Will Caveat Cases

Family Disputes and Will Caveat Cases — What Can You Do To Avoid These?

As an estate planning attorney, we see many cases where family members feel like they’ve been slighted by their parents or grandparents when it comes to the contents of a will. This usually results in what we call a will caveat case. These family members are usually pretty upset because their parents or grandparents didn’t leave them what they thought should have been left to them. In this blog, I want to share a representative will caveat case from a situation where the contents of a will and the obliteration of a will were disputed.

An Example Will Caveat Case

In this will caveat case we had a parent who executed a last will and testament at their lawyer’s office in the presence of two witnesses and a notary public. Here in Georgia two witnesses and a notary are required to execute a will. In the will the parent left everything to the child who had been taking care of them for the past two years.

In situations like this where the will leaves everything to the “caretaker child,” there’s always suspicion of “undue influence,” which we’ll address later in the blog. There are many will caveat cases out there with regards to caretakers who are taking advantage of a parent and influencing them to write their will in a certain way. But in this case, the execution of the will was handled legally with two disinterested witnesses and a notary.

A last will and testament contains what we call a “self-proving affidavit” that basically says, “Before me today appeared Dale Davidson who signed this will as his free and voluntary act and for the purposes therein expressed before Nancy and Billy as witnesses and Sharon as the notary.” That’s basically a simplified version of a self-proving affidavit, which is just saying that the parent executed the last will and testament as their free and voluntary act under no undue influence or coercion.

Here’s where things get complicated in this will caveat case. Several months after the parent executed the last will and testament, an estranged child enters the mix. The estranged child discovers the existence of the will and visited the lawyers office with the parent to retrieve the will. Then at some point within the next few weeks, the estranged daughter brought the will back to the lawyers office. And guess what’s on the will now — a hand written note that says “I hereby revoke this will,” signed parent.

After the parent passes, the caretaker child notices the note on the will and goes to probate the will. The estranged child says wait a minute here — you can’t probate this will because the parent was coerced into signing this will in favor of you because you were the caretaker child. Now recall from above that this last will and testament was executed validly by that self-proving affidavit, so that presumption was on our side.

Now the burden of proof is on the child who is saying that the will was revoked. They have to prove that it was actually revoked. The estranged child now has the burden to say that the caretaker child unduly influenced the parent to execute the will, therefore making it invalid. That was one of the several issues that was discussed in this trial, but not the specific issue we want to address here.

How Can a Will Be Revoked?

The big issue was the hand written note on the will and whether that was enough to actually revoke the will. The law says that the will has be destroyed or obliterated for it to be revoked. In this case the last will and testament wasn’t destroyed because it wasn’t torn. It simply had a hand written note on it.

If someone comes into our office and needs a will rewritten, we will require them to tear the existing will in front of us and then we’ll run the will through a shredder. This is the proper way to obliterate a will so that there are witnesses that have seen it physically destroyed. That proves the physical intent of revoking a will.

The question in this will caveat case was whether the last will and testament was actually obliterated or revoked with just the hand written note. This led into a discussion of what “obliterated” actually means according to the law. There were no scratched or crossed words on the will. There were no X’s on the paper. There was no blackout of names. In fact, the words “I hereby revoke this will” was actually on the margin outside of any typed words. The will could still be read clear as the day it was executed.

The other issue here was whether the parent actually had the mental capacity to obliterate the will. We argued that the parent did not have the requisite mental capacity to do such a thing. That burden of proof was on us. Until someone is in a court of law and the probate court deems them not to be competent enough to make important decisions, they’re deemed to be able to do whatever they need to do.

So we now had to offer evidence that the parent was not competent to modify the will in this instance. But how do you offer such evidence when a person has passed? Fortunately, we were able to present medical records that the parent did not have the mental capacity to make important decisions regarding their property and finances immediately before or during the time of the supposed will revocation. Another interesting piece in this case was that the supposed revocation of the will wasn’t dated. So we didn’t know when the parent made that hand written note on the will. As a result, we had to offer three months of medical evidence showing the lack of mental capacity to revoke or obliterate the will.

As you can see, there are many moving parts in these will caveat cases. This was a very difficult one because no one could agree upon anything. There was much yelling, screaming, gnashing of teeth, and things of that nature. And I’m sorry to say that this family will likely never made amends over this situation.

My best advice to parents or grandparents is to make sure all your children or grandchildren understand what your will says about your property when you pass. This will most certainly help to avoid and prevent will caveat cases involving your family. You have the power and authority to do whatever you’d like to do. But just make sure the will is clear about who is receiving what property and why they are receiving it.

If you have an estranged child, make sure the will states that you are not leaving them anything because of the lack of relationship with them. If you have a caretaker child, make sure you state why you are leaving them a significant portion of your property if that is the case. Your will should clearly state the reasons for why you are dividing your property a certain way.

If you are going to intentionally disinherit someone, you don’t have to mean about it. You can simply state that you are not leaving a certain person anything for reasons which seem valid and controlling to you. You can further clarify that those reasons are not because you don’t love a certain individual, but due to reasons which are known to you. That’s good enough for the courts. So you just have to be smart about it and do it right so that there are no unanswered questions when you pass.

Contact Us So We Can Help

We hope this discussion of a will caveat case has been helpful to you. If you need assistance with a will caveat case or modifying a last will and testament, please don’t hesitate to contact us at (229-226-8183). You can also COMPLETE THIS FORM and we’ll contact you to schedule an appointment. If you’d like to see this blog in video format, you can watch it below. Please be sure to SUBSCRIBE to our YouTube channel and click the bell notification button so that you’re notified each time we publish a new video.

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