Most Georgians believe that signing a valid will is tantamount to eliminating all disputes regarding the distribution of the maker’s assets. While this is mostly the case, a few wills can lead to more, not less, controversy among a person’s heirs about the distribution of assets.
The only method of contesting the provisions of a will after the maker’s death is the filing of a court action commonly called a “will contest.”
Parties who are eligible to file a will contest
Georgia law strictly limits the persons who can start a will contest. That group is limited to beneficiaries named in the will, heirs of the deceased and people who can demonstrate that they have a reasonable chance of receiving a bequest from the decedent.
Grounds for challenging a will
Will contests fall into two general types: contests that attack the validity of the entire will and contests that challenge only one or two specific clauses. In both cases, the success of the challenge depends on proving one of the following grounds.
The following are some more specific claims:
- The will did not meet the formal requirements for a Georgia will. All wills in Georgia must be signed by the person making the will (called the “testator”), and all wills must be witnessed by two persons who are at least 14 years old. A will that does not satisfy these formal requirements is not valid and will not be enforced by Georgia courts.
- The testator lacked the mental capacity to sign the will. Under Georgia law, a testator must have adequate mental capacity to sign the will. Adequate mental capacity means that the testator understood the legal effect of the will, especially its role in distributing assets after the testator’s death. Lack of mental capacity is commonly proved by introducing medical evidence of the testator’s lack of mental capacity. This testimony usually focuses on demonstrating that the testator suffered from dementia or Alzheimer’s disease or some other condition that interfered with the testator’s mental capacity.
Other methods of proving lack of mental capacity depend on evidence that the testator may have been unduly influenced by one of the heirs. Such evidence consists of proof that the testator had an unusually close relationship with one of the heirs who received a significant bequest under the will. Another argument showing lack of capacity is proof that the testator relied on fraudulent information provided by an heir who received a substantial bequest.
Will contests are difficult to win for the person challenging the validity of the will. The assistance of an experienced probate attorney is almost indispensable in crafting and trying a will contest in Georgia.