Legal Question in Wills and Trusts in Georgia

My brother persuaded my mother to change her will and leave him 1 3/4 of the estate and there was a provision in the will if I (the only other chiild) protested this will, I would forfeit what was left to me. Is that legal? I thought anyone could contest a will. He also had her to sign a condicil that I could not take his camper that she had in her name one week before she died. She also had dementia. He lives in Ga.


Asked on 9/01/11, 2:14 pm

2 Answers from Attorneys

What you do not tell me is where your mother lived. It is that state whose law will contol, not where your brother lives.

The provision in your mother's will is called an "in terrorem" clause. Yes they can be enforced and yes they can also be challenged.

People put them in wills to prevent their heirs from objecting to their provision. I don't like them and rarely use them as a will can always be challenged by a disgruntled heir provided that the heir has legal grounds - for example, if it can be shown that your mother had dementia when she made theg will or if she was under your brother's "undue influence" such that the will was not really the product of her free choice then you can challenge it. If you succeed and get her will kicked out, then she will be deemed to have died without a will and you would get a share of her estate under the intestacy laws.

If, however, everything is a-ok - your mother was in her right mind and that is what she wants to do, then the clause will be enforced if you would try to challenge the will.

If she is already dead, then I would take a copy of the will immediately to a probate lawyer inthe county/state where she lived at the time of her death and pay the lawyer to review the documents and give you his/her opinion as to whether a challenge to the will would be successful. Given that she had dementia, if she had it when she revised the will and the doctors will saay that she had no mental capacity, then you will be good to go. What will depend on then is what she has in her estate and how much more money you would get if you brought a will caveat. If there are little or no assets, then it may not be cost effective since any money would get would be spent in legal fees.

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Answered on 9/01/11, 2:49 pm
Glen Ashman Ashman Law Office also dba Glen Ashman Attorney

You left out much of what matters to answer, including the state where she lived.

If she was of sound mind, she was likely free to disinherit you altogether. If she lacked testamentary capacity, or you can prove undue influence, if the estate was significant in size you need to see a lawyer to evaluate the chances, benefits and risks in a challenge. Be aware that a challenge could cost you your whole inheritance unless you prevail.

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Answered on 9/01/11, 8:11 pm


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