Monday, May 30, 2016

How to File a Caveat (Objection) to a Last Will and Testament

How to File a Caveat (Objection) to a Last Will and Testament.

You spent the last four (4) years of your life taking care of your dear father.  He passed away and the funeral is over.  Now you are putting your life in order without your dad.  Your mom passed away some years ago and everything in your mom's estate passed to your father.  

Your father was a wonderful man.  He always told you everything in his estate would be yours when he passed away.  

Well, not so fast. 

You just got served with a Last Will and Testament [1] that leaves everything to your father's mistress.   











 [2]


You thought the mistress was history and he had grown out of that phase of life.  Well like all estate secrets, we guess not.

What can you do?

You can file a formal caveat or objection to the Last Will and Testament offered by the mistress for Probate. 

So how do you do it?   The caveat is a pleading that is filed in opposition and response to a Petition to Probate in Solemn Form. [3]

You can write your own, or copy portions from a Form we have prepared.  [4]

In Georgia, you must move with speed.  You only have ten (10) days to file a caveat (an objection). [5]  However, there are certain methods by which you can extend the ten (10) days to caveat, but they are beyond the scope of this blog post.

The types of objections that you can assert in your caveat (other than dad must have been out of his mind leaving it to the mistress) are:

& & &

The Will was not attested correctly according to law; that is, one of the required witnesses is missing or that witness was not qualified to witness the will in question;
The formalities of the Will were not followed;
The document propounded is not a Last Will and Testament (is may be missing necessary language);
One or more of the witnesses was incompetent at the time the Will was witnessed (this may also disqualify the self-proving affidavit, if one is presented for Probate);
The Testator was unduly influenced to make the Will propounded;
The Testator was unduly influenced to insert certain bequest and/or legacies in the Will, which were not the intent of the Testator;
The Testator was incompetent to make a Will at the time it was attested;
The Testator was insane or incompetent at the time he or she signed it;
The Testator was so weak and infirm that the Testator could not have known what was in the Will at the time he or she signed it;
The Testator was an accomplished physician/or CEO/or skilled musician (or whatever) and the shaky and illegible signature shows that the Testator did not know what he or she was signing at the time it was attested;
The will was revoked by tearing or burning or was revoked by a will that was executed AFTER the date of the propounded Will and thus the propounded Will is not the final Last Will and Testament of the Testator.

& & &

Happy Caveating.

If we can help you with the assembly of a Caveat or other probate document, please give us a call.

Hugh C. Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084

hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Cell: 678-516-8289
Fax: 404-633-0068



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[1]

You were served with a Petition to Probate in Solemn Form.  That Form can be found at the Probate Judges' Official site or here:

https://www.scribd.com/doc/314288633/Petition-to-Probate-Will-in-Solemn-Form-Georgia-Probate-Form-5

[2]

Story and photo from British ITV.
Jeremy Kyle exploded with rage at three women after they discovered on TV that they were half-sisters.  Hazel, 18, found out Danielle and Katie's late father Ronald was also her dad for the first time in 18 years when Jeremy read out DNA results on The Jeremy Kyle Show.
After hearing that Hazel was definitely her half-sister, Danielle reacted with fury and shouted at her half-sibling: "Jump off a cliff."  Watch Jeremy Kyle explode with rage and give chase backstage as guests run off: ''It's all BS''  4 Aug 2015 By James Leyfield.

[3]



Filing a Caveat to a Will

Hinkel, Daniel F. , Ga. Probate & Administration § 4:1 (4th ed.)(2015)
Georgia Probate and Administration with Forms
Chapter 4. Caveat to Probate
§ 4:1. Definition
A caveat is a written objection to the probate of a will filed with the probate court citing the grounds for objection.1 The only issue is devisavit vel non (will or no will) — whether the propounded paper is or is not the last will and testament of the deceased. There are only three questions for consideration: (1) Was the document properly executed? (2) Did the testator have mental capacity to execute the document? (3) Was there undue influence, fraud, or mistake in the execution of the document? It is not a ground for caveat to the probate of a will that a devise to a particular person may be void or uncertain.2
To have standing to caveat a will, a person must have a sufficient interest in the estate so that he or she will be injured by the probate of the will or will benefit if the will is not being probated.3 For example, beneficiaries in a first will, though not heirs-at-law, would have standing to caveat a later will.
1
O.C.G.A. § 15-9-88.
It is not necessary that an executor be appointed prior to the court's consideration of the merits of a caveat. See In re Estate of Farquharson, 244 Ga. App. 632, 535 S.E.2d 774 (2000). Evidence showed that medical guardianship form was not intended as a will. Candies v. Hulsey, 277 Ga. 630, 593 S.E.2d 353 (2004). See O.C.G.A. § 53-4-68 regarding in terrorem clauses that disinherit a will contestant. Cox v. Fowler, 279 Ga. 501, 614 S.E.2d 59 (2005). A caveat may be amended up to the time evidence is taken at trial where there is no pre-trial order. Henderson v. Henderson, 281 Ga. 553, 640 S.E.2d 254 (2007).
A caveator of a will who signed a letter of assent consenting to the probate of the will in solemn form is precluded from asserting that the will was invalid due to the testatrix's mental capacity. In re Estate of Brice, 288 Ga. App. 449, 654 S.E.2d 420 (2007).
It was proper for a probate court to dismiss a will caveat without a hearing. The pleadings affirmatively established that the caveat was fatally defective. In re Estate of Brice, 288 Ga. App. 449, 654 S.E.2d 420 (2007).
The Court of Appeals affirmed a probate court's holding the caveators' attorney's fees are to be paid by the estate when it was alleged the estate benefited from his services. In re Estate of Boss, 293 Ga. App. 769, 668 S.E.2d 283 (2008). The court in its decision, does not actually rule the caveators' attorney's fees should be paid from the estate but instead allowed the probate order to stand because the appellant failed to preserve the argument in a properly filed cross-appeal.
An estate cannot recover attorney's fees, incurred in a prior appeal of litigation regarding a will contest, in a second action against the executor for malfeasance. Only attorney fees and expenses incurred in prosecuting the second action could be recovered. In re Estate of Tapley, 312 Ga. App. 234, 718 S.E.2d 92 (2011).
Caveators of a will are not collaterally estopped to assert incapacity and undue influence because the Court of Appeals had already decided such issues adversely to them in an action involving a guardianship of the testator (Copelan I). Establishing a guardianship requires clear and convincing proof. The burden in the case presently brought by the caveators to prove lack of testamentary capacity and undue influence is only a preponderance of the evidence, a less demanding burden than the one considered by the Court of Appeals in Copelan I. The failure to prove something by a higher standard will not work as collateral estoppel in a subsequent case in which the same thing need only be proven by a lower standard. Copelan v. Copelan, 294 Ga. 840, 755 S.E.2d 739 (2014).
O.C.G.A. § 53-11-10(a) provides for a 30-day objection period to file a caveat for persons who are outside the continental United States. The only reasonable interpretation of this statute is one in which the extended 30-day objection period applies to persons residing outside the continental United States, not a person who resides within the continental United States but was traveling out of the country on business at the time service was made on him at his residence by handing a copy of the probate court's order to the defendant's wife. In re Estate of Loyd, 328 Ga. App. 287, 761 S.E.2d 833 (2014).
2
In re Estate of Corbitt, 265 Ga. 110, 454 S.E.2d 129 (1995); Reid v. Wilson, 208 Ga. 235, 65 S.E.2d 913 (1951); Shaw v. Fehn, 196 Ga. 661, 27 S.E.2d 406 (1943). See also Garrett v. Morton, 265 Ga. 394, 458 S.E.2d 618 (1995).
3
Lavender v. Wilkins, 237 Ga. 510, 512, 228 S.E.2d 888, 92 A.L.R.3d 1236 (1976).
Appellant was estopped from asserting that a will was not properly witnessed inasmuch as he acknowledged service and consented to the immediate probate of the will with full knowledge of its contents and the circumstances surrounding its execution. Clark v. Clark, 265 Ga. 434, 457 S.E.2d 564 (1995). See also Morgan v. Johns, 276 Ga. App. 366, 623 S.E.2d 219 (2005), judgment rev'd, 281 Ga. 51, 635 S.E.2d 753 (2006) and judgment vacated, 282 Ga. App. 724, 639 S.E.2d 419 (2006); Morgan v. Johns, 282 Ga. App. 724, 639 S.E.2d 419 (2006); In re Estate of Brice, 288 Ga. App. 449, 654 S.E.2d 420 (2007); Smith v. Wyatt, 282 Ga. 902, 655 S.E.2d 581 (2008).
An executor of a will who is also the trustee of a testamentary trust created under the will has standing in his capacity as trustee of the testamentary marital trust to file a caveat to a codicil of the will which alters the allocation of property without increasing the share devised to the trust. Melican v. Parker, 283 Ga. 253, 657 S.E.2d 234 (2008).
A caveator who benefited by the probate of a will and was not harmed by its probate lacks standing to allege the decedent lacked testamentary capacity and that the will was a product of undue influence. Norman v. Gober, 288 Ga. 754, 707 S.E.2d 98 (2011).
A caveat contesting the validity of a will brought by a person who lacked standing is an initiation of a legal proceeding that may trigger the in terrorem clause in the will and might, under some circumstances, be attributed to a party other than the caveator. Norman v. Gober, 292 Ga. 351, 737 S.E.2d 309 (2013).
A grantee of a deed from the testator, which might have been cancelled in the event the testator's will was upheld as valid, has sufficient interest in the proceeding to have standing to caveat the probate of the will. Odom v. Hughes, 293 Ga. 447, 748 S.E.2d 839 (2013).
 

[4]

Caveat Form

https://www.scribd.com/doc/314290989/Caveat-to-a-Last-Will-and-Testament-Georgia

[5]

In re Estate of Loyd, 328 Ga.App. 287, 761 S.E.2d 833, 835 (2014).


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