Whenever a client’s Estate Plan deviates from the expected disposition, it raises questions. Most of the time, clients have consulted with a competent attorney regarding their reasons for structuring the plan the way that they have.
Sometimes, other factors are at play and the plan doesn’t represent the testator’s true wishes, but rather, another individual’s testamentary desire. That’s undue influence.
In Georgia, a will that is executed as a result of undue influence is not valid. O.C.G.A. § 53-4-12 provides:
A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator’s freedom of volition, such as fraudulent practices upon the testator’s fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.
Unfortunately, a party who exercises “undue influence” over a testator is often a family member, close friend, or caregiver who seeks to benefit from a change in the testator’s wishes.
Georgia courts have repeatedly ruled that setting aside a will because of undue influence requires a very high level of proof, therefore contesting a will based on a claim of undue influence is not easy.
Georgia courts have also held, however, that if someone has a confidential relationship with the testator and takes under their will, but is not a a child or other natural object of the testator’s bounty, then it can raise a presumption of undue influence.
In short, undue influence is a complicated subject, so read on to learn more!
- Understanding Undue Influence – Part II - August 16, 2022
- Understanding Undue Influence – Part I - August 9, 2022
- Understanding Tax Apportionment Clauses - August 1, 2022
