N.C. Gen. Stat. » Chapter 31
NC General Statutes

N.C. Gen. Stat. § 31-41 (2026)

Will relates to death of testator

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

 

Notes of Decisions
Cited in 14 cases, 1945–2009 · leading case: Thomas v. Thomas, 129 S.E.2d 239 (N.C. 1963).
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Thomas v. Thomas, 129 S.E.2d 239 (N.C. 1963). · cites it 3× “G.S. § 31-41; Wachovia Bank & Trust Co. v.”
Tighe v. Michal, 254 S.E.2d 538 (N.C. Ct. App. 1979). · cites it 2× “G.S. 31-41. When a person becomes mentally incompetent, however, that person ceases to be able to form testamentary intent.”
Edmundson v. Morton, 420 S.E.2d 106 (N.C. 1992). · cites it 3× “Carpenter, unlike the instant case, the primary issue was whether pursuant to N.C.G.S. § 31-41, with respect to testamentary intent, “the will should speak as of the date of its execution rather than the date of the testator’s death.”
Matter of Est. of Warren, 344 S.E.2d 795 (N.C. Ct. App. 1986). “G.S. 31-41. When a person becomes mentally incompetent, however, that person ceases to be able to form testamentary intent.”
Wachovia Bank & Trust Co. v. Andrews, 142 S.E.2d 182 (N.C. 1965). “1 of the Fourteenth Amendment to the Constitution of the United States, forbid the Legislature from diminishing a vested interest by artificially increasing 'the class in which the estate has vested.”
Morrison v. Grandy, 443 S.E.2d 751 (N.C. Ct. App. 1994). · cites it 4× “Legal fiction should not be considered when there are relevant statutes, such as N.C. Gen. Stat. § 31-41 (1984), which apply.”
Gatling v. Gatling, 79 S.E.2d 466 (N.C. 1954). “It would seem from reading the will as a whole that the devise to the children after the death of the life tenant should be regarded as general rather than specific, since we have a statute G.S. 31-41 which states that every will shall be construed to speak and take effect as if…”
Wachovia Bank & Trust Co. v. Green, 80 S.E.2d 771 (N.C. 1954). “*618 Tbe general rule is that where no language showing a contrary intent appears in a will, a child adopted either before or after the execution of the will, but prior to the death of the testator, where the testator knew of the adoption in ample time to have changed his will…”
Moore v. Stern, 468 S.E.2d 607 (N.C. Ct. App. 1996). · cites it 2× “Defendants argue the legislative history shows the amendments were meant only to clarify the shares of a class gift available by substitution to qualified issue of deceased class members under G.S. § 31-41(a), and were not intended to give qualified issue a right to share by…”
Palmer v. Ketner, 223 S.E.2d 913 (N.C. Ct. App. 1976). “G.S. 31-41. As to the identity of the devisee or legatee, however, it is to be construed, nothing else appearing, in the light of circumstances known to the testator at the time of its actual execution.”
Hargrave v. Gardner, 141 S.E.2d 36 (N.C. 1965). “probate constitutes conclusive evidence that the paper writing is the valid will of decedent until it is declared void by a competent tribunal or an issue of devisavit vel non in a caveat proceeding.” Holt v. Holt, 232 N.”
Granville v. YEDDO, 682 S.E.2d 247 (N.C. Ct. App. 2009). · cites it 2× “]" N.C. Gen. Stat. § 31-41 (2007). In this case, Testator is still living and therefore her will has not taken effect.”
Show all 14 citing cases →
N.C. Gen. Stat. § 31-41(a): 1 case
Moore v. Stern, 468 S.E.2d 607 (N.C. Ct. App. 1996). “Defendants argue the legislative history shows the amendments were meant only to clarify the shares of a class gift available by substitution to qualified issue of deceased class members under G.S. § 31-41(a), and were not intended to give qualified issue a right to share by…”
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