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Contesting a will in Georgia

On Behalf of | Apr 4, 2022 | Probate Litigation |

The death of a close friend or loved one is almost always a sad event. Occasionally, the sadness is increased by the unfavorable reaction of one or more potential heirs to one of the terms in the will. Perhaps the deceased person omitted a relative completely from the bequests in the will or one or more bequests were less than the heir was expecting. Because the maker of the will is no longer available to make amendments to the will, the only practical alternative is to file a will contest in the district court having jurisdiction over the administration of the will.

What is a will contest?

A will contest is a lawsuit that seeks to have either a single term or the entire will declared invalid. If the contest succeeds, the court will treat the matter as if the decedent had died without a will. Will contests are difficult to win, but a survey of the various grounds for invalidating a wiil can offer a person a sense of the likelihood of obtaining such relief.

The grounds for invalidating a will

Every state, including Georgia, has rigorous rules for holding that a will is valid.

  • The first rule concerns what are usually called the “formalities.” Every will must be signed by the maker of the will. The actual signing of the will must be witnessed by at least two persons who are competent to testify that the will was properly signed. Each witness must sign the will in the presence of the other witness. The failure to honor the formalities will almost aways cause a will to be declared to be invalid.
  • A second important ground for declaring a will to be invalid is what is called “lack of testamentary capacity. The maker of the will must have the mental capacity at the time of signing to understand the purpose and effect of the will. In Georgia, testamentary capacity is defined as the “decided and rational desire” on the part of the maker of the will to use the will to dispose of his or her property. Proving lack of testamentary capacity can be very difficult; such proof usually requires testimony from a physician who treated the testator before the will was signed.
  • A third important reason for invalidating a will is proof that one or more heirs exercised undue influence over the testator before or at the time the will was signed. Undue influence generally requires proof that one or more heirs had a uniquely close and personal relationship with the testator. The final reason that wills can be declared invalid is proof that the will or a particular bequest was procured by fraud. A typical example of such fraud is a statement by a prospective heir to care for the testator or one of the testator’s children. The fraudulent statement must concern a material fact and be intended to be false.

Will contests are typically difficult to win. Anyone contemplating such a step may wish to consult a lawyer with experience in will contests for an evaluation of the evidence and an opinion about the likelihood of prevailing.