will are filed in the office of the clerk of superior court in the county where the real property lies within the time limitation set forth in subsection (b) of this section.
  4. A conveyance made by the intestate heirs at law of a decedent before the expiration of the time limitation set forth in subsection (b) of this section shall, upon the expiration of that time, become effective to the same extent as if the conveyance were made after the expiration of that time, unless before the expiration of that time, a proceeding is instituted in the proper court to probate a will of the decedent.

History. 1784, c. 225, s. 6; R.C., c. 119, s. 20; Code, s. 2174; Rev., s. 3139; 1915, c. 219; C.S., s. 4163; 1953, c. 920, s. 1; 2012-68, s. 2; 2014-107, s. 2.2.

Cross References.

For further provisions as to wills fraudulently withheld from probate, see G.S. 28A-2A-1.

Effect of Amendments.

Session Laws 2012-68, s. 2, effective October 1, 2012, rewrote the section and the section heading. For applicability, see Editor’s note.

Legal Periodicals.

For note on the problem of after-discovered wills, see 47 N.C.L. Rev. 723 (1969).

For article discussing the doctrine of color of title in North Carolina, see 13 N.C. Cent. L.J. 123 (1982).

CASE NOTES

Probate an Indispensable Prerequisite. —

The probate of a will in the proper court is an indispensable prerequisite to its validity as a conveyance of real or personal estate. Osborne v. Leak, 89 N.C. 433 , 1883 N.C. LEXIS 264 (1883); Paul v. Davenport, 217 N.C. 154 , 7 S.E.2d 352, 1940 N.C. LEXIS 194 (1940).

Effect of Unprobated Will. —

Where the probate shows on its face that the paper-writing has never been validly proven and probated as a holographic will, it is ineffective to pass real or personal property. Morris v. Morris, 245 N.C. 30 , 95 S.E.2d 110, 1956 N.C. LEXIS 527 (1956).

An unprobated will is not muniment of title; it cannot be established as a will in a collateral proceeding; it conveys no title to property until it is probated and recorded. Hargrave v. Gardner, 264 N.C. 117 , 141 S.E.2d 36, 1965 N.C. LEXIS 1125 (1965).

Will Ineffectual as Transfer of Title or Cloud Thereon during Lifetime of Testator. —

A paper-writing making testamentary disposition of property is without legal significance either as a transfer of title or as a cloud thereon during the lifetime of the person executing it, since a will takes effect only upon the death of the testator and the probate of the instrument. Vandiford v. Vandiford, 241 N.C. 42 , 84 S.E.2d 278, 1954 N.C. LEXIS 540 (1954).

Section Not Retroactive. —

This section requiring copies of wills to be recorded in the county where the devised lands are situate, is prospective and refers only to wills proved after November 1, 1883. Curlee v. Smith, 91 N.C. 172 , 1884 N.C. LEXIS 41 (1884).

The 1915 amendment was prospective in effect, and the former right of devisees to have unlimited time to probate a will was not effected except from the effective date of the amendment. Barnhardt v. Morrison, 178 N.C. 563 , 101 S.E. 218, 1919 N.C. LEXIS 503 (1919).

Prior to the 1915 amendment there was no limitation as to the time when a will could be probated and recorded, the ordinary registration acts having no application to a will. The will became effective from the death of the testator, ordinarily passing the title to devisees from that date against all dispositions or conveyances from the heirs to the contrary. Barnhardt v. Morrison, 178 N.C. 563 , 101 S.E. 218, 1919 N.C. LEXIS 503 (1919). See Cooley v. Lee, 170 N.C. 18 , 86 S.E. 720, 1915 N.C. LEXIS 322 (1915).

The amendment fixed the time at two years within which a will must be probated and recorded in order to affect the rights of innocent purchasers for value from the heirs at law, and this limitation is exclusively within the authority of the legislature to make. Barnhardt v. Morrison, 178 N.C. 563 , 101 S.E. 218, 1919 N.C. LEXIS 503 (1919).

Devised property vests in devisee at time will is probated, subject to liens of deeds of trust. Cable v. Hardin Oil Co., 10 N.C. App. 569, 179 S.E.2d 829, 1971 N.C. App. LEXIS 1677 , cert. denied, 278 N.C. 521 , 180 S.E.2d 863, 1971 N.C. LEXIS 1000 (1971).

Hence, devisee owns equity of redemption in the property. Cable v. Hardin Oil Co., 10 N.C. App. 569, 179 S.E.2d 829, 1971 N.C. App. LEXIS 1677 , cert. denied, 278 N.C. 521 , 180 S.E.2d 863, 1971 N.C. LEXIS 1000 (1971).

Where, subsequent to the execution of the will, the property is subjected to the liens of various deeds of trust, these added encumbrances do not prevent the equity of redemption, which was retained by the testatrix, from passing under the will. Cable v. Hardin Oil Co., 10 N.C. App. 569, 179 S.E.2d 829, 1971 N.C. App. LEXIS 1677 , cert. denied, 278 N.C. 521 , 180 S.E.2d 863, 1971 N.C. LEXIS 1000 (1971).

Ownership under will is not made dependent upon the certified copy directed to be recorded in the county where the land lies. The only purpose of the certified copy is to give information to abstractors and to direct their attention to the source of title. Whitehurst v. Abbott, 225 N.C. 1 , 33 S.E.2d 129, 1945 N.C. LEXIS 248 (1945).

G.S. 47-18 , the ordinary registration act, has no application to wills. Cooley v. Lee, 170 N.C. 18 , 86 S.E. 720, 1915 N.C. LEXIS 322 (1915). See Barnhardt v. Morrison, 178 N.C. 563 , 101 S.E. 218, 1919 N.C. LEXIS 503 (1919).

The trial court correctly denied plaintiff’s request for jury instructions to the effect that making a will passes no legal title where there was neither allegation nor evidence that any title to any property, real or personal, passed pursuant to any will. Craig v. Calloway, 68 N.C. App. 143, 314 S.E.2d 823, 1984 N.C. App. LEXIS 3192 (1984).

Will Should Have Been Approved Where Caveators Lacked Standing to Challenge the Will. —

Trial court erred by permitting the beneficiaries of the decedent’s first will to proceed in a caveat proceeding against the decedent’s second will without first rebutting the presumption that they lacked standing to caveat attendant to their production of a mere copy of the first will, as the presumption then existed that the decedent had revoked the first will; accordingly, the propounders of the second will were entitled to judgment. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, 2003 N.C. App. LEXIS 643 (2003), rev'd, 358 N.C. 143 , 592 S.E.2d 688, 2004 N.C. LEXIS 171 (2004).

§ 31-40. What property passes by will.

Any testator, by the testator’s a will duly executed, may devise or dispose of all real and personal property which the testator shall be entitled to at the time of the testator’s death, and which, if not so devised or disposed of, would descend or devolve upon the testator’s heirs at law, or upon the testator’s personal representative; and the power hereby given shall extend to all contingent, executory, or other future interest in any real or personal property, whether the testator may or may not be the person or one of the persons in whom the same may become vested, or whether the testator may be entitled thereto under the instrument by which the same was created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, whether any such condition has or has not been broken at the testator’s death, all other rights of entry, and possibilities of reverter; and also to such of the same estates, interests, and rights respectively, and other real and personal property, as the testator may be entitled to at the time of the testator’s death, notwithstanding that the testator may become entitled to the same subsequently to the execution of the testator’s will.

History. 1844, c. 88, s. 1; R.C., c. 119, s. 5; Code, s. 2140; Rev., s. 3140; C.S., s. 4164; 1973, c. 1446, s. 15; 2011-284, s. 33; 2011-344, s. 8.

Editor’s Note.

This section was amended by Session Laws 2011-284, s. 33, and Session Laws 2011-344, s. 8, in the coded bill drafting format provided by G.S. 120-20.1 . The word “a” before “will,” as added by Session Laws 2011-284, s. 33, was not struck through by Session Laws 2011-344. The section has been set out in the form above at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2011-284, s. 33, effective June 24, 2011, throughout the section, substituted “personal property” for “personal estate,” and “the testator” for “he” or similar language; and near the beginning, deleted “bequeath” following “devise” and “bequeathed” following “devised,” and substituted “the testator’s personal representative” for “his executor or administrator.”

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted “the testator’s” for “his,” or similar language.

Legal Periodicals.

For article, “The Rule Against Perpetuities in North Carolina,” see 57 N.C.L. Rev. 727 (1979).

For note as to the transfer of land by wills in light of Stephenson v. Rowe, 315 N.C. 330 , 338 S.E.2d 301 (1986), see 65 N.C.L. Rev. 1488 (1987).

CASE NOTES

A conveyance of “all the property I possess,” where there is no apparent motive for making an exception, conveys all property the party owned. Hollowell v. Manly, 179 N.C. 262 , 102 S.E. 386, 1920 N.C. LEXIS 219 (1920).

Construction of “and also to all rights of entry for conditions broken,” etc., prior to 1973 amendment. —

See Church v. Young, 130 N.C. 8 , 40 S.E. 691, 1902 N.C. LEXIS 2 (1902).

Where a will is susceptible to two reasonable constructions, one disposing of all of the testator’s property, and the other leaving part of the property undisposed of, the former construction will be adopted and the latter rejected, there being a presumption against partial intestacy. Holmes v. York, 203 N.C. 709 , 166 S.E. 889, 1932 N.C. LEXIS 81 (1932); Wing v. Wachovia Bank & Trust Co., 301 N.C. 456 , 272 S.E.2d 90, 1980 N.C. LEXIS 1187 (1980).

Items of will disposing of real estate not owned by testator were held valid to the extent that they disposed of real and personal property owned by the testator. Taylor v. Taylor, 243 N.C. 726 , 92 S.E.2d 136, 1956 N.C. LEXIS 617 (1956).

§ 31-41. Will relates to death of testator.

Every will shall be construed, with reference to the real and personal estate comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

History. 1844, c. 88, s. 3; R.C., c. 119, s. 16; Code, s. 2141; Rev., s. 3141; C.S., s. 4165.

CASE NOTES

This section has no retroactive effect, and does not apply to wills made prior to its enactment, though the testator dies subsequent to its enactment. Such wills, with reference to the property they devise, speak as of the date of their execution, and not as of the date of testator’s death under the rule of construction promulgated by this section. Williamson v. Williamson, 58 N.C. 142 , 1859 N.C. LEXIS 258 (1859).

Section Relates to Subject Matter and Not to Objects of Will. —

This section, making the will speak from the death of the testator, relates to the subject matter of disposition only, and does not in any manner interfere with the construction in regard to the objects of the gift. Robbins v. Windley, 56 N.C. 286 , 1857 N.C. LEXIS 177 (1857); Hines v. Mercer, 125 N.C. 71 , 34 S.E. 106, 1899 N.C. LEXIS 170 (1899); Thomas v. Thomas, 258 N.C. 590 , 129 S.E.2d 239, 1963 N.C. LEXIS 451 (1963).

General rule is that a will speaks as of the date of the death of the testator, and any property acquired after the making of a will, by reversion or otherwise, is subject to its terms. Ferguson v. Ferguson, 225 N.C. 375 , 35 S.E.2d 231, 1945 N.C. LEXIS 328 (1945).

Date of death. —

The general rule seems to be established that where a testator uses general terms, as “all of my estate” or “all of my lands or real estate,” then the devise will speak at the date of his death. Hines v. Mercer, 125 N.C. 71 , 34 S.E. 106, 1899 N.C. LEXIS 170 (1899).

A will takes effect and speaks as of the date of the testator’s death. Wachovia Bank & Trust Co. v. McKee, 260 N.C. 416 , 132 S.E.2d 762, 1963 N.C. LEXIS 716 (1963).

Construed as If Executed Immediately Prior to Death. —

As to the property devised or bequeathed, the will is construed as if executed immediately prior to the testator’s death. Peele v. Finch, 284 N.C. 375 , 200 S.E.2d 635, 1973 N.C. LEXIS 869 (1973).

Light of Circumstances at Time It Was Made. —

While the dispositive provisions of a will speak as of the death of the testator, in ascertaining testator’s intent the will must be considered in the light of the conditions and circumstances existing at the time it was made. Wachovia Bank & Trust Co. v. Green, 239 N.C. 612 , 80 S.E.2d 771, 1954 N.C. LEXIS 633 (1954).

Will Relates Back to Death When Probated and Recorded. —

Once a will is admitted to probate and recorded by the clerk, it relates back to the death of the testator. Hargrave v. Gardner, 264 N.C. 117 , 141 S.E.2d 36, 1965 N.C. LEXIS 1125 (1965).

Exception to General Rule. —

Where the testator refers to a specific subject of gift, with sufficient particularity in the description of the specific subject of it, showing that an object in existence at the date of his will was intended, referring to the existing state of things at the date of the will and not at his death, then the operation of the general rule is excluded. The death is a prospective event, but the date of the will refers to actual conditions. Hines v. Mercer, 125 N.C. 71 , 34 S.E. 106, 1899 N.C. LEXIS 170 (1899).

Ordinarily a will will be construed as though executed immediately prior to testator’s death, and it is only when the will describes a specific subject of gift with sufficient particularity to show that an object in existence at the date of the execution of the will was intended that the general rule is excluded. Tyer v. Meadows, 215 N.C. 733 , 3 S.E.2d 264, 1939 N.C. LEXIS 361 (1939).

Although this section ordinarily requires that a will be construed as though executed immediately prior to the testator’s death, this section will not be applied in a blind or mechanical manner and that other appropriate factors may be considered. Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538, 1979 N.C. App. LEXIS 2385 (1979).

Effect of Mental Incompetence on Testamentary Capacity. —

A will generally reflects the testator’s testamentary intent as of the date of his death. When a person becomes mentally incompetent, however, that person ceases to be able to form testamentary intent. In such cases, it would defy reason to hold that a testator’s will reflected his testamentary intent as of the date of his death, even though it had been legally determined that the testator was incapable of forming a testamentary intent for many years prior to that date. Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538, 1979 N.C. App. LEXIS 2385 (1979).

Construction of Will as to Identity of Devisee or Legatee. —

As to the identity of the devisee or legatee, a will is to be construed, nothing else appearing, in the light of circumstances known to the testator at the time of its actual execution. Peele v. Finch, 284 N.C. 375 , 200 S.E.2d 635, 1973 N.C. LEXIS 869 (1973); Palmer v. Ketner, 29 N.C. App. 187, 223 S.E.2d 913, 1976 N.C. App. LEXIS 2439 (1976).

Devise of “the Whole of My Lands” Passes After-Acquired Property. —

A devise of “the whole of my lands” to devisees, includes land acquired by the testator after the publication of his will when no intention to the contrary appears. A subsequent clause in the will, directing “my other property of every kind not before mentioned to be sold,” refers to other personal property. Edwards v. Warren, 90 N.C. 604 , 1884 N.C. LEXIS 285 (1884).

Date on Will Immaterial. —

When a writing purporting to be a will has been duly probated and thereby determined to be the last will of the deceased, it is effective as of the moment of testator’s death, and the date appearing on the instrument then becomes immaterial. In re Marks' Will, 259 N.C. 326 , 130 S.E.2d 673, 1963 N.C. LEXIS 568 (1963).

Devise of Interest in Another’s Estate. —

Inasmuch as a will speaks as of the time of testator’s death, a devise by O of her “undivided interest and property in the estate of the late G.C.” passes no such part of the distributive share in such estate as has been collected and received by O, for, immediately upon its payment to O, it became her property and ceased to be a part of the estate of G.C. Aydlett v. Small, 115 N.C. 1 , 20 S.E. 163, 1894 N.C. LEXIS 167 (1894).

Designation of Quantity of Land Does not Prevent Operation of Rule. —

Where a testator devised his lands south of a certain line, “containing by estimation two hundred acres,” and subsequently he purchased other lands south of the line, the reference to the number of acres did not prevent the latter lands being included in the devise. Brown v. Hamilton, 135 N.C. 10 , 47 S.E. 128, 1904 N.C. LEXIS 2 (1904).

Agreement to Sell Made Before Testator’s Death. —

Devise in will was not adeemed because of agreement to sell made before death when at the time of the testator’s death, he retained legal title to the real estate. Morrison v. Grandy, 115 N.C. App. 170, 443 S.E.2d 751, 1994 N.C. App. LEXIS 554 (1994).

Land under Contract of Purchase after Execution of Will. —

In re Champion, 45 N.C. 246 (1853), the devise was to testator’s wife: Item 1: “All my real estate, consisting of several lots in Shelby,” etc., and in Item 2: “All of my personal estate of whatever nature.” After the date of the will he contracted to purchase another tract, but had not paid for it at his death. It was held that his rights in the unpaid for land passed to his wife, on the ground that looking at the whole instrument, the intention to give the whole estate to his wife was manifest. Hines v. Mercer, 125 N.C. 71 , 34 S.E. 106, 1899 N.C. LEXIS 170 (1899).

Specific Bequest of Stock Did Not Include Accretion from Stock Split. —

A specific bequest of common stock took effect as if the bequest were made immediately before the testator’s death, and consequently the bequest did not include accretions resulting from a stock split occurring subsequent to the execution of the will and prior to testator’s death. North Carolina Nat'l Bank v. Carpenter, 12 N.C. App. 19, 182 S.E.2d 3, 1971 N.C. App. LEXIS 1264 (1971), aff'd, 280 N.C. 705 , 187 S.E.2d 5, 1972 N.C. LEXIS 1295 (1972).

Accretion from Recapitalization. —

Where testator owned 900 shares of the stock of a corporation at the time he executed a will bequeathing 10 shares of the stock to his employee, and, as a result of a recapitalization, the 900 shares were retired and 250,000 shares of new stock were issued to testator in lieu thereof prior to testator’s death, the employee was entitled to receive under the will only 10 shares of the stock as it existed at testator’s death without accretions resulting from the recapitalization. North Carolina Nat'l Bank v. Carpenter, 280 N.C. 705 , 187 S.E.2d 5, 1972 N.C. LEXIS 1295 (1972).

§ 31-42. Failure of devises by lapse or otherwise; renunciation; 120-hour survivorship requirement, revised simultaneous death act, Article 24, Chapter 28A.

  1. Unless the will indicates a contrary intent, if a devisee predeceases the testator, whether before or after the execution of the will, and if the devisee is a grandparent of or a descendant of a grandparent of the testator, then the issue of the predeceased devisee shall take in place of the deceased devisee. The devisee’s issue shall take the deceased devisee’s share in the same manner that the issue would take as heirs of the deceased devisee under the intestacy provisions in effect at the time of the testator’s death. The provisions of this section apply whether the devise is to an individual, to a class, or is a residuary devise. In the case of the class devise, the issue shall take whatever share the deceased devisee would have taken had the devisee survived the testator; in the event the deceased class member leaves no issue, the devisee’s share shall devolve upon the members of the class who survived the testator and the issue of any deceased members taking by substitution.
  2. Unless the will indicates a contrary intent, if the provisions of subsection (a) of this section do not apply to a devise to a devisee who predeceases the testator, or if a devise otherwise fails, the property shall pass to the residuary devisee or devisees in proportion to their share of the residue. If the devise is a residuary devise, it shall augment the shares of the other residuary devisees, including the shares of any substitute takers under subsection (a) of this section. If there are no residuary devisees, then the property shall pass by intestacy.
  3. Renunciation of a devise is as provided for in Chapter 31B of the General Statutes.

    (c1) The determination of whether a devisee has predeceased the testator shall be made as provided by Article 24 of Chapter 28A of the General Statutes.

  4. As used in this section, “devisee” means any person entitled to take real or personal property under the provisions of a will.

History. 1844, c. 88, s. 4; R.C., c. 119, s. 7; Code, s. 2142; Rev., s. 3142; 1919, c. 28; C.S., s. 4166; 1951, c. 762, s. 1; 1953, c. 1084; 1965, c. 938, s. 1; 1975, c. 371, s. 3; 1979, c. 525, s. 5; 1987, c. 86, ss. 1, 2; 1989, c. 244; 1999-145, s. 1; 2001-83, s. 1; 2007-132, ss. 3(a), (b).

Cross References.

As to intestate succession, see G.S. 29-1 et seq.

Effect of Amendments.

Session Laws 2007-132, ss. 3(a) and (b), effective October 1, 2007, and applicable to determinations of title to or devolution of property dependent upon the death of an individual occurring on or after that date, added “120-hour survivorship requirement, revised simultaneous death act, Article 24, Chapter 28A” in the section heading and added subsection (c1).

Legal Periodicals.

For brief comment on 1951 amendment, see 29 N.C.L. Rev. 425 (1951).

For article on lapse, abatement and ademption, see 39 N.C.L. Rev. 313 (1961).

For note concerning adopted children as issue, see 40 N.C.L. Rev. 650 (1962).

For survey of 1976 case law on wills, trusts and estates, see 55 N.C.L. Rev. 1109 (1977).

For article, “Class Gifts in North Carolina — When Do We ‘Call The Roll’?,” see 21 Wake Forest L. Rev. 1 (1985).

For legislative survey of trusts and estates, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the cases cited below were decided under this section as it appeared prior to the 1951 amendment and former G.S. 31-42.1 and G.S. 31-42.2.

Legislative Intent. —

The legislature did not intend that the issue of a devisee or legatee meeting the conditions of subsection (a) could be substituted for that devisee or legatee as to a specific devise or bequest and not allowed to be similarly substituted if the same devisee or legatee were named as one of the residuary devisees or legatees. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969) (decided under prior law) .

Construction. —

Subsection (a) of this section is designed and intended to prevent the lapse of a devise or bequest, whether it be specific or residuary, in a situation where the devisee or legatee, who would have taken had he survived the testator, predeceases testator survived by issue who survive the testator and who would have been heirs of testator had there been no will. If this situation does not exist, then the devise or legacy lapses and passes under the provisions of subdivision (c)(1) under the residuary or by intestacy, if there be no residuary. If lapse of a residuary devise or legacy cannot be prevented by application of subsection (a), then under subdivision (c)(2) it continues a part of the residue and passes to the other residuary legatees or devisees, if any. If none, it passes as if testator had died intestate with respect thereto. That this construction manifests the intent of the legislature is further evidenced by the clear language of the statute itself. Subdivision (c)(2) is applicable, with respect to residuary devises or legacies, only where subsection (a) is not applicable. It would follow, that if the legislature had intended to exclude residuary devises and legacies from the operation of subsection (a), it would have specifically limited the section to specific legacies and devises, omitted subdivision (2) from the provisions of subsection (c), and treated residuary devises and legacies in a separate provision of the statute unrelated to any other section. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969); Misenheimer v. Misenheimer, 62 N.C. App. 506, 303 S.E.2d 415 (1983) (decided under prior law) .

Original Section a Copy of English Statute. —

This section, as enacted in 1844 was a copy of the English statute upon the same subject. Holton v. Jones, 133 N.C. 399 , 45 S.E. 765, 1903 N.C. LEXIS 75 (1903).

This section is not ambiguous. The intention of the General Assembly in its enactment of this section is expressed in language which leaves no room for judicial construction. The distinction found in the common law for purposes of devolution is recognized and preserved. Farnell v. Dongan, 207 N.C. 611 , 178 S.E. 77, 1935 N.C. LEXIS 218 (1935); Beach v. Gladstone, 207 N.C. 876 , 178 S.E. 546, 1935 N.C. LEXIS 298 (1935).

This section applies to all wills and provides means by which property is to be distributed in the event of failure of devises and legacies by lapse or otherwise. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

This section is applicable to wills of persons dying on or after July 1, 1965. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969) (decided under prior law) .

Prior to the 1965 amendment, in a situation where testator gave the residue of his estate to A, B, and C, and A predeceased testator leaving no issue entitled to the property under the antilapse statute. A’s share would pass to the heirs of testator as intestate property. After the 1965 amendment the application thereof would result in A’s share continuing as a part of the residue for division among the other residuary legatees and devisees. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969) (decided under prior law) .

Subsection (a) applies to residuary devises or bequests. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969) (decided under prior law) .

Anti-lapse statute did not apply to case regarding distribution of proceeds from annuity contract. Hager v. Lincoln Nat'l Life Ins. Co., 126 N.C. App. 349, 484 S.E.2d 828, 1997 N.C. App. LEXIS 350 (1997).

Limitation Over Held to Lapse. —

Where testatrix left property in trust to her son for life with remainder over to his issue, and in the event the son should leave no issue, to testatrix’s brothers and sisters, and all except one of testatrix’s brothers and sisters predeceased her, and the sister who survived her died during the lifetime of the son, the limitation over to the brothers and sisters of testatrix lapsed, since the children of the brothers and sisters of testatrix who predeceased testatrix did not qualify under this section, and no transmittable estate vested in the sister of testatrix who died during the lifetime of testatrix’s son. Poindexter v. Wachovia Bank & Trust Co., 258 N.C. 371 , 128 S.E.2d 867, 1963 N.C. LEXIS 434 (1963).

Intent to Prevent Lapse. —

Should the testator desire to prevent lapse, he must express his intent that the gift not lapse or must provide for substitution of another devisee to receive the gift. In re Hubner, 106 N.C. App. 204, 416 S.E.2d 401, 1992 N.C. App. LEXIS 453 (1992).

Had testator intended the anti-lapse statute not to apply, he could have very easily shown such contrary intent, and it was not for the court to do that for him. Early v. Bowen, 116 N.C. App. 206, 447 S.E.2d 167, 1994 N.C. App. LEXIS 906 (1994).

Trial court improperly applied the anti-lapse statute, G.S. 31-42(a), to devises in a will to a son who predeceased the testatrix, because an article in the will specifically provided that any lapsed devises were to pass in the testatrix’s residuary estate. Colombo v. Stevenson, 150 N.C. App. 163, 563 S.E.2d 591, 2002 N.C. App. LEXIS 365 (2002), aff'd, 357 N.C. 157 , 579 S.E.2d 269, 2003 N.C. LEXIS 417 (2003).

Decedent’s failure to execute a will devising his interest in farmland to his son, which decedent promised to do in a separation agreement, caused his interest in that land to pass to the second wife, and not the minor grandchild after the son predeceased the decedent; accordingly, the trial court should not have granted summary judgment to the estate representative and the second wife because the minor grandchild had an action for specific performance of the agreement, even though he was not named in it, since the property upon the death of the decedent would have passed to the minor grandchild pursuant to G.S. 31-42 . Tyndall-Taylor v. Tyndall, 157 N.C. App. 689, 580 S.E.2d 58, 2003 N.C. App. LEXIS 926 (2003).

Intestacy Not Favored. —

No one supposes that he has failed in his intention to dispose of all of his property by his will, and the courts should endeavor to make out such an intention and to uphold the testamentary plan, so that the testator may not, as to some of his estate, have died intestate. Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141, 1916 N.C. LEXIS 40 (1916).

Legacy Not Lapsed by Fact That Legatee Predeceased Testator. —

A judgment that a legacy did not lapse by reason of fact that legatee predeceased testator was affirmed, it appearing that legatee would have been distributee of testator had she survived him. Beach v. Gladstone, 207 N.C. 876 , 178 S.E. 546, 1935 N.C. LEXIS 298 (1935).

Lapse Would Cause Impermissible Rewriting of the Will. —

To conclude from the survivor language of testator’s will that his intent was to favor the children of the brother who lived longest over the children of the brother who died first was an impermissible rewriting of the will rather than a construction of what was contained within the four corners of the document. Early v. Bowen, 116 N.C. App. 206, 447 S.E.2d 167, 1994 N.C. App. LEXIS 906 (1994).

Who Are Distributees. —

A distributee is a person who has the right under the statute of distribution to a share in the surplus estate of an intestate; one entitled to take a share of an estate of a decedent, under the statute of distribution; one to whom something has to be distributed in the division of an estate; a person upon whom personal property devolves by act of law in cases of intestacy. The determinative criterion is the right to share in the distribution of the personal estate of the intestate. Those who take by succession the estate of a person who dies intestate are named and defined in G.S. 28-149 (now G.S. 29-1 et seq.). Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150 , 48 S.E.2d 41, 1948 N.C. LEXIS 439 (1948).

Must Be Determined as of Date of Death of Testatrix. —

Who would have been distributees of the estate had the testatrix died intestate must be determined as of the date of her death and not as of the date of the execution of her will. Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150 , 48 S.E.2d 41, 1948 N.C. LEXIS 439 (1948).

Wife Surviving Testator Not Heir at Law but Distributee. —

Where the owner of real and personal property executed a will devising and bequeathing all his property, both real and personal, to his wife, the collateral heirs at law of the testator are entitled to the real property, the devise to the wife having lapsed by reason of her prior death, and the provisions of this section, not applying to prevent such lapse of the devise, since the wife would not have been an heir at law of testator had she survived him, but the children of the wife by a prior marriage are entitled to the personalty, since the wife would have been a distributee of the personal estate of her husband had she survived him, and this section providing that in such case the legacy should not lapse, but should go to the surviving issue of the legatee, the statute clearly recognizing the distinction between real and personal property for the purposes of devolution. Farnell v. Dongan, 207 N.C. 611 , 178 S.E. 77, 1935 N.C. LEXIS 218 (1935).

Where a wife dies leaving her husband but no issue he is her sole distributee, and her collateral kin are not entitled to share in the estate and are not “distributees.” Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150 , 48 S.E.2d 41, 1948 N.C. LEXIS 439 (1948).

Standing of Adopted Child. —

Where a parent by adoption is named a legatee in the will of her mother, but dies prior to the death of her mother, the adopted child takes the personalty bequeathed his mother by adoption under this section, even though the adoption was subsequent to the execution of the will, since under the provisions of G.S. 48-23 the adopted child has the same standing as though he had been born to his adoptive parent at the time of the adoption. Headen v. Jackson, 255 N.C. 157 , 120 S.E.2d 598, 1961 N.C. LEXIS 570 (1961).

Devise Void for Vagueness of Description. —

Where a testator attempted to devise to named devisees separate tracts of land described simply as, first, “my home and 30 acres of land surrounding the same,” second, “12 acres of my Plantation located in the Northwest corner of same,” and third, “12 acres on the East side of my Plantation,” a fourth item which attempted to devise the “remainder of my real estate” constituted an attempted specific devise of a particular tract, rather than a general residuary clause, and, the first three items being void for vagueness of description, the fourth item was also void. Taylor v. Taylor, 45 N.C. App. 449, 263 S.E.2d 351, 1980 N.C. App. LEXIS 2670 , rev'd, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

A renunciation is not a grant of legal title by the renouncer. It merely triggers a set of statutorily defined legal rights which ultimately determine ownership. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266, 1986 N.C. App. LEXIS 2224 (1986) (decided under § 29-10 as it read prior to Oct. 1, 1975).

A renunciation relates back to the death of the testator or intestate. The renouncer never actually holds legal title to the property. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266, 1986 N.C. App. LEXIS 2224 (1986) (decided under G.S. 29-10 as it read prior to Oct. 1, 1975).

A parol trust may not be engrafted upon a renounced interest. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266, 1986 N.C. App. LEXIS 2224 (1986) (decided under G.S. 29-10 as it read prior to Oct. 1, 1975).

Action Seeking Constructive Trust. —

Plaintiff, who sought to assert that defendant unduly influenced his decision to sign a “Petition to Renounce” his interest in will, could maintain an action seeking the declaration of a constructive trust. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266, 1986 N.C. App. LEXIS 2224 (1986) (decided under G.S. 29-10 as it read prior to Oct. 1, 1975).

Estate Passed into Intestacy Where Devise to Predeceased Spouse Lapsed and Will Had No Residuary. —

Since the decedent’s husband predeceased the decedent, the will’s devise to the husband lapsed, and since he was neither a grandparent of nor a descendant of a grandparent of the decedent, and had no issue, G.S. 31-42(b) controlled; where a condition precedent to a beneficiary taking under the decedent’s will did not occur and the will had no residuary clause, the estate passed by intestacy. Grant v. Cass, 173 N.C. App. 745, 620 S.E.2d 299, 2005 N.C. App. LEXIS 2255 (2005).

Estate Passed to Intestacy Where Residuary Devise Failed. —

Ex-husband only intended the residuary devise giving his property to his mother in law and parents to operate if the ex-wife did, in fact, predecease him, and because she did not, the condition went unfulfilled and the residuary devise failed; removing the condition precedent of the ex-wife predeceasing the ex-husband violated the statutes and undermined his intent, and as no other residuary clause existed, the ex-husband’s estate passed by intestacy to his siblings. Parks v. Johnson, 2022-NCCOA-129, 870 S.E.2d 280, 2022- NCCOA-129, 2022 N.C. App. LEXIS 134 (N.C. Ct. App. 2022).

II.Property Passing Under Residuary Clause

Editor’s Note. —

Some of the cases cited below were decided under this section as it appeared prior to the 1951 amendment and former G.S. 31-42.1 and G.S. 31-42.2.

Residuary Clause Comprises All Property Not Otherwise Provided for. —

It was intended by this section that the property passing by residuary clause of a will should comprise all the estate owned by the testator at time of his death not otherwise specifically devised or provided for, and should include any described in a devise which may have lapsed, or become void or incapable of taking effect. Renn v. Williams, 233 N.C. 490 , 64 S.E.2d 437, 1951 N.C. LEXIS 321 (1951).

Construction of Residuary Clause in General. —

In a residuary gift large enough in its language to comprehend residue, the question is, not what is included, but what is excluded; and one must find words sufficiently large, definite and distinct to enable him to say that some item is excluded, so that what hitherto has purported to be the residuary gift is reduced to the level of a specific gift, and ceases to be a residuary gift. Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141, 1916 N.C. LEXIS 40 (1916).

No particular mode of expression is needed to constitute a residuary clause. All that is required is an adequate indication that a particular clause was intended to dispose of property which was not otherwise disposed of by the will. Betts v. Parrish, 312 N.C. 47 , 320 S.E.2d 662, 1984 N.C. LEXIS 1779 (1984).

Construction to Prevent Intestacy. —

A residuary clause in a will should be construed so as to prevent an intestacy as to any part of the testator’s estate, unless there is an apparent intent to the contrary, plainly and unequivocally expressed in the writing. Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141, 1916 N.C. LEXIS 40 (1916).

It is a general rule always to construe a residuary clause so as to prevent an intestacy as regards any part of the testator’s estate, unless there is an apparent intention to the contrary. Betts v. Parrish, 312 N.C. 47 , 320 S.E.2d 662, 1984 N.C. LEXIS 1779 (1984).

When the language of the will is definite and clear, the presumption that the will must be construed to prevent partial intestacy is generally not employed. If the language is unambiguous, then there is no need to resort to a construction of the will, and the expression of the testator must be given effect. Betts v. Parrish, 312 N.C. 47 , 320 S.E.2d 662, 1984 N.C. LEXIS 1779 (1984).

Applicability of Former Subdivision (c)(1)a. —

Where it was clear from the residuary clause itself or other parts of the will, that the testator had in fact a contrary intention, namely, that the residue should not be general, and that things given away should not fall into the residue, subdivision (c)(1)a did not apply. Betts v. Parrish, 312 N.C. 47 , 320 S.E.2d 662, 1984 N.C. LEXIS 1779 (1984) (decided under prior law).

Applicability of Former Subdivision (c)(2). —

Former subdivision (c)(2) of this section was applicable only where there were other residuary devisees or legatees named in the will who survived the testator. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969) (decided under prior law) .

Subject Matter of Void Legacy Included in Residuary Legacy. —

A legacy which is void under the terms of G.S. 31-10 , which makes those legacies whose beneficiaries were attesting witnesses to the will void, passes under the residuary clause of the will. Renn v. Williams, 233 N.C. 490 , 64 S.E.2d 437, 1951 N.C. LEXIS 321 (1951).

Rule as to Residuary Clause Applies Only in Absence of Contrary Intention. —

A lapsed devise of lands will not fall within the residuary clause of a will, under this section, where a contrary intent appears from the construction of a will itself; and where the testator has specifically devised his lands, making ample provisions for his widow, and gives her, in the residuary clause, “all other property not herein specified,” and the use of the word “property,” with the expression “not herein specified,” shows the testator’s intent that a lapsed devise of the realty should not fall within the residuary clause, but will go to the testator’s next of kin instead of those of the widow or her devisees under her will. Howell v. Mehegan, 174 N.C. 64 , 93 S.E. 438, 1917 N.C. LEXIS 20 (1917).

If the will expresses an intent that a legacy shall not lapse in the event the legatee predeceases testatrix, the statutory provision for lapse does not apply. This intent need not be stated in exact terms, but is to be ascertained from the four corners of the will. Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150 , 48 S.E.2d 41, 1948 N.C. LEXIS 439 (1948) (wherein will showed no intent that legacy should not lapse upon prior death of legatee) .

No particular mode of expression is necessary to constitute a residuary clause in a will, and while the words “rest,” “residue,” or “remainder” are commonly used for the purpose, naturally placed at the end of the dispositive portion of the will, all that is required is an adequate designation of what has not been otherwise disposed of; and the fact that a provision so operating is not spoken of in the will as the residuary clause is immaterial. Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141, 1916 N.C. LEXIS 40 (1916); Barnacascel v. Spivey, 11 N.C. App. 269, 181 S.E.2d 151, 1971 N.C. App. LEXIS 1503 (1971).

Dependent upon the Intention of the Testator. —

Whether a clause is a residuary clause is not dependent upon any particular form of expression but upon the intention of the testator, and where a will provides that after the termination of a life estate that the whole estate should be reduced to cash and, after payment of certain specific bequests, distributed among a specific class, where the legacy of one of the class lapses by the death of the legatee prior to the testator’s death, the amount of such legacy is thrown into the fund for distribution among the class named, and it does not go to the next of kin of the legatee. Stevenson v. Wachovia Bank & Trust Co., 202 N.C. 92 , 161 S.E. 728, 1932 N.C. LEXIS 433 (1932).

“Residuary Devisee.” —

Residuary devisee is defined as the person named in a will, who is to take all the real property remaining over and above the other devises. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969).

“Residuary Legatee.” —

Residuary legatee is defined as the person to whom a testator bequeaths the residue of his personal estate, after the payment of such other legacies as are specifically mentioned in the will. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969).

“The Other Residuary Devisees or Legatees, If Any.” —

This section, by use of the words “the other residuary devisees or legatees, if any,” refers to those residuary devisees or legatees named in the will and not to “such issue of the devisee or legatee as survive testator” who may have been substituted under subsection (a) of this section. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518, 1969 N.C. App. LEXIS 1610 (1969) (decided under prior law) .

Heirs who partake of a devise pursuant to this section are entitled to a share of a lapsed residuary gift; if the predecessor would have taken a share of a lapsed residuary gift, then the qualified issue may also have participated in this lapsed gift. In re Will of Hubner, 105 N.C. App. 599, 414 S.E.2d 369, 1992 N.C. App. LEXIS 258 , sub. op., 106 N.C. App. 204, 416 S.E.2d 401, 1992 N.C. App. LEXIS 453 (1992).

Language disposing of property “not expressly disposed of by other provisions of the will” was a residuary clause and the decision concerning the taking of the lapsed share was controlled by In re Will of Huber , 106 N.C. App. 204, 416 S.E.2d 401 (1992). Moore v. Stern, 122 N.C. App. 270, 468 S.E.2d 607, 1996 N.C. App. LEXIS 242 (1996).

“All of the Residue” Embraces Personalty and Realty. —

General words in a residuary clause of a will, “all of the residue,” etc., embrace every species of property, whether real or personal, owned by the testator at his death, unless restricted by the context. Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141, 1916 N.C. LEXIS 40 (1916).

Devise Passing under Residuary Clause. —

It is settled law in this jurisdiction, by reason of the provisions of this section, that where a contrary intent does not appear in a will, ordinarily a lapsed, void or rejected devise will pass under an effective residuary clause. Featherstone v. Pass, 232 N.C. 349 , 60 S.E.2d 236, 1950 N.C. LEXIS 515 (1950).

Devise of Lapsed Residuary Gift. —

Heirs who partake of a devise pursuant to the anti-lapse statute are entitled to a share of a lapsed residuary gift. In re Hubner, 106 N.C. App. 204, 416 S.E.2d 401, 1992 N.C. App. LEXIS 453 (1992).

Where residuary legatees would have taken a share of a lapsed gift had they survived, their daughters, who were qualified issue, could take the entire share to which residuary legatees would have taken had they survived. In re Hubner, 106 N.C. App. 204, 416 S.E.2d 401, 1992 N.C. App. LEXIS 453 (1992).

Devise Not Passing under Residuary Clause. —

Testator devised certain property to his sister for life, remainder to the county to be used as a charitable hospital, with further provision that if the property should not be so used, the county should forfeit the right of possession and title, and the property pass to testator’s heirs at law. It was held that upon the renunciation by the county after the death of the life tenant, the remainder passes to testator’s heirs in accordance with the expressed intent of testator, leaving no interest to pass under the subsequent residuary clause of the will. Featherstone v. Pass, 232 N.C. 349 , 60 S.E.2d 236, 1950 N.C. LEXIS 515 (1950).

Effect of Failure to Name Devisee. —

There was a devise of land “to my . . . .” without naming the devisee, followed by a residuary clause of the will, “that all of the residue of my estate be sold, and if there should be any surplus over the payment of debts and expenses, that such surplus be equally divided and paid over” to certain named persons. It was held, that the failure to name the devisee brings the devise within the terms of the statute as to void devises, or those incapable of taking effect, and the property devised will go to the residuary legatees, and not to the heirs at law. Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141, 1916 N.C. LEXIS 40 (1916).

Devise Failing for Misdescription. —

A general residuary bequest carries lapsed and void legacies, and property which is the subject of a devise which fails by reason of a misdescription. Faison v. Middleton, 171 N.C. 170 , 88 S.E. 141, 1916 N.C. LEXIS 40 (1916).

Subject Matter of Void Legacy Included in Residuary Legacy. —

Under the provisions of this section, the property which is the subject matter of a void legacy, is included within the residuary legacy provided by the will, and should be delivered by the executor to the residuary legatees. Wilmington Sav. & Trust Co. v. Cowan, 208 N.C. 236 , 180 S.E. 87, 1935 N.C. LEXIS 374 (1935).

Lapse of Shares of Some of Residuary Legatees. —

Where the testator has named several beneficiaries in a residuary clause, and it appears upon the face of the will that several of these names have been run through with a pen, and the intention of the testator to revoke has been established, the beneficiaries whose names have been thus erased take nothing, and the whole estate, under the residuary clause, goes to the others therein named together with such legacies as may have lapsed. Barfield v. Carr, 169 N.C. 574 , 86 S.E. 498, 1915 N.C. LEXIS 266 (1915).

III.Devise or Legacy to Testator’s Slayer

Editor’s Note. —

Some of the cases cited below were decided under this section as it appeared prior to the 1951 amendment and former G.S. 31-42.1 and G.S. 31-42.2.

Subsection (a) Rather Than Subdivision (c)(2) Applies. —

If the court were to hold that subdivision (c)(2) of this section applies merely because the slayer does not, in fact, predecease the slain, the court would be ignoring the legislative scheme intended by the statutory presumption of the slayer’s death. Moreover, subsection (c) expressly states that that subsection applies only if subsection (a) is not applicable, thus making subsection (a) the dominant or controlling statute. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

Presumption in G.S. 31A-4(3) Equivalent to Actual Death. —

It was the intent of the General Assembly that the presumption in G.S. 31A-4(3) be equivalent to actual death for all purposes of determining the disposition of property of the testator. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

Distributed in Accord with Subsection (a). —

Because of the failure of a slayer’s legacy, the property that would have gone to him under the will had he not been convicted of killing the testator must be distributed in accord with subsection (a). Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

Where slayer’s two children are alive and would have been heirs of testator had he died intestate, slayer’s failed legacy must pass by substitution to them in accordance with subsection (a). Because of the conclusive presumption in G.S. 31A-4(3) that the slayer predeceased the testator, subsection (a), not subdivision (c)(2), applies. Misenheimer v. Misenheimer, 312 N.C. 692 , 325 S.E.2d 195, 1985 N.C. LEXIS 1506 (1985).

§§ 31-42.1, 31-42.2. [Repealed]

Repealed by Session Laws 1965, c. 938, s. 2.

Cross References.

For similar provisions, see G.S. 31-42 .

§ 31-43. [Repealed]

Repealed by Session Laws 2015-205, s. 3(b), effective August 11, 2015.

History. 1844, c. 88, s. 5; R.C., c. 119, s. 8; Code, s. 2143; Rev., s. 3143; C.S., s. 4167; 2011-284, s. 34; 2011-344, s. 8; repealed by 2015-205, s. 3(b), effective August 11, 2015.

Editor’s Note.

Former G.S. 31-43 pertained to when a general gift by will operates as an exercise of power of appointment.

Effect of Amendments.

Session Laws 2011-284, s. 34, effective June 24, 2011, rewrote the section catchline, which formerly read: “General gift by will an execution of power of appointment”; throughout the section, substituted “real property” for “real estate,” “personal property” for “personal estate,” and “the testator” for “he,” or similar language; and twice substituted “devise” for “bequeath” and “exercise” for “execution.”

Session Laws 2011-344, s. 8, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, throughout the section, substituted “the testator” for “he,” or similar language.

§ 31-44. [Repealed]

Repealed by Session Laws 1951, c. 762, s. 2.

§ 31-45. [Repealed]

Rewritten and renumbered as G.S. 31-5.5 by Session Laws 1953, c. 1098, s. 7.

§ 31-46. Validity of will; which laws govern.

A will is valid if it meets the requirements of the applicable provisions of law in effect in this State either at the time of its execution or at the time of the death of the testator, or if any of the following apply:

  1. The will’s execution complied with the law of the jurisdiction in which the testator was physically present at the time of execution.
  2. Its execution complied with the law of the place where the testator was domiciled at the time of execution or at the time of death.
  3. It is a military testamentary instrument executed in accordance with the provisions of 10 U.S.C. § 1044d or any successor or replacement statute.

History. 1953, c. 1098, s. 14; 2013-91, s. 1(g); 2019-178, s. 3(b).

Effect of Amendments.

Session Laws 2013-91, s. 1(g), effective June 12, 2013, added “, or if (i) its execution complies with the law of the place where it is executed at the time of execution; (ii) its execution complies with the law of the place where the testator is domiciled at the time of execution or at the time of death; or (iii) it is a military testamentary instrument executed in accordance with the provisions of 10 U.S.C. § 1044d or any successor or replacement statute” at the end.

Session Laws 2019-178, s. 3(b), effective July 26, 2019, rewrote the section.

CASE NOTES

Challenges to Validity. —

Although a trial court properly granted summary judgment to an executor where there was no evidence of a lack of testamentary capacity, the trial court erred in finding estoppel and no undue influence; a caveator showed that the caveator would have received a bequest in any event and that there were genuine issues of material fact relating to undue influence. In re Will of Smith, 158 N.C. App. 722, 582 S.E.2d 356, 2003 N.C. App. LEXIS 1229 (2003).

§ 31-46.1. Construction of certain formula clauses applicable to estates of decedents dying in calendar year 2010.

  1. Purpose. —  The federal estate tax and generation-skipping transfer tax expired January 1, 2010, for one year. To carry out the intent of decedents in the construction of wills and trusts and to promote judicial economy in the administration of trusts and estates, this section construes certain formula clauses that reference federal estate and generation-skipping transfer tax laws and that are used in wills or codicils of decedents who die in or before calendar year 2010.
  2. Applicability. —  This section applies to the following:
    1. To a will or codicil executed by a decedent before December 31, 2009, that contains a formula provision described in subsection (c) of this section if the decedent dies after December 31, 2009, and before the earlier of January 1, 2011, and the effective date of the reinstatement of the federal estate tax and generation-skipping transfer tax, unless the will or codicil clearly manifests an intent that a rule contrary to the rule of construction described in subsection (c) of this section applies.
    2. To the terms of a will or codicil executed by a decedent who dies before December 31, 2009, providing for a disposition of property that contains a formula provision described in subsection (c) of this section and occurs as a result of the death of another individual who dies after December 31, 2009, and before the earlier of January 1, 2011, and the effective date of the reinstatement of the federal estate tax and generation-skipping transfer tax, unless the terms of the will or codicil clearly manifests an intent that a rule contrary to the rule of construction described in subsection (c) of this section applies.
  3. Construction. —  A will or codicil subject to this section is considered to refer to the federal estate and generation-skipping transfer tax laws as they applied with respect to estates of decedents dying on December 31, 2009, if the will or codicil contains a formula that meets one or more of the following conditions:
    1. The formula refers to any of the following: “applicable credit amount,” “applicable exclusion amount,” “applicable exemption amount,” “applicable fraction,” “estate tax exemption,” “generation-skipping transfer tax exemption,” “GST exemption,” “inclusion ratio,” “marital deduction,” “maximum marital deduction,” “unified credit,” or “unlimited marital deduction.”
    2. The formula measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes.
    3. The formula is otherwise based on a provision of federal estate tax or federal generation-skipping transfer tax law similar to the provisions in subdivision (1) or (2) of this subsection.
  4. Judicial Determination. —  The personal representative or an affected beneficiary under a will or testamentary trust may bring an action in the superior court division of the General Court of Justice under Article 26 of Chapter 1 of the General Statutes, and the trustee of a trust created under the will or an affected beneficiary under the trust may bring a proceeding as permitted under Article 2 of Chapter 36C of the General Statutes to determine whether the decedent intended that the references under subsection (c) of this section be construed with respect to the federal law as it existed after December 31, 2009. The action must be commenced within 12 months following the death of the decedent.

History. 2010-126, s. 1.

Cross References.

As to construction of certain formula clauses in trust instruments applicable to estates of decedents dying in calendar year 2010, see G.S. 36C-1-113 .

Article 8. Testamentary Additions to Trusts.

§ 31-47. Testamentary additions to trusts.

  1. A will may validly devise property to:
    1. The trustee of a trust established before the testator’s death by the testator, by the testator and some other person, or by some other person, including a trust authorized by G.S. 36C-4-401 .1; or
    2. The trustee of a trust to be established at the testator’s death, if the trust is identified in the testator’s will and its terms are set forth in a written instrument executed before or concurrently with the execution of the testator’s will, regardless of the existence, size, or character of the corpus of the trust during the testator’s lifetime. The devise is not invalid because the trust is amendable or revocable, or because the trust instrument or any amendment thereto was not executed in the manner required for wills, or because the trust was amended after the execution of the testator’s will or after the testator’s death. A revocable trust to which property is first transferred under subdivision (2) of this subsection is an inter vivos trust and not a testamentary trust and, as of the date of the execution of the trust instrument, is subject to Article 6 of Chapter 36C of the General Statutes.
  2. Unless the testator’s will provides otherwise, property devised to the trustee of a trust described in subsection (a) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator’s death.
  3. Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death causes the devise to lapse.
  4. A devise to a trust shall be construed as a devise to the trustee of that trust.
  5. For purposes of this section, “devise,” when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.
  6. Nothing in this section alters, amends, or in any manner affects the application of the doctrine of acts of independent significance.

History. 1955, c. 388; 1957, c. 783, s. 1; 1975, c. 161; 2007-184, s. 1.

North Carolina Comment (2007)

This section is derived from Section 2-511 of the Uniform Probate Code as revised in 1990 by the National Conference of Commissioners on Uniform State Laws. The Official Comment to that section states in pertinent part, “As revised, it has been made clear that the “trust” need not have been established (funded with a trust res) during the decedent’s lifetime, but can be established (funded with a res) by the devise itself.”

Editor’s Note.

This comment is a drafters comment printed under the authority of Session Laws 2007-184, s. 3. This comment is the comment of the original drafters of Session Laws 2007-184 and has been printed as received.

Session Laws 2007-184, s. 3, provides: “The Revisor of Statutes shall cause to be printed along with this act all relevant portions of the official comments to Sections 2-510 (Incorporation by Reference), and 2-511 (Testamentary Additions to Trusts) of the Uniform Probate Code and all explanatory comments of the drafters of this act as the Revisor deems appropriate.”

Effect of Amendments.

Session Laws 2007-184, s. 1, effective July 5, 2007, and applicable to estates of decedents dying on or after that date regardless of when the will or instrument was executed, rewrote the article heading and the section.

Legal Periodicals.

For article, “The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina,” see 87 N.C.L. Rev. 1869 (2009).

§§ 31-48 through 31-50.

Reserved for future codification purposes.

Article 9. Incorporation by Reference; Acts of Independent Significance.

Editor’s Note.

Permission to include the Official Comments was granted by the National Conference of Commissioners on Uniform State Laws and The American Law Institute. It is believed that the Official Comments will prove of value to the practitioner in understanding and applying the text of this Chapter.

The Official Comments appearing under individual sections in this Article have been printed by the publisher as received, without editorial change, and relate to the Article as originally enacted. However, not all sections in this Article may carry Official Comments. Furthermore, Official Comments may or may not have been received or updated in conjunction with subsequent amendments to this Article and, therefore, may not reflect all changes to the sections under which they appear.

Where they appear in this Article, “Amended Comment” usually means that an error in the original comment has been corrected by a subsequent amendment, and “Supplemental Comment” pertains to a later development, such as an amendment to the statute text. North Carolina Comments explain where the General Assembly has enacted variations to the text of the Uniform Act.

§ 31-51. Incorporation by reference.

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

History. 2007-184, s. 2.

OFFICIAL COMMENTS

This section codifies the common law doctrine of incorporation by reference, except that the sometimes troublesome requirement that the will refer to the document as being in existence when the will was executed has been eliminated.

Editor’s Note.

The official comment provided above is reprinted from the Uniform Probate Code, Copyright 2004, National Conference of Commissioners on Uniform State Laws.

Session Laws 2007-184, s. 3, provides: “The Revisor of Statutes shall cause to be printed along with this act all relevant portions of the official comments to Sections 2-510 (Incorporation by Reference), and 2-511 (Testamentary Additions to Trusts) of the Uniform Probate Code and all explanatory comments of the drafters of this act as the Revisor deems appropriate.”

Session Laws 2007-184, s. 4, made this article effective July 5, 2007, and applicable to estates of decedents dying on or after that date regardless of when the will or instrument was executed.

Legal Periodicals.

For article, “The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina,” see 87 N.C.L. Rev. 1869 (2009).

§ 31-52. Acts and events of independent significance.

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the disposition made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. These acts and events may include the execution or revocation of another individual’s will and the safekeeping of items in a secured depository.

History. 2007-184, s. 2.

North Carolina Comment (2007)

The concept of “safekeeping” covers both the depositing and removal of items from the depository. Wall safes and safe deposit boxes are examples of depositories that are rebuttably presumed to be secure.

Editor’s Note.

This comment is a drafters comment printed under the authority of Session Laws 2007-184, s. 3. This comment is the comment of the original drafters of Session Laws 2007-184 and has been printed as received.

Legal Periodicals.

For article, “The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina,” see 87 N.C.L. Rev. 1869 (2009).

§§ 31-53 through 31-60.

Reserved for future codification purposes.

Article 10. Reformation or Modification of Wills.

§ 31-61. Reformation of will to correct mistakes.

The court may reform the terms of a will, if the terms of the will are ambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence what the testator’s intent was and that the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.

History. 2017-152, s. 1.

Editor’s Note.

Session Laws 2017-152, s. 6 made this Article as enacted by Session Laws 2017-152, s. 1, effective January 1, 2018, and applicable to estates of decedents dying before, on, or after that date.

CASE NOTES

Construction. —

Courts may consider any clear and convincing evidence to decipher language that is even patently ambiguous, so long as the language is determined to be ambiguous in the first instance; the statute does not empower a court to reform unambiguous provisions in a will. Moss v. Sprouse (In re Estate of Worley), 271 N.C. App. 27, 843 S.E.2d 300, 2020 N.C. App. LEXIS 297 (2020).

§ 31-62. Modification of will to achieve testator’s tax objectives.

To achieve a testator’s tax objectives, the court may modify the terms of a will in a manner that is not contrary to the testator’s probable intent. The court may provide that the modification has retroactive effect.

History. 2017-152, s. 1.

§ 31-63. Filing of action for reformation or modification of will; bar to caveat.

  1. An action for reformation or modification of a will shall be filed in the superior court division of the General Court of Justice under Article 26 of Chapter 1 of the General Statutes.
  2. The personal representative is a necessary party to an action for reformation or modification of a will.
  3. If a person interested in the estate files an action for reformation or modification of a will, that person is barred from thereafter filing a caveat to the will under Article 6 of this Chapter.

History. 2017-152, s. 1.