The comprehensive guide to probate, trusts, estate planning, and inheritance litigation.

How to Contest a Will in Georgia

A will can be contested in a Georgia probate proceeding on a number of grounds.

Lack of Proper Formalities

To make a valid will in Georgia, a will must be (1) in writing, (2) signed by the testator or by some other individual, (3) in the testator’s presence and at the testator’s express direction, and (4) attested and subscribed in the presence of the testator by two or more competent witnesses. Section 53-4-20.

A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator’s will. A witness may also attest by mark. If a will was not executed with the proper formalities required under Georgia law, the will can be contested and found invalid.

Lack of Capacity

A testator is required to have capacity to make a valid will in Georgia. “Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.” Section 53-4-11. In Georgia, testators who do not have capacity to contract may have the capacity to make a will. Even an insane person can make a valid will if the will is done during a lucid interval.  A testator is considered to have testamentary capacity

if, at the  time of executing it, she understands that a will is intended to dispose of her property after her death,is capable of remembering generally what property and persons related to her are subject to the will’s disposition,and is capable of setting forth an intelligent scheme to dispose of her property.

Patterson Fowlkes v. Chancey.

Typically, lack of testamentary capacity is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.  A will can be declared void if lack of capacity can be proven.

Undue Influence

A will that is the product of undue influence is invalid in Georgia. A will must be freely and voluntarily executed. Undue influence is that whereby the will of another is substituted for the wishes of the testator. Accordingly, in order to give rise to the rebuttable presumption that a will is the void product of undue influence, the evidence must show a confidential relationship where in the primary beneficiary was capable of exerting the power of leadership over the submissive testator.

Crumbley v. McCart.

In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability.

In other situations, one child of the decedent, often a caregiver will coerce the decedent to write the other children out of the will.

Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.

Revocation

A will can be contested in Georgia on the ground that it was revoked. There are several ways to revoke a will under Georgia law. A revocation can be express or implied.

An express revocation occurs when the testator by writing or action expressly annuls a will.  An express revocation takes effect instantly.

An implied revocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will.  An implied revocation takes effect only when the subsequent inconsistent will becomes effective.  If the subsequent inconsistent will fails to become effective from any cause, the implied revocation is not completed.  O.C.G.A. § 53-4-42.  An express revocation can occur by the testator or by another at the testator’s direction destroying or obliterating the will with an intent to revoke the will. O.C.G.A. § 53-4-44.

Fraud

A will is invalid if it was the product of fraud. “Fraud sufficient to invalidate a will exists only when it is shown that the testator relied on the misrepresentation and was deceived.”  Slade v. Slade. For example, if one child convinces the testator of something untrue about another child, and a testator relies on the misrepresentation and disinherits the child, the will could be shown to be the product of fraud and held invalid.

How long do I have to contest a will in Georgia?

4 years.  The general statute of limitations to contest a will in Georgia is four years from the time of probate. O.C.G.A. § 53-5-19.

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