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What if Someone is Threatening to Contest the Will?

contesting a will georgiaDealing with estate matters after a loved one passes can be quite a complicated experience. And tensions run even higher when a disgruntled family member or relative suddenly steps forward to contest the will.

In this article, we’ll uncover the reasons behind such objections and offer some guidance if you’re in this situation.

We’ll help you understand the potential grounds for contestation and explore all options available to ensure your loved one’s final wishes are honored.

What is the purpose of a Last Will and Testament?

You will be better equipped to respond to a will contest when you fully understand how the deceased initially intended to handle their estate.

This is where the Last Will comes in. It is a legally binding document that serves several purposes:

  1. Identifying how the executor should divide the deceased’s probate property among beneficiaries

    It can be straightforward percentage splits or more complex distribution instructions.

  2. Appointing an executor to manage the estate

    Besides administering the estate, the executor is also responsible for defending the will’s validity and carrying out the deceased’s instructions.

  3. Designating guardians for minors

    When a minor’s parents pass away, the probate court will almost always respect the guardian nominated by the deceased person.

  4. Including special provisions for handling the estate

    The will may state, for example, that the executor is exempt from providing inventory or having to file a bond. There are many other special provisions to consider that you must review carefully.

contesting a will

Who has the right to contest a will?

Under Georgia probate law, anyone concerned can challenge a will through a formal objection called a “caveat.”

Beneficiaries, heirs, and those whose inheritance can be affected by the will’s validity may raise objections. In some cases, creditors may also have the right to contest a will.

How do caveats work?

Caveat When someone formally objects to a will, a legal dispute starts in the probate court, and the process will move through several stages:

First, the contesting party will identify all of the legal grounds that apply when they draft the caveat. They may state their objections even when they have no evidence yet to support them.

After filing the caveat, each side will gather evidence to prove their case. This stage is known as the discovery phase.

During and after the discovery phase, motions can be filed by either party requesting the court to take action. This could mean asking the court to exclude evidence or grant summary judgment. During this time, mediation is also common.

After the discovery phase ends, the probate court will schedule a trial to allow each party to present their evidence. The court then decides whether to declare the will valid or invalid.

What reasons would someone have to contest a will?

After a person dies, some heirs or beneficiaries may be disappointed to find that the deceased’s wishes did not align with their expectations. But emotions alone may not be enough to support a legal challenge.

Here are some of the most common situations where contesting a will could make sense.

  1. The will appears fake or fraudulent, and you have some proof suggesting the signature is not authentic.
  2. The deceased’s wishes differ drastically from what they openly discussed with loved ones.
  3. You have reason to believe someone exerted undue influence, making it seem like the will reflects the influencer’s wishes, not that of the deceased person.
  4. Signatures essential for a valid will are missing.
  5. A more recent will exists, and this was created after the one submitted to the probate court.
  6. Evidence suggests the deceased had destroyed the will before they passed.
  7. The loved one lacked the mental capacity to sign the will.

What is the deadline for contesting a will?

deadline of contesting a will
Many times, you will have up to 30 days after receiving the petition to probate the will to raise an objection. The probate court will send you a letter that includes the official objection deadline.

Do not miss your objection window because filing a caveat late can be tedious and requires court approval.

The petition to probate the will may reach you through certified mail, an overnight service like Fedex, or a sheriff service, where a sheriff delivers the document in person.

How will you know when someone has filed a caveat?

Recognizing when someone has already filed an objection will help you stay on guard. Keep an eye out for these signs:

  1. Notifications from the Probate Court

    The state probate court usually informs heirs, beneficiaries, and other interested parties about the will contest.

  2. Communication from interested parties

    Heirs, beneficiaries, or other parties involved in the will may inform you that they have filed an objection.

  3. Legal Representation

    If you are a beneficiary or heir named in the will, you may receive notice to hire legal representation to respond to the challenge.

  4. Court Hearings

    Scheduled hearings could also signal a contest. In some cases, you may even receive court summons or notices to appear.

  5. Delays in the Probate Process

    A caveat can put a hold on the probate process. This allows interested parties to gather evidence during what’s called the “discovery period.” This timeline varies depending on the county where the estate is pending, but it typically lasts anywhere from two to six months.

  6. Disagreements Among Heirs or Beneficiaries

    Heated disputes among heirs or beneficiaries may be a sign that someone has contested the will.

  7. No-Contest Clause Activated

    If the will includes a no-contest clause, it might be triggered when someone files a formal challenge, discouraging beneficiaries from contesting.

What do I do if someone threatens to challenge the deceased’s will?

deceased will

The idea of facing an aggressive relative who objects to the will can be unsettling. To protect your rights and interests, we recommend reaching out to a probate attorney as a first step. They can offer you guidance and provide legal advice throughout the process.

While you prepare for what’s next, you can start collecting any evidence that may support the will’s validity. It is always a good idea to keep a detailed record of all communication and actions related to the will and estate.

For a more peaceful approach, you may also consider maintaining open communication with the person objecting to the will. Try to understand their concerns and explore resolutions through discussion or mediation.

What do I do if someone files a legal objection to the will?

If someone has decided to take matters further and filed a caveat, here are proactive steps you can take:

  1. Review the objection

    Understanding the contesting party’s grounds for contesting the will can help you prepare a well-informed response.

  2. Consult with an experienced probate attorney immediately.

    A lawyer can assess the situation, advise you on the validity of the objection, and guide you through the legal process. Work closely with your attorney to gather evidence that supports the validity of the will. This may include statements from witnesses present during the will signing and any medical records that can attest to the testator’s mental capacity.

  3. Prepare a formal response to the objection.

    Address each point raised by the contesting party with supporting evidence. Your attorney can help you build a well-structured response.

  4. Consider the option of mediation or negotiation

    You can seek a resolution outside of court through amicable methods, like mediation or negotiation. These approaches can be a more peaceful way to settle conflicts, saving you time and expenses.

  5. Be prepared for court proceedings and hearings related to the will contest.

    Your attorney will be there to present your case and defend the validity of the will.

  6. Ensure witnesses are available to support the testator’s intent and proper execution.

    If witnesses were present during the will signing, you can request their testimony supporting the testator’s intentions.

  7. Keep all case-related documents well-organized and accessible.

    Maintain a well-organized record of all documents related to the case. This will facilitate communication with your attorney and streamline the process.

  8. Explore settling the matter to avoid lengthy legal battles.

    Consider the possibility of settling with the contesting party. Negotiating a resolution can spare everyone involved from prolonged and costly court battles.

Throughout the process, stay informed about the progress of the case and communicate with your attorney. Understanding the developments and potential outcomes will help you navigate the situation effectively.

Is there a way to prevent the will from being contested at all?

probate lawyerYou can’t control other peoples’ actions, but you can take certain steps to protect the validity of your loved one’s will.

Consult a probate lawyer to review the will’s content and check its validity. It is also worth understanding the will’s provisions and how they affect your interests.

During probate, record all will-related communication and discussions with other heirs.

If someone expresses their intention to challenge the will, familiarize yourself with the possible grounds for contestation. This knowledge will help you anticipate if their reason is enough to support a legal objection.

If you were present during the will’s execution and can attest that the testator was of sound mind, consider providing a written statement. You can also identify witnesses who can testify to support this further. Both can help counter any claims of undue influence.

Lastly, help beneficiaries understand the implications of a no-contest clause if the will has one. It can discourage challenges by disinheriting those who contest it.

Can a person still object if the will has a no-contest clause?

no contest clauseSome wills include a no-contest clause to discourage heirs and beneficiaries from challenging the will’s validity. Then again, there can be situations where a person may consider objecting, even if the clause exists.

For example, if someone stands to inherit nothing from the will, filing an objection may be less risky for them.

On the other hand, someone who is entitled to receive a specific amount faces a more complex decision.

Our legal team advises clients to weigh their options. If a client entitled to inheritance wants to contest the will, an unsuccessful objection could mean losing all their share.

We take the no-contest clause very seriously, so we highly advise discussing this matter with an experienced lawyer. Your attorney can guide you on whether challenging the will makes sense.

What happens when a will contest is successful?

will contestIf the caveat is successful, the probate court will declare the current will invalid and disregard its instructions. The court may then refer to a previous will that has not been contested or follow the state’s inheritance laws to distribute the estate.

A successful contest can change the way the estate is divided among beneficiaries. If a valid will does not exist, the personal representative may distribute the assets according to intestacy laws.

On the other hand, if a will contest is unsuccessful, the existing will shall be considered valid, and the estate distribution will proceed as outlined in that will.

What’s Next?

Going through a will contest can be an emotionally taxing experience, but anticipating challenges can empower you to take proactive steps and safeguard your loved one’s final wishes.

If you find yourself in this situation, seeking guidance from an experienced probate attorney can support you through the complexities of a caveat. Please don’t hesitate to contact our office at (770) 796-4685 to schedule a consultation.

Download the Georgia Probate Handbook.

Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.

    About the author

    Erik J. Broel
    Founder & ceo

    Erik founded the firm in 2009. He sees it as his personal mission to demystify the process of handling an estate or trust, and to help people by making the complex estate process simple and accessible. He believes there is always a better way to do things, and loves finding new and innovative ways to deliver better, more effective service that solves the client’s key problem or issue, and improves the client’s life.

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