Many people are unaware that, in order for a will to be valid, it must have been signed by the testator in the presence of two witnesses. However, even more people are unaware that the witnesses must also sign the will in the presence of the testator. According to O.C.G.A. § 53-4-20(b), a “will shall be attested and subscribed in the presence of the testator by two or more competent witnesses.” Generally, should evidence be provided that a testator did not personally see the witnesses sign his or her will, the probate court must refuse to probate the will. However, there is a precedent called the “line-of-vision” test. This test allows that the testator doesn’t actually have to watch the witnesses sign the will so long as the testator could have watched the witnesses sign if desired without moving or changing his or her position. One example of a case in which the line-of-vision test was utilized is Chester et al. v. Smith. In this case, the deceased, Sara Elizabeth Campbell, signed her will in a car in the parking lot of bank before a bank employee. The bank employee then took the will inside the bank and asked two… [Read More]
Georgia Probate Lawyer: Can a Family Member Unduly Influence Someone in the Making of Their Will?
In a previous blog post, I discussed the case Bailey v. Edmundson, which provided an example of what a presumption of undue influence regarding the making of a will looks like. In Bailey v. Edmundson, it was somewhat easy to conclude that the deceased had been unduly influenced due to the overwhelming evidence that his caregivers had actively encouraged him to make his new will against his stated intent (even the day after executing the new will) to leave his property to his daughter. However, in cases where the facts are less black and white (like in a situation where the person who stands to benefit from a contested will is a family member or spouse), what can a court look to in order to reach a conclusion that a testator was unduly influenced? There is no strict criteria to prove undue influence; it can be supported by a wide variety of evidence which is almost always circumstantial, so there is no one set “checklist” of what needs to happen in order for a will to be found to have been the result of undue influence. For example, in cases that involve the possible undue influence by a spouse, the court… [Read More]
Atlanta Probate Attorney: Undue Influence in the Making of a Will
As an Atlanta probate attorney, I have assisted many clients regarding the estate of a loved one who was likely unduly influenced to create a will that did not reflect their true intentions. Undue influence is when someone uses their relationship with a testator (creator of a will) in order to convince them to write their will in such a way that it favors the influencer. A claim of undue influence can be supported by a variety of evidence, including “a confidential relation (relationship in which one party exerts power or “a controlling influence” over the other) between the parties, the [un]reasonableness of the disposition of the testator’s estate, old age, or disease affecting the strength of the mind.” The case Bailey v. Edmundson provides us with a concrete example of undue influence. After her father, Raymond Cudworth, passed away, Heather Bailey filed a will for probate which named her executrix and primary beneficiary. However, his caregivers, a Michael Edmundson among them, filed a different will for probate which they claim was executed in 2004, after the will Bailey filed. The will filed by Edmundson left bequests to Edmundson and the other caregivers and significantly reduced the amount of estate… [Read More]
Georgia Probate Attorney: Estate Planning to Avoid Potential Probate Disputes
As an Atlanta estate planning and probate attorney, I have had many clients who found themselves tangled up in familial discord because of the lack of proper estate planning done by their parents or other family members. The probate process can be difficult and stressful and can often result in feuds between family members if an estate is complicated or if the estate was not planned well. If you would like to know what happens in the probate process for an intestate estate (the estate of a person who died without a will), you can read my previous blog post on the matter. I discuss in this blog some ways to plan your estate and write your will so that your family can avoid lengthy probate proceedings as much as possible – and hopefully avoid conflict. One way to avoid ambiguity in your estate plan that may lead to familial conflict is to designate bank accounts which you intend to give to a specific family member as “payable on death” (POD) or “transferrable upon death” (TOD). A POD/TOD bank account pays out upon your death only to the specific person named as beneficiary on the account. This type of bank… [Read More]
Georgia Estate Planning Attorney: Wills on the Cheap Cost More in the End
I’ve been an Atlanta estate planning and probate attorney for several years and am often entertained and sometimes shocked by some attempts people make to prepare their own Last Will and Testament either on their own or through an automated service like LegalZoom.com. I used to support companies like LegalZoom because I thought the documents they produced were foolproof, but I changed my mind after seeing what was supposed to be an easy process mangled either through the computer application or upon the execution of of the documents. I certainly sympathize with the customer concerned with costs and don’t blame LegalZoom for grabbing hold of a market niche, but too often the result is far from what the customer intended. (I’ve represented a lot of individuals in the past in business disputes resulting from the same problem: business partners too cheap to spend a few thousand dollars on a consult and some documents to protect their business and themselves from unknown legal risks. As a result, the partners often end up spending tens of thousands in litigation.) I’ve seen poorly drafted Wills make bequests to persons whom the testators had no intention of leaving property (at the cost of those… [Read More]
Georgia Probate Attorney: Understanding Probate vs. Administration
In my experience as a Georgia probate attorney, I’ve noticed many people are confused by the terms “probate” and “administration” because they often are used interchangeably, even by legal professionals, but their meanings are different. The reason for the confusion likely is caused by the two most common methods for opening an estate: (1) a petition to probate a Will and (2) a petition for letters of administration. Both petitions result in the appointment of a person to manage an estate, but they are very different in nature. Probate is the process by which a Last Will and Testament is proved to the probate court. When a deceased person leaves a Will, an interested party usually will file a petition to probate the Will in the probate court in the county where the deceased resided at the time of death. Typically, the person nominated as executor in the Will does this. The petition to probate the Will is actually a request made to the court to declare the Will valid. Before the court will do so, it will notify all heirs-at-law of the deceased that the petition has been filed so that the heirs-at-law have an opportunity to review and… [Read More]
Georgia Probate Attorney: Think Before You Sign the Acknowledgment of Service and Assent to Probate Instanter
I’ve been practicing as a Georgia probate lawyer for several years, so I get a lot of the same questions on a regular basis. One question callers often ask is whether they should sign a petition that was sent to them by someone trying to probate a Will. The question used to throw me for a loop. “Only the person trying to probate the Will should sign the petition,” I’d say. “Not a beneficiary.” But as my experience has grown, I’ve learned to know exactly what the caller means. She is referring to the Acknowledgment of Service and Assent to Probate Instanter form. When a deceased person leaves a Last Will and Testament, an interested party usually will file a petition to probate the Will in the probate court in the county where the deceased resided at the time of death. Typically, the person nominated as executor in the Will does this. Often, the petitioner will provide a copy of the petition along with the Will to the heirs-at-law of the deceased and ask them to sign a form entitled Acknowledgment of Service and Assent to Probate Instanter. If all heirs-at-law sign the form, and there are no other issues… [Read More]
Georgia Will Contest: Is It Worth It?
I get a lot of calls from people in Georgia, all over the United States, and sometimes abroad interested in contesting a will. Invariably, the first question they ask is whether they have a case? For an in-depth answer, please review the Will Contests page of this website. You may also find will contest article published at AARP.org helpful, not just because it provides an overview of when a will contest may be appropriate but also because it poses an important question: is the cost of a will contest worthwhile? There are several factors to consider when determining the value of a will contest? Most importantly, the case must have a good chance of success. This usually means a set of facts known from the outset that make it more likely than not that the will is invalid. However, the strength of a will contest must be analyzed from a legal perspective, not a moral or ethical perspective. I get plenty of calls from people who desire to contest a will because they do not like the contents of the will but have no legal basis to overturn the will. I also get a lot of calls from people who claim… [Read More]
