Having a will drafted is a responsible choice that can save your family members time and stress after you die. A properly drafted will typically goes through the Georgia probate process without any issues.
However, sometimes situations occur when someone wants to challenge the terms of the will and a will contest ensues. A will contest is often started by a family member who was left out of the will and believes there must have been a mistake.
One of the most common reasons for challenging a will is undue influence. This means when you made your will, you were pressured into drafting your will in a way that benefited someone else and went against your true wishes.
Georgia law states that to be valid, a will must be freely and voluntarily executed. If you were not free to put in the terms that you wanted, your will could be classified as fraudulent by a court due to undue influence.
Forms of undue influence
There are many ways that a person can exercise undue influence over someone else. Lying, threatening and coercion are all tactics that are often seen as undue influence.
A claim for undue influence usually comes after your will has been filed with the probate court. When you draft your will, you will select someone to be your personal representative.
After filing your will with the probate court, your personal representative must send notice to everyone with an interest in the will. Once notice is received, a party who wants to challenge the will based on undue influence must file a petition with the court.
A claim for undue influence must be based on more than a suspicion or feeling. As with any other court proceeding, the party claiming undue influence must prove their claim with evidence.
Factors involved in an undue influence claim
Some of the factors a court considers when determining if undue influence existed is if the alleged influencer had a close, confidential relationship with you. If they were simply an acquaintance of yours with whom you did not speak often, the chance that they were able to influence you is low.
A court will also examine you and your situation. People are more susceptible to undue influence if they are elderly, sick or having financial problems.
The alleged influencer must be someone who was involved in the drafting of the will. This does not mean they drafted the will themselves, but perhaps they helped you determine who you should give your property to or accompanied you to estate planning appointments.
The person claiming undue influence must show that the alleged influencer benefited from the will. Claiming undue influence against someone who received no benefit from the will is likely to be unsuccessful.
Preventing a claim of undue influence
You can reduce your chance of having your will challenged for undue influence by keeping friends or family members who you plan to include in your will out of the will drafting process. It helps to work with a professional who can draft your will and talk to you about other ways to avoid an undue influence claim.