Recently a Texas intermediate appellate court affirmed a trial court’s ruling to admit a Will for probate when the decedent did not personally sign it and only communicated his desires by blinking.  In the Texas case, the testator was rendered a paraplegic after a serious accident. While he was hospitalized for his injuries, he was intubated, which left him unable to speak.  He was paralyzed from the chest down, but he was able to communicate by blinking his eyes to indicate “yes” or “no.”  By blinking, the testator communicated his wishes to an estate planning attorney who asked a series of leading questions for the purposes of drafting a Will.  On execution, with a notary present, the attorney again asked a series of “yes” or “no” questions so that the testator could direct the notary to sign the Will for him.  When the testator died, his estranged wife sought to probate a prior, older Will and the testator’s sister sought to probate the newer Will produced by the testator’s blinking.  Following a jury trial, the Will produced by blinking was admitted to probate with the sister appointed as executor, but the wife was awarded significant attorney’s fees. Both the wife and sister appealed, with the sister prevailing on appeal.  The appellate court upheld the lower court’s ruling, concluding that the evidence was sufficient to show the following: (1) the testator had sufficient mental capacity to make a Will; (2) the Will was properly executed; and (3) the sister did not unduly influence the testator. The appellate court also found the wife lacked good faith in challenging the Will, largely based on evidence of a the couple’s very contentious separation and pending divorce proceedings, and reversed the attorney’s fees previously awarded to the wife.

So, how would this scenario play out in North Carolina? In North Carolina, there are a number of grounds to challenge a Will, including claims that the Will was created as a result of fraud, duress, without testamentary capacity, without meeting the requisites of North Carolina law, or out of undue influence by another person. Here’s an idea as to how the Texas case might be governed under North Carolina law.

Sufficient Testamentary Capacity

In North Carolina, there is a presumption that every person has the requisite capacity to make a Will. Anyone who challenges the Will bears the burden of proving that such testamentary capacity was lacking.

In North Carolina, a person has testamentary capacity if the Will suggests that the person generally knows (1) the kind, nature, and extent of the property he or she owns; (2) the individuals who would naturally be expected to receive property at death; (3) he or she is making a Will; and (4) the effect or legal consequences the Will has on the person’s estate. Broadly, this capacity can be defined to mean the level of competence that is sufficient to demonstrate that the testator “knew what he was doing” when he signed the Will.  While a person’s capacity to execute a Will could be challenged in a court proceeding, a testator’s capacity can be corroborated by witness testimony or medical records.

In the Texas case, testamentary capacity was proven through the use of witness testimony as well as extensive medical records. Nurses testified about the testator’s ability to communicate and his abilities to make and communicate his medical decisions.  The nurses’ testimony was corroborated by many medical records showing that the testator could understand and was able to direct his course of treatment even if he could not verbally speak.  Lay witnesses, such as friends or family members also testified at trial about the testator’s request, by blinking, to contact an attorney to execute a new Will. The estate planning attorney testified about the steps he took first to learn how to communicate with the testator by asking only “yes” or “no” questions and then verifying that the testator’s blink once indicated a “yes” or that by blinking twice, the testator was communicating “no.”  Once the attorney could communicate effectively with the testator, he verified the testator’s testamentary capacity by reviewing the four factors identified above.

In North Carolina, there are no requirements that a person must be verbally communicative to establish testamentary capacity.  Therefore, as with the Texas case, a testator in North Carolina in a similar position would likely be able to demonstrate sufficient testamentary capacity.  In certain cases where a person’s capacity could susceptible to a court challenge, our law firm’s best practices include asking for medical documentation to verify a person’s competency or even take a video of a testator when testing a person’s capacity.  The amount and type of evidence will vary for each case.

Properly Executed Will in Compliance with North Carolina Law

Under North Carolina law, any person who is age 18 years or older and who is of sound mind may make a Will.  There are several kinds of valid Wills in North Carolina: attested Wills, holographic Wills, and nuncupative or oral Wills. For purposes of this article, we’ll focus only on an attested Will, which was at issue in the Texas case.

As for attested Wills, both real and personal property may be distributed through an attested written Will.  In North Carolina, this is a written Will that is signed by the testator and attested by at least two competent witnesses.  Under North Carolina law, and similar to the Texas case, the testator can sign a Will for himself or ask someone else to sign the Will for him. In North Carolina, if someone else is signing for the testator, the Will must be signed in the testator’s presence and at the testator’s direction to sign the testator’s name.   The two witnesses who sign must indicate that the document was a Will that was either (1) signed in their presence or (2) that the testator acknowledged to them that the testator signed previously, which would allow the witnesses to sign separately without being together at the same time.

Only half the states, including North Carolina, acknowledge the validity of holographic Wills, upon meeting additional legal requirements.  In North Carolina, to be valid, a holographic Will must be (1) written entirely in the testator’s own handwriting, (2) signed by the testator, (3) reflect a testamentary intent to distribute property, and (4) be found after death among the testator’s valuable papers in a safe place, such as a safe deposit box or with a trusted advisor.  The best evidence to support these elements will be from witnesses who can testify that the handwriting belonged to the testator and that the Will was found in a safe place after death.

While Texas law may not have addressed whether a testator can direct another person to sign a Will, North Carolina law would permit someone else to sign a Will at the direction of the testator as long as that person signs in the testator’s presence.  In Texas, there were two competent witnesses who watched the testator blink out his desire for a third person to sign the Will; these witnesses then signed the Will.  Like the Texas case, it is likely that North Carolina law would support the validity of a Will communicated by blinking and signed by another person at the testator’s direction.

Undue Influence

In North Carolina, undue influence exists when a person uses coercion to influence a testator into executing a Will that does not accurately reflect the testator’s true wishes.   In order to constitute undue influence, an individual’s motives need not necessarily be malevolent.  Rather, the legal test turns on whether the individual’s conduct destroyed the free will of the testator and resulted in the testator’s doing what he or she otherwise would not have done. Undue influence is more than mere persuasion. Undue influence is most often seen in cases where a testator makes unusual dispositions of property to people who are unrelated or who would not otherwise receive property from a testator or when a testator executed a Will while he or she was very sick or vulnerable and depending on others.

North Carolina courts perform a fact intensive test in determining the existence of undue influence. These factors include: the testator’s age, physical health or infirmities, the testator’s mental condition, the testator’s dependence on others like the influencer for assistance, the testator’s opportunity to associate with persons other than the influencer, the testator’s relationship with the beneficiaries named in a Will. While no one factor is considered more than others, courts examine and weigh the surrounding facts and circumstances to determine whether a person has applied undue influence to induce a testator to execute a Will in their favor.

Proof of undue influence requires more than merely suggesting, advising, or persuading someone into changing or writing a Will.  Medical records will play a powerful toon in a case that challenges undue influence.  The best proof often comes from witnesses who knew the testator well, such as family members, doctors, and other close advisors. 

In the Texas blinking case, witness testimony and medical records outlined who visited the testator in the hospital leading up to and during the time the testator signed the Will.  There was evidence from numerous witnesses that identified the testator’s sister as the only person he trusted.  The sister was never present when the testator met with the estate planning attorney or when the testator executed the Will. Conversely, the estranged wife’s evidence of undue influence, comprised mostly of self-serving evidence, supported that the testator’s disposition of his estate to exclude his estranged wife and children was born more out of the animosity that played out in their pending divorce instead of any role the sister played in the testator’s life.

It is likely that with similar evidence as brought forth in the Texas case, North Carolina could also make a similar finding against undue influence. 

To conclude, most people hope to avoid a legal challenge when they pass away.  Notably, however, often a Will is not challenged until a person dies.  North Carolina law now permits a process referred to as a “living probate,” where a person can initiate a legal proceeding during their lifetime to avoid a challenge to a Will after death.  In North Carolina with the living probate, the Texas testator could have guaranteed that his Will and the wishes expressed within the Will could not be challenged after his death. During an estate planning consultation with the Elder Law Practice Group of CSH Law, our experienced attorneys will discuss with our clients all details regarding his or her family, assets, and general well-being before getting into the specific terms of a Will or Trust.  We are personally present at the Will signing, along with two disinterested witnesses from our practice and explain to a client (as testator) the terms of the Will in order to make sure that the provisions adhere to his or her testamentary intent.  We take these issues seriously and will decline to prepare or witness estate-planning documents for a client if the client lacks capacity or is being unduly influenced.   As such, we will have no problem defending our work product if our client’s Will is ever challenged on the basis of capacity or undue influence upon his or her death. Let us know how we can help you craft an estate plan that meets your every goal.