A last will and testament is the most common (although not necessarily the best) device used to distribute a person’s earthly possessions upon his or her death. To be effective, however, a will must be offered for probate. “Probate” is simply the formal process by which a court determines whether a document purporting to be a will is legally enforceable. During this process, the probate court and/or a jury determines whether a will was properly witnessed and executed, whether the “testator” (the person who made the will) had the capacity to do so, and/or whether the will was the product of undue influence, fraud or mistake. Of course, all of this takes time and money, both of which are often in short supply for surviving spouses. This is particularly true when objections or caveats are filed to the petition to probate a will.
In one recent case, we represented a woman who was the second wife of a well-to-do doctor and the sole beneficiary in the doctor’s will. The principal asset in the doctor’s estate was the couple’s residence, which had more than $500,000 in equity. If the doctor’s will was probated, our client would inherit the home. If, on the other hand, the doctor’s will was not probated, he would have died “intestate” (without a will), and, under the intestacy laws of Georgia, all of the doctor’s heirs—not just his surviving spouse—would be entitled to inherit portions of his estate. This included his children from his first marriage, who, as is often the case, had no particular affection for our client, the second wife. Will disputes are common and can happen in any family. They are particularly likely in these types of situations, however, where familial bonds are weak and family estates are large.
When our client offered the doctor’s will for probate, our client’s step-children objected, contending she had forged the doctor’s signature on the will or, if that was not true, that the doctor’s will had not been properly attested or, if that was not true, that the doctor did not understand the will. As a result, the doctor’s will could not be probated short of settlement—which would have involved giving portions of the doctor’s estate to the children, contrary to the doctor’s express wishes—or litigation.
We pursued a strategy of obtaining summary judgment (a resolution short of a jury trial) so the will could be probated as quickly as possible. This meant retaining a handwriting expert to prove the signature on the will was authentic, obtaining affidavits from the attesting witnesses to prove the doctor’s will was properly executed and witnessed, and deposing the step-children to establish the absence of any genuine issues regarding the enforceability of the will. In the end, the Probate Court probated the will short of a jury trial. As a result, our client was able to inherit her husband’s estate, as he intended, and receive considerably more assets than she would have had he died intestate, all in a relatively short period time and for comparatively limited cost.
Due to the complexity of probate litigation, and the financial stakes involved for beneficiaries and heirs, it is critical to hire attorneys with experience and expertise in both civil litigation and probate litigation in particular. If you are a beneficiary facing a will contest, or an heir who believes that a will being offered for probate is invalid, give the experienced litigators of Cary Ichter and William Daniel Davis a call at 404-869-7600.
