Personal Execution: the First Ground of Contest
A will contest in Georgia almost always begins with the formal requirements of the Civil Code. Under Article 1346, a will must be drawn up by the testator in person, and drawing up a will through a representative is not allowed. This means that a document prepared by a third party, or signed by someone else on the testator's behalf, has questionable validity and gives interested parties a clear basis to go to court. Violation of the personal-execution rule is the most common argument raised against suspicious wills, because it can be verified from the face of the document and the surrounding circumstances.
Article 1366 governs the technical side of execution. The text of a will may be conveyed by generally accepted technical means, but it must be signed by the testator. In such a case the drawing up of the will and the signing by the testator must take place in the presence of two witnesses, who confirm that the will was drawn up in their presence using technical means. The witnesses' confirmation must be made immediately after the testator signs, in the presence of the testator and both witnesses, by making an appropriate inscription on the will and indicating the witnesses' first name, surname and place of residence. Where the inscription or the witnesses' details are missing, the party defending the will has to prove compliance through witness testimony, which makes such documents vulnerable.
The Compulsory Share: the Overlooked Heir's Main Instrument
The compulsory share is the most frequently used instrument in will disputes. Article 1371 provides that the decedent's children, parents and spouse are entitled, irrespective of the content of the will, to a compulsory share, which must be half of the share that each of them would have received by law at the time of inheritance. So even where a will leaves these heirs entirely outside the distribution, they may still claim half of their statutory share, and satisfying that claim changes the distribution planned in the will.
Article 1373 settles how the compulsory share is quantified: the total volume of the compulsory share is determined from the entire estate, including property earmarked for a legacy or for the performance of some action for the general benefit. Property left as a legacy, or designated for a public-purpose action, therefore still counts toward the estate against which the compulsory share is calculated. Scattering assets through legacies does not reduce the compulsory share.
Article 1376 resolves the interaction between the compulsory share and a legacy. A person who is entitled to a compulsory share and at the same time is the recipient of a legacy may claim the compulsory share if they refuse the legacy; if they do not refuse the legacy, they lose the right to the compulsory share to the extent of the value of the legacy. A close heir who has been left a legacy must therefore weigh this choice carefully before filing a claim, because accepting the legacy quietly may forfeit part of the compulsory entitlement.