Question: How can I contest my mother’s Will based on diminished mental capacity? My mother was diagnosed in the fall of 2020 with vascular dementia and passed away recently. I’ve received the petition to probate from the attorney for the nominated executor of the estate. I want to find out if I have a case to contest, as the Will is dated March 2021, and I have some evidence that shows her confusion and reduced mental capacity PRIOR to the date of the Will.
Loraine’s Answer: You can try to contest the Will if you have evidence that your mother was suffering from diminished cognitive capacity and you believe that she did not have the capacity to execute a Will at the time she signed it.
However, please note that once a Will has been offered for probate, the window of time to contest is short, and if you have already signed the petition to probate and consented to having the Will admitted to probate, your ability to contest may be severely limited. Please also note that it’s not particularly easy to successfully challenge a Will based on lack of capacity, as the degree of capacity you have to have in order to make a Will in Georgia is actually not all that high. Your case may be bolstered if you have medical records that demonstrate that your mother was severely impaired around the time the Will was executed, or if you have gathered personal evidence, such as testimony, dated notes, or affidavits from other people who witnessed her decline. If your mother signed the Will in an attorney’s office, your case may be less credible, but that does not necessarily mean you can’t succeed.
If you believe you have strong evidence and you want to move forward, contact an attorney who does Will challenges (ideally, an attorney who handles fiduciary litigation or probate litigation as a major part of that attorney’s practice) and schedule a consultation as soon as possible. The attorney should be able to hear your concerns, discuss your evidence, and help you figure out how strong your case appears to be. The attorney can also give you an idea of the time and cost involved in making the challenge.
Key Estate Planning Takeaways: Once a Will has been offered for probate, the window of time to contest it is short. Anyone who seeks to contest a Will should gather credible evidence and meet with an attorney who specializes in estate litigation as soon as possible. In addition, if you think you may want to try to challenge a Will, you should not sign any petition to probate the Will, because by doing so you are generally consenting to having that Will admitted to probate, and that consent will make a challenge even more difficult.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
