Most wills pass through the probate process without any problems. There are some situations; however, where a dispute arises and a person might want to challenge the validity of a will. Georgia courts often consider a Last Will & Testament to be the final voice of the person – therefore, the court is less likely to stray from the contents of that will. A will challenge can be difficult, but it is possible.
Types of Will Challenges
In Georgia, probate courts refer to will challenges as a will caveat. They’re also known as will contests, will attacks, or contesting a will. Will caveat is the legal documentation you file in court to challenge the validity of a person’s Last Will & Testament. There are several different types of will challenges or will caveats. Some of the most common are:
- Testamentary Capacity: The person challenging the will may claim that the testator (the person who drafted the will) did not have the mental capacity to make the will. This may be due to a mental impairment or medical issue. The testator may not have fully understood the nature of their family, the type and value of property owned, or how the Last Will & Testament would distribute their property.
- Undue Influence: This happens when someone strongly pressures or unfairly forces the testator into drafting a will, leaving assets to certain benefactors, or making a direct gift while they’re still alive. Often, the person doing the influencing is a relative, trusted friend, or caregiver. The “influencer” forces the testator to draft their will in a way that would benefit them.
- Improperly Executed Will: For a will to be valid in Georgia, it must be 1) in writing, 2) signed by the testator, and 3) witnessed and signed by two competent people. If the Last Will & Testament does not meet these legal formalities, a person can challenge the document for being improperly executed.
- Fraud: The two types of fraud that people commonly claim are 1) fraud in the execution of a will – meaning that the testator was misled in the process of signing the document, or 2) false representations in the inducement of a will – meaning that the testator was misled as they were creating their will.
- Forgery: A person challenging the validity of a will may claim that someone changed the legal document without the testator’s knowledge or permission, or that someone faked the signatures on the Last Will & Testament.
- Incorrect Version: For this will caveat, the person making the challenge is claiming that the will submitted for probate was not the correct version. There is a more current (newer) version that should have been submitted.
Who Can Challenge a Will?
Under Georgia law, any interested parties can challenge a Last Will & Testament. This means anyone who may benefit from, or be financially harmed by, a prior or current version of the will. For someone to challenge a will, they must first prove that they 1) were named in the will, 2) should have been named in the will, or 3) would have received something of value if the testator died without drafting their will.
A person can file a will challenge prior to probate. Or, once the will has been submitted to probate and all parties notified, the person who wants to challenge the will has 10 days after their date of notification.
Have Additional Questions? Contact Our Estate Planning and Probate Team
If you have questions about drafting a will, submitting a will for probate, or filing a will challenge with the probate court, please reach out to us. Our team of experienced estate planning and probate attorneys would be happy to help. You can reach Brian M. Douglas & Associates at (770) 933-9009 or via our online contact page.