Edwin Cook Law

Estate Planning Attorney, Atlanta GA

Understanding Undue Influence – Part II

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In our first post about undue influence, we talked about what constitutes undue influence in Georgia and the difficulty of challenging a will on the basis of undue influence.

On the other hand, if you’re a testator who is concerned that your will or other testamentary wishes will be challenged by a disgruntled relative, there are many ways to discourage such challenges that Georgia recognizes.

One of the most common is drafting a “no contest” provision (also known as an “in terrorem” clause) that will disinherit a beneficiary or heir who challenges a will but ultimately loses.  Such provisions can serve as a strong disincentive to challenging your testamentary wishes.

While some states do not recognize or enforce “no contest” provision, Georgia law does recognize these clauses IF they are properly drafted.

For example, a “no contest” clause is void unless it states where the deceased’s property  will go in the event the clause is violated.  See O.C.G.A. § 53-4-68(b) (“A condition in terrorem shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem is violated, in which event the direction in the will shall be carried out, except as otherwise provided in subsection (c) of this Code section…)

Importantly, Georgia law recognizes “no contest” or “in terrorem” clauses in wills AND trusts, but places similar limitations on such clauses in trusts. See O.C.G.A. § 53-12-22.

Whenever a client’s Estate Plan deviates from the expected disposition, it’s going to raise questions for the slighted beneficiaries.

Consequently, if you are concerned your testamentary wishes may be challenged, it’s very important to consult with a competent estate planning attorney to make sure your plan is properly drafted.

Call us today at (404) 465-346 if you’d like to discuss this issue or any other estate planning concerns you may have!

And if you’d like to learn more about “no contest” clauses, check out this post by the American Academy of Estate Planning Attorneys.

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About Edwin Cook

Edwin (Win) Cook is a third-generation lawyer who helps individuals and business owners with estate planning, the probate process, and commercial disputes. He is a trusted advisor to individuals, professionals, business owners, and trustees on their most important and personal matters. Win is dedicated to the practice of law as a profession and is a member of the Atlanta Bar Association, the Cooper Inn of Court, and the State Bar of Georgia.