One of the most common reasons give lawyers to convince their clients to draft a will is to eliminate disputes between family members after the client dies. Unfortunately, a will is not a guaranteed dispute preventative. Georgia probate laws permit certain interested persons (essentially persons who are potential beneficiaries, such as children, spouse, former spouse, parents and siblings) to bring a lawsuit to contest the validity of a will.
Lack of formalities
In order to be legally effective, the signing of the will must follow certain formalities: The will must be written, signed by the testator and be witnessed by two or more competent witnesses. The omission of any of these formal requirements will render the will invalid.
Lack of capacity
No will can be admitted into probate if the maker of the will (testator) lacks the mental capacity to understand the function of the will and the consequences of signing it. Capacity is defined by statute as “a decided and rational desire as to the disposition of property.” Generally, lack of mental capacity is established by medical evidence of dementia, Alzheimer’s disease or psychosis. If the testator is proved to have lacked mental capacity when the will was signed, the entire will can be declared invalid.
Undue influence
A will that is signed under duress, whether physical, mental or financial, is invalid and will not be enforced. Undue influencers are usually persons who have a uniquely close relationship to the testator, such as a care giver, a child, a sibling or close friend.
Fraud
If the testator was induced to sign the will because a potential beneficiary made a false representation that was relied upon by the testator. In such cases, the entire will can be ruled to be invalid.
Remedies
If the challenger of a will succeeds, the court can declare the entire will to be invalid or the court can order the deletion of any invalid provision, or it can invalidate the entire will.
Conclusion
Any person who is consideration challenging a will may wish to seek the advice of an experienced estate and probate attorney for an evaluation of the evidence and an opinion on the likelihood of success.
