Will Contests: Who Can Challenge A Will?

Who can challenge the validity of a will? Under Georgia law, this includes any interested parties who can show the probate court that they might benefit from or be financially harmed by a previous or current version of the will. 

Contesting a Will in Georgia

When it comes to probating a will, most pass through the probate process without any complications. But, can probate be challenged? There are some situations in which a family member or other party might want to challenge the validity of a will and probate can be stopped. These contests can be difficult, as many courts consider a Last Will & Testament to be the voice of the testator (the person who created the will), and because the testator is no longer around, courts are hesitant to stray far from the contents of the will.

But sometimes things go wrong, a probate dispute does arise, and someone wants to challenge the will. In Georgia, this legal challenge is called a will caveat. It is the documentation that you file in probate court when you are disputing a will.

Who Can Challenge a Will: An Interested Party

So, who can file a will caveat? If someone wants to challenge the validity of the will, he or she must prove they have standing on the issue. Standing, in general, means that an interested party has a legal right to contest the validity of a will within a particular jurisdiction. Georgia law defines an interested party as including, but not limited to, “any legatee, devise, creditor of the decedent, purchaser from an heir of the decedent, an administrator appointed for the decedent prior to the discovery of the will, and any individuals making a claim under an earlier will.” (OCGA § 53-5-2). In other words, an interested party with standing is typically someone who might benefit from or be financially harmed by the current or prior version of the will. These individuals must show that they were named in the will, should have been named in the will, or would have received something of value if the testator died without having drafted his or her will.

Types of Will Caveats

For those who are challenging the validity of a will, there are several different types of will contests. Some of the more common categories include challenges based on:

• The mental capacity of the testator: the person who drafted the will lacked mental capacity at the time. He or she did not understand the amount of their property, the nature of their family, or how the will would distribute their assets. The mental capacity requirement for making a will is fairly low and can be very hard to challenge.
• Undue influence: a trusted friend, relative, or caregiver forced the testator to create a new will that would benefit them instead of following the testator’s original wishes.
• Fraud: this involves false representations in the inducement of a will (misleading the testator in the creation of his/her will) or fraud in the execution of the will (misleading the testator in the signing or formalizing of the document).
• An improperly executed will: the will does not meet Georgia’s requirements of being in writing, signed by the testator, and attested to and signed by two competent witnesses.
• The probated will is not the current version: the will presented for probate is a prior version, and not the most current version.
• Forged signatures: someone fabricated the signatures on the will or modified the document without the testator’s knowledge or permission.

Deadline To File A Will Caveat

Under Georgia law, an interested party who has standing to challenge the validity of a will must do so within a specific timeframe. Once the party receives notice that the will have been offered for probate, he or she has 10 days to file their will caveat in probate court: “with respect to any particular proceeding, the date on or before which any objection is required to be filed shall be not fewer than 30 days after the date such person is personally served with notice.” (OCGA § 53-11-10(a)). This thirty-day requirement may not apply; however, in cases where a party files their challenge before the will is presented for probate, or if a party is arguing that they were not properly served with notice. In those cases, probate may be able to be reopened and some of the probate proceedings may be reversed.

If you have additional questions about will caveats in Georgia, please contact Siedentopf Law at (404) 736-6066 or via our online form.

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