It’s never easy to lose a family member or a close friend. Contesting the will of your loved one can be even harder. To help guide you through this process, here are some things you should know about what it takes to successfully challenge a will.
Who Can Contest a Will?
Any party interested in contesting a will has the right to do so. Whether it’s a family member of the deceased testator—the creator of the will—or a person with no familial relation to the deceased, they have the freedom to pursue a will caveat. However, they must prove their case in the process.
Requirements to Pursue a Will Caveat
To legally challenge an official will, the interested party must effectively prove that they have grounds to make changes the will. This party must prove that they were named in the will, should have been named, or would have been named if the testator passed before officially creating their will. The contesting party is usually someone who would benefit from being listed or could be financially harmed by the terms of the will.
Ways to Contest a Will
Challenging a will can happen for several reasons. The most common include:
Contesting the mental capacity of the testator.
The challenger must adequately prove that the testator was not in their right state of mind or did not understand their own property and assets when drafting their will.
Arguing that the testator was affected by undue influence.
The challenger must prove that the testator was wrongly influenced by someone to change their will. A caregiver, family member, or friend could have benefitted themselves by manipulating the testator into changing their will.
Proving that the will was drafted fraudulently.
The challenger must prove that the will was created fraudulently. Whether the testator created their will under false pretenses or was misled to sign their will, the challenger is responsible for establishing proof of fraud.
Contesting the execution of the will.
The challenger may be able to prove that the will was not executed properly. Georgia law requires wills to be in writing, signed by the testator, and signed by two competent witnesses. Any violation to these areas could result in a successful will caveat.
Proving that the probated will is not current.
The challenger must argue that the court’s official will is not actually the current will but a previous version of it.
Similar to proving that the will was fraudulently drafted, the challenger must prove that the testator’s will was forged without them knowing or consenting to the forgery.