If your will is missing these three things, you need a new will.
Challenging a will in Georgia can be difficult, as there are strict grounds that must be met in order to do so.
In Georgia, a will can be challenged on the grounds of lack of testamentary capacity, duress, or fraud. If someone believes that a will was not made voluntarily or under fraudulent circumstances, they may attempt to have it invalidated in court.
At Marietta Estate Planning, we help people and families create wills. Here’s everything you need to know to make sure yours is valid.
What Makes a Will Valid in Georgia?
A will is a legal document that states how your assets and other property should be distributed after you pass away.
This estate planning technique may also be used to name a guardian for any minor children under the age of 18, as well as an estate executor (also known as an administrator or personal representative) who will assist in ensuring that any last wishes are carried out.
To be considered valid in Georgia, a will must be in writing and signed by the testator (the person making the will) in the presence of two witnesses. The witnesses must also sign the document. Once the will is signed, it becomes a legal document that can be enforced by the court.
It is important to note that, in Georgia, a will must also be notarized in order for it to be considered valid. This means that, in addition to being signed by the testator and witnesses, it must also be signed by a notary public.
If you have any questions about wills or the estate planning process in general, our team at Marietta Estate Planning can help.
Grounds for challenging a will in Georgia
1. Lack of Testamentary Capacity
In order to be considered legally valid, a will must be created by someone who has the mental capacity to understand the nature and extent of their assets, as well as the individuals who would typically be named as beneficiaries.
If it can be shown that the person did not have the necessary mental capacity at the time the will was made, then the will may be invalidated. This is often referred to as “lack of testamentary capacity.”
In order to prove that someone lacked the necessary mental capacity to create a will, it must be shown that they did not understand:
- The nature and extent of their assets,
- Who would typically be named as beneficiaries, or
- What a will actually is and does
It is important to note that mental capacity can fluctuate, and a person may be competent to create a will at one point but not at another.
For example, someone with early-stage dementia may be able to understand the nature of their assets and who they would want to receive them, but as the disease progresses, they may no longer have that understanding.
If a will is challenged on the grounds of lack of testamentary capacity, the court will look at the person’s mental state at the time the will was created.
2. Duress
Another ground for challenging a will is duress. Duress occurs when someone is forced to create a will under the threat of violence or some other type of harm.
In order to successfully challenge a will on the grounds of duress, it must be shown that:
- The person was subjected to threats or actual violence
- The threats were made in order to get the person to create or change their will
- The person would not have made the changes to their will if they had not been threatened
- The person was of sound mind and not under the influence of drugs or alcohol when they made the changes to their will.
It should be noted that simply being pressured into making changes to a will is not enough to invalidate it. There must be a clear threat of violence or harm in order for the will to be considered invalid.
3. Fraud
Another ground for challenging a will is duress. Duress occurs when someone is forced to create a will under the threat of violence or some other type of harm.
In order to successfully challenge a will on the grounds of duress, it must be shown that:
The final ground for challenging a will is fraud. In order to successfully challenge a will on the grounds of fraud, it must be shown that:
- The person creating the will was misled about its contents
- The person who created the will would not have made the same changes if they had known the truth
- The person who created the will was of sound mind and not under the influence of drugs or alcohol when they made the changes.
Simply making a mistake in a will is not grounds for fraud. The person challenging the will must be able to show that the person who created it was deliberately misled about its contents.
If a will is successfully challenged on any of these grounds, it may be declared invalid. This means that the property would be distributed as if the person had died without a will (intestate).
Contact Marietta Estate Planning in Georgia today
You do not want your will to be challenged. We can help you avoid a will challenge. Our experienced and compassionate attorneys will work with you every step of the way. Contact us today to schedule a consultation. We look forward to helping you through this process!
How do you challenge a will in Georgia?
The process for challenging a will in Georgia starts with filing a petition with the probate court in the county where the person who created the will (the testator) resided.
The petition must be filed by someone who would stand to inherit from the estate if the will was invalidated.
Once the petition is filed, a hearing will be scheduled where both sides can present their evidence and arguments.
If the court decides that the will is valid, it will be allowed to stand.
If the court decides that the will is invalid, it will be declared void and the estate will be distributed according to Georgia’s intestacy laws.
