A person must meet certain minimum requirements in order to make a will. In Georgia, one must be fourteen (14) years of age to make a will. (many states require that a person must be eighteen) A person must also know his/her property and that he/she is specifying the persons or entities to whom he/she is leaving property. A person must know "the objects of his bounty" (i.e. his children, spouse, family, etc.). Finally, the testator must know the contents of the will he is signing.
Absence of Duress or Coercion
A will that is made under pressure or coercion is not valid. An extreme example would be someone who signs a will with a gun to her head. The most common cases of wills invalidated for undue influence involve caretakers or others upon whom the testator (the person making the will) relies convince her to give property to them in the will.
A will must be written in order to be valid. The will does not have to be typewritten or on any special paper. It can be handwritten. A will may not be oral in Georgia. For example, a videotape of someone expressing his wishes on videotape would probably not be a valid will under Georgia law.
Signed by, or at the direction of, the maker of the will
The will must be signed by the testator (the maker of the will). If a person cannot sign his or her name (either for an inability to write, or a physical handicap) he or she can make a mark to indicate the intent to sign, or someone can sign the persons name if directed to do so.
In order to be valid in Georgia, a will must be witnessed by at least two people. The witnesses must be at least fourteen (14) years old and must sign their own respective names on the will. Each witness must be competent to witness the will. Under Georgia law, a witness is "competent" if the witness can distinguish right from wrong and can testify in a court of law regarding the facts surrounding the execution of the will. The fact that a witness is a criminal does not render the witness incompetent to witness a will.
While it does not affect the validity of the will or the competency of the witness, if there are only two witnesses to a will and one of those witnesses is a beneficiary under the will, the witness loses any rights to property the witness would have received under the will. Therefore, no one who is a beneficiary under a will should witness that will.
A Notary is not Required; Self-Proving Affidavit
Although most wills executed today with the help of attorneys or legal services or software contain the signature and seal of a notary, a notary is not required to make a valid will in Georgia. Georgia law allows for a self-proving affidavit. The Georgia Code provides the form of the affidavit at O.C.G.A. section 53-4-24.
The benefit of having a self-proving affidavit is that it eliminates the requirement that the witnesses submit interrogatories to the probate court after the death of the testator if the will is not challenged. This can make the probate process simpler and quicker.
Additional resources provided by the author
Official Code of Georgia Annotated (available at many Georgia public libraries)
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