In the State of Georgia, you can contest a Last Will and Testament by filing a caveat with the probate court, which states your legal objections to the validity of a Will. Only certain reasons constitute a legal basis for challenging a Will. Being dissatisfied with distribution of an estate, standing alone, is not a legally sufficient reason to contest a Will. Generally, the reasons for challenging or disputing a Will relate to the manner or circumstances of creation of the Will.
Georgia law establishes the formal requirements that must be met for a Will to be valid. The statute requires that a Will be in writing, signed by the testator (person making the Will) or by another person in the testator’s presence and at their direction, and attested by two or more witnesses. Changes or revisions to a Will must be executed with the same formality. The law also provides that any individual of age 14 years or older may make a Will “unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action.”
Another section of Georgia law addresses testamentary capacity, stating that: “Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.” The statute specifically acknowledges that a person can have the capacity to make a Will, even if that person does not have the capacity to contract or take legal action under other circumstances.
The law expressly states that advancing age, weakness of intellect, and eccentricity are not inconsistent with the capacity to make a Will. In all situations, it must be apparent that the Will expresses the testator’s wishes unbiased by whatever incapacity affects the testator. Lack of capacity generally means that the testator did not understand the nature of their family or property or which family members normally would receive distributions from their estate.
These statutory provisions establish two categories of reasons that may be used to contest a Will: 1) lack of compliance with the statutory formalities and execution requirements, and 2) lack of testamentary capacity.
Express or implied revocation is a third category of reasons for objecting to a Will. If factual evidence establishes that the testator took action demonstrating the intent to revoke a Will, such as destroying a Will or making a subsequent inconsistent Will, a Will may be contested on that basis.
Three additional categories of legal objections to a Will relate to the circumstances surrounding creation of the Will: undue influence, fraud, and forgery. If someone exerted undue influence over the testator, secured execution of the Will through fraud, or forged the testator’s signature on the Will or on modifications to the Will, an interested person may contest a Will on that basis.
To be free of undue influence, a testator must execute a Will freely and voluntarily. If evidence shows that another person exerted control over the testator in a way that overcame the testator’s own wishes and benefited the other person, a court may find the Will void. Situations involving undue influence may involve family members, caregivers, or new acquaintances who come into the testator’s life.
Fraud invalidates a Will if the testator relies on a fraudulent misrepresentation or falsehood in making or revising their Will. Falsification of the signature of the testator or of witnesses, or modification of a Will without the testator’s knowledge constitute forgery, which also can be a basis for contesting a Will in Georgia.
Other reasons for filing a caveat objecting to a Will do exist. However, the six reasons summarized above are the most common reasons for disputing a Will.
To contest a Will by filing a caveat, having a valid reason for objecting is only the first step in the process. The person challenging the Will must produce evidence in court to establish the claims in the caveat. Representation by an experienced Georgia probate litigation attorney is essential. If you think you may have a basis to contest a Will, you should discuss the situation with a Georgia probate lawyer before you make the decision to proceed.
If you are creating a Will or an estate plan, and you have concerns about a potential challenge to your Will at a later time, the best way to avoid that possibility is to prepare your estate plan in consultation with a knowledgeable Georgia estate planning attorney. Your attorney understands all the reasons that a Will can be disputed and takes the utmost precautions to ensure that your Will and your estate plan will not be vulnerable to a challenge by a family member or someone else.
In our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia, we assist clients with all aspects of creating and maintaining an estate plan. If you are concerned about any circumstances that may lead someone to contest your Will, our attorneys can help you create an estate plan to address those concerns. We are here to help you find the best solution to any questions you have about estate planning. Our practice also includes all matters relating to elder law, which enables us to assist with situations that arise as family members age.
We provide legal services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County, and Paulding County. Call us at (770) 382-0984 or contact us through our online form.