Solutions For Conflicts

If properly drawn, a will can pass assets on to the next generation, to charities or to dear friends. When you schedule an appointment at the Hodges Law Firm, LLC, you will sit down with an experienced attorney who will utilize a comprehensive questionnaire to learn about the nature of your assets and how you wish them distributed.

Our wills always include a testamentary trust if here is a possibility of a named parent having pre-deceased the testator and a minor receiving assets. You select the trustee and the appropriate age or ages of distribution. We can help protect against divorcing spouses, creditors and the recipients having possible problems of gambling, alcohol or addictions.

Because families are human, sometimes a dispute or contest arises. This is called a caveat in Georgia — a legal challenge to a will filed for probate. We can help to prevent these and see that your wishes are carried out as you intended. We can place a clause in the will that disinherits those who unsuccessfully file a contest. We also can videotape the signing of your will, making it clear that you were of sound mind and knew exactly what you were doing when you signed. Your will is always witnessed and notarized. We can also file a caveat (contest) for you if a family member has engaged in undue influence or your loved one lacked capacity to do a new will.

However, despite all of our protective measures, a will contest may occasionally occur. State statutes provide the grounds for contesting a will. These usually include incapacity, undue influence, fraud, improper execution or a later executed will.

Incapacity

A testator must have testamentary capacity in order to sign a valid will. He or she must be of sound mind. The person must have the capacity to understand the nature and extent of his or her property, know the persons who would naturally benefit from the will and realize that this will make a lasting disposition of his or her property. Those challenging a will on this basis seek to show that the testator exhibited signs of dementia, Alzheimer's or other mental illness, or was under the influence of alcohol or drugs. Normally the simple fact that the signer was showing signs of advancing age, feebleness or eccentricity will not be sufficient to prove incapacity to execute a will.

Fraud

To prove fraud requires a showing that the testator relied on a fraudulent misrepresentation and was deceived by it when the will was signed. Mere evidence of opportunity or a motive for fraud — without proof that the fraud induced the testator to create certain provisions in the will is not sufficient to invalidate the will.

Undue Influence

A will can be overturned if the challenger proves that at the time the will was made, the testator was subjected to such strong influence by another that the testator made a disposition of his or her property that otherwise would not have been done. Two examples of undue influence are duress and coercion.

Improper Execution

Georgia and all other states have strict procedural requirements for the execution of a valid will. These generally include the signature of at least two adult witnesses. A notary is helpful. If a will does not conform fully to the state statutory requirements, it is not valid.

Existence Of A Later Executed Will

Generally a will states that it revokes all prior wills. This is automatic, provided that the testator still has testamentary capacity and was not under fraud or undue influence at the time of signing.

If you are the executor or beneficiary of a will that is contested, or if you wish to contest a will, please contact the Hodges Law Firm, LLC. Our experienced will contest attorney can guide you through the process.

The legal opinions expressed herein are the result of research specific to certain areas of estate law in the state of Georgia and should not be taken as generalizations about wider areas of law. The author retains all copyrights and copies may only be distributed with written permission of the copyright owner. Distribution to any person other than the intended person is expressly prohibited. Georgia and federal laws change frequently, different situations may yield different results under the law, and you should always consult with an attorney regarding these and other legal matters. Finally, different attorneys may have different opinions about the same areas of law, and, particularly on tax matters. There are many divergent sources of law which add confusion. For example, a U.S. District Court ruling which are both different from the position of the Internal Revenue Service. Please consult with an attorney regarding specific questions and situations.