If you are considering contesting a Will, it is important to understand the risks and costs associated with litigating a Will contest. Will contests can be more emotional and taxing than other kinds of litigation, and the success rate of Will contestants is relatively low.
Despite the odds, however, there are plenty of examples of successful Will contests where the Court refuses to probate and a Will was rewritten or thrown away. The attorneys at Gaslowitz Frankel LLC have had over three decades of experience as industry leaders in fiduciary law in Georgia. A probate litigation attorney can help you determine the strength of your case.
What is the Success Rate of Contesting a Will?
Overall, very few Wills are contested – less than 1%. Because the mental capacity required to create a Will is minimal, few contestants succeed in proving that their testator lacked the requisite capacity. Given these odds, and the expense of litigation, , many beneficiaries do not believe it is in their best interests to contest a Will.
Even when a Will contest is filed, the majority are settled prior to trial. Instead, most litigants settle their cases between the close of discovery and trial.
Reasons Why a Will Contest May Fail
Some common reasons that Will contests are unsuccessful include:
- The statute of limitations: interested parties may put off contesting a Will until it is too late.
- Lack of standing: A party that wants to contest a Will must prove that they are an interested party with the legal right to challenge. State law determines whether the contesting party has a legal standing.
Lack of evidence: Will contests that are based on a litigant’s sense of fairness rather than evidence are destined to fail. Unfortunately, family resentment often comes into play around Wills, and Georgia law makes it easy to disinherit a loved one. Setting aside a Will requires proof of lack of capacity, undue influence, fraud, etc.
The Evidence Necessary for a Successful Will Contest
The reason for the challenge will determine the type of evidence that your lawyer will seek when building your case. Types of evidence include:
- Medical evidence: in cases where there is a Will contest based on a lack of mental capacity, one seeks medical evidence that the testator lacked the requisite mental capacity when he signed his Will. This can be proven through medical records and psychological evaluations.
- Evidence of fraud or improper execution: Records of fraud or improper Will execution, like improperly notarized documents, forgeries, or testimonies of a lack of witnesses required for the Will to be signed.
- Evidence of undue influence: to prove that the Will is the product of undue influence by a third party, all varieties of circumstantial evidence are admissible, including evidence regarding the testator’s relationships with his family and the alleged influencer, whether the testator was physically dependent on the influencer, and how much involvement the alleged influencer had in the creation of the Will. .
Read More: Evidence Needed to Contest a Will in Georgia
If you’re considering challenging a Will, seek assistance from a legal expert specializing in will and estate litigation. At Gaslowitz Frankel LLC, our experienced attorneys can assist beneficiaries in gathering and presenting evidence, helping them comprehend their unique circumstances and make informed decisions.
Our team is well-versed in addressing any concerns that arise during the litigation process, including preserving the deceased’s legacy, minimizing court time, reducing stress, and making the best choices for beneficiaries and their families.
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