Contesting a Will in Georgia: Undue Influence in a Will

Undue influence, in estate planning terms, means a person was pressured into drafting his or her will so that it benefitted another individual. Once the probate process begins, any person or creditor can challenge the validity of a will if they suspect and are prepared to prove undue influence.

When it comes to probating a will, most pass through the probate process without any issues. But there are some situations in which a party might want to challenge the validity of the will. These will contests can be difficult, as many courts consider a Last Will & Testament to be the voice of the testator – and because that testator is no longer around, courts are hesitant to stray far from the contents of the will.  In Georgia, anyone with an “interest” in someone’s estate can legally challenge a will that has been filed for probate. There are several different categories of will contests. This blog focuses on “undue influence.” (For our blog on will contests and forged signatures, click here).

What is Undue Influence in a Will?

Under Georgia law OCGA § 53-4-12, “A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator’s freedom of volition, such as fraudulent practices upon the testator’s fears, affections, or sympathies; misrepresentations; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.”

“Undue influence” occurs when a person pressures a testator into drafting his or her will so that it benefits the influencer. In many instances, the influencer might have naturally received some benefit in the testator’s will, but the undue influence causes the testator to leave more assets to the influencer to the detriment of other heirs. Often, the “influencer” is a close friend, a family member, a significant other or a caregiver who uses the close, trusting relationship with the testator to receive a financial benefit.  Sometimes more aggressive tactics are used including deception, harassment, isolation, or other threats. The victims of undue influence are typically the elderly, those who are sick, or those suffering financial problems.

When can I claim Undue Influence?

In Georgia, the testator’s personal representative must first file the will for probate in the probate court. Once the probate process begins, the personal representative will next provide notice to any/all interested parties to the will. At this point, any person or creditor may challenge the will by filing a petition (called a “caveat”) with that same probate court. Anyone who believes that their friend or loved one may have suffered “undue influence” can file a claim; however, he or she must be prepared to present evidence.

How do you prove Undue Influence in court?

Challenges to the will for “undue influence” cannot be based on hunches or suspicions. Typically, the person claiming undue influence has the burden of proving that it actually happened to their friend or loved one. (Alternatively, if the alleged influencer had a “fiduciary” relationship with the testator, then that influencer must prove there was no undue influence. For more on fiduciary relationships, click here).

In Georgia probate courts, “[t]o invalidate a will, undue influence must amount to deception or coercion that destroys the testator’s free agency.” [1] To prove this, the judges may look for certain conditions, in order to determine whether the testator suffered undue influence such as: 1) that the “influencer” had a confidential or fiduciary relationship with the testator, 2) that the “influencer” was capable of exerting control over the testator or isolating them from family/friends, 3) that the testator was susceptible to undue influence, 4) that the “influencer” took part in the preparation of the will, and 5) that the “influencer” unreasonably or unexpectedly benefits from the will.

If the court determines that there was undue influence, there is a possibility that the will in question may be void.

How can I avoid Undue Influence during estate planning?

When you are drafting your will or creating your estate plan, it is important to avoid even the appearance of undue influence. In order to achieve this, many attorneys will ask that interested parties (friends of family members who would inherit from the will) not be involved with the official drafting of the will. Also, the testator can request a formal mental assessment, to prove that they are of sound mind when drafting their estate planning documents.

For more information about will contests, or for help drafting your will and estate documents, please visit  Siedentopf Law’s website at EstateLawAtlanta.com or call (404) 736 – 6066.

© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.

[1]Amerson v. Pahl, 292 Ga. 79, 734 S.E.2d 399 (Ga., 2012)