In a will, a person provides instructions for the distribution of their assets upon their death. This legal document, sometimes called a “last will and testament,” can also be used to designate a guardian for minor children.
Sometimes, surviving family members contest a will’s instructions. In Georgia, such a challenge is made in the form of a lawsuit known as a will caveat. The lawsuit is filed with the clerk of court after a will enters probate. Until a will caveat is decided, all administration of the deceased’s estate is put on hold. This can become a financial issue for the family and potential heirs.
At Adamson & Cleveland in Athens, GA, our probate attorneys and estate planning lawyers can help if you need to challenge a will or defend the validity of a disputed will. Our attorneys will take the time to listen to your needs, explain your options and answer your questions every step of the way. At Adamson & Cleveland, we give you the one-on-one attention you deserve.
Reasons to Question the Validity of a Will
In Georgia, the executor of the deceased’s estate bears the initial burden of proving that a will is valid. In most cases, if a will exists, it is likely to be duly documented, and this is a formality. Once the executor has met his or her initial burden, the burden shifts to the person contesting the will to prove their objections.
The typical reasons to contest living wills include:
- Incapacity. This challenge holds that the deceased was not of sound mind when he or she signed the will. A person must have the capacity to understand the nature and extent of his or her property and that the will directs actions that will have a lasting impact on disposition of their property. A challenge might show that the deceased exhibited signs of dementia or other mental illness or was under the influence of alcohol or drugs when agreeing to the will’s contents. Advanced age, feebleness or eccentricity do not prove incapacity on their own.
- Fraud. This requires showing that the deceased was deceived when he or she signed the will and/or agreed to certain provisions of the will due to some form of fraudulent misrepresentation. This requires proof of fraud, not just motive or opportunity.
- Undue Influence. Undue influence means someone caused the deceased to dispose of assets through his or her will in a manner they would not have done if exercising their own free will. Undue influence is typically some kind of pressure or manipulation applied by someone in a position of control or with a close relationship with the deceased.
- A later will. Sometimes individuals redraft their wills, such as after a new marriage. A will should state that it revokes all prior wills, which is automatic, unless there is a valid reason to challenge it (as above).
- Support for spouse and minor child. Under Georgia Law, a deceased’s surviving spouse or minor child cannot be totally disinherited. If a will provides less than the minimum required, a spouse or child may file a “Year’s Support” petition asking the court to set aside an amount sufficient to support them for 12 months.
- Improper execution. There are strict procedural requirements in Georgia for the execution of a valid will. When a will does not conform fully to the statutory requirements, it can be ruled invalid.
If you have a valid reason to contest a will in probate in Athens, Georgia, a will contest attorney from Adamson & Cleveland can help you.
In Georgia, an executor can probate a will in solemn form or common form. If a will is probated in solemn form, all heirs are notified and given a chance to object before probate is granted. However, heirs have only 10 days to file a caveat after receiving notice that the will has been filed for probate.
Probate in common form does not require notice to heirs or others, so interested parties have four years to file an objection. However, administration of the estate will move forward, so the assets of the estate may be disbursed and become irretrievable. It is best to contact an experienced will contest attorney as soon as possible if you have reason to challenge a will in Georgia.
Defending a Contested Will in Georgia
A will contest attorney in Athens can help if the will left behind by a loved one of yours is being improperly contested.
Georgia allows any individual – not just beneficiaries and heirs – to challenge a will that has been filed for probate. However, a person who simply thinks the deceased has not treated them fairly will not be successful. The petitioner must be able to prove the will is invalid, and the court will thoroughly weigh any claims before it.
As your attorneys, we can review objections filed with the court and speak with you to determine their validity. We can secure affidavits from you and other credible individuals to present to the court to confirm the true intentions of the deceased and prepare you and other witnesses to testify if it becomes necessary. We can also work with you to locate any documents that shed light on the deceased’s intentions and which would be of interest to the court.
Preventing A Will Contest
It is preferable, of course, for a loved one’s living will to move through probate without challenges or other potentially costly and time-consuming issues. If you work with Adamson & Cleveland to prepare your will, we can guard against future caveat challenges, including by:
- Inserting a clause in the will stating that anyone who challenges the will cannot benefit from it (a no-contest clause)
- Recording video of you as you sign your will, including a conversation with you to demonstrate you were of sound mind at the time
- Properly executing and filing your will, including with the signatures of two witnesses and properly notarized.
Our Athens Will Contest Lawyers Are Ready to Help You!
If you are contesting a will or defending one, you need to make well-informed decisions about your rights as an interested party to the will or estate. A will contest attorney from Adamson & Cleveland, LLC in Athens, GA, will give you the personalized attention and sound guidance you deserve in a will caveat case.
Contact our probate lawyers today at 470-558-0318 or online for a legal consultation about a will contest in Athens or about preparing your will or your overall estate planning needs. We’ve been serving Athens for years, and we are ready to help you. Call our law offices today.