Less than one out of every three adults has a Will, and yet, the transfer of wealth from the Baby Boomers generation is expected to be the biggest in history. There is no simple solution to solve every problem that may arise in the future, especially after an individual passes away. A Will, however, may be the most practical way to provide friends and family with a sense of security for the years ahead, even after the death of the testator. For that reason, it is especially devastating when issues arise within the Will that cause strife among beneficiaries and family members.
Wills are typically created with the intention of making the transfer of the testator’s assets as simple as possible, but it is not uncommon for issues and disputes to arise. After all, no document is perfect, and everyone’s personalities, motivations, and desires may be different. There are many reasons to contest a will, but those involving issues during the creation or execution of the Will are the most common.
3 Common Reasons to Contest a Will
The most common reasons parties contest a Will in Georgia are outlined below.
Lack of Capacity
The testator may have lacked the required mental capacity to create a Will. This can be the result of dementia, mental illness, or a brain injury, among other things.
A testator must pass three criteria to be considered at full capacity. They must:
- Understand the nature and extent of their property
- Know the persons who would naturally benefit from the Will
- Realize the Will they are executing makes a disposition of their property
Just because a Will seems outlandish or “unfair” does not mean the testator lacked capacity. One should consult counsel if they believe the testator lacked the ability to make a disposition of their property.
Lack of Execution Formalities
Most states have strict execution formalities for creating a Will. If the execution procedure failed to meet those standards, probate of the Will is likely to be denied.
The requirements for executing a Will in Georgia are:
- The Will must be in writing, signed by the testator or by some other individual in the testator’s presence and at the testator’s express direction.
- Two competent witnesses must attest and subscribe to the Will within the sightline of the testator. Another individual may not stand in a witness’s place.
- A codicil (a written document that describes how the Will can be changed if needed) must be executed by the testator and witnessed in the same manner as the Will.
If any of these formalities are not met, the Will is unlikely to be admitted to probate.
Undue Influence or Fraud
If a testator’s disposition of property in their Will was a result of coercion or duress, that Will can be overturned if the challenger can prove it.
Cases of undue influence tend to be built largely on circumstantial evidence, which can make these cases complex, but far from impossible to prove. The types of evidence that may be considered includes but is not limited to:
- The testator’s relationships with beneficiaries, family, and business associates
- How reasonable the Will is or how in line it is with the testator’s known habits, motives, and feelings
- An evaluation of the individual accused of exerting undue influence
Just like in the case of a lack of capacity, a Will being unreasonable or “unfair” does not mean that there was undue influence. Additionally, if a testator changes their Will due to new information and influence, it does not automatically mean there was undue influence. A challenger must prove that the influence was undue or malicious.
How to Contest a Will in Georgia
Anyone who has an interest in an estate has the right to contest the Will. If an interested party wishes to contest a will, they must file a caveat. Generally, a caveat is filed in the probate court where the Will has been offered for probate. The caveator must contest on legal grounds and thereafter prove these grounds in court for their contest to be successful. Georgians needing to contest a Will in Georgia should contact a premier will dispute litigation attorney like Gaslowitz Frankel LLC.
About Gaslowitz Frankel LLC
We have the compassion and experience to guide beneficiaries toward understanding their unique situation and toward making the best decisions that optimize their outcomes. Our team has the expertise to address concerns beneficiaries have during the litigation process, including the desire to honor the deceased, avoid or minimize the time in court, alleviate stress, and make the best decisions for themselves and their families. Gaslowitz Frankel LLC has the passion and authority required to deliver clients with their ideal outcomes.
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