As you probably know, a will is a legally binding document that lets you leave instructions for what happens to your assets. Your will goes into effect at the time of your death.

As an estate planning attorney who serves clients here in Atlanta and across northern Georgia, I frequently meet with clients who make claims of undue influence regarding a will. While every scenario is unique, there are some commonalities to many of these undue influence claims.

HOW DO UNDUE INFLUENCE CLAIMS TYPICALLY ARISE?

In most of these cases, the client is a family member who was expecting to receive greater benefits from the testator’s will.

Also in most of these cases, a third party – a friend, a distant relative, a private nurse, or even a lawyer – appeared at a late stage in the testator’s life. The person who is making the claim was unaware of the late changes made to the will.

Then, when the testator passes, the person discovers that he or she has been cut out of the will or that his or her share of the estate has been reduced.

HOW CAN YOU ESTABLISH PROOF OF UNDUE INFLUENCE?

The natural assumption is that the person who is benefiting somehow unduly used his or her position of trust to get the testator to effect the change in the will.

Quite honestly, for a Georgia estate planning attorney, proving undue influence in the civil courts can be a difficult task. This is because, generally speaking, direct evidence of undue influence does not exist.

WHEN CAN UNDUE INFLUENCE BE PRESUMED?

Luckily for plaintiffs, Georgia case law allows a great deal of circumstantial evidence to come in to help prove undue influence. In addition, Georgia law allows for a rebuttable presumption that the testator was unduly influenced if three conditions can be proven by the evidence:

  1. The perpetrator occupies a confidential relationship with the testator.
  2. The perpetrator is not a natural object of the testator’s bounty.
  3. The perpetrator takes an active part in the planning, preparation, or execution of the will.

While the presumption is rebuttable, proving it goes a long way toward establishing undue influence in the Georgia civil courts.

HOW CAN YOU PREVENT A CLAIM OF UNDUE INFLUENCE?

If you are preparing or amending your own will, and if you are planning on including a beneficiary who might be vulnerable to others’ claims of undue influence, there are certain measures that you and your estate planning attorney can take. Those measures include:

  1. Put language in the will that explains why you have chosen this person.
  2. Inform all of the parties concerned as to what your intentions are.
  3. Keep your beneficiary from assisting you in planning or preparing your will, and do not make that person the executor of your estate.

It does not matter if you are old or young, and it doesn’t matter if you live affluently or modestly. If you have children, or if you would like certain assets to go to particular persons after your death, you need a will.

And as with all legal matters, when you are planning your estate and preparing your will, you should seek the advice of a competent attorney – in this case, an experienced Atlanta estate planning attorney.