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Undue Influence In Georgia Will Contests

A Georgia will must be freely and voluntarily executed and is invalid if it was procured by undue influence.  Undue influence is one of the most common grounds to contest a will under Georgia law.

Section 53-4-12 of the Georgia Code states:

A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator’s freedom of volition, such as fraudulent practices upon the testator’s fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.

What Is Undue Influence Under Georgia Law?

Undue influence occurs when a person unduly pressures a testator to draft a will so that it benefits the undue influencer.  The will is not what the testator would have done but for the undue influence.

To invalidate a will on the grounds of undue influence under Georgia law, “undue influence must amount to deception or coercion that destroys the testator’s free agency.”  See Amerson v. Pahl, 292 Ga. 79 (2012).

What Are the Elements Of Undue Influence Under Georgia Law?

To prove undue influence in a Georgia will contest, the court will look at:

  1. Whether the undue influencer had a confidential or fiduciary relationship with the testator;
  2. The ability of the undue influencer to exert control over the testator or isolate the testator;
  3. Susceptibility of the testator to undue influence, perhaps because of diminished capacity or other vulnerability;
  4. Participation of the undue influencer in the preparation and execution of the will;
  5. Whether the undue influencer unreasonably or unexpectedly benefits from the will.

In Dyer v. Souther, the Georgia Supreme Court stated:

Thus, “[a]n attack on a will as having been obtained by undue influence may be supported by a wide range of testimony, … [including evidence of] a confidential relation between the parties, the reasonableness or unreasonableness of the disposition of the testator’s estate, old age, or disease affecting the strength of the mind, tending to support any other direct testimony or any other proved fact or circumstance going to show the exercise of undue influence on the mind and will of the testator…. While the quantity of influence varies with the circumstances of each case, according to the relations existing between the parties and the strength or weakness of mind of the testator, the amount of influence necessary to dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind.

How Difficult Is It To Prove Undue Influence?

Undue influence cases are difficult to prove.  They are almost always based upon circumstantial evidence, since the undue influence takes place away from witnesses.  Many times, the undue influencer is a family member, close friend, or caretaker.

Evidence of undue influence in Georgia courts can include:

  • A weakened testator
  • A close, controlling relationship between the undue influencer and the testator
  • Isolation of the testator
  • Diminished capacity of the testator
  • The undue influencer selecting an attorney to draft the will, instructing the drafting attorney, and being present when the testator met with the drafting attorney and signed the will
  • A sharp departure from the testator’s prior estate plan
  • An unnatural disposition of assets
  • An undue influencer with financial problems


What Is an Example of Undue Influence?

An example of undue influence upheld by the Georgia Supreme Court can be found in Bailey v. Edmundson.

In Bailey, evidence that proved testator’s disease, medication, and its effects, his dependence on the caregivers, their isolation of decedent from his only child, the caregiver’s active encouragement and arrangements for the drafting and execution of a new will, testator’s short-term relationship with his caregivers, his sporadic contact with and lack of trust towards his sister (whom he left a sizeable portion of his estate in his last will), and his long-standing expressions of testamentary intent to leave all of his property to his daughter, which he repeated the day after he executed a will leaving her only 25% of his estate, was enough evidence to support the jury’s verdict invalidating the will on the grounds of undue influence under Georgia law.

Undue influence cases are challenging – a Georgia probate litigation attorney can help you evaluate your case and pursue justice.

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