Q: North Carolina will challenge. Do I need to prove BOTH Mental Capacity to make a will AND Undue Influence?
I am pretty sure I can meet the burden of proof for Undue Influence. Mental Capacity I may not be able to defeat.
Can I prevail in North Carolina Law with just the Undue Influence alone to set aside the will?
A: No, you can successfully contest a will by proving only undue influence.
A: I agree with my colleague that you only need to prove undue influence, but realize that some diminished capacity is a sub-element of undue influence. For example, if the CEO of a Fortune 500 company leaves his entire estate to his girlfriend, disinheriting his wife and children, chances are you are going to have a hard time proving undue influence. There was influence, for sure, but said CEO is/was an adult with a sophisticated legal team, etc., capable of making his own rational decisions.
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