Atlanta Probate Lawyer Blog

As an Atlanta, Georgia, Dispute Attorney for Will Disputes; Atlanta, Georgia, Lawsuit Litigation Lawyer for Will Validity; ATL, GA Will Contest Attorney; and, Atlanta, North Georgia Will Challenge Lawyer -- many people are often confused how THE ADAMS LAW FIRM uses undue influence as a defense to issues related to Heir and Beneficiary Will Contests, Probate Disputes, Estate Challenges, and ATL, GA, Probate Litigation.

AFTER THE TESTATOR HAS PASSED AND THE ESTATE IS BEING PROBATED

One of the cases commonly referred to and used as a defense to undue influence is Haynes v. First National State Bank of New Jersey case in 1981. The New Jersey Supreme Court established that the burden of proof lies on the proponent, especially when there are suspicious circumstances surrounding the will. It is also extended to transfers of property between donors and beneficiaries. The donee must bear the burden of proof and establish that the transfer of property was a gift and not the result of undue influence. This is altogether not so problematic when other heirs and beneficiaries received gifts, estate taxes mandated gifts of property and other wealth to use the Testator’s Unified Credit, and more. Therefore, it is common that related parties make gifts to their “flesh and blood” rather than have this money go to the Georgia Department of Revenue or the United States Treasury (the IRS).

Another landmark case is Pascale v Pascale in 1988. The New Jersey Supreme Court stated that the donee must establish for the court that the donor had an unbiased and competent counsel prior to the drafting of a Georgia Will or Power of Attorney. It is also helpful if these documents remain relatively similar in disposition of assets and powers given to the Power of Attorney In Fact. This is especially true if the donor is found to be mental or physically weakened. However, if the instructions and dispositions in these documents remain relatively the same, then a “best practices management” argument would be as follows:

• Argue to the Jury that whether it was a time the Testator was knowingly competent and understanding the consequences of all his or her acts, to the time when lack of capacity of undue influence might have set in, that even after the onset of some disease making a person susceptible to Undue Influence, the Testator’s wishes and desires remained the same.

• You may also argue that any confidential relationship can create a presumption of undue influence that the donee must then prove to be otherwise. A donee with superior knowledge of financial matters, fiduciary relations, or one who is directly responsible for the physical care of the donor can be considered to have an extraordinary relationship that could create undue influence. However, you will then go on to say someone has to take care of the loved one, and why should it not be another loved one rather than a hired paid caregiver who possibly doesn’t care about the disposition of the Georgia Testator’s Estate.

• To the contrary, Consider King v Brown in 2006. The jury found the will to be invalid due to undue influence and lack of testamentary capacity. In 2002, the decedent divided his estate between his 6 children in a will. Shortly thereafter, two of the decedent's daughters (King and Brown) were named his guardians and they began to quarrel over the estate and money. When his house was destroyed, the decedent moved in with his daughter King and shortly thereafter wrote a new will disinheriting Brown and leaving his estate to his daughter King. The jury decided that this was a result of undue influence because the father had become so dependent on his daughter for care and influenced by King decided to disinherit his daughter. This is obviously the scenario you to avoid in your case and defense.

A PROCEDURE TO FOLLOW BEFORE THE TESTATOR SIGNS THE WILL, AND A WILL CONTEST IS ON THE HORIZON.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia Estate Planning and Probate Attorneys in Atlanta, Georgia to set up a Georgia Will that clearly defines the Testator’s desired intentions. Keep in mind that while probate proceedings resolve issues on these difficult and emotionally charged cases, your heirs are the ones who will live not only with the outcome, but also with the consequences caused by any drama that plays out during the proceedings. With the proper planning, you can eliminate this turmoil and create a positive experience for your loved ones. Moreover, documentation of the Testator’s ailment is necessary as is making sure that capacity is shown at the time of the making of the will as well as having a recent visit from a doctor are always helpful ways to document the intentions of the Testator.

In fact, it may be prudent to video tape the proceedings, take extra steps to make sure the Testator is of sound mind, ask a lot of difficult questions to demonstrate the Testator’s capacity, and also possibly record the Georgia Will execution. What is more, have the proper unbiased witnesses there who do not know the Testator and do not in any way shape or form have an interest in any Georgia will contest proceeding. This also might be time to add an extra witness to your Will and not use your own paralegal as a witness or witness the Georgia Will itself. The fact is, acting as if this situation does not exist is the absolute wrong thing to do. You may also want to do the following:

• Record the proceeding

• Have extra witnesses unrelated at the will signing

• Ask extra questions to determine the Testator’s capacity

• Put an “In Terrom” or “No Contest” clause in the Will

• Acknowledge the left out parties and state why as opposed to just oddly leaving them out altogether looking as if the Testator forgot these would be heirs of beneficiaries did not exist

• Remember, when one makes a will must know and do as follows: 1) know the contents of the Will Document; 2) Know the Nature of his or her bounty; 3) Know and Understand the Nature and extent of his or her assets for disposition.

• The capacity to make a will is less than the capacity to make a contract, and only a lucid moment in time by the Testator necessary

• Use Common sense!

The Adams Law Offices Atlanta, Georgia Will Contest Defense Lawyers know how to use the one party’s acts or omission against them. Remember, we are often on the other side of the Georgia County Will Contest Case. The Adams Firm Atlanta Estate Litigation Lawyers know what to look for, bring to the attention of the jury, and downplay.

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As a will probate litigation lawyer in Atlanta, Georgia, I know it is important to understand the grounds to contest a Georgia will. If you are a beneficiary, however, it is important for you to know if the Georgia will contains a "no contest" clause. If the will does contain a "no contest" clause and you still try to contest it, you will likely be disinherited all together. At The Adams Law Offices, we can help you determine if there is a reason to contest a will and can represent your interests throughout the will contest process.

GROUNDS FOR CONTESTING A WILL IN GEORGIA:

• Connected to the will—only people who are in direct connection to the will can contest its validity. You either have to be directly named in the will or a relative that should have been named in the will.

• Undue influence—if you believe that your loved one was influenced wrongly or created the will under duress in their final days, then you may have a valid reason to contest the will.

• Fraud—if you believe that your loved one was the victim of fraud or wrongdoing, then you may be able to contest the will.

• Mental Incapacity—if you question the mental capacity of the deceased person or testator, then the will may be considered invalid. You must be able to prove that your loved one was not of sound mind and body when the will was created.

TORTIOUS INTERFERENCE WITH INHERITANCE

If you do not wish to contest the validity of a Georgia will, but wish to interfere with the GA estate proceedings to acquire what is rightfully yours, there is another way. You may be able to file a lawsuit against the recipient of the portion of the estate you believe is rightfully yours. It is important to note, however, that this must be done when the testator of the will is still living. The Atlanta will contest lawyers at The Adams Law Offices can help you determine which course of legal action is right for you.

As soon as you realize a GA will contest dispute attorney may be part of what is necessary, right, and required to achieve justice, it is essential you seek the advice of an experienced Atlanta, Georgia will challenge lawyer to dispute the validity of the decedent’s Georgia will. Acting fast may save your Georgia inheritance and the inheritance of others.

Undue influence is often suspected upon administration of the decedent’s estate, but in other instances when noticed early on, the person exerting undue influence can be stopped before a will is executed. The Atlanta, Georgia will challenge lawyers at The Adams Law Offices are fiercely qualified to represent you in any Atlanta probate or estate lawsuit to invalidate a will. Our GA probate attorneys work throughout Atlanta and the more rural parts of Georgia.

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As an Atlanta, Georgia Petition for Inventory and Accounting Lawyer, I see many clients who have all but given up discovering what happened to the assets and monies of a Georgia Estate. They erroneously believe this because they have signed away their right to an Inventory and accounting. In the alternative, they believe they are not entitled to an Inventory and Accounting because the language in the will explicitly states one is not required. If this is your situation, you are in luck!

Georgia probate law provides that you can renounce your waiver to production of an Estate Petition for Inventory and Accounting in Georgia. Georgia law also states that language in a Georgia Will that an Estate Petition for Inventory and Accounting is not required to be produced is for convenience purposes. Any holding to the contrary on both of the above-referenced would be tantamount to a “license to steal” for any administrator, executor, or personal representative (Collectively referred to as “Fiduciary” or “Fiduciaries” of a Georgia Estate).

If properly requested, the Georgia Probate Court will issue a “Rule Nisi” (a “Court Order”) for the administrator, executor, or personal representative to appear in court at a formal hearing and state why an interested party’s request for a formal and complete “Petition for Inventory and Accounting” should not be produced. Guidance of an experienced Atlanta, Georgia probate lawyer is almost essential when undertaking this request in an estate proceeding.

It is important to enter into requesting a Petition for Inventory and Accounting appropriately. First, in my Atlanta, Georgia probate practice, I find it is a best practice to make a formal request on the administrator, executor, or personal representative through detailed demand letter sent to their counsel, or directly to the Fiduciary if they do not have counsel. In my numerous years of Georgia probate litigation experience, I have found that it is prudent to attempt to resolve the issue without court intervention. While necessary, I have found that such demand rarely satisfies the heir or beneficiaries making the request. Second, this demand will likely have a “knee-jerk” reaction causing the administrator, executor, or personal representative to cease any correspondence with the heir or beneficiary and remain silent. Furthermore, it oftentimes elicits the losing argument that the heir or beneficiary has waived their right to such and inventory or accounting by signing it away on the Estate’s “Letters Testamentary” or “Letters of Administration” issued to the Fiduciary. The other losing argument by the Fiduciary is that the language in the will explicitly states they are not required to give or prepare one. Again, these are both losing arguments. Do not be surprised if you see this argument made by an attorney representing the Fiduciary. This is a finite area of Georgia probate law and many non-probate lawyers are not privy to this rule. On another note, such requests should not be done to offend the Fiduciary, or for some other non-legal and legitimate reason. Remember, filing a Georgia Petition for Inventory and Accounting is tantamount to showing a lack of trust in the Fiduciary, questioning their moral principles, and making an implied statement that they have stolen, squandered, or abused estate assets. This is a serious accusation.

In some cases, conflicts surface when executors, administrators, or personal representatives can have difficulty providing an inventory of assets in a timely manner. It is precisely this situation that can make it seem that there is an abuse of power on their part. Conversely, many times executors, administrators, or personal representatives have breached their Fiduciary Duties. Under these circumstances, they are unable to provide an accurate inventory and accounting. This happens more often than one would like to think and seems to be happening more frequently in these tough economic times.

If you are an heir or beneficiary who feels the administrator, executor, or personal representative has breached their Fiduciary Duty, please do not hesitate to contact Our Firm. We will properly hold the Fiduciary accountable and do our best to return the estate to its previous condition or make the Fiduciary make equally satisfying amends. Many cases of Breach of Fiduciary Duty are serious and involve theft of estate assets, self-dealing, misappropriation of funds, and worse. For this reason, it is important for executors, administrators, or personal representatives (Fiduciaries) in this situation, to retain the service of an experienced and Georgia probate lawyer who can assist in identifying a breach of fiduciary duty, or just plain bad estate handling by the Fiduciary. In the latter case, it may be best to have this Fiduciary removed in favor of another.

Continue reading "PETITION FOR INVENTORY AND ACCOUNTING -- GEORGIA PROBATE LAWYERS CAN COMPEL PRODUCTION OF THIS DOCUMENT DESPITE A SIGNED WAIVER, OR LANGUAGE TO THE CONTRARY IN THE WILL" »