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Can A Will Be Contested in Georgia?

Posted by Joel Beck | Dec 17, 2023 | 0 Comments

Every adult in Georgia should understand wills, especially the possibility of them being contested. A will is more than just a document; it reflects your wishes to distribute your assets after passing, along with your choice of who should be in charge of settling your estate. As estate planning professionals at Peach State Wills & Trusts, we know that it is important for our clients to understand  the potential challenges their will may face in probate court.


What Constitutes a Will in Georgia

In Georgia, a will is a legal declaration by which a person, the testator, names one or more persons to manage their estate and provides for the transfer of their property at death. For a will to be considered valid and legally enforceable, it must meet specific criteria:

  1. Age and Mental Capacity of the Testator: The person making the will, known as the testator, must be at least 14 years old in Georgia. They must also be of sound mind, meaning they understand the nature of making a will, the extent of their assets, and the identity of those who naturally inherit their assets (like family members). In other words, they need to know who they are, who they love, what they have, and be able to formulate their plan for how to distribute assets upon death.

  2. Voluntary Nature of the Document: The will must be made voluntarily, without any coercion or undue influence from others. It should reflect the testator's true intentions regarding the distribution of their estate.

  3. Proper Witnessing and Signing Procedures: In Georgia, the testator must sign their will. It must also be witnessed by at least two individuals who are competent to witness. These witnesses must be at least 14 years old and observe the testator's signing of the will. The witnesses must then sign the will in the presence of the testator and each other. The witnesses should be disinterested, meaning that they are not inheriting under the will or serving the estate in any manner (such as guardian, trustee, executor, etc.). If the witness is a beneficiary under the will, any gift will be voided unless there remain two other competent witnesses – who are not beneficiaries under the will - who also witnessed the signing of the will and signed as witnesses.

  4. Proper Format and Clarity: While Georgia does not require a will to be formatted in a specific manner, it should be written and specific about the distribution of assets and the appointment of an executor. The executor is responsible for carrying out the terms of the will.

  5. Holographic and Nuncupative Wills: Georgia recognizes holographic wills (handwritten and signed by the testator) so long as it meets the witness requirements, but Georgia law does not recognize nuncupative wills (oral wills). 

Contesting a Will in Georgia

While wills generally are a straightforward declaration of one's final wishes, there are instances where a will may be contested. In Georgia, common grounds for contesting a will include undue influence, fraud, improper execution, or the testator's lack of mental capacity. Individuals need to be aware of these factors, not only for drafting a will that minimizes the risk of contestation but also to understand their rights if they believe a loved one's will does not truly reflect their wishes. Here are the key aspects:

  1. Undue Influence occurs when the testator is coerced or manipulated into making the will in a certain way, which does not reflect their true intentions. Undue influence often involves a trusted person who can exert significant pressure over the testator, especially if the testator is vulnerable due to age, illness, or dependency.

  2. Fraud: Contesting a will on the grounds of fraud involves proving that the testator was deceived about the nature or contents of the document when they signed it. For instance, if someone tricks the testator into signing a will by telling them it's a different type of document, that's fraud.

  3. Improper Execution: A will must meet specific legal requirements to be valid in Georgia. It must be in writing, signed by the testator, and witnessed by at least two individuals, all of which must meet certain age and competency requirements.

  4. Lack of Mental Capacity: The testator must be sound mind when creating and signing the will. This means they understand the extent of their assets, the nature of the document they are signing, and the implications of their decisions regarding beneficiaries. 

  5. Existence of a More Recent Will: If a more recent will is discovered that contradicts the terms of the will being offered for probate, the newer will may supersede the older one if executed with the proper legal formalities.

  6. Forgery: The will can be contested if evidence suggests that the will or the testator's signature was forged.

  7. Mistake in the Will's Content: If it can be demonstrated that the will contains a significant error that does not align with the testator's intentions, it may be grounds for contestation.

Protecting Your Will from Contests

Specific steps should be taken to safeguard your will against contestation in Georgia. This involves ensuring that all legal requirements are met during the drafting process and considering the potential for beneficiary disputes. It's advisable to work closely with an estate planning attorney, like those at Peach State Wills & Trusts, who can guide you through the intricacies of creating a will that accurately reflects your intentions and is resilient against potential challenges.

In some cases, in terrorem clauses can be used in a will that result in a beneficiary being disinherited in the will if they contest the will. However, for those clauses to be effective and really provide a disincentive to starting a contest, enough needs to be left to that beneficiary to incentive them to accept the will and not challenge it.  

Ultimately, there are no foolproof ways to prevent a family member from filing a will contest after you have died. Therefore, if you expect that a family member will be fighting about your will, it may be wise to explore other estate planning tools that might be helpful in ensuring your wishes are known and quickly followed. 


Your Partner in Estate Planning

Contesting a will can be a complex and emotionally charged process. That's why at Peach State Wills & Trusts, we are dedicated to helping our clients in Georgia create straightforward wills and trusts that are legally sound and reflect their true intentions. Contact us at 678-344-5342 or online to learn how to plan for your estate in Georgia today. If you have any questions about estate planning in Georgia, you can download our free guide here, no strings attached.

About the Author

Joel Beck

Joel Beck founded The Beck Law Firm, LLC in 2007. His firm focused on business law and estate planning needs of clients, two areas that he was drawn to based upon personal and business experiences in his life, including a ten-year career at NASD (now known as FINRA).


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