Getting left out of a loved one’s will can leave you feeling betrayed, abandoned, and unfairly slighted. It is not uncommon for adult children to find that their deceased parent has left everything to a new spouse, despite the parent’s previous assurances to the contrary. While you may be eager to challenge the terms of the will, succeeding in a will contest is no easy feat. Here’s everything you need to know before you attempt to contest a will.
Who can contest a will?
A will cannot be challenged by just anyone. A will contest can only be brought by an interested party. Interested parties include heirs, beneficiaries of the current or previous wills, and named executors of the current or previous wills. Interested parties are usually family members (children, heirs, or spouses) who feel they have been treated unfairly or unjustifiably left out of their loved one’s will, but anyone who would benefit from the will being denied probate has standing to contest the will.
How long do you have to contest a will?
The time in which a will can be contested varies widely from state to state. In Georgia, the answer depends upon the manner of probate the executor selects. If the executor probates the will in common form, there is no requirement that the heirs be notified first. In that case, the law gives interested parties has four years from the time of probate to contest the will. If the executor elects to probate the will in solemn form, all heirs must be notified and given time to object to the will before the will is admitted to probate. There is no requirement that all interested parties receive notice prior to solemn form probate however, which can result in interested parties missing their opportunity to object to the will.
On what grounds can you contest a will?
You cannot contest a will simply because you disagree with the terms. In order to contest a will, you must be able to prove sufficient grounds. The following are grounds for contesting a will in Georgia:
- Testamentary capacity- If the testator lacked the mental capacity to express his desires for the distribution of his assets after his death, or to fully comprehend his natural heirs, assets, and the testamentary plan set out in the will, there may be grounds for contest. Substantial evidence, such as medical records or physician’s statement, would be needed to support the claim.
- Execution- In Georgia, there are five legal requirements for a will to be validly executed. The testator must be at least 14 years old. The will must be in writing and signed by the testator (or some other individual in the testator’s presence and at the testator’s express direction) in the presence of two competent witnesses, each of whom must also sign the will. A competent witness is anyone who is capable of distinguishing right from wrong. If even just one of these requirements isn’t met, this may be grounds for contesting the will.
- Undue influence- The will may be contested if it can be proven that the will is the result of undue influence exerted over the testator. Undue influence is a factual question that requires consideration of the relationship between the testator and the accused influencer, the testator’s mental state and dependence, or lack thereof, on the accused influencer, and whether the will appears reasonable.
- Fraud – A will may also be set aside for fraudulent inducement. This could occur where the will is the result of fraud perpetrated on the testator, upon which the testator relied in executing the will, and which was intended to induce the testator to execute the will,
What is the difficulty of contesting a will?
Will contests can be very difficult to win. It is difficult to overcome the testimony of witnesses to a will that the testator appeared competent at the time the will was executed. Even where tangible evidence to support claims of mental incapacity, undue influence, or fraud exist, finding that evidence can be costly and time consuming.
Before initiating a will contest, you should seriously consider whether the evidence you have is sufficient to support your claim or whether there is a reasonable chance that you will be able to discover such evidence during the litigation. If you are considering contesting a will, you should consult an experienced attorney who can evaluate your case to determine the best course of action.
The attorneys at Gaslowitz Frankel have more than 30 years of experience navigating successful outcomes in will disputes without having to resort to litigation. Our attorneys are among the most well-respected and experienced fiduciary litigators in Georgia. If you are involved in a will dispute and need legal assistance, contact us today at 404.892.9797 for a case evaluation.
