Can you contest a will?
This is a common question in our office.
We’re going to talk about some important practical considerations to think about when you are deciding whether you should challenge a will or not.
We’ll look at some common misconceptions about will contests that trip people up, as well as key factors you must consider when deciding if it makes sense for you to file an objection.
At our firm, we’ve done a lot of work with will contests, and have helped hundreds of families through these difficult situations.
What should you be thinking about when deciding whether to challenge the will?
First, let’s look at some common scenarios where a will contest may not be a good idea:
You Don’t Like What The Will Says.
It may be that your loved one’s will gives a large amount of the estate to another person and very little to you, or perhaps you were only left a nominal amount, such as $1.
While this can be a shock and cause hurt, it is not enough to support a legal challenge to a will without evidence of wrongdoing.
You Are Disinherited And Believe It Is Illegal.
In Georgia, a person is not required to leave any amount to anyone. As a result, it is perfectly legal for a person to disinherit someone, even though it may be very hurtful.
You Think The Will Should Be Different, And You Would
Like The Court To Change It.
Unfortunately, that is usually not an option. When you’re in a will contest, the will either stands as it is or it is declared invalid and falls. Except in unusual circumstances, there is not a way for the court to change the terms of a will.
Finding out that you have been left out of the will or left very little can feel devastating.
That feeling of devastation often leads to feelings of hurt and anger. (We see this all the time in our office.)
While those feelings are completely valid, I would caution you from a legal perspective, you will need more in order to prevail in challenging a will.
Should You Object To The Will? Consider These Factors First
Can you contest a will?
More importantly, should you?
First, I’d ask you to think about four factors.
If these factors are in your favor, then it probably makes sense for you to look into challenging the will. If they are not in your favor, then a will contest may not make sense in your case.
Do You Have Proof?
At the time the caveat is filed, making allegations is enough. But, as the case proceeds forward, evidence will have to be obtained to prove the allegations.
In another article, we’ll review the most common legal objections to a will.
For now, do you feel confident that the proof is out there and can be uncovered?
If you Win, Do You Really Win?
In a will contest, you are asking the court to overturn the will.
If that happens, the estate will either fall back to a prior will or to state law where there is no will. Does that help you achieve your goals?
Is There A No Contest Clause?
This one only applies if you stand to inherit something under the will. If you are disinherited by the will, then this factor does not apply to you.
If you are going to inherit something under the will and the will has a no contest clause, be careful! Handling the situation incorrectly, you could lose all of your rights under the will.
There are sometimes ways to avoid triggering a no contest clause depending on what your goals are.
Do You Feel Like There Is Any Opportunity For Negotiation And Settlement With The Relative Presenting The Will?
Once the objection is filed, the case will move forward to a time where evidence must be gathered and after that, a trial will be scheduled.
At some point, the probate court will most likely require mediation and there will be other informal opportunities to discuss ways to settle the case with the opposing party.
Unfortunately, a legal objection is often the only way to bring the other party to the table to discuss a settlement.
The reason for this is that if you don’t object in time, then the objection is waived and the opposing side has no reason to try to work with you.
As you can imagine, challenging a will is a complicated process, and I do not recommend that you attempt it without the assistance of a qualified probate attorney.
Make sure to download the Georgia Probate Handbook so you know how an estate is supposed to be handled.
Everything discussed in this article is for general information and is not legal advice. For specific information about your situation, please contact our office to set up a consultation at (770) 920-6030.