Will Disputes

Gaslowitz Frankel - Will Disputes

A Will is a legal instrument that enables people to exercise some control over their estate after death and provide their loved ones with security. As a legally binding document that dictates how your estate is distributed, each Will typically has a designated executor with a fiduciary duty to carry it out in good faith per its terms and the best interest of the beneficiaries. Sometimes, there are co-executors who must act together when administering the estate. Unfortunately, Atlanta Will disputes are common.

However, because of the emotions that come with administering a Will, disputes sometimes arise. Perhaps you feel they wrongfully left you out of the Will or suspect someone coerced your loved one into changing it. Maybe the document does not meet state requirements, or you feel the asset or property you received was not what you are entitled to in amount or type. Sometimes, the executor can even breach or neglect their duties. In such instances, if you cannot resolve these issues through communication and compromise, hiring a Will dispute attorney is invaluable to ensure you receive what you deserve. Still, you must first know if you are in a position to dispute a Will.

Generally speaking, you can contest a Will if:

  • You were the beneficiary of a past Will.
  • You were the beneficiary of the current Will.
  • You are the beneficiary of a newer will made after the one you are contesting.
  • You would be the heir if no Will and intestacy law applied.

 

The probate process is complicated and impossible to navigate without the legal expertise of Will dispute lawyers. Whether you need an attorney to defend against a Will contest or want to contest a Will, family will disputes are emotionally exhausting. Premier Will dispute lawyers in Atlanta, Georgia, Gaslowitz Frankel, can determine if you have grounds to take legal action, alleviate pressure and stress, and represent you in probate courts. Ultimately, countless circumstances may qualify you to pursue a Will dispute – the only way to know if you are eligible and what recourse you have is to consult with a premier firm. With us, you always have a home court advantage in the courtroom.

Common Grounds For Contesting A Will

Family will disputes are complicated. While divorce may legally dissolve a marriage, it does not always cut all links between former spouses. Sometimes, an ex-spouse will retain legal and financial ties to former spouses and may even continue to be the beneficiary of their Will.

Typically, the formal dissolution of a marriage voids any provision in a Will naming an ex-spouse a beneficiary or personal representative. That means provisions that leave them things like property do not apply, and the rest of the document remains legally enforceable. The designation as guardian for your minor child usually stays intact, but an ex-spouse typically doesn’t receive any assets.

In Georgia, state law automatically revokes any provisions in favor of the former spouse, and the law treats your ex-spouse as if they died before you. Still, ex-spouses can be a beneficiary and inherit after divorce under Georgia law if the Will was made or redrafted after finalizing the divorce. In instances where an ex-spouse is still a beneficiary or ‘interested person,’ they have the right to contest the Will.

Each state has procedural requirements for the execution of a Will, including a number of required witnesses. The State of Georgia maintains strict execution formalities, and a Will that does not conform to the statutory requirements will be held to be invalid. Specifically, the testator, or individual who is creating his or her Will, must sign the written legal document in the presence of two witnesses who are not beneficiaries of the Will.

A testator must have testamentary capacity to create a valid Will. This requires the testator to be of sound mind, as shown by his or her capacity to:

  • Understand the nature and extent of his or her property;
  • Know the persons who would naturally benefit from the Will (such as a spouse and children); and
  • Realize that the Will he or she is executing does indeed make a disposition of his or her property.

 

A person may be shown to have lacked testamentary capacity if it can be proven that at the time of executing the Will, he or she was suffering from dementia or mental illness or was under the influence of alcohol or drugs.  The mere fact that a person showed some signs of advancing age, feebleness, or eccentricity is not enough, in and of itself, to prove lack of testamentary capacity.  However, these factors may be considered as some evidence of incapacity.

A Will can be overturned if the challenger proves that at the time the Will was signed, the deceased person was subjected to such overwhelming influence by another that he or she made a disposition of estate property that he or she otherwise would not have made. Coercion and duress are examples of undue influence.

When a challenger tries to prove that the Will was a product of undue influence, the courts will consider a wide variety of circumstantial evidence, including but not limited to:

  • The testator’s relationships with beneficiaries, family, and business associates;
  • The reasonableness or unreasonableness of the Will, in light of the testator’s habits, motives, and feelings;
  • The conduct and demeanor of the testator and the person accused of exerting undue influence.

 

A testator in a weakened mental state is considered to be more susceptible to undue influence.  For example, if a feeble or ailing testator unexpectedly leaves a very large bequest to a caregiver, the testator’s family members may interpret that as an indication that the caregiver exerted undue influence. The family members would have to present additional evidence of the caregiver’s exertion of undue influence, however, because an unexpected or unexplained distribution, while concerning, is not, by itself, enough to invalidate a will.

To invalidate a Will on grounds of fraud, the challenger generally must show that the deceased person relied on a fraudulent misrepresentation and was deceived by it when he or she signed the Will.  This means the challenger must be able to show that the fraud had an effect on the deceased person, and not simply that there was opportunity or motive for fraud.

Proving fraud is difficult, as it requires proof of five elements:

  • The person accused of fraud made a false statement (or omitted to disclose a material fact),
  • He or she made the false statement knowing it was false (or the omission caused the statement to be false),
  • He or she made the false statement or omission with the intention of inducing the testator to act or refrain from acting in reliance on that false statement,
  • The testator relied on the false statement or omission, and
  • The testator signed the Will as a result of that reliance on the false statement or omission.

A validly executed Will is presumed to revoke any prior Wills. Only the most recent Will can be filed with the Probate Court. While a testator often retains a copy of the Will at home, it is not uncommon for the attorney who drafted the Will to hold original versions in his or her office. Additionally, many testators file their Wills in the local Probate Court prior to death. The executor has a fiduciary duty to conduct a diligent search for the most recent Will.

Consult with an Experienced Attorney

The attorneys of Gaslowitz Frankel have years of expertise in handling the complex issues surrounding Will disputes. For trusted legal guidance and professional discretion, consult with the attorneys of Gaslowitz Frankel.

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