Challenging a Will: Undue Influence

O.C.G.A. § 53-4-12 says, “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” (emphasis added).

Therefore, undue influence occurs when someone substitutes his or her desires for the wishes of the person who is having his or her Will drafted (the testator). This type of influence (that which is undue) must replace the testator’s free will due to deception, force, or coercion.

As is perhaps evident from the nature of this challenge, undue influence can be difficult to prove. Georgia case law indicates actions of family members who honestly shed tears and beg the testator to change his or her Will (for example, a wife who begs her husband not to disinherit his son), do not arise to a level of undue influence. However, if the testator to changes his or her Will because a family member uses fraud or duress (threats of violence or other repercussions), those actions may be sufficient to overturn the Will.

Additionally, successful challenges to a Will for undue influence must show the undue influence was effective at the time the will in question was signed. Without this requirement, the undue influence was legally ineffective.

A challenger to a will may establish a rebuttable presumption of undue influence if the testator had a “confidential relationship” with the person who influenced him or her. If a challenger can establish a presumption of undue influence, the burden shifts to the party seeking to probate the Will to prove the testator was not unduly influenced.

A confidential relationship is characterized by a testator’s implicit trust in the other person. Examples of confidential relationships include those with ministers/priests/rabbis, caretakers, or potentially a power of attorney.

Georgia case law adds two other requirements to granting a presumption of undue influence based on a confidential relationship: (1) the offending party must have been active in the planning, preparation, or execution stage of the Will and (2) the unnatural object of the testator’s bounty. This latter requirement means the beneficiary would not have typically been a recipient of any inheritance from the testator’s estate.

If you believe a relative was unduly influenced or you have questions about your rights to challenge a petition to probate a family member’s Will, please contact us today. The information above is for general information purposes only.