Grounds for Contesting a Will in Georgia

by Joseph Scrofano

    In Georgia, the personal representative appointed in the will must file the will for probate in the probate court where the decedent last resided. Once probate opens, the personal representative must then provide notice to any and all potential interested parties to the will, and any person or creditor with a stake in the will may challenge the will by filing a “Caveat” with the Georgia probate court.

    Mental Capacity

    Someone could contest a will in Georgia based on the decedent’s lack of testamentary capacity. In general, Georgia law presumes that the testator had enough mental capacity to comprehend the nature of her actions in drafting and executing her will. To prevail on a challenge to a will for mental capacity, the challenger has to present substantial evidence supporting the allegation that the testator was not sane or otherwise incapacitated.

    Execution

    Georgia law has five requirements for a will to be validly executed. First, the testator must be at least 14 years old. Second, the testator must have a “rational desire” to dispose of her property. Third, the testator must execute the will “freely and voluntarily.” Fourth, the testator must sign a written will. Finally, two competent witnesses must witness the testator sign the will, and sign it as well, attesting to what they saw. Someone can challenge a will in Georgia by arguing that the will was not validly executed and violated one of these five requirements.

    Undue Influence

    Another ground for challenging a will in Georgia is undue influence. A person may allege that another party had undue influence over the testator at the time the testator created the will. The probate court considers four factors when determining whether the testator was unduly influenced: whether the testator was in a weak mental state; the background of the accused undue influencer; the interactions between the testator and the alleged undue influencer; and whether the will is reasonable.

    Fraud

    Someone may challenge a will in Georgia based on fraud. The person must show that the testator relied on fraudulent acts when he created his will. This inquiry is highly fact-specific and focuses more on the circumstances surrounding the creation of the will rather than the mental capacity of the testator, which is often difficult to prove.

    Forgery

    Another common ground for challenging a will in Georgia is forgery. Like fraud, this is a highly fact-specific inquiry and may involve evidence challenging the validity of the actual document. In addition, a person challenging the will may have evidence that the will filed for probate was actually revoked, altered or amended.

    About the Author

    An attorney and founder of ScrofanoLaw, a general practice law firm in Washington, D.C., Joseph Scrofano has been writing on legal issues since 2008. He holds a Juris Doctor from the Washington College of Law, a Bachelor of Arts with special honors from the University of Texas and a master's degree in international affairs from American University's School of International Service.