Some of the most challenging cases in probate litigation involve a challenge to a will, also known as a will contest. It isn’t easy for a challenger to win one of these cases, and these legal disputes can create irreparable damage to family relationships. Still, there are times when a will contest is the best way to seek justice.
Generally speaking, successfully challenging a will requires convincing a court that the will is invalid as written. The fact that one person doesn’t like the results of the will are not enough. The person contesting the will must make specific arguments about the grounds for declaring the will invalid. We will get to those arguments a little later in the post, but first we should explain what it means for a will to be valid.
What makes a will valid?
A person’s last will and testament is meant to represent their final wishes for how the want their property distributed after their death, and to make those wishes legally binding.
Under Georgia law, the formal requirements for a will are:
- The testator (the person creating the will) must be at least 14 years old.
- The testator must have testamentary capacity — meaning that they understand what they are doing when they create the will and do so voluntarily.
- The will must be written, either typed or written by hand.
- The will must be signed by the testator and two witnesses who are present with the testator.
So long as a will appears to have followed these formalities, a probate court will almost certainly declare it valid, meaning that the executor or personal representative in charge of settling the estate must follow the instructions in the will.
Grounds for declaring a will invalid
Put simply, a person who challenges a will must prove that one of the above requirements was not met. This is relatively straightforward if there was a technical error in the execution of the will: For instance, if it lacks the signatures of two witnesses. Likewise, if the challenger can prove that the witnesses were not present with the testator, then a court may find the will invalid.
On the other hand, if the will appears to have no technical errors, the challenger has a heavier burden. Generally, they must prove one of the following:
- Fraud and forgery: The will is inauthentic, or has been altered.
- Lack of capacity: Due to illness, injury, dementia or some other condition, the testator lacked the requisite testamentary capacity to make a valid will
- Undue influence: The will was created under duress, threat or inappropriate pressure. This type of situation might occur when a person pressures a testator into changing their will.
Anyone who is considering contesting a will should discuss the matter with professionals who have experience in will contests.