Cross references.

- Equitable principles pertaining to administration of estates generally, § 23-2-90 et seq.

Estate taxes, T. 48, C. 12.

Law reviews.

- For article, "Pitfalls in Probate Practice and Procedure," see 21 Ga. B.J. 169 (1958). For article, "Improving Georgia's Probate Code," see 4 Ga. L. Rev. 505 (1970). For article discussing important elements of estate planning and will construction, see 9 Ga. St. B.J. 197 (1973). For article discussing developments in the law of wills, trusts and administration of estates in Georgia from 1976 to 1977, see 29 Mercer L. Rev. 291 (1977). For annual survey of law on wills, trusts, and administration of estates, see 35 Mercer L. Rev. 341 (1983). For annual survey on wills, trusts, and administration of estates, see 36 Mercer L. Rev. 375 (1984). For article surveying trust and estate law in 1984-1985, see 37 Mercer L. Rev. 443 (1985). For annual survey of law on wills, trusts, and administration of estates, see 39 Mercer L. Rev. 363 (1987). For article, "Probate And Tax Checklist For Estates In Georgia," see 23 Ga. St. B.J. 140 (1987). For annual survey of law of wills, trusts, and administration of estates, see 40 Mercer L. Rev. 471 (1988) and 41 Mercer L. Rev. 411 (1989). For annual survey of wills, trusts, and administration of estates, see 42 Mercer L. Rev. 491 (1990). For annual survey of wills, trusts, and administration, see 43 Mercer L. Rev. 457 (1991). For annual survey of law of wills, trusts, and administration of estates, see 44 Mercer L. Rev. 445 (1992). For annual survey article on law of wills, trusts, and administration of estates, see 45 Mercer L. Rev. 475 (1993). For annual survey article on the law of wills, trusts, and administration of estates, see 46 Mercer L. Rev. 517 (1994). For annual survey article on the law of wills, trusts, and administration of estates, see 49 Mercer L. Rev. 363 (1997). For annual survey article on wills, trusts, and administration of estates, see 50 Mercer L. Rev. 381 (1998). For article, "Immortal Fame: Publicity Rights, Taxation, and the Power of Testation," see 44 Ga. L. Rev. 1 (1999). For annual survey article discussing wills, trusts, and administration of estates, see 51 Mercer L. Rev. 487 (1999). For annual survey article discussing wills, trusts, and administration of estates, see 52 Mercer L. Rev. 481 (2000). For article, "Tax Apportionment Problems under the Georgia Probate Code," see 8 Ga. St. B.J. 16 (2003). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For note, "Wills and the Attorney-Client Privilege," see 14 Ga. L. Rev. 325 (1980).

COMMENT

CODE REVISION COMMISSION NOTE ON COMMENTS The comments appearing in this title have been prepared under the supervision of the Probate Code Revision Committee of the Fiduciary Law Section of the State Bar of Georgia and are included in the Official Code of Georgia Annotated at the request of the committee. Neither the General Assembly of Georgia nor the Code Revision Commission of the State of Georgia has participated in the drafting of these comments or has reviewed the comments for their content. The comments should not be considered to constitute a statement of legislative intention by the General Assembly of Georgia nor do they have the force of statutory law.

NOTES AS TO COMMENTS The Comments that appear in Chapters 1 through 11 of Title 53 were prepared by the Probate Code Revision Committee of the Fiduciary Law Section of the State Bar of Georgia and are included in the Official Code of Georgia Annotated at the request of the Committee. The Committee members are: William Linkous, Jr., Chairman; A. Kimbrough Davis, Julian R. Friedman, Gregory L. Fullerton, John M. Graham III, Larry V. McLeod, Faryl S. Moss, J. Warren Ott, E. Lowry Reid, Jr., Albert P. Reichert, Jr., Ann S. Salo, and Rees M. Sumerford. The Reporter for the Committee is Mary F. Radford, Professor of Law, Georgia State University College of Law. The Comments should not be considered to constitute a statement of legislative intention by the General Assembly of Georgia nor do they have the force of statutory law.

RESEARCH REFERENCES

ALR.

- Construction and operation of will or trust provision appointing advisors to trustee or executor, 56 A.L.R.3d 1249.

CHAPTER 1 GENERAL PROVISIONS

Article 1 In General.
Article 2 Advancements.
Article 3 Renunciation.
Editor's notes.

- This chapter was effective January 1, 1998, to the extent that no vested rights of title, year's support, succession, or inheritance are impaired, as provided by the version of Code Section 53-1-1 enacted by Ga. L. 1996, p. 504, § 10, as amended by Ga. L. 1997, p. 1352, § 1.

Ga. L. 1996, p. 504, § 10, effective January 1, 1998, repealed the Code sections formerly codified at this chapter, and enacted the current chapter. The former chapter consisted of §§ 53-1-1 through53-1-6, and was based on Orig. Code 1863, § 2239; Code 1868, § 2233; Code 1873, § 2259; Code 1882, § 2259; Civil Code 1895, § 3094; Civil Code 1910, § 3670; Code 1933, § 85-608; Ga. L. 1962, p. 623, § 1; Ga. L. 1969, p. 123, § 1; Code 1981, § 53-1-4, enacted by Ga. L. 1984, p. 1036, § 2; Code 1981, § 53-1-5, enacted by Ga. L. 1989, p. 1193, § 1; Code 1981, § 53-1-6, enacted by Ga. L. 1990, p. 350, § 1; Ga. L. 1991, p. 810, § 9.

ARTICLE 1 IN GENERAL

53-1-1. Short title; effective date of provisions.

  1. This chapter and Chapters 2 through 11 of this title, as such chapters were enacted by an Act approved April 2, 1996 (Ga. L. 1996, p. 504), and as amended by an Act approved April 29, 1997 (Ga. L. 1997, p. 1352), and as such chapters may be amended in the future, shall be known and may be cited as the "Revised Probate Code of 1998."
  2. Except as otherwise provided by law, the provisions contained in this chapter and Chapters 2 through 11 of this title shall be effective on January 1, 1998; provided, however, that no vested rights of title, year's support, succession, or inheritance shall be impaired.

(Code 1981, §53-1-1, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 1; Ga. L. 1998, p. 1586, § 5; Ga. L. 2011, p. 752, § 53/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, in subsection (a), substituted "enacted" for "amended" and inserted "as amended by" in the middle.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

The provisions in Chapters One through Eleven of this Title resulted from an overall revision of Chapters One through Eleven of former OCGA Title 53 that became effective on January 1, 1998. Substantive variations from the former law are noted in the Comments to each section. Modifications in the language of former Code sections, which were made where appropriate for clarity or modernization, are not noted in the Comments.

JUDICIAL DECISIONS

Application of Revised Probate Code.

- Subsequently-enacted legislation which stated that if an administrator was not appointed within five years after the death of an intestate, then the estate property would be vested in decedent's heirs, and which did not mention anything about divestment of the estate property, did not apply to prevent the probate court from granting the estate administrator's petition to distribute decedent's property even though the estate administrator was not appointed for nearly four decades after the death of the decedent, as the law in effect at the time the estate administrator was appointed had no time limit for the appointment and the subsequently-enacted legislation did not apply to prohibit the estate administrator from being appointed and distributing the property. Williams v. Williams, 259 Ga. App. 888, 578 S.E.2d 582 (2003).

Cited in In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007); Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008); In re Estate of Wade, 331 Ga. App. 535, 771 S.E.2d 214 (2015).

RESEARCH REFERENCES

8C Am. Jur. Pleading and Practice Forms, Dower and Curtesy, § 1.

53-1-2. Definitions.

As used in this chapter and Chapters 2 through 11 of this title, the term:

  1. "Administrator" means any person appointed and qualified to administer an intestate estate, including an intestate estate already partially administered by an administrator and from any cause unrepresented.
  2. "Administrator with the will annexed" means any person, other than an executor, appointed and qualified to administer a testate estate, including a testate estate already partially administered and from any cause unrepresented.
  3. "Beneficiary" means a person, including a trust, who is designated in a will to take an interest in real or personal property.
  4. "Codicil" means an amendment to or republication of a will.
  5. "County administrator" means any individual or individuals appointed by the probate court of the county and qualified to represent an estate that is unrepresented and unlikely to be represented.
  6. "Descendants" means the lineal descendants of an individual including those individuals who are treated as lineal descendants by virtue of adoption.
  7. "Executor" means any person nominated in a will who has qualified to administer a testate estate, including a person nominated as alternative or successor executor.
  8. "Guardian" means the guardian ad litem or representative described in Code Section 53-11-2 who represents one or more parties to a probate court proceeding who are not sui juris, are unborn, or are unknown.
  9. "Heirs" means those one or more individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent that is not disposed of by will.
  10. "Nominated executor" means any person nominated in the will to serve as executor who has not yet qualified to serve as executor.
  11. "Person" means an individual, corporation, partnership, association, joint-stock company, business trust, unincorporated organization, limited liability company, or two or more persons having a joint or common interest, including an individual or a business entity acting as a personal representative or in any other fiduciary capacity.
  12. "Personal representative" means any administrator, administrator with the will annexed, county administrator, or executor.
  13. "Qualified" means that a personal representative has taken the oath, posted any required bond, and been issued letters of administration or letters testamentary, as provided in this title.
  14. "Sui juris" means an individual is age 18 or over and not suffering from any legal disability.
  15. "Temporary administrator" means any person granted temporary letters of administration upon an unrepresented estate.
  16. "Testamentary gift" means the interest in real or personal property which a beneficiary is designated to take in a will.
  17. "Will" means the legal declaration of an individual's testamentary intention regarding that individual's property or other matters. Will includes the will and all codicils to the will.

(Code 1981, §53-1-2, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 6.)

Cross references.

- Filing of wills by testators in office of judge of probate court, § 15-9-38.

Law reviews.

- For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For article, "Transfer-on-Death Securities Registration: A New Title Form," see 21 Ga. L. Rev. 789 (1987). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

COMMENT

Former OCGA Title 53 contained no general definitions section. This section combines definitions that appeared in various sections of former Title 53 as well as adding new definitions. Subsection (a) includes as an "administrator" an "administrator de bonis non" of an intestate estate and subsection (b) includes as an "administrator with the will annexed" an "administrator de bonis non" of a testate estate. The concept of "administrator de bonis non" appeared in former OCGA Secs. 53-6-30 and 53-6-31. The term "beneficiary" in subsection (c) is used to replace the words "legatee" and "devisee" that appeared in former Title 53. The term is defined somewhat differently in OCGA Sec. 53-12-2 for use throughout Chapter 12 (Trusts). The definition of "codicil" that appeared in former OCGA Sec. 53-2-5 is modified and placed in subsection (d). Subsection (e) carries forward the definition of "County Administrator" that appeared in former OCGA Sec. 53-6-90. Former OCGA Title 53 contained no definition of the term "descendants". This term, which is now defined in subsection (f), is used to replace the term "lineal descendants" in former Title 53. Subsection (g) includes as an "executor" any person who is nominated in the will, whether that person is the executor or a successor executor. Subsection (i) distinguishes a "nominated executor" as one who has been nominated in the will but has not yet qualified. Former OCGA Title 53 contained no definition of the terms "guardian" or "heirs". The term "heirs," as defined in subsection (i), is used to replace the term "heirs at law" from former Title 53. Subsection (k) contains the same definition of "person" that appears in the Georgia Trust Code at Sec. 53-12-2(5), with the addition of limited liability companies. Subsection (l) introduces the term "Personal Representative," which includes administrators, administrators with the will annexed, county administrators and executors, but does not include temporary administrators. In order to meet the definitions of subsections (a), (b), (e), (g), and (o), a person must have "qualified" to serve as a personal representative, as defined in subsection (m). Subsection (m) provides that a personal representative has "qualified" upon the taking of the oath, the issuance of appropriate letters and the posting of any required bond. The term "sui juris" in subsection (n) describes an individual who is of legal age and suffering under no other legal disability. Subsection (o) carries forward portions of the definition of "Temporary Administrator" that appeared in former OCGA Sec. 53-6-34. The term "testamentary gift" in subsection (p) is used to replace the terms "legacy" and "devise". The definition of the term "will" in subsection (q) appeared in former OCGA Sec. 53-2-1. The definition is modified to add that the will may speak of matters other than the disposition of property (for example, the appointment of a guardian for minor children of the decedent) and that, unless the context otherwise requires, the "will" includes the will and all codicils to it.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3827, former Code 1933, §§ 113-101 and 113-1207, and former O.C.G.A. § 53-6-34 are included in the annotations for this Code section.

Powers granted.

- Former statute empowered a temporary administrator to collect and take care of effects of deceased until permanent letters of administration are granted. Kelly v. Citizens & S. Nat'l Bank, 160 Ga. App. 405, 287 S.E.2d 343 (1981) (decided under former Code 1933, § 113-1207).

Statutory consistency.

- There is no inconsistency between O.C.G.A. § 44-12-151, requiring selection of remedies, and former O.C.G.A. §§ 53-6-34 and53-7-93, requiring collection and preservation of assets of an estate and just and timely payment of the debts of an estate. Howard v. Parker, 163 Ga. App. 159, 293 S.E.2d 548 (1982) (decided under former O.C.G.A. § 53-6-34).

Attorney's fees.

- Temporary administrator's right to attorney fees may not extend beyond fees for such services as may have been necessary to assist the administrator in the securing of temporary letters of administration and the collection and preservation of the assets of the estate. Hudson v. Abercrombie, 258 Ga. 729, 374 S.E.2d 83 (1988) (decided under former O.C.G.A. § 53-6-34).

Definition of a will makes disposition of property an indispensable requisite under Georgia law and to do this a legatee is essential. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-101).

When the sole legatee died prior to the death of the testator, there was no legatee and consequently no disposition of property by the instrument offered for probate. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-101).

Cited in Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931); Chance v. Buxton, 177 F.2d 297 (5th Cir. 1949); Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (1950); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976); Howington v. Howington, 242 Ga. 767, 251 S.E.2d 514 (1979); Guyett v. Guyett, 160 Ga. App. 622, 287 S.E.2d 632 (1981); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Smith v. Watts, 181 Ga. App. 524, 352 S.E.2d 840 (1987).

RESEARCH REFERENCES

Am. Jur. 2d.

- 9 Am. Jur. 2d, Wills, § 2.

10A Am. Jur. Pleading and Practice Forms, Executors and Administrators, §§ 842, 896. 25 Am. Jur. Pleading and Practice Forms, Wills, § 2.

ALR.

- May instrument inter vivos operate also as a will, or part of will, 45 A.L.R. 843.

Notation on note or securities as a will or codicil, 62 A.L.R. 292.

Suppression of will, or agreement for its suppression, as contrary to public policy or to statute in that regard, 117 A.L.R. 1249.

Testamentary character of memorandum or other informal writing not testamentary on its face regarding ownership or disposition of specific personal property, 117 A.L.R. 1327.

What testamentary language passes United States bonds, 100 A.L.R.2d 1004.

Determination whether will is absolute or conditional, 1 A.L.R.3d 1048.

Electronic tape recording as will, 42 A.L.R.4th 176.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 A.L.R.5th 590.

53-1-3. Dower and tenancy by curtesy.

There is no right of dower or tenancy by curtesy in this state.

(Code 1981, §53-1-3, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

The concepts of this section were formerly codified at OCGA Secs. 53-1-1 and 53-1-2.

53-1-4. Effect on support obligation of use of income from estate or trust for support.

Whenever income from an estate or trust is available for the benefit of an individual whose support is the legal obligation of another and the income is actually used for such individual's support, the legal obligation of the other to support the individual is reduced to the extent the income is actually used for such individual's support.

(Code 1981, §53-1-4, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Enforcement of duty of support of spouse and children, T. 19, C. 11.

Law reviews.

- For article, "Trusts for Dependents: Effect of Georgia's Support Obligation on Federal Income Taxation," see 8 Ga. St. B.J. 323 (1972). For note discussing Georgia's child support laws, their problems, and some proposed solutions, see 11 Ga. L. Rev. 387 (1977).

COMMENT

This section carries over former OCGA Sec. 53-1-3.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1962, p. 623, § 1, are included in the annotations for this Code section.

Payment of tuition, books, and fees charged by a private school at the elementary or secondary level is included in "legal obligation" to support as those words were used in Ga. L. 1962, p. 623, § 1. McElrath v. Citizens & S. Nat'l Bank, 229 Ga. 20, 189 S.E.2d 49 (1972);(decided under Ga. L. 1962, p. 623, § 1).

Father is entitled to reimbursement for child support payments made by him, and which could and should have been paid by the trustee, to the extent that income of the trusts was sufficient for the support, maintenance, and education of the minor children. McElrath v. Citizens & S. Nat'l Bank, 229 Ga. 20, 189 S.E.2d 49 (1972);(decided under Ga. L. 1962, p. 623, § 1).

Availability of trust funds may reduce statutory or legal obligation of father.

- To the extent that funds from a trust were available and must be used for the support, maintenance, and education of minor children, the father's statutory obligation under former Code 1933, § 74-105 (see O.C.G.A. § 19-7-2) or his legal obligation required by a court decree was reduced. McElrath v. Citizens & S. Nat'l Bank, 229 Ga. 20, 189 S.E.2d 49 (1972);(decided under Ga. L. 1962, p. 623, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, § 82 et seq.

53-1-5. Right of individual who feloniously and intentionally kills or conspires to kill to inherit.

  1. An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent's estate and to serve as a personal representative or trustee of the decedent's estate or any trust created by the decedent. For purposes of this Code section, the killing or conspiring to kill or procuring another to kill is felonious and intentional if the killing would constitute murder or felony murder or voluntary manslaughter under the laws of this state.
  2. An individual who forfeits the right to take an interest from a decedent's estate by virtue of this Code section forfeits the right to take any interest such individual would otherwise take at the decedent's death by intestacy, year's support, will, deed, power of appointment, or by any other conveyance duly executed during life by the decedent and is treated as having predeceased the decedent for purposes of determining the distribution of the decedent's property and of appointing personal representatives or trustees.
  3. This Code section shall have no effect on the rights of the descendants of the individual who forfeits the right to take from the decedent's estate; provided, however, that if the descendants are taking by intestacy in place of the individual who forfeits, the descendants may take only that share of the decedent's estate to which the individual who forfeits would have been entitled. The provisions of Code Section 53-4-64 shall not apply with respect to the descendants of the individual who forfeits the right to take from the decedent's estate unless those descendants are also descendants of the decedent.
  4. A final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive in civil proceedings under this Code section. In the absence of such a conviction or plea, the felonious and intentional killing must be established by clear and convincing evidence.

(Code 1981, §53-1-5, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Homicide generally, § 16-5-1 et seq.

Denial of right of person who commits murder or voluntary manslaughter to receive benefits from insurance policy on life of victim, § 33-25-13.

Law reviews.

- For article, "The Time Gap in Wills: Problems Under Georgia's Lapse Statutes," see 6 Ga. L. Rev. 268 (1972). For article discussing effect of homicide on succession by the slayer, and devolution of his share, see 10 Ga. L. Rev. 447 (1976). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010). For article, "Killers Shouldn't Inherit from their Victims - Or Should They?," see 48 Ga. L. Rev. 145 (2013). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014). For note, "Not Just For Kids: Why Georgia's Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults," see 43 Ga. L. Rev. 867 (2009). For note, "Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?," see 45 Ga. L. Rev. 877 (2011).

COMMENT

This section modifies former OCGA Sec. 53-4-6. This section expands the forfeiture provisions to apply not only to the killer's right to take a property interest from the decedent but also to serve as a fiduciary of the decedent's estate or any trust created by the decedent. The rule applies only to prevent a killer from receiving benefits from the slain person or serving as a fiduciary and does not affect the distribution of the killer's estate. (See OCGA Sec. 33-25-13, which contains a similar rule relating to the receipt of benefits from a life insurance policy.)

This section applies to situations in which the "killing" is such as would constitute murder, felony murder, or voluntary manslaughter, as described in OCGA Secs. 16-5-1 and 16-5-2. The section does not apply to homicide by vehicle, as defined in OCGA Sec. 40-6-393. The nature of the killing may be established either by a criminal conviction or a guilty plea or, in a civil proceeding, by clear and convincing evidence.

Subsection (b) carries forward the rule of former OCGA Sec. 53-4-6 that the share of the individual who engages in the felonious and intentional killing is distributed as if the killer predeceased the decedent. Additionally, the appointment of personal representatives or trustees will proceed as if the killer had predeceased the decedent.

Subsection (c) clarifies that the descendants of the killer are not precluded from taking from the slain person's estate or serving as personal representative or trustee. However, if the descendants are taking by intestacy in place of the killer, the descendants may not take a greater share of the decedent's estate than the share to which the killer would have been entitled. This subsection prevents unfairness in those circumstances in which the treatment of an individual as having predeceased the decedent would result in a diminution of the shares that other individuals would have received had that individual not been treated as having predeceased the decedent. The following example illustrates the application of this rule: Assume that a decedent who dies intestate is survived by a brother who has three children and by the one child of a predeceased sister. Under Code Sec. 53-2-1, the sister's child takes one-half of the estate and the brother takes one-half of the estate. But if the brother (as well as the sister) had predeceased the decedent, the same statute directs that the four nieces and nephews of the decedent would share the estate equally. Consequently, the sister's child's share would be diminished to one-fourth. The last sentence of subsection (b) avoids that result by providing that, if the brother is treated as having predeceased the decedent because he killed the decedent, the brother's children (who are taking in place of the brother) will only take the one-half interest that the brother would have taken. Subsection (c) also reflects the rule that Code Sec. 53-4-64 (the anti-lapse statute) does not apply in cases in which a beneficiary is treated as having predeceased the testator due to the fact that the beneficiary killed the testator unless the individuals who would take as substitute beneficiaries for their "predeceased" parent are also descendants of the testator.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1952, p. 288, §§ 1 and 3, Ga. L. 1959, p. 299, § 1, and former O.C.G.A. § 53-4-6 are included in the annotations for this Code section.

Constitutionality.

- The contention that Ga. L. 1959, p. 299, § 1 is void as being in violation of U.S. Const., Art. I, Sec. 10, Cl. 1 which prohibits passage of any bill of attainder or ex post facto law, or because it is a law impairing the obligations of a contract, or that it operates to deprive a murderer of the murderer's property without due process of law, or that the statute is in violation of U.S. Const., amend. 14 which prohibits states from enforcing any law abridging the privileges or immunities of citizens or denying to citizens within its borders the equal protection of the laws and the contention that a conviction in such a case would work corruption of blood or forfeiture of property in violation of Ga. Const. 1976, Art. I, Sec. II, Para. III (now see Ga. Const. 1983, Art. I, Sec. I, Para. XX) are not meritorious. Moore v. Moore, 225 Ga. 340, 168 S.E.2d 318 (1969) (decided under Ga. L. 1959, p. 299, § 1).

Enactment of Ga. L. 1959, p. 299,

§ 1 as valid exercise of legislative power. - Power to enact Ga. L. 1959, p. 299, § 1 was undoubtedly in the General Assembly, inasmuch as the General Assembly possesses the power to provide rules of descent and distribution. Moore v. Moore, 225 Ga. 340, 168 S.E.2d 318 (1969) (decided under Ga. L. 1959, p. 299, § 1).

Purpose of section.

- Primary purpose of statute is to reduce the profits of crime. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589, 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).

Former O.C.G.A. § 53-4-6 required the slayer's portion of victim's estate pass to alternative beneficiaries when a valid will so provides and alternative beneficiaries, who are not prohibited by law from taking from the victim, are named in the will. Bradley v. Bradley, 213 Ga. App. 68, 443 S.E.2d 863 (1994) (decided under former O.C.G.A. § 53-4-6).

Rights of those who kill by accident or negligence not impaired.

- Statutes that embody the public policy of Georgia of prohibiting wrongdoers from profiting from their crimes, O.C.G.A. §§ 17-14-31,33-25-13, and53-1-5, only prevent those who feloniously and intentionally kill, O.C.G.A. § 53-1-5(a), or those who commit murder or voluntary manslaughter, O.C.G.A. § 33-25-13, from sharing, respectively, in the decedent's estate or insurance policy proceeds; if a public policy may be gleaned from these statutes, it is a policy that prohibits those who commit murder or voluntary manslaughter from profiting from the victim's death, but these statutes do not impair the rights of those who kill by accident or negligence, who kill in self-defense or pursuant to any other legal justification, or who kill while legally insane because simply admitting to having committed a homicide does not make one a wrongdoer under Georgia law. Bruscato v. O'Brien, 307 Ga. App. 452, 705 S.E.2d 275 (2010).

Summary judgment.

- When substantial fact issues existed as to whether an insurance policy provision transferring ownership to the insured was activated in an apparent murder/suicide case, and whether the insured had murdered his wife, the owner of the policy, it was error of the court to grant summary judgment. Bland v. Ussery, 172 Ga. App. 131, 322 S.E.2d 335 (1984) (decided under former O.C.G.A. § 53-4-6).

Cited in Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416 (1972); Edwards v. Edwards, 136 Ga. App. 668, 222 S.E.2d 169 (1975); Graham v. Youngblood, 256 Ga. 183, 345 S.E.2d 593 (1986); Edwards v. Shumate, 266 Ga. 374, 468 S.E.2d 23 (1996); Rader v. State, 300 Ga. App. 411, 685 S.E.2d 405 (2009); O'Brien v. Bruscato, 289 Ga. 739, 715 S.E.2d 120 (2011).

Applicability

1. In General

Applicability of Ga. L. 1959, p. 299,

§ 1 generally. - Ga. L. 1959, p. 299, § 1 applies if, by the wrongful act of the legatee, the testator dies before the legatee and the legatee by law is treated as having died before the testator. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

Victim does not become heir of murderer.

- After the husband killed his wife and then committed suicide in an apparent murder/suicide, the provision of former O.C.G.A. § 53-4-6 deeming that one who kills another predeceased the victim when determining who inherits the victim's estate did not create a right of the wife's estate to inherit from the husband's estate. Keith v. Johnson, 211 Ga. App. 678, 440 S.E.2d 230 (1993) (decided under former O.C.G.A. § 53-4-6).

Conviction for voluntary manslaughter.

- Son's conviction for voluntary manslaughter of his father did not establish that he acted with malice so as to prevent his inheriting from his father's estate, nor was malice established by a prior decision finding the son ineligible to receive life insurance benefits because of the manslaughter conviction. Stephens v. Adkins, 226 Ga. App. 648, 487 S.E.2d 440 (1997) (decided under former O.C.G.A. § 53-4-6).

Until judicial condemnation proceedings are finalized, property conveyed by the murderer passes good title because, by the clear and unambiguous provisions of its language, O.C.G.A. § 53-1-5(d) requires some form of judicial condemnation to divest a murderer of his or her interests from the murdered decedent's estate, either through a criminal proceeding, i.e., final judgment of conviction or a guilty plea, or through a civil proceeding establishing a felonious and intentional killing by clear and convincing evidence; upon finalization of either of the judicial condemnation proceedings provided for in § 53-1-5(d), the murderer's interest from the decedent's estate is forfeited and that forfeiture then relates back to the moment of the murder, so as to authorize recovery from the murderer of any of that interest he or she previously dispersed. Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009).

Legal fees paid by spouse who killed other spouse.

- In an estate administrator's conversion suit against a law firm, the trial court properly granted the law firm summary judgment with regard to the administrator attempting to recover $125,000 in legal fees the decedent's spouse had paid to the law firm as the law firm accepted the fees from the decedent's spouse in good faith since it was not determined until the spouse pled guilty to the homicide that the spouse had killed the decedent. Further, there was no evidence that the spouse did not have title to the money when the money was paid. Levenson v. Word, 294 Ga. App. 104, 668 S.E.2d 763 (2008), aff'd, 286 Ga. 114, 686 S.E.2d 236 (2009).

Court of Appeals did not err in affirming the trial court's order granting defense attorneys and the law firm summary judgment in an administrator's action alleging that the attorneys converted estate property when the attorneys accepted certain sums as payment for their services in representing a decedent's widow after the widow was indicted for the decedent's murder because O.C.G.A. § 53-1-5 did not place possession or an immediate right to possession of the estate property in the administrator at the time the widow dispersed and appellees received the funds in issue; when the widow dispersed the finds, the widow had qualified as executor of the decedent's estate and letters testamentary had been issued to the widow, the widow had not yet pled guilty to the murder charges, no final judgment of conviction had been entered in regard to the criminal indictment, and the widow's felonious and intentional killing of the decedent had not been established by clear and convincing evidence in any judicial proceeding. Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009).

No evidence spouse was involved in other spouse's kidnapping and murder.

- In an action to determine whether the decedent's husband forfeited the right to take an interest in the decedent's estate or act as a personal representative, the probate court correctly granted summary judgment to the decedent's husband because there had been no criminal or civil proceeding establishing by clear and convincing evidence that the husband participated in the kidnapping and murder of the decedent. In re Estate of Barnett, 348 Ga. App. 366, 823 S.E.2d 55 (2019).

2. Life Insurance Policies

Applicability of section to life insurance policies.

- Ga. L. 1959, p. 299, § 1 suggests that it refers to heritable property owned by the decedent and properly a part of the decedent's estate. While an insured is the owner of a contract of insurance on the insured's own life, this is a different sort of ownership because the insured cannot, unless the insured elects to turn the policy in for the policy's cash surrender value, make the policy's proceeds available to the insured during the insured's lifetime. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589, 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).

The legislative scheme under Ga. L. 1959, p. 299, § 1 is clear that unless the insured affirmatively indicates that the estate is intended as beneficiary, the policy proceeds go to the beneficiary as against the claims of creditors or personal representatives of the deceased. This is generally true even when no beneficiary is named in the policy, but a statute indicates for whose benefit the proceeds are to be used in such event. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589, 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).

When insured could have changed beneficiary at any time, Ga. L. 1959, p. 299, § 1 does not prohibit the payment of proceeds from life insurance policies to insured's estate where insured killed the policies' beneficiary and then himself. Willis v. Frazier, 128 Ga. App. 748, 197 S.E.2d 830 (1973) (decided under Ga. L. 1959, p. 299, § 1).

3. Vested Interest

Applicability of section to vested interest.

- When wife already had a vested one-half undivided interest in the property with a remainder estate in the other one-half interest, subject to divestiture only if she predeceased the husband, the wife's interest was not forfeited even though she killed her husband. Moore v. Moore, 231 Ga. 232, 201 S.E.2d 133 (1976) (decided under Ga. L. 1959, p. 299, § 1).

Entitlement of Heirs of Disinherited Heir

Meaning of "other heirs."

- By the term "other heirs" as used in this section, the legislature meant other heirs of the deceased, whether the deceased died intestate or testate. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

If the person killed is intestate and the person killing is an heir at law without issue, Ga. L. 1959, p. 299, § 1 directs that the property the heir would have taken go to all the other heirs of the deceased entitled under the laws of descent and distribution. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

Heirs of disinherited heir may be proper heirs of decedent.

- Legislature explicitly provided that persons capable of inheriting from the deceased under the laws of descent and distribution through a living heir who killed the deceased are to take the property the disinherited heir would have taken. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

Ga. L. 1959, p. 259, § 1 provides that when a legatee kills a testator, the property the legatee would have received under the will shall go to the heirs of the person killed, thereby excluding the heirs of the legatee from sharing in this property unless they be also heirs of the testator. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

If the person killed is testate, the statute directs that the property the person killing would have taken under the will go (1) if the testator named none of the testator's heirs as beneficiaries, to all the persons who would have been the testator's heirs at law under the laws of descent and distribution, excluding the person killing; or (2) if the testator named some of the testator's heirs at law as beneficiaries of the testator's will, to those named beneficiaries. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, § 41. 79 Am. Jur. 2d, Wills, §§ 154, 155.

C.J.S.

- 26A C.J.S., Descent and Distribution, § 47. 954 C.J.S., Wills, § 100, 101.

ALR.

- Constitutionality of statute precluding inheritance by one who killed decedent, 6 A.L.R. 1408.

Disqualification of heir who murdered intestate as affecting rights of others in respect of the intestate estate, 156 A.L.R. 623; 161 A.L.R. 448.

Murder of life tenant by remainderman or reversioner as affecting latter's rights to remainder or reversion, 24 A.L.R.2d 1120.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter's right in the property, 42 A.L.R.3d 1116.

Homicide as precluding taking under will or by intestacy, 25 A.L.R.4th 787.

53-1-6. Payment to surviving spouse of state or federal income tax overpayments.

  1. In any case in which the United States Department of the Treasury or the Department of Revenue of this state determines that there exists an overpayment of federal or state income tax and the person in whose favor the overpayment is determined to exist is deceased at the time the overpayment is to be refunded, the amount of the overpayment, if not in excess of $2,500.00, shall be the sole and separate property of the decedent's surviving spouse, if any, irrespective of whether the decedent had filed a joint or separate income tax return.
  2. The refund of the overpayment directly to the surviving spouse as provided in subsection (a) of this Code section shall operate as a complete acquittal and discharge to the payor, whether the United States or this state, of liability from any action, claim, or demand of whatever nature by any heir, beneficiary, creditor of the decedent, or other person.
  3. Refunds are authorized to be made as provided in this Code section without the necessity of administration of the estate of the decedent, without the necessity of obtaining an order that no administration is necessary, and without the necessity of appointing a personal representative for the surviving spouse, notwithstanding any other law to the contrary.

(Code 1981, §53-1-6, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- State income taxation generally, T. 48, C. 7.

Law reviews.

- For article discussing nonjudicial settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971).

COMMENT

This section carries over former OCGA Sec. 53-4-7. This section prevents unnecessary administration of an estate when the tax refund is the only estate asset. Other Code sections that allow transfers of property without the necessity of formal probate or administration include: Code Sec. 40-3-34, Transfer of Motor Vehicles; Code Secs. 7-1-239, 7-1-230.1, Bank Accounts; Code Sec. 34-7-1, Payment of Wages. Code Secs. 53-2-40 through 53-2-42 allow for the dispensing of administration proceedings through a No Administration Necessary order.

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 1, 5, 6, 14, 18.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 6 et seq.

ALR.

- Amount of allowance from decedent's estate for widow and family where not fixed by statute, 90 A.L.R.2d 687.

Right of surviving spouse to tax refund resulting from joint income tax return, 67 A.L.R.3d 1038.

Rights in decedent's estate as between lawful and putative spouses, 81 A.L.R.3d 6.

Estoppel or laches precluding lawful spouse from asserting rights in decedent's estate as against putative spouse, 81 A.L.R.3d 110.

Surviving spouse's right to marital share as affected by valid contract to convey by will, 85 A.L.R.4th 418.

53-1-7. Surviving spouse under the age of 18 years.

A surviving spouse who is under the age of 18 years is entitled to apply for, take, and hold any share in the deceased spouse's estate to which the surviving spouse is entitled by virtue of being an heir or a beneficiary or being eligible for year's support without the intervention of a guardian or other trustee.

(Code 1981, §53-1-7, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section expands former OCGA Sec. 53-4-2(3) to apply to any case in which an underage surviving spouse is entitled to receive a share of the deceased spouse's estate.

53-1-8. Adopted individuals.

A decree of adoption, whether issued by a court of this state or by a court of any other jurisdiction, shall have the effect described in Code Section 19-8-19, and the adoptive parents and relatives of the adoptive parents shall likewise be entitled to inherit from and through the adopted individual under the laws of intestacy in the absence of a will and to take as parents or relatives of the parents of the adopted individual under the provisions of any instrument of testamentary gift, unless expressly excluded therefrom.

(Code 1981, §53-1-8, enacted by Ga. L. 1997, p. 1352, § 2.)

Law reviews.

- For article commenting on the enactment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997). For note, "Status or Contract? A Comparative Analysis of Inheritance Rights under Equitable Adoption and Domestic Partnership Doctrines," see 39 Ga. L. Rev. 675 (2005).

ARTICLE 2 ADVANCEMENTS

53-1-10. Lifetime transfers.

  1. A lifetime transfer to a beneficiary of property that is the subject of a specific testamentary gift is treated as a satisfaction if it is shown pursuant to the provisions of subsection (c) of this Code section that the transfer is intended to satisfy the testamentary gift.
  2. A lifetime transfer of money or other property to a prospective heir or to the beneficiary of a demonstrative, general, or residuary testamentary gift is treated as an advancement if it is shown pursuant to the provisions of subsection (c) of this Code section that the transfer is intended to be a part of the share that the heir would inherit by intestacy or the beneficiary would take under the transferor's will.
  3. The intent to treat a lifetime transfer as a satisfaction or an advancement is shown only if the will provides for the deduction of the lifetime transfer or its value or if the satisfaction or advancement is declared in a writing signed by the transferor within 30 days of making the transfer or acknowledged in a writing signed by the recipient at any time.

(Code 1981, §53-1-10, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972). For article discussing concept of advancements, see 10 Ga. L. Rev. 447 (1976). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005).

COMMENT

This section replaces former OCGA Secs. 53-4-50 and 53-4-53 and portions of former OCGA Sec. 53-2-105. The section combines the treatment of lifetime transfers in both intestate and testate estates. This section clarifies that a lifetime transfer may be a satisfaction if the property transferred was the subject of a specific testamentary gift or that such a transfer may be an advancement if it represents some or all of the recipient's prospective intestate share or of a demonstrative, general, or residuary testamentary gift. (See Code Sec. 53-4-59 for a description of specific, demonstrative, general, and residuary testamentary gifts.)

This section modifies the former laws of satisfaction and advancements by requiring written evidence that an inter-vivos transfer was intended to operate as a satisfaction or an advancement against the testamentary gift or intestate share the recipient would eventually receive. The section requires either that the will specifically contemplate the treatment of the lifetime transfer as a satisfaction or advancement or a separate written expression or acknowledgement of intent. The writing may either be one signed by the transferor within 30 days of the transfer or one signed by the recipient at any time.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2539, former Code 1873, § 2580, former Civil Code 1895, § 3475, former Civil Code 1910, §§ 3908, 4052, and 4053, former Code 1933, §§ 113-817 and 113-1013, and former O.C.G.A. §§ 53-2-105 and53-4-50 are included in the annotations for this Code section.

Ademption is confined to specific legacies. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913); Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967).

Legacy is not a specific legacy, which will be adeemed when it does not bequeath a bond so labeled and sequestered as to be distinguished from another bond of a similar kind; it is a demonstrative legacy and does not fail if the subject matter is not in existence on the death of the testator. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947).

When a will may reasonably be construed as showing an intention of the testator to bequeath to the six legatees something of the value of $1,000.00 each, and only three bonds remain, the will stating the $1,000.00 payments to be made from bonds, a fair and just execution of the will, as found by the trial court, would be to sell the three bonds and place the proceeds in the general assets and from that fund pay the six legatees $1,000.00 each. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947).

Failure by the testator to particularize the $1,000.00 bonds bequeathed to stated children, forbid their being classified as specific legacies, and, consequently they do not fail but are payable as general legacies, $1,000.00 to each legatee, out of the general assets of the estate, including the proceeds from the sale of the three bonds on hand after the payment of debts, if any, and the expenses of administration. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947).

Determination if transfer is an advance on inheritance.

- Summary judgment, pursuant to O.C.G.A. § 9-11-56, was reversed since a genuine issue of material fact remained as to whether a transfer of money to the decedent's child before the decedent died was an advancement on the child's inheritance, and whether the child breached the fiduciary duty as a result. Walters v. Stewart, 263 Ga. App. 475, 588 S.E.2d 248 (2003).

In cases of intestacy, law favors equal distribution among intestate's heirs. There are only two ways by which the scheme of equality among the heirs may be upset. The first, of course, is by the making of a will on the part of the ancestor providing for a distribution of the ancestor's estate in a manner other than that set forth by law; and, the second is by a valid and binding contract executed between the ancestor and the heir, which clearly shows a meeting of the minds between them acknowledging on the part of the heir receipt in full for the heir's prospective share of the ancestor's estate. Such a contract when entered into is binding and enforceable. Cassedy v. Bland, 99 Ga. App. 34, 107 S.E.2d 697 (1959) (decided under former Code 1933, § 113-1013).

Advancement determined by intent of parent at time of transaction.

- Deed of gift by a father-in-law to a son-in-law, accepted by the latter, which contains a provision clearly indicating that it was the intention of the grantor that the property so conveyed was to be an advancement to the daughter, the wife of the grantee, is an advancement to the daughter under the terms of the statute, notwithstanding the daughter may have been ignorant, not only of the fact that the deed contained such a provision, but even of the existence of the deed altogether. Ireland v. Dyer, 133 Ga. 851, 67 S.E. 195, 26 L.R.A. (n.s.) 1050, 18 Ann. Cas. 544 (1910) (decided under former Code 1910, § 4052).

When testator, while acting as guardian for the father of the minor in whose behalf suit was instituted, had advanced to her ward, out of the funds inherited by him, a sum of money with which to buy an aeroplane, and during the interim between his arrival at majority and his death at age 25 there was no evidence of an inclination on his part to require his mother to account for the sum so advanced to him, auditor was authorized to find a ratification on his part, and, to that extent, to deny a recovery against the executor of the testator. Kytle v. Kytle, 180 Ga. 833, 181 S.E. 81 (1935) (decided under former Code 1933, § 113-1013).

When money or property is transferred by a parent to a child, or for the child's benefit, the question whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction. Treadwell v. Everett, 185 Ga. 454, 195 S.E. 762 (1938) (decided under former Code 1933, § 113-1013).

When money or property is transferred by a parent to a child, and is accepted, the question of whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction, without regard to concurrence on the part of the child. Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951) (decided under former Code 1933, § 113-1013).

Question of whether a transfer of funds between parent and child is to be treated as an advancement depends upon the intention of the parent at the time of the transaction. Smith v. Varner, 130 Ga. App. 484, 203 S.E.2d 717 (1973) (decided under former Code 1933, § 113-1013).

Child met the child's burden of rebutting the presumption that disbursements to the child by the child's mother during the last two years of her life were advancements by presenting clear and satisfactory evidence that her intent was to make loans or investments. Tankesley v. Thompson, 220 Ga. App. 641, 469 S.E.2d 853 (1996) (decided under former O.C.G.A. § 53-4-50).

Presumed advancement.

- Conveyance of land by a father to an adult child, reciting a consideration of love and affection, is, in the absence of proof to the contrary, presumed to be an advancement. Bowen v. Holland, 184 Ga. 718, 193 S.E. 233 (1937) (decided under former Code 1933, § 113-1013).

Gift of property by a father to an adult son, who is married and does not live under the parental roof, is presumed to be an advancement. Holliday v. Wingfield, 59 Ga. 206 (1877) (decided under former Code 1873, § 2579); Howard v. Howard, 101 Ga. 224, 28 S.E. 648 (1897); Kaylor v. Kaylor, 199 Ga. 516, 35 S.E.2d 1 (1945) (decided under former Civil Code 1895, § 3474);(decided under former Code 1933, § 113-1013).

Controverted declaration in writing, which was made after the death of the father by a child, that the child was "due," or owed, the child's deceased father a stated amount for stock and money, and which as an account would on its face be barred by the statute of limitations, would, if such admission be established as true, have probative value only as to the fact that the child had received such an amount from the father, and there being no other evidence as to the nature and character of the item and there being no other proven facts or circumstances such as would support a presumption in favor of an advancement, a finding in favor of an advancement would be unsupported by the evidence. Kaylor v. Kaylor, 199 Ga. 516, 35 S.E.2d 1 (1945) (decided under former Code 1933, § 113-1013).

Method of proof of an advancement prescribed by statute is not exclusive; when there is no writing the question is for the jury on all the evidence presented. Bransford v. Crawford, 51 Ga. 20 (1874) (decided under former Code 1873, § 2580).

Endorsement on back of will by testator sufficient as memo.

- Advancements are sufficiently proved by endorsements on the back of a will in the testator's handwriting made pursuant to a provision therefor in the will. Kramer v. Lyle, 197 F. 618 (N.D. Ga.), rev'd on other grounds, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 4053).

Cited in Beall v. Blake, 16 Ga. 119 (1854); Weems v. Andrews, 22 Ga. 43 (1857); Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393 (1868); Sims v. Sims, 39 Ga. 108, 99 Am. Dec. 450 (1869); Worrill v. Gill, 46 Ga. 482 (1872); Reed v. Reed, 68 Ga. 589 (1882); Hart v. Johnson, 81 Ga. 734, 8 S.E. 73 (1888); Holliday v. Wingfield, 59 Ga. 206 (1897); Ireland v. Dyer, 133 Ga. 851, 67 S.E. 195, 26 L.R.A. (n.s.) 1050, 18 Ann. Cas. 544 (1910); Parker v. Parker, 147 Ga. 432, 94 S.E. 543 (1917); Hobby v. Ford, 149 Ga. 176, 99 S.E. 624 (1919); Elliott v. Johnson, 178 Ga. 384, 173 S.E. 399 (1934); Beard v. Beard, 197 Ga. 487, 29 S.E.2d 595 (1944); Harrison v. Barber, 200 Ga. 225, 36 S.E.2d 662 (1946); Roberts v. Wilson, 200 Ga. 201, 36 S.E.2d 758 (1946); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); Fuller v. Fuller, 107 Ga. App. 429, 130 S.E.2d 520 (1963); Thompson v. Mathews, 226 Ga. 347, 174 S.E.2d 916 (1970); Chandler v. Owen, 233 Ga. 25, 209 S.E.2d 618 (1974); Howard v. Estate of Howard, 249 Ga. App. 287, 548 S.E.2d 48 (2001); Cubbedge v. Cubbedge, 287 Ga. App. 149, 650 S.E.2d 805 (2007).

Ademption Rule

Meaning of ademption.

- Ademption of a specific legacy is the extinction or withdrawal of it, in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Ademption is effected by the extinction of the thing or fund bequeathed, or by disposition of it subsequent to the will from which an intention that the legacy should fail is presumed. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Term "ademption" is sometimes used as synonymous with satisfaction, but such use is inaccurate, as ademption operates independently of intention in case the specific thing given is, at the testator's death, no longer owned by testator. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Ademption generally.

- When a testator conveys to another specific property devised or bequeathed, and does not afterward become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Thompson v. Long, 202 Ga. 718, 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).

Standard for defining a "conveyance" is whether there has occurred a change in the testator's ownership sufficiently radical to manifest, as a matter of law, the testator's intention to revoke the specific devise. The term "conveyance" includes a single transaction by which a testator sells the testator's fee simple title to real estate in return for a security title to the real estate sold. Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).

Ademption arises upon the conveyance of the specific property covered by the legacy, and rests upon a rule of law independent of any supposed actual intent of the testator; and in the absence of any facts which would bring the case within the exceptions set forth in statute, and in the absence of any provision in the will in contemplation of such a contingency, a trial court properly held that a devise had been wholly adeemed by reason of the conveyance of the realty involved, and since the testator died intestate as to this devise, that the proceeds thereof passed into the residuum of the estate. Thompson v. Long, 202 Ga. 718, 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).

Devise adeemed.

- When a testator conveys to another specific property devised or bequeathed, and does not afterwards become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Moncrief v. Shuman, 169 Ga. 217, 150 S.E. 98 (1929) (decided under former Civil Code 1910, § 3908).

When a testator conveys to a third party specific property devised and the will contains no provision for such a contingency, there can be no inquiry into a testator's intention in adeeming specifically bequeathed property. Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967) (decided under former Code 1933, § 113-817).

Devise held to be adeemed.

- When wife devised one-half interest in real estate to husband by specific devise, but did not devise the proceeds of its sale to husband, the specific devise was adeemed by alienation when testator sold the fee simple title in return for a down payment, note, and security title. Powell v. Thorsen, 253 Ga. 572, 322 S.E.2d 261 (1984) (decided under former O.C.G.A. § 53-2-105).

Exceptions

Exceptions to ademption rule.

- There are four exceptions to the rule that ademption occurs when a testator conveys to another the specific property bequeathed, those exceptions are: (1) where the testator afterwards becomes possessed of the same property; (2) where the attempt to convey fails; (3) where the testator exchanges the property for other of like character; and (4) where the testator merely changes the investment of a fund bequeathed. Lang v. Vaughn, 137 Ga. 671, 74 S.E. 270, 40 L.R.A. (n.s.) 542, 1913B Ann. Cas. 52 (1912) (decided under former Code 1933, § 113-817) Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-817).

A specific devise is adeemed when, after the execution of the will, the testator "conveys" to another the specific property devised unless one of the following four exceptions applies: reacquisition by the testator; failure of the conveyance; receipt of like property in exchange for the devised property and mere change in the investment of a fund. Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Advancements, §§ 1, 2, 4 et seq., 26 et seq., 43, 74. 80 Am. Jur. 2d, Wills, §§ 1458 et seq., 1460, 1482.

Ademption by Satisfaction, 1 POF2d 641.

Wills: Ademption of Legacy by Satisfaction or by Extinction, 91 POF3d 277.

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 95 et seq. 97 C.J.S., Wills, § 1742 et seq.

ALR.

- What amounts to an ademption or abatement of a legacy of a business or professional practice, 13 A.L.R. 173; 16 A.L.R.2d 1404.

Intent as a factor in determining whether there is an advancement, 26 A.L.R. 1089.

Presumption and burden of proof with respect to advancements to children, 26 A.L.R. 1106; 31 A.L.R.2d 1036.

Applicability of doctrine of advancements to testate succession, 32 A.L.R. 730.

Ademption of bequest of chattel by change in form, 40 A.L.R. 558.

Recovery of excess of advancement over distributable share in estate, 46 A.L.R. 1428.

Items in form of account as advancements, 49 A.L.R. 574.

What included in terms "notes," "securities," etc., in a bequest, 52 A.L.R. 1097.

Ademption or failure of substituted gift made by codicil or later will as preventing revocation, or effecting revival, of original gift to the same legatee or devisee, 59 A.L.R. 1106.

Change from absolute ownership of real property to mortgage interest by way of security, or vice versa, as ademption or revocation of legacy or devise, 65 A.L.R. 632.

Option given by testator before or after execution of will as ademption of specific legacy or devise, 79 A.L.R. 268; 155 A.L.R. 571.

Applicability of doctrine of advancements in case of pretermitted child or grandchild entitled by statute to the share which he would have received if testator had died intestate, 88 A.L.R. 375.

Interest or estate remaining in testator after conveyance or transfer of less than his entire interest or estate in property as passing under previously executed will covering property in question, 117 A.L.R. 1380.

Duty and liability of executor (or administrator with will annexed) in respect of personal property specifically bequeathed, and not needed for payment of debts, 127 A.L.R. 1071.

Doctrine of "advancements" as applicable to transfer by testator to devisee or legatee after execution of will, 142 A.L.R. 524.

Burden of debts and cost of administration as between residuary legatees, and heirs or next of kin who take lapsed, adeemed, or invalid legacies, 144 A.L.R. 476.

Doctrine of election as applicable where testator after the execution of the will transferred to one beneficiary the subject of a specific devise or bequest to another, 147 A.L.R. 735.

Devise of undivided interest as affected by partition of tract subsequent to execution of will, 162 A.L.R. 146.

Will charging distributee's share with advancement to or debt owing by him as invoking doctrine of hotchpot, 165 A.L.R. 899.

Construction and effect of general legacy conditional upon ademption of specific legacy or devise to legatee, 2 A.L.R.2d 819.

Right of general legatee of stocks, bonds, or other securities, where testator owns at time of death none such as are described in will or less than bequeathed, 22 A.L.R.2d 457.

Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.

Right of beneficiary as against estate of insured who borrowed on the policy, 31 A.L.R.2d 979.

Disposition of proceeds of insurance on property specifically bequeathed or devised, 35 A.L.R.2d 1056.

Ademption or revocation of specific devise or bequest by guardian, committee, or conservator of mentally or physically incompetent testator, 51 A.L.R.2d 770.

Codicil as reviving adeemed or satisfied bequest or devise, 58 A.L.R.2d 1072.

What amounts to ademption to specific legacy of corporate stock or other corporate securities, 61 A.L.R.2d 449.

Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.

Ademption of bequest of proceeds of property, 45 A.L.R.3d 10.

Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock, 46 A.L.R.3d 7.

Ademption of legacy of business or interest therein, 65 A.L.R.3d 541.

Disposition of insurance proceeds of personal property specifically bequeathed or devised, 82 A.L.R.3d 1261.

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

Ademption of bequest of debt or balance on debt, 25 A.L.R.4th 88.

Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole of residuary estate, 35 A.L.R.4th 788.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

53-1-11. Value.

Every advancement shall be valued without interest at its value at the time of the transfer unless a value or an interest rate is specified in writing at the time of acceptance or in the transferor's will.

(Code 1981, §53-1-11, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972). For article discussing concept of advancements, see 10 Ga. L. Rev. 447 (1976).

COMMENT

This section replaces former 53-4-54. Under this section, an advancement will be valued at its value on the date of the transfer unless a different value is agreed upon in writing at the time the transfer is accepted or in the will of the transferor.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2542, former Code 1873, § 2583, former Civil Code 1910, § 4056, and former Code 1933, § 113-1017, are included in the annotations for this Code section.

Cited in Sims v. Sims, 39 Ga. 108 (1869); Garrard v. Cody, 51 Ga. 555 (1874); Holder v. Webb, 25 Ga. App. 258, 103 S.E. 98 (1920); Barron v. Barron, 181 Ga. 505, 182 S.E. 851 (1935); Treadwell v. Everett, 185 Ga. 454, 195 S.E. 762 (1938); Cassedy v. Bland, 99 Ga. App. 34, 107 S.E.2d 697 (1959).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Advancements, § 55 et seq.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 106.

ALR.

- Valuation of property for purposes of advancement, 26 A.L.R. 1178.

Items in form of account as advancements, 49 A.L.R. 574.

Will charging distributee's share with advancement to or debt owing by him as invoking doctrine of hotchpot, 165 A.L.R. 899.

53-1-12. Manner of taking into account.

  1. If a beneficiary has received a satisfaction, the beneficiary shall not receive any other property in replacement of the specific testamentary gift which is the subject of the satisfaction.
  2. If a beneficiary has received an advancement of all or a portion of a demonstrative or general testamentary gift, the value of the demonstrative or general testamentary gift shall be reduced by the value of the advancement.
  3. For purposes of this subsection, the term "distributable share" means the share an heir would receive under the laws of intestacy or a beneficiary would receive under the residuary clause of the transferor's will if the value of all advancements made by the transferor during life, except satisfaction of specific testamentary gifts and advancements of demonstrative or general testamentary gifts, were added to the actual value of the transferor's intestate or residuary estate at death. If a beneficiary has received an advancement of a residuary gift or an heir has received an advancement of an intestate share, the advancement shall be taken into account in the following manner:
    1. If a beneficiary or heir has received an advancement that is less than the value of that person's distributable share under the residuary clause of the transferor's will or the laws of intestacy, the share actually distributed to the beneficiary or heir shall be charged with the advancement so that the beneficiary or heir will receive only the balance remaining of the distributable share; or
    2. If a beneficiary or an heir has received an advancement that is equal to or in excess of the value of that beneficiary's or heir's distributable share, the beneficiary or heir shall receive no further share from the estate.

(Code 1981, §53-1-12, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see Ga. L. Rev. 649 (1972). For article discussing concept of advancements, see 10 Ga. L. Rev. 447 (1976). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

COMMENT

This section replaces former OCGA Sec. 53-4-51. Under subsection (a), in the event of the satisfaction of a specific testamentary gift, the beneficiary receives no property in replacement of that gift. (This subsection reflects the rule of ademption by satisfaction that appeared in former OCGA Sec. 53-2-105.) Under subsection (b), if the advancement is of a demonstrative or general testamentary gift, the amount of the advancement is charged against any amount the beneficiary is slated to receive under the will. Subsection (c) outlines the traditional "hotchpot" method of taking advancements into account. This method is applied in the case of a beneficiary of a residuary share of the transferor's estate or an heir. The "hotchpot" is calculated by adding to the value of the transferor's residuary or intestate estate the value of all advancements made by the transferor except advancements of demonstrative or general testamentary gifts and satisfactions. Then each recipient's "distributable share" is determined. If an advancement is less than the recipient's distributable share of the estate, the value of the advancement must be charged against any share the recipient is due to receive. For example, suppose the recipient (R) received an advancement valued at $50,000. The transferor dies intestate, survived only by three children (A, B, and R) and with an intestate estate of $250,000. The value of R's advancement will be added back to the value of the estate, bringing the value of the "hotchpot" estate to $300,000. Under the laws of intestacy, each of the children is due to receive 1/3 of the estate ("distributable shares" of $100,000 each). However, since R has already received $50,000 as an advancement, R's distributable share of $100,000 is charged with the advancement so that R receives only an additional $50,000 from the probate estate. A and B each receive $100,000. If the recipient's advancement equals or exceeds the value of the recipient's distributable share, then the advancement is ignored and the recipient receives nothing further from the estate. For example, suppose R received an advancement of $150,000 and the transferor died intestate with an estate of $180,000. The hotchpot estate would equal $330,000 ($180,000 + $150,000), thus entitling each heir to a "distributable share" of $110,000. However, since R has already received $150,000, the value of the advancement is not brought into the hotchpot estate. R receives nothing further from the estate, and A and B split the $180,000 estate evenly between themselves.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1853-54, p. 41, §§ 1, 2, former Code 1863, § 2540, former Code 1868, § 2541, former Code 1873, § 2582, former Code 1882, § 2582, former Civil Code 1895, § 3477, former Civil Code 1910, § 4055, and former Code 1933, § 113-1016, are included in the annotations for this Code section.

In cases of intestacy, law favors equal distribution among intestate's heirs.

- In an accounting under this statute when the main object of the litigation is to ascertain and settle authoritatively the amount which each distributee has been advanced by the intestate, the verdict should find the several amounts specifically. The law, and not the jury, determines whether advancements shall be accounted for. Andrews v. Halliday, 63 Ga. 263 (1879) (decided under former Code 1873, § 2582).

There are only two ways by which the scheme of equality among the heirs may be upset. The first, of course, is by the making of a will on the part of the ancestor providing for a distribution of the ancestor's estate in a manner other than that set forth by law; and, the second is by a valid and binding contract executed between the ancestor and the heir which clearly shows a meeting of the minds between them acknowledging on the part of the heir receipt in full for the heir's prospective share of the ancestor's estate. Such a contract when entered into is binding and enforceable. Cassedy v. Bland, 99 Ga. App. 34, 107 S.E.2d 697 (1959) (decided under former Code 1933, § 113-1016).

Cited in Bransford v. Crawford, 51 Ga. 20 (1874); Hobby v. Ford, 149 Ga. 176, 99 S.E. 624 (1919); Treadwell v. Everett, 185 Ga. 454, 195 S.E. 762 (1938); Beard v. Beard, 197 Ga. 487, 29 S.E.2d 595 (1944); Harrison v. Barber, 200 Ga. 225, 36 S.E.2d 662 (1946).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Advancements, § 50 et seq.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 105.

ALR.

- Recovery of excess of advancement over distributable share in estate, 46 A.L.R. 1428.

Doctrine of "advancements" as applicable to transfer by testator to devisee or legatee after execution of will, 142 A.L.R. 524.

Will charging distributee's share with advancement to or debt owing by him as invoking doctrine of hotchpot, 165 A.L.R. 899.

Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.

53-1-13. Consideration of satisfaction or advancement when recipient predeceases transferor.

Unless the writing described in subsection (c) of Code Section 53-1-10 or the testator's will expressly provides otherwise, a satisfaction or an advancement is considered when computing the division and distribution of the transferor's estate even if the recipient of the satisfaction or advancement fails to survive the transferor.

(Code 1981, §53-1-13, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972). For article discussing concept of advancements, see 10 Ga. L. Rev. 447 (1976).

COMMENT

This section replaces former OCGA Sec. 53-4-52. Under this section, even if the recipient of the satisfaction or advancement fails to survive the transferor, the transfer will be considered when distributing the transferor's estate unless the writing or the transferor's will expressly provides otherwise.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1015, are included in the annotations for this Code section.

Cited in Treadwell v. Everett, 185 Ga. 454, 195 S.E. 762 (1938).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Advancements, §§ 5, 8.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 98.

ARTICLE 3 RENUNCIATION

53-1-20. Renouncing property; procedures; relation back; abridgement; fiduciary duties.

  1. For purposes of this Code section, the term "property" includes any interest in property and any power over or right with respect to the property.
  2. Any person to whom an interest in property is transferred or who succeeds to property by contract or by operation of law may renounce the property in whole or in part as provided in this Code section. A person may renounce even if a spendthrift or similar restriction applies to the property renounced. Persons who may renounce include fiduciaries acting on behalf of an individual, such as personal representatives, trustees, conservators, or guardians, as well as duly authorized attorneys in fact, whether acting on behalf of an individual or fiduciary.
  3. A renunciation must be made by a written instrument that describes the renounced property, declares the renunciation and the extent of it, and is signed by the person making the renunciation.
  4. The written instrument must be received by the transferor of the property, the transferor's legal representative, or other holder of title to the property not later than the date which is nine months after the later of:
    1. The date of the transfer; or
    2. The day on which the person making the renunciation reaches the age of 21.

      The instrument may also be filed in the probate court of the county in which proceedings concerning the transferor's estate are pending or in which they could be commenced and, in the case of real property, in the real property records of the county in which the real property is located. An instrument so filed in the probate court shall be conclusively presumed to have been received by the personal representative of the transferor's estate not later than the date of such filing, but earlier receipt may be shown.

  5. A person who has accepted property or any of its benefits may not renounce the property.
      1. Except as otherwise provided by the will or other governing instrument, a renunciation shall cause the renounced property to pass as if the person renouncing had predeceased the decedent or, in the case of property passing upon exercise of a power of appointment, as if the person renouncing had predeceased the holder of the power, even if the acceleration of a contingent remainder or other interest results. A will or other governing instrument may otherwise provide expressly or by implication, but the fact that a remainder or other future interest following a renounced interest is conditioned upon surviving the holder of such renounced interest shall not, without more, be sufficient to indicate that such conditioned interest should not accelerate by reason of such renunciation.
      2. Notwithstanding subparagraph (A) of this paragraph, solely for the purposes of the proviso of paragraph (5) and the proviso of paragraph (7) of subsection (c) of Code Section 53-2-1, any individual renouncing who is the only sibling or the only aunt or uncle surviving the decedent shall not be deemed to have predeceased the decedent.
    1. Renounced property that is the subject of an attempted outright gift shall be treated as an incomplete gift.
    2. A renounced power over property shall be treated as if such power had not been created with respect to the person renouncing such power.
    3. The expression in a renunciation of an intent or desire that the property pass to certain persons shall be considered merely precatory and shall have no legal effect unless specifically declared to be a condition of the renunciation.
  6. In every case a renunciation relates back for all purposes to the applicable date among the following:
    1. The date of death of the decedent;
    2. The date of the death of the holder of the power of appointment;
    3. The date the gift was attempted; or
    4. The date the power was created.
  7. This Code section does not abridge the right of any person to transfer or renounce any property under any other statute or common law. Any renunciation that is otherwise valid but fails to meet the requirements of subsections (c) and (d) of this Code section shall operate as a transfer of the property to those persons who would have received it had the renunciation met those requirements.
  8. Nothing in this Code section alters the duties of any fiduciary to act in the best interests of the person the fiduciary represents. This subsection shall not, however, limit the power granted by this Code section to a fiduciary to renounce property.

(Code 1981, §53-1-20, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 7; Ga. L. 2002, p. 1322, § 1; Ga. L. 2007, p. 210, § 1/HB 139; Ga. L. 2011, p. 752, § 53/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, designated the existing provisions of paragraph (f)(1) as subparagraphs (f)(1)(A) and (B); and, in subparagraph (f)(1)(B), substituted "subparagraph (A) of this paragraph, solely for the purposes of the proviso of paragraph (5) and the proviso of paragraph (7)" for "the foregoing, solely for the purposes of the last clause of paragraph (5) and the last clause of paragraph (7)".

Law reviews.

- For annual survey of wills, trusts, and administration of estates, see 42 Mercer L. Rev. 491 (1990). For annual survey article discussing wills, trusts, and administration of estates, see 51 Mercer L. Rev. 487 (1999). For note, "Linkous v. Candler: The Future of Acceleration of Remainders in Georgia," see 16 Ga. St. U.L. Rev. 879 (2000).

COMMENT

This subsection replaces former OCGA Sec. 53-2-115. The section mirrors the requirements of Internal Revenue Code section 2518 and related United States Treasury Regulations. The section is not intended to preempt other common law or statutory forms of renunciation but rather to provide a mechanism whereby persons may make renunciations that constitute "qualified disclaimers" under that Internal Revenue Code section.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-2-115 are included in the annotations for this Code section.

Term "encumbrance" in paragraph (d)(1) of former O.C.G.A. § 53-2-115 referred to an encumbrance placed on the property by the disclaimant, not an encumbrance existing at the time of the decedent's death. Brown v. Momar, Inc., 201 Ga. App. 542, 411 S.E.2d 718 (1991) (decided under former O.C.G.A. § 53-2-115).

"Acceptance".

- Heir's acceptance of $460 from decedent's accounts for use in purchasing personal clothing did not constitute the type of "acceptance" sufficient to preclude the heir's timely renunciation of the heir's testamentary interest. Jordan v. Trower, 208 Ga. App. 552, 431 S.E.2d 160 (1993) (decided under former O.C.G.A. § 53-2-115).

Acceleration "otherwise indicated" by testator.

- When, under the will, no wife or child of the testator's sons would have the right of possession to trust property prior to the death of the sons, the inter vivos renunciation of their immediate interests by the sons did not accelerate the remainder interests. Wetherbee v. First State Bank & Trust Co., 266 Ga. 364, 466 S.E.2d 835 (1996) (decided under former O.C.G.A. § 53-2-115).

Acceleration prohibited when class could not be ascertained.

- Trust agreement prohibited acceleration when the class of remaindermen consisted of living grandchildren of the settlor and beneficiary, so that the class could not be ascertained until the death of the settlor's and beneficiary's last child. Linkous v. Candler, 270 Ga. 284, 508 S.E.2d 657 (1998) (decided under former O.C.G.A. § 53-2-115).

Effect of renunciation on Medicaid benefits.

- While a Medicaid claimant was entitled under O.C.G.A. § 53-1-20 to renounce an inheritance under the will of the claimant's spouse, this did not insulate that choice from the application of Medicaid's eligibility regulations. Thus, the Georgia Department of Community Health properly denied Medicaid vendor benefits to the claimant. Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008).

Under O.C.G.A. § 53-1-20(g), a beneficiary's renunciation of a devise or bequest relates back to the date of death. However, nothing in § 53-1-20 requires the Georgia Department of Community Health to ignore the date a Medicaid claimant files a renunciation in applying its transfer-of-resource policies. Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008).

RESEARCH REFERENCES

ALR.

- Relinquishment of interest by life beneficiary in possession as accelerating remainder of which there is substitutional gift in case primary remainderman does not survive life beneficiary, 7 A.L.R.4th 1084.

Creditor's right to prevent debtor's renunciation of benefit under will or debtor's election to take under will, 39 A.L.R.4th 633.

CHAPTER 2 DESCENT AND DISTRIBUTION

Article 1 General Provisions.
Article 2 Judicial Determination of Heirs and Interests.
Article 3 Distribution of Estate in Kind.
Article 4 Dispensing with Administration.
Article 5 Escheat.
Cross references.

- Payment of outstanding wages to surviving spouse or minor children upon death of employee, § 34-7-4.

Manner of payment of workers' compensation benefits of deceased employee, § 34-9-13.

Escheat of estate when intestate leaves no heirs, T. 53, C. 2, A. 5.

Editor's notes.

- This chapter was effective January 1, 1998, to the extent that no vested rights of title, year's support, succession, or inheritance are impaired, as provided by the version of Code Section 53-1-1 enacted by Ga. L. 1996, p. 504, § 10, as amended by Ga. L. 1997, p. 1352, § 1.

Ga. L. 1996, p. 504, § 10, effective January 1, 1998, repealed the Code sections formerly codified at this chapter, and enacted the current chapter. The former chapter consisted of §§ 53-2-1 through53-2-10 (Article 1);53-2-20 through53-2-26 (Article 2);53-2-40,53-2-40.1, and53-2-41 through53-2-51 (Article 3);53-2-70 through53-2-77 (Article 4); and53-2-90 through53-2-117 (Article 5), and was based on Laws 1677, Cobb's 1851 Digest, p. 1129; Laws 1834, Cobb's 1851 Digest, p. 347; Laws 1836, Cobb's 1851 Digest, p. 348; Ga. L. 1851-52, p. 104, § 1; Orig. Code 1863, §§ 2215, 2362 through 2377, 2379, 2381 through 2388, 2419 through 2448, 2450, 3093 through 3095; Code 1868, §§ 2210, 2359 through 2364 through 2374, 2376 through 2384, 2415 through 2444, 2446, 3105 through 3107; Ga. L. 1869, p. 163, § 1; Code 1873, §§ 2236, 2394 through 2409, 2411 through 2419, 2446, 2451 through 2480, 2482, 3162 through 3164; Code 1882, §§ 2236, 2394 through 2409, 2411 through 2419, 2446, 2451 through 2480, 2482, 3162 through 3164; Civil Code 1895, §§ 3067, 3253 through 3277, 3314, 3319 through 3350, 3352, 4013 through 4015; Civil Code 1910, §§ 3643, 3827 through 3851, 3890, 3895 through 3926, 3928, 4610 through 4612; Code 1933, §§ 37-502 through 37-504, 113-101 through 113-109, 113-201 through 113-210, 113-301 through 113-306, 113-401 through 113-409, 113-501 through 113-504, 113-801 through 113-824; Ga. L. 1937, p. 430, § 1; Ga. L. 1952, p. 196, § 1; Ga. L. 1958, p. 657, §§ 1-3, 10; Ga. L. 1964, Ex. Sess., p. 16, §§ 1-3; Ga. L. 1967, p. 718, § 1; Ga. L. 1968, p. 1070, § 1; Code 1933, § 113-824, enacted by Ga. L. 1972, p. 452, § 1; Ga. L. 1979, p. 1292, § 1; Ga. L. 1984, p. 834, § 1; Code 1981, § 53-2-40.1, enacted by Ga. L. 1984, p. 834, § 2; Ga. L. 1988, p. 1359, § 1; Ga. L. 1990, p. 299, § 1; Ga. L. 1990, p. 372, § 1; Ga. L. 1993, p. 1057, § 1.

Law reviews.

- For note, "Not Just For Kids: Why Georgia's Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults," see 43 Ga. L. Rev. 867 (2009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 34 Am. Jur. 2d, Federal Taxation, § 2700 et seq. 42 Am. Jur. 2d, Inheritance, Estate, and Gift Taxes, § 170.

Decisionmaking at the End of Life, 63 Am. Jur. Trials 1.

ALR.

- Statutory or constitutional provision allowing widow but not widower to take against will and receive dower interests, allowances, homestead rights, or the like as denial of equal protection of law, 18 A.L.R.4th 910.

Attorney's delay in handling decedent's estate as ground for disciplinary action, 21 A.L.R.4th 75.

What passes under terms "furniture" or "furnishings" in will, 21 A.L.R.4th 383.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings, 53 A.L.R.4th 561.

What passes under term "personal property" in will, 31 A.L.R.5th 499.

ARTICLE 1 GENERAL PROVISIONS

Law reviews.

- For note, "Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?," see 45 Ga. L. Rev. 877 (2011).

53-2-1. Rules of inheritance when decedent dies without will; effect of abandonment of child.

  1. As used in this Code section, the term:
    1. "Abandon" means that a parent of a minor child, without justifiable cause, fails to communicate with the minor child, care for the minor child, and provide for the minor child's support as required by law or judicial decree for a period of at least one year immediately prior to the date of the death of the minor.
    2. "Abandonment" means the act of abandoning.
    3. "Minor child" means a person who is less than 18 years of age.
  2. For purposes of this Code section:
    1. Children of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth; and
    2. The half-blood, whether on the maternal or paternal side, are considered equally with the whole-blood, so that the children of any common parent are treated as brothers and sisters to each other.
  3. Except as provided in subsection (d) of this Code section, when a decedent died without a will, the following rules shall determine such decedent's heirs:
    1. Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share;
    2. If the decedent is not survived by a spouse, the heirs shall be those relatives, as provided in this Code section, who are in the nearest degree to the decedent in which there is any survivor;
    3. Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
    4. Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;
    5. Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;
    6. Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;
    7. Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and
    8. The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent. The sum of the steps in the two chains shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.
  4. Except as provided in Code Sections 19-7-1 and 51-4-4 for the right of recovery for the wrongful death of a child, when a minor child dies without a will, a parent who willfully abandoned his or her minor child and has maintained such abandonment shall lose all right to intestate succession to the minor child's estate and shall not have the right to administer the minor child's estate. A parent who has been deprived of the custody of his or her minor child under an order of a court of competent jurisdiction and who has substantially complied with the support requirements of the order shall not be barred from inheriting from the minor child's estate.
  5. For cases in which abandonment is alleged, the moving party shall file a motion with the probate court requesting the judge to determine the issue of abandonment and shall serve all parties as set forth in subsection (f) of this Code section. A hearing shall be conducted and all parties shall have the opportunity to present evidence regarding the party's relationship with the decedent. The burden of proof to show an abandonment is on the person asserting the abandonment by clear and convincing evidence.
  6. All parties to a motion filed pursuant to subsection (e) of this Code section shall be served in accordance with Chapter 11 of this title. If a party cannot be personally served and the party's interest in an estate is subject to forfeiture pursuant to subsection (d) of this Code section, the judge shall appoint a guardian ad litem for the party. If a party cannot be personally served, the citation shall also be published in the newspaper in which sheriff's advertisements are published in the county where the party was last known to reside.
  7. In the event that a parent is disqualified from taking a distributive share in the estate of a decedent under subsection (d) of this Code section, the estate of such decedent shall be distributed in accordance with subsection (c) of this Code section as though the parent had predeceased the decedent.

(Code 1981, §53-2-1, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 8; Ga. L. 2007, p. 210, § 2/HB 139; Ga. L. 2008, p. 324, § 53/SB 455.)

Law reviews.

- For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012). For article, "Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia's Same Sex Spouses," see 21 Ga. St. Bar. J. 9 (Oct. 2015). For note, "Status or Contract? A Comparative Analysis of Inheritance Rights under Equitable Adoption and Domestic Partnership Doctrines," 39 Ga. L. Rev. 675 (2005). For note, "Not Just For Kids: Why Georgia's Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults," see 43 Ga. L. Rev. 867 (2009). For note, "Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?," see 45 Ga. L. Rev. 877 (2011).

COMMENT

Subsection (a) carries forward the second sentences of former OCGA Sec. 53-4-2(4) and Sec. 53-4-2(5). Paragraph (a)(1) adds the requirement that a child of the decedent be conceived prior to the decedent's death, be born within ten months of the decedent's death, and survive birth by at least 120 hours or more to be considered an heir.

Subsection (b) replaces former OCGA Secs. 53-4-1 through 53-4-3 and differs from those Code sections in the treatment of the surviving spouse, parents of the decedent, and descendants of the siblings of the decedent. A surviving spouse is guaranteed at least one-third of the decedent's intestate estate, as opposed to one-fourth of the estate under former Sec. 53-4-2(2). While former OCGA Sec. 53-4-2(6) included a decedent's parents in the same degree as the decedent's siblings, the new Code section puts parents in a degree superior to that of siblings. Former Sec. 53-4-2(5) included in the second degree only children or grandchildren of the decedent's siblings; the new Section includes all descendants of the decedent's siblings.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1841, Cobb's 1851 Digest, p. 296, former Laws 1845, Cobb's 1851 Digest, p. 297, former Code 1868, §§ 1752 and 2448, former Code 1873, §§ 1762 and 2484, former Civil Code 1910, § 3931, and former O.C.G.A. §§ 53-4-1 and53-4-2 are included in the annotations for this Code section.

Posthumous child qualified as decedent's child.

- Decedent's posthumous, out-of-wedlock child was entitled to pursue a wrongful death claim under O.C.G.A. § 51-4-2 to the exclusion of the decedent's parents. Under the statute pertaining to descent and distribution, O.C.G.A. § 53-2-1(a)(1), the posthumous child qualified as the decedent's child and to ignore the laws of descent and distribution would run counter to the essence of a wrongful death claim; simply because the decedent's parents wished to share in any award did not render an inequitable result in light of the priority ordinarily given to children by O.C.G.A. § 19-7-1(c)(2). deVente v. Flora, 300 Ga. App. 10, 684 S.E.2d 91 (2009).

Must be an interested person to have standing to offer will to probate.

- Trial court erred by denying two children's motion to dismiss the petition to probate filed by the decedent's brother because the brother lacked standing to offer the will to probate under O.C.G.A. § 53-5-2 because the brother was not an interested person as the brother was not a judgment creditor of an heir of the decedent, a purchaser from an heir, a person claiming under an earlier will, or an administrator appointed for the decedent before discovery of the will. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014).

Damages.

- Trial court erred in finding that a stepfather's heirs had a purchase money resulting trust in a homeplace as the stepfather's heirs failed to rebut the presumption that the homeplace was a gift to a decedent mother from the stepfather; the matter was remanded to the trial court to determine damages to be awarded to the mother's children under O.C.G.A. § 53-2-1(b)(1). In re Estate of Thornton, 275 Ga. App. 202, 620 S.E.2d 410 (2005).

Impact of parent's cruel treatment of decedent's child.

- Despite evidence of a parent's cruel treatment of the parent's decedent child, the trial court erred in finding that the parent forfeited parental rights, and thus lost the status as a parent and, in so doing, lost the right to recover as an heir of the decedent's estate, as the loss of parental power did not necessarily result in a parent's loss of a right to inherit as an heir from the estate of that parent's child, short of having the parent's rights terminated prior to the child's death; hence, summary judgment against the parent on the issue was reversed. Blackstone v. Blackstone, 282 Ga. App. 515, 639 S.E.2d 369 (2006).

Cousins stand in equal degree. Redd v. Clopton, 17 Ga. 230 (1855) (decided under Laws 1845, Cobb's 1851 Digest, p. 297).

Degrees of kinship generally.

- Degree of kinship is counted from the intestate up to the common ancestor, one degree for each generation, thence down the collateral line to the contestant. The number of degrees in the longer of these two lines is the degree of kindred between the intestate and the claimant. Wetter v. Habersham, 60 Ga. 193 (1878) (decided under former Code 1873, §§ 1762, 2484).

As between a living uncle of the intestate and children of such uncle and a child of a predeceased aunt and the children of another predeceased aunt, the distribution shall be per capita among all of the parties in the case. Weinman v. Scarborough, 154 Ga. 431, 114 S.E. 712 (1922) (decided under former Civil Code 1910, § 3931).

Term "uncle" as used in former O.C.G.A. § 53-4-2 was limited to those persons who have a common ancestor with the niece or nephew. Hill v. Newman, 254 Ga. 57, 325 S.E.2d 767 (1985) (decided under former O.C.G.A. § 53-4-2).

By statute changing the English rule, the wife is expressly made an "heir" of her husband. Gibbon v. Gibbon, 40 Ga. 562 (1869) (decided under former Code 1868, §§ 1752, 2448).

Posthumous children inherit as though born at the time of the intestate's death. Morrow v. Scott, 7 Ga. 535 (1849) (decided under Laws 1841, Cobb's 1851 Digest, p. 296).

Paternal and maternal half blood inherits equally with whole blood.

- When a widow dies intestate leaving one child by one marriage and two children and the children of a third child, deceased, by a second marriage, her estate descends in four equal parts, one each to the living children per capita, and one per stirpes to be divided among the children of the deceased child. Odam v. Caruthers, 6 Ga. 39 (1849) (decided under Laws 1841, Cobb's 1851 Digest, p. 296); Reed v. Norman, 157 Ga. 183, 121 S.E. 310 (1924);(decided under former Civil Code 1910, § 3731).

Legitimates and illegitimates inherit equally from the mother. Houston v. Davidson, 45 Ga. 574 (1872) (decided under former Civil Code 1910, § 3731).

An illegitimate half-niece would not take under this statute by representation from a legitimate half-uncle on her maternal side when the latter's property came through the latter's father, not the latter's mother. Rhodes v. Williams, 143 Ga. 342, 85 S.E. 105 (1915) (decided under former Civil Code 1910, § 3731).

Virtual adoption.

- Trial court erred by granting a biological son's motion for partial summary judgment on the issue of virtual adoption asserted by the purported adopted daughter because the court clearly erred by misinterpreting the requirement of partial performance of the agreement to adopt and erroneously concluded that an established virtual adoption can be undone by showing that the purported adopted daughter formed a relationship with the child's natural father after learning of his existence when a teenager. Sanders v. Riley, 296 Ga. 693, 770 S.E.2d 570 (2015).

Cited in Houston v. Davidson, 45 Ga. 574 (1872); Wetter v. Habersham, 60 Ga. 193 (1878); Ector v. Grant, 112 Ga. 557, 37 S.E. 984, 53 L.R.A. 723 (1901); Raburn v. Bradshaw, 124 Ga. 552, 52 S.E. 922 (1905); Rhodes v. Williams, 143 Ga. 342, 85 S.E. 105 (1915); Pylant v. Burns, 153 Ga. 529, 112 S.E. 455, 28 A.L.R. 423 (1922); B.B. ex rel. A.L.B. v. Schweiker, 643 F.2d 1069 (5th Cir. 1981); Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981); Chapman v. McClelland, 248 Ga. 725, 286 S.E.2d 290 (1982); Cain v. Cain, 176 Ga. App. 671, 337 S.E.2d 377 (1985); Wilson v. James, 260 Ga. 234, 392 S.E.2d 5 (1990); McClinton v. Sullivan, 208 Ga. App. 411, 430 S.E.2d 794 (1993); In re Last Will of Lewis, 263 Ga. 349, 434 S.E.2d 472 (1993); McClinton v. Sullivan, 263 Ga. 711, 438 S.E.2d 71 (1994); Bacon v. Smith, 222 Ga. App. 542, 474 S.E.2d 728 (1996); Haley v. Regions Bank, 277 Ga. 85, 586 S.E.2d 633 (2003); Progressive Classic Ins. Co. v. Nationwide Mut. Fire Ins. Co., 294 Ga. App. 787, 670 S.E.2d 497 (2008).

RESEARCH REFERENCES

10 Am. Jur. Pleading and Practice Forms, Executors and Administrators, § 700.

14 Am. Jur. Pleading and Practice Forms, Inheritance, Estate, and Gift Taxes, § 2.

ALR.

- Applicability of doctrine of advancements to testate succession, 32 A.L.R. 730.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator's death, 7 A.L.R.4th 989.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse, 31 A.L.R.4th 1190.

Descent and distribution: rights of inheritance as between kindred of whole and half blood, 47 A.L.R.4th 561.

53-2-2. Effect of decree of adoption.

Reserved. Repealed by Ga. L. 1997, p. 1352, § 3, effective January 1, 1998.

Editor's notes.

- This Code section, enacted by Ga. L. 1996, p. 504, § 10, was to become effective January 1, 1998, but was repealed and reserved by Ga. L. 1997, p. 1352, § 3.

Law reviews.

- For article commenting on the 1997 repeal of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

53-2-3. Inheritance by children born out of wedlock.

The rights of inheritance of a child born out of wedlock shall be as follows:

  1. A child born out of wedlock may inherit in the same manner as though legitimate from or through the child's mother, the other children of the mother, and any other maternal kin;
    1. A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless:
      1. A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
      2. A court of competent jurisdiction has otherwise entered a court order establishing paternity;
      3. The father has executed a sworn statement signed by him attesting to the parent-child relationship;
      4. The father has signed the birth certificate of the child; or
      5. There is other clear and convincing evidence that the child is the child of the father.
      1. Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may inherit from or through the father, other children of the father, or any paternal kin by reason of the paternal kinship if evidence of the rebuttable presumption of paternity described in this subparagraph is filed with the court before which proceedings on the estate are pending and the presumption is not overcome to the satisfaction of the trier of fact by clear and convincing evidence.
      2. There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.
    2. If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this paragraph shall have been established and shall not have been rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father, the other children of his or her father, and any other paternal kin;
  2. In distributions under this Code section, the children of a deceased child born out of wedlock shall represent that deceased child.

(Code 1981, §53-2-3, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 4.)

Law reviews.

- For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For article surveying 1982 Eleventh Circuit cases involving constitutional civil law, see 34 Mercer L. Rev. 1221 (1983). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015). For note on the role of a judicial determination of paternity in the inheritance rights of illegitimate children in Georgia, see 16 Ga. L. Rev. 170 (1981). For note on 1991 amendment of former O.C.G.A. § 53-4-4, see 8 Ga. St. U.L. Rev. 197 (1992). For comment on equitable adoption, equitable legitimation, and inheritance in extralegal family arrangements, see 48 Emory L.J. 943 (1999).

COMMENT

This Code section carries over the concepts of former OCGA Sec. 53-4-4. Subsection (a) of the former Code section is eliminated as unnecessary. Subsection 2(A)(v) of the current law modifies the former law by requiring clear and convincing evidence of the paternity and the existence of a de facto parent-child relationship, or proof that such relationship would have existed if the father had not died before the child was born. This replaces the requirement of former law that it be shown that the father intended the child to share in the father's estate in the same manner as if the child were legitimate.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 1800, former Civil Code 1910, § 3029, and former O.C.G.A. § 53-4-4 are included in the annotations for this Code section.

Constitutionality.

- Georgia's pre-1980 intestacy scheme concerning illegitimate children (formerly Code 1933, § 113-904) was unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment, because the statute excluded significant categories of illegitimates whose inheritance rights could be recognized without jeopardizing the orderly administration of estates. Poulos v. McMahan, 250 Ga. 354, 297 S.E.2d 451 (1982) (decided under former O.C.G.A. § 53-4-4); Hill v. Newman, 254 Ga. 57, 325 S.E.2d 767 (1985);(decided under former O.C.G.A. § 53-4-4).

Sufficient evidence of right to inherit.

- Right to inherit under O.C.G.A. § 53-2-3 was established notwithstanding the fact that decedent never took steps to legitimate petitioner where decedent acknowledged petitioner as his biological child and acknowledged petitioner's son as his grandchild. There was a rebuttable presumption that the man who was married to claimant's mother at the time of claimant's birth was the biological father. In re Estate of Slaughter, 246 Ga. App. 314, 540 S.E.2d 269 (2000).

Born-out-of-wedlock claimant was entitled to a rebuttable presumption under O.C.G.A. § 53-2-3(2)(B) that a decedent was the claimant's father, and that the claimant was entitled to inherit from the estate because the claimant produced parentage-determinative genetic testing, which established at least a 97% probability that the decedent was the claimant's father. In re Estate of Warren, 300 Ga. App. 408, 685 S.E.2d 411 (2009).

No retrospective operation.

- The 1991 amendment of former O.C.G.A. § 53-4-4 to provide additional conditions under which a child born out of wedlock may inherit from or through a father would not be given retrospective effect. Sardy v. Hodge, 264 Ga. 548, 448 S.E.2d 355 (1994), cert. denied, 513 U.S. 1191, 115 S. Ct. 1255, 131 L. Ed. 2d 135 (1995) (decided under former O.C.G.A. § 53-4-4).

Discussion of United States Supreme Court decisions.

- See Poulos v. McMahan, 250 Ga. 354, 297 S.E.2d 451 (1982) (decided under former O.C.G.A. § 53-4-4).

Use of section by federal Social Security Act held unconstitutional.

- As applied to this case, the incorporation by the federal Social Security Act, 42 U.S.C. § 402(d), of the Georgia intestacy scheme to require a child seeking survivors benefits to establish paternity within two and one-half years violated equal protection. Daniels ex rel. Daniels v. Sullivan, 979 F.2d 1516 (11th Cir. 1992) (decided under former O.C.G.A. § 53-4-4).

"Clear and convincing," as applied to evidence under former O.C.G.A. § 53-4-4, is a more stringent standard than "preponderating" and requires a greater quantum and high quality of proof in plaintiff's favor. In re Estate of Burton, 265 Ga. 122, 453 S.E.2d 16 (1995) (decided under former O.C.G.A. § 53-4-4).

Effect of doctrine of virtual legitimation.

- Doctrine of virtual or equitable legitimation will allow an illegitimate child to inherit from the child's intestate father's estate when the evidence is clear and convincing. Prince v. Black, 256 Ga. 79, 344 S.E.2d 411 (1986), rev'g, 176 Ga. App. 465, 336 S.E.2d 318 (1985) (decided under former O.C.G.A. § 53-4-4).

Child born out of wedlock is not required to prove by clear and convincing evidence that the child's natural father intended the child to share in his estate as prescribed by the rules of descent and distribution, just that he intended that the child take from his estate. Varner v. Sharp, 219 Ga. App. 125, 464 S.E.2d 388 (1995) (decided under former O.C.G.A. § 53-4-4).

If a child born out of wedlock does prove that decedent was the child's father and that he intended for the child to take from the estate, the court must determine, based upon the rules of intestate succession, the amount to which the child is entitled; the burden of proving such amount does not rest with the child. Varner v. Sharp, 219 Ga. App. 125, 464 S.E.2d 388 (1995) (decided under former O.C.G.A. § 53-4-4).

Doctrine of virtual legitimation applied.

- When decedent's actions indicated that decedent was in the process of taking all the necessary steps to ensure that the child whom he and his cohabitant had conceived would be born into a legitimate family environment, and everything necessary for his divorce from his estranged wife was complete except for the final decree, there was clear and convincing evidence that decedent intended for his unborn child to be born into a legitimate family environment, and his unexpected death would not defeat the claim of the child, who could inherit under the doctrine of virtual legitimation. Simpson v. King, 259 Ga. 420, 383 S.E.2d 120 (1989) (decided under former O.C.G.A. § 53-4-4).

Doctrine of virtual legitimation not applied retroactively.

- Alleged illegitimate children were not entitled to inherit from father's estate since the children could not produce an order establishing parentage, and the doctrine of virtual legitimation did not apply since inheritance had been settled. Tolbert v. Whatley, 223 Ga. App. 508, 478 S.E.2d 587 (1996) (decided under former O.C.G.A. § 53-4-4).

Only illegitimate child through maternal line obtained interest in property.

- When the owner of a tract of land died in 1926 and the owner's sole surviving heirs were a nephew and niece who died in 1942 and 1947, respectively, each of whom was survived by an illegitimate son, the son of the niece inherited sole title to the property through the maternal line of descent, although he and the son of the nephew have since operated under the assumption that they were co-owners. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983) (decided under former O.C.G.A. § 53-4-4).

Right of minor child for 12 months' support is not controlled by former O.C.G.A. § 53-4-4 and therefore that law could not be the basis of a caveat in the probate court. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former O.C.G.A. § 53-4-4).

Paternity order insufficient for inheritance.

- Court order finding deceased to be the illegitimate child's father for the purpose of a liability action does not suffice as a court order establishing paternity since the order would not have existed had deceased lived. In re Adventure Bound Sports, Inc., 858 F. Supp. 1192 (S.D. Ga. 1994) (decided under former O.C.G.A. § 53-4-4).

Decedent's intent that illegitimate daughter inherit.

- Despite conflicting evidence, the trial court was authorized under the evidence presented to find clear and convincing proof of decedent's intent that his daughter born out of wedlock inherit from the estate. Sharp v. Varner, 226 Ga. App. 570, 486 S.E.2d 701 (1997) (decided under former O.C.G.A. § 53-4-4).

Cited in Langmade v. Tuggle, 78 Ga. 770, 3 S.E. 666 (1887); Curlew v. Jones, 146 Ga. 367, 91 S.E. 115 (1917); Pair v. Pair, 147 Ga. 754, 99 S.E. 295 (1918); Wilson v. James, 260 Ga. 234, 392 S.E.2d 5 (1990); Youmans v. Ormandy, 206 Ga. App. 255, 424 S.E.2d 828 (1992).

RESEARCH REFERENCES

ALR.

- Right of illegitimate grandchildren to take under testamentary gift to "grandchildren,", 17 A.L.R.4th 1292.

Adopted child as subject to protection of statute regarding rights of children pretermitted by will, or statute preventing disinheritance of child, 43 A.L.R.4th 947.

Eligibility of illegitimate child for survivor's benefits under Social Security Act, pursuant to § 216(h)(2)(A) of Act (42 USCS § 416(h)(2)(A)), where state intestacy law denying inheritance right, or application of that state law to § 216(h)(2)(A), may violate child's right to equal protection of laws, 116 A.L.R. Fed. 121.

53-2-4. Inheritance from children born out of wedlock.

  1. The mother of a child born out of wedlock, the other children of the mother, and other maternal kin may inherit from and through the child born out of wedlock in the same manner as though the child were legitimate.
  2. The father of a child born out of wedlock, the other children of the father, and other paternal kin may inherit from and through the child born out of wedlock in the same manner as if the child were legitimate if:
    1. A court of competent jurisdiction has entered an order declaring the child to be legitimate under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
    2. A court of competent jurisdiction has otherwise entered a court order establishing paternity;
    3. The father has, during the lifetime of the child, executed a sworn statement signed by the father attesting to the parent-child relationship; provided, however, that when the court determines by clear and convincing evidence that the father caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age, such sworn statement shall be insufficient for purposes of this subsection;
    4. The father has, during the lifetime of the child, signed the birth certificate of the child; or
    5. The presumption of paternity described in division (2)(B)(ii) of Code Section 53-2-3 has been established and has not been rebutted by clear and convincing evidence.

(Code 1981, §53-2-4, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2002, p. 1316, § 1; Ga. L. 2016, p. 219, § 5/SB 331.)

The 2016 amendment, effective July 1, 2016, added the proviso at the end of paragraph (b)(3).

Law reviews.

- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 127 (2016). For note, "Rainey v. Chever: Expanding a Natural Father's Right to Inherit from His Illegitimate Child," see 51 Mercer L. Rev. 761 (2000). For note, "Deadbeat Dads: Undeserving of the Right to Inherit from Their Illegitimate Children and Undeserving of Equal Protection," see 34 Ga. L. Rev. 1773 (2000). For comment on equitable adoption, equitable legitimation, and inheritance in extralegal family arrangements, see 48 Emory L.J. 943 (1999).

COMMENT

This Code section carries over former OCGA Sec. 53-4-5.

JUDICIAL DECISIONS

Gender-based classification unconstitutional.

- Paragraph (b)(2) of O.C.G.A. § 53-2-4 creates a gender-based classification in violation of the equal protection clauses of both the United States and Georgia constitutions; it provides that a father of a child born out of wedlock cannot inherit from his child if he failed or refused to openly treat the child as his own, but that a mother who acts in the same manner can inherit from the child, and there is no legitimate state interest achieved by not subjecting mothers of illegitimate children to the same standards of conduct. Rainey v. Chever, 270 Ga. 519, 510 S.E.2d 823 (1999), cert. denied, 527 U.S. 1044, 119 S. Ct. 2411, 144 L. Ed. 2d 808 (1999).

Compliance with section during child's lifetime required.

- Paragraph (b)(1) of O.C.G.A. § 53-2-4 requires that the father judicially establish paternity prior to the death of the child. In re Estate of Garrett, 244 Ga. App. 65, 534 S.E.2d 843 (2000).

53-2-5. Children conceived by artificial insemination.

An individual conceived by artificial insemination and presumed legitimate in accordance with Code Section 19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of intestacy from the parents and from relatives of the parents, and the parents and relatives of the parents shall likewise be entitled to inherit as heirs from and through such individual.

(Code 1981, §53-2-5, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section clarifies that the rules of inheritance by, from and through biological children apply equally to children who have been conceived by artificial insemination provided they are deemed legitimate in accordance with OCGA Sec. 19-7-21.

Law reviews.

- For note, "A New Era of Dead-Beat Dads: Determining Social Security Survivor Benefits for Children Who Are Posthumously Conceived," see 56 Mercer L. Rev. 759 (2005).

53-2-6. Individual related to decedent through two or more lines of relationship.

An individual who is related to the decedent through two or more lines of relationship is entitled to only a single share based on the relationship entitling that individual to the largest share under the laws of intestacy.

(Code 1981, §53-2-6, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section is modeled after Uniform Probate Code Sec. 2-113. This section had no counterpart in former OCGA Title 53.

53-2-7. Vesting of title to property; right to possession.

  1. Upon the death of an intestate decedent who is the owner of any interest in real property, the title to any such interest which survives the intestate decedent shall vest immediately in the decedent's heirs at law, subject to divestment by the appointment of an administrator of the estate.
  2. The title to all other property owned by an intestate decedent shall vest in the administrator of the estate for the benefit of the decedent's heirs and creditors.
  3. Upon the appointment of an administrator, the title to any interest in real property which survives the intestate decedent shall vest in the administrator for the benefit of the heirs and creditors of the decedent, and title to such property shall not revest in the heirs until the administrator assents to such revesting. For purposes of this Code section, the assent of the administrator shall be proved in the manner set out in Code Section 53-8-15.
  4. Upon the appointment of an administrator, the right to the possession of the whole estate is in the administrator, and, as long as administration continues, the right to recover possession of the estate from all other persons is solely in the administrator. The administrator may recover possession of any part of the estate from the heirs at law or purchasers from them; but, in order to recover real property, it is necessary for the administrator to show, upon the trial, either that the property which is the subject of the action has been in the administrator's possession and without the administrator's consent is held by the defendant at the time of bringing the action or that it is necessary for the administrator to have possession for the purpose of paying the debts, making a proper distribution, or for other purposes provided for by law. An order for sale or distribution, granted by the judge of the probate court after notice to the defendant, shall be conclusive evidence of either fact.
  5. If an order has been entered under Code Section 53-2-41 that no administration is necessary, or if the administrator has assented to the vesting of title in the heirs, the heirs may take possession of the property or may sue for possession of the property in their own right.

(Code 1981, §53-2-7, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 9; Ga. L. 2000, p. 1335, § 1.)

Cross references.

- Admissible evidence for determining parent and child relationship, § 19-7-46.

DNA analysis upon conviction of certain sex offenses, § 35-3-160 et seq.

Genetic testing, T. 33, C. 54.

Law reviews.

- For article advocating uniform treatment of the devolution of title, and abolition of distinctions based on the form of wealth or the fact of intestacy, see 10 Ga. L. Rev. 447 (1976). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012). For note on 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 320 (2000).

COMMENT

This section replaces and changes the rule of former OCGA Secs. 53-4-8 through 53-4-10 by providing that title to both real and personal property vests in the administrator, rather than providing that title to real property vests in the heirs, and by providing that title to both real and personal property vests in the heirs if no administrator is appointed within five years or if an order that no administration is necessary is entered.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, §§ 2246, 2483, 2485, and 2486, former Code 1882, §§ 2246, 2483, 2485, and 2486, former Civil Code 1895, §§ 3081, 3353, 3357, and 3358, former Civil Code 1910, §§ 3657, 3929, 3933, and 3934, former Code 1933, §§ 113-901, 113-907, and 113-908, and former O.C.G.A. §§ 53-4-8,53-4-9, and53-4-10 are included in the annotations for this Code section.

Construing former Civil Code 1895, §§ 3081, 3353, and 3357 together, the statutes give the administrator primary right to use and recover the estate, the heir having such right only in case of the heir's consent or where there is none, therefore, since the plaintiff in ejectment must show right to recover, plaintiffs in this case must show either lack of administrator or the administrator's consent for them to sue. Greenfield v. McIntyre, 112 Ga. 691, 38 S.E. 44 (1901) (decided under former Civil Code 1895, §§ 3081 and 3353) Hall v. Ewing, 149 Ga. 693, 101 S.E. 807 (1920) See Collins v. Henry, 155 Ga. 886, 118 S.E. 729 (1923) (decided under former Civil Code 1910, §§ 3657 and 3929);(decided under former Civil Code 1910, §§ 3657 and 3929).

Effect of section on fee-simple incidents.

- Statute makes no changes in the definition or the incidents of an absolute or fee-simple estate. Ewing v. Shropshire, 80 Ga. 374, 7 S.E. 554 (1888) (decided under former Code 1882, §§ 2246 and 2483).

Application of amendment to statute.

- When claimants asserted interests as heirs of the debtor's late, former husband in stock, amendment of O.C.G.A. § 53-2-7 in 2000 applied to the estate of the husband who died prior to 2000 because there were no vested rights of title, years support, succession or inheritance in the claimants that were impaired by the amendment. Barker v. Whittington (In re Barker), Bankr. (Bankr. N.D. Ga. Oct. 26, 2010).

Disinterested person as administrator.

- Person entitled to an estate may select a disinterested person as administrator. Roe v. Pitts, 82 Ga. App. 770, 62 S.E.2d 387 (1950) (decided under former Code 1933, § 113-901).

Until an administrator is appointed, distribution of the estate's assets is improper. Epps v. Epps, 141 Ga. App. 659, 234 S.E.2d 140 (1977) (decided under former Code 1933, § 113-901).

Administrator stands as the representative of the estate as against persons preferring claims against the estate and its interests, for and on account of heirs at law and all other creditors. Davenport v. Idlett, 234 Ga. 864, 218 S.E.2d 577 (1975) (decided under former Code 1933, § 113-901).

Estate administrator had right to inspect.

- Order granting an estate administrator of a deceased shareholder the right to inspect the defendant's corporate books and denying the defendant's motions to compel and stay pending arbitration was affirmed because the statutes governing the transfer of stock to the estate vested ownership of the shares in the administrator of the estate and the probate court's order granted the adminstrator trustee's powers over those shares. Regal Nissan, Inc. v. Scott, 348 Ga. App. 91, 821 S.E.2d 561 (2018).

Appointment of administrator.

- Subsequently-enacted legislation which stated that if an administrator was not appointed within five years after the death of an intestate, then the estate property would be vested in decedent's heirs and did not mention anything about divestment of the estate property did not apply to prevent the probate court from granting the estate administrator's petition to distribute decedent's property even though the estate administrator was not appointed for nearly four decades after the death of the decedent as the law in effect at the time the estate administrator was appointed had no time limit for the appointment and the subsequently-enacted legislation did not apply to prohibit the estate administrator from being appointed and distributing the property. Williams v. Williams, 259 Ga. App. 888, 578 S.E.2d 582 (2003).

An executor of an estate is an indispensable party in a suit against the estate. Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984) (decided under former O.C.G.A. § 53-4-8).

Heir lacked standing to sue to recover estate assets.

- Though a decedent's child argued in a brief that the child had presented evidence of collusion, embezzlement, fraud, elder abuse, and the administrator's unwillingness to pursue certain claims, as the child failed to support these arguments with citations to the record as required by Ga. Ct. App. R. 25(c)(2)(i), the trial court's ruling that under former O.C.G.A. § 53-4-8(b), the child lacked standing to sue a sibling for allegedly misappropriating estate assets was affirmed. Peden v. Peden, 293 Ga. App. 483, 667 S.E.2d 650 (2008) (decided under former O.C.G.A. § 53-4-8).

Standing to pursue claim for undelivered stock.

- Heirs of a debtor's late, former husband's estate lacked standing to assert a claim for undelivered stock because, pursuant to the 2000 amendment to O.C.G.A. § 53-2-7, claims for personalty had to be brought by an administrator unless the heirs had received an order from the appropriate court that no administration was necessary. Barker v. Whittington (In re Barker), Bankr. (Bankr. N.D. Ga. Oct. 26, 2010).

Executor's power to distribute assets.

- Probate court's approval of the estate administrator's proposed sale of property was not improper as it did not impair the objecting heirs' vested interest in property; rather, the property vested in the objecting heirs at the time of decedent's death, subject to the estate administrator's right to distribute it, and, thus, the probate court was authorized to allow the estate administrator to distribute it. Williams v. Williams, 259 Ga. App. 888, 578 S.E.2d 582 (2003) (decided under former O.C.G.A. § 53-4-8).

Title to property remains in the executor until the executor assents to the devise. After such assent is given the land is no longer a part of the estate. State Hwy. Dep't v. Stewart, 104 Ga. App. 178, 121 S.E.2d 278 (1961) (decided under former Code 1933, § 113-907).

Temporary administrator is custodian of the estate, and the administrator's powers are strictly limited by statute; the administrator cannot sue for realty. Arnold v. Freeman, 181 Ga. 654, 183 S.E. 811 (1935) (decided under former Code 1933, § 113-907).

Temporary administrator takes no interest in land of the estate, and cannot bring an action for its recovery or consent to such an action being brought. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907).

Administrator can eject an heir at law. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

Probate court jurisdiction.

- Probate court does not have the jurisdiction to adjudicate conflicting claims of title to property; thus, when decedent's widow asserted an ownership interest in property sought by the executor of the estate, an order of the probate court giving possession of such property to the executor was void, and the widow could not be found in contempt for noncompliance with the order. In re Estate of Adamson, 215 Ga. App. 613, 451 S.E.2d 501 (1994) (decided under former O.C.G.A. § 53-4-10).

Cited in Goodtitle v. Roe, 20 Ga. 135 (1856); Davis v. Howard, 56 Ga. 430 (1876); Keaton v. Tift, 56 Ga. 446 (1876); Knapp v. Harris, 60 Ga. 398 (1878); Miller v. Speight, 61 Ga. 460 (1878); Edwards v. Kilpatrick, 70 Ga. 328 (1883); Head v. Driver, 79 Ga. 179, 3 S.E. 621 (1887); Jones v. Lamar, 34 F. 454 (C.C.S.D. Ga. 1888); Gibson v. Carreker, 82 Ga. 46, 9 S.E. 124 (1889); Ellsworth v. McCoy, 95 Ga. 44, 22 S.E. 39 (1894); Mayor of Chauncey v. Brown, 99 Ga. 766, 26 S.E. 763 (1896); Burke v. Huff, 103 Ga. 598, 30 S.E. 546 (1898); Juhan v. Juhan, 104 Ga. 253, 30 S.E. 779 (1898); Dixon v. Rodgers, 110 Ga. 509, 35 S.E. 781 (1900); Greenfield v. McIntyre, 112 Ga. 691, 38 S.E. 44 (1901); Doris v. Story, 122 Ga. 611, 50 S.E. 348 (1905); Queen Ins. Co. v. Peters, 10 Ga. App. 289, 73 S.E. 536 (1912); Gornto v. Wilson, 141 Ga. 597, 81 S.E. 860 (1914); Strickland v. Fender, 142 Ga. 132, 82 S.E. 561 (1914); Harris v. Black, 143 Ga. 497, 85 S.E. 742 (1915); Purvis v. Askew, 148 Ga. 79, 95 S.E. 964 (1918); Wimberly v. Ross, 152 Ga. 258, 109 S.E. 500 (1921); Weldon v. Weldon, 152 Ga. 550, 110 S.E. 273 (1922); Brown v. Glover, 156 Ga. 640, 119 S.E. 607 (1923); Reed v. Norman, 157 Ga. 183, 121 S.E. 310 (1924); Warren v. Federal Land Bank, 157 Ga. 464, 122 S.E. 40, 33 A.L.R. 45 (1924); Stone v. Edwards, 32 Ga. App. 479, 124 S.E. 54 (1924); Bryan v. Bryan, 170 Ga. 472, 153 S.E. 188 (1930); Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936); Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (1937); Dorsey v. Dorsey, 189 Ga. 662, 7 S.E.2d 273 (1940); Mize v. Harber, 189 Ga. 737, 8 S.E.2d 1 (1940); Zeagler v. Zeagler, 190 Ga. 220, 9 S.E.2d 263 (1940); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53 (1940); Wilcox v. Thomas, 191 Ga. 319, 12 S.E.2d 343 (1940); Bacon v. Federal Land Bank, 109 F.2d 285 (5th Cir. 1940); Hines v. Farkas, 109 F.2d 289 (5th Cir. 1940); Hadaway v. Hadaway, 192 Ga. 265, 14 S.E.2d 874 (1941); Roberts v. McBrayer, 194 Ga. 606, 22 S.E.2d 165 (1942); Robinson v. Murray, 198 Ga. 690, 32 S.E.2d 496 (1944); Crews v. Russell, 199 Ga. 732, 35 S.E.2d 444 (1945); Pope v. Beasley, 200 Ga. 656, 38 S.E.2d 300 (1946); Kelley v. Cromer, 201 Ga. 375, 39 S.E.2d 880 (1946); Higdon v. Dixon, 203 Ga. 67, 45 S.E.2d 423 (1947); Hamrick v. Hamrick, 206 Ga. 564, 58 S.E.2d 145 (1950); Physioc v. Beavers, 210 Ga. 246, 78 S.E.2d 795 (1953); Smith v. Smith, 210 Ga. 354, 80 S.E.2d 196 (1954); Tillman v. Byrd, 211 Ga. 918, 89 S.E.2d 479 (1955); Turner v. Kelley, 212 Ga. 175, 91 S.E.2d 356 (1956); Myers v. Grant, 212 Ga. 677, 95 S.E.2d 9 (1956); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); Warren v. Warren, 104 Ga. App. 184, 121 S.E.2d 343 (1961); Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173, 132 S.E.2d 538 (1963); Dukes v. Cairo Banking Co., 220 Ga. 507, 140 S.E.2d 182 (1964); Lanier v. Dyer, 222 Ga. 30, 148 S.E.2d 432 (1966); Shelnutt v. Bank of Hancock County, 223 Ga. 74, 153 S.E.2d 442 (1967); Jones v. Congdon, 223 Ga. 284, 154 S.E.2d 612 (1967); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416 (1972); Young v. Bozeman, 229 Ga. 195, 190 S.E.2d 523 (1972); Ireland v. Matthews, 129 Ga. App. 592, 200 S.E.2d 318 (1973); DeLong v. DeLong, 134 Ga. App. 635, 215 S.E.2d 531 (1975); Gaskins v. Vickery, 234 Ga. 833, 218 S.E.2d 617 (1975); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Epps v. Epps, 141 Ga. App. 659, 234 S.E.2d 140 (1977); Freeman v. Saxton, 240 Ga. 309, 240 S.E.2d 708 (1977); Davison v. Strickland, 145 Ga. App. 420, 243 S.E.2d 705 (1978); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986); In re Estate of Adamson, 215 Ga. App. 613, 451 S.E.2d 501 (1994).

Vesting and Recovery of Real Property

When the owner of real property dies, title vests immediately in the owner's heirs at law, "subject to be administered by the legal representative, if there is one, for the payment of debts, or the purpose of distribution . . ." Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-901).

Realty descends directly to the heirs at law, subject to administration by the legal representative, if there be one, for the payment of debts and the purpose of distribution; if there be a legal representative, the right to recover is in the representative; if there be none, the heirs may sue in the heirs' own name, and, if there be no administrator, the heirs may be sued to cancel a deed on the ground of fraud in the deed's procurement. Greenwood v. Starr, 174 Ga. 503, 163 S.E. 500 (1932) (decided under former Civil Code 1910, §§ 3657, 3929); Morrison v. Stewart, 243 Ga. 456, 254 S.E.2d 840 (1979);(decided under former Code 1933, § 113-901).

Administrator selling real estate must comply with former O.C.G.A.

§ 53-8-23. - Upon the death of the realty owner intestate, title vests directly in the heirs, subject to administration for payment of debts and distribution. Administrators can only sell real estate for these purposes after complying with former O.C.G.A. § 53-8-23, receiving leave to sell from the probate court, and proper advertisement. Horn v. Wright, 157 Ga. App. 408, 278 S.E.2d 66 (1981) (decided under former O.C.G.A. § 53-4-8).

Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by former O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-8).

Title to realty is immediately vested in the heirs of an intestate upon his or her death. However, if there be a legal representative, the right to recover for the benefit of the heirs is in such representative. If there be no representative, the heirs may sue in their own names to clear title to land. City of Griffin v. McKneely, 101 Ga. App. 811, 115 S.E.2d 463 (1960) (decided under former Code 1933, § 113-901).

Realty descends directly to the heirs, subject to be administered by the legal representative for the payment of debts of the estate, and the purpose of distribution only. Davie v. McDaniel, 47 Ga. 195 (1872) (decided under former Code 1868, §§ 2220 and 2447); Jones v. Lamar, 34 F. 454 (C.C.S.D. Ga. 1888); 149 U.S. 777, 13 S. Ct. 1048, 37 L. Ed. 958 (1892), appeal dismissed,(decided under former Code 1887, §§ 2246 and 2483).

On the death of the owner, the title to land vests immediately in the owner's heirs at law, and, on the appointment of an administrator, the right to the possession of the whole estate is in the administrator; but, insofar as real estate is concerned, this is a qualified right solely for the purpose of paying debts and for distribution, when necessary. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-901).

After the grantor in a security deed had died intestate before the date of the sale, the equity of redemption descended by inheritance to the sole heir at law, with the same right to affirm or disaffirm an unlawful sale thereafter made which the grantor personally would have had if the grantor had not died. Delray, Inc. v. Reddick, 194 Ga. 676, 22 S.E.2d 599 (1942) (decided under former Code 1933, § 113-901).

When an administrator is granted leave to sell the land of the estate for the purpose of paying debts and distribution, the administrator may collect rents accruing afterwards, and the administrator and the administrator's sureties may be held liable therefor on the administrator's bond. Whether the same would be true as to rents accruing after the intestate's death, but before the order granting leave to sell, it does not appear that rents for any such period would be involved. Jones v. Wilson, 195 Ga. 310, 24 S.E.2d 34 (1943) (decided under former Code 1933, § 113-901).

Petition by the widow and sole heir at law of a named person who died intestate with no administration on his estate, alleging that before her husband's death, he had purchased a tract of land, paid the purchase money, and entered into possession of the land, and that since his death other claimants had entered into possession thereof, where the plaintiff merely sought to recover the land with mesne profits, and the suit was filed in the county where the land lay, stated a cause of action. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-901).

Petition, filed by the widow and sole heir at law of a landowner, stating that he died intestate and that there was no administration on his estate, presented a case wherein whatever right or title he might have had descended to her, with the right to sue therefor in her own name. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-901).

Upon the death of the owner of any estate in realty, the title vests immediately in the owner's heirs at law and hence the plaintiffs were entitled to the immediate possession of the deceased's property upon the owner's death intestate. Chalker v. Beasley, 72 Ga. App. 652, 34 S.E.2d 658 (1945) (decided under former Code 1933, § 113-901).

Upon the death of the owner of any estate in realty, which estate survives the descendent, title vests immediately in the descendent's heirs at law, subject to administration by the legal representative, if there be one, and the right of recovery is in the legal representative, if one; if none, the heirs may sue in the heirs' own name. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946) (decided under former Code 1933, § 113-901).

When the father of the plaintiff died intestate, holding possession of lands under a bond for title with a part of the purchase price paid, the owner had a beneficial interest or equitable estate therein which descended to the owner's heirs at law, and the plaintiff as the sole heir at law could bring an equitable action on the bond for title. Gay v. Radford, 207 Ga. 38, 59 S.E.2d 915 (1950) (decided under former Code 1933, § 113-901).

When one owning real estate dies, the title to the real estate passes to the heirs, and it is not the duty of the administrator, as such, to collect rents accruing after the death of the intestate; and if the administrator does so, it is not in the administrator's capacity as administrator, and the administrator is not liable to the heirs for the amount of the rents, as administrator, nor is the surety on the administrator's bond as administrator liable. Ray v. Dooley, 208 Ga. 811, 69 S.E.2d 766 (1952) (decided under former Code 1933, § 113-901).

Upon the death of a husband intestate, leaving children and descendants of deceased children, title to realty owned by the husband vests in such children. Kenner v. Kenner, 214 Ga. 381, 104 S.E.2d 896 (1958) (decided under former Code 1933, § 113-901); Keen v. Thomas, 214 Ga. 362, 104 S.E.2d 903 (1958);(decided under former Code 1933, § 113-901).

Since upon the death of the owner of realty, which estate survives the owner, the title vests immediately in the owner's heirs at law, subject to the payment of debts, where the heirs make a settlement of the estate without an administrator, they should make conveyances pursuant to the settlement in order to divest themselves of the legal title of the intestate's estate. Clark v. Perrin, 224 Ga. 307, 161 S.E.2d 874 (1968) (decided under former Code 1933, § 113-901).

When an examination of the contested will discloses no manifest intention of the testator which would be contrary to a vesting of the testator's great-great niece's interest at the time of the testator's death; and since her interest was vested in both the corpus and income of the trust estate, this interest was vested immediately in her husband upon her death; and upon his death, his interest passed by will to his three children who consequently have a vested interest in the corpus and income of the trust. Wood v. Roberts, 244 Ga. 507, 260 S.E.2d 890 (1979) (decided under former Code 1933, § 113-901).

Administrator holds the estate for the purpose of paying debts and distribution. Roe v. Pitts, 82 Ga. App. 770, 62 S.E.2d 387 (1950) (decided under former Code 1933, § 113-901).

Heirs take real property subject to preexisting burdens.

- Heir at law inherits land subject to any burden or duty that existed with respect to it against the intestate, or that may later arise against the administrator, when an administrator is appointed. Veal v. Veal, 192 Ga. 503, 15 S.E.2d 725 (1941) (decided under former Code 1933, § 113-901).

Administrator has a qualified right to lands in the possession of heirs at law to pay debts and to make legal distribution. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-901).

Statute establishes the threshold requirement that an administrator may exercise powers as administrator of real property only when it is necessary to pay outstanding debts of the estate or to distribute the estate among the heirs. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-901).

Administrator's right to maintain action.

- As against one not an heir, an administrator may maintain an action for the recovery of land belonging to the estate of one's intestate without showing a necessity to administer the land for the purpose of paying debts. Nixon v. Nixon, 192 Ga. 629, 15 S.E.2d 883 (1941) (decided under former Code 1933, § 113-901).

Administrator cannot recover land from widow by merely proving title in husband at his death. Green v. Underwood, 108 Ga. 354, 33 S.E. 1009 (1899) (decided under former Civil Code 1895, §§ 3081, 3353).

Procedure for recovery of land by heirs at law.

- When there was an administration of the estate of the defendant's grantor, the administrator could have sued to recover land for the benefit of the heir at law, on alleged reversion by the terms of the grantor's conveyance; and the right of action was not limited to their heir at law. Atlantic Coast Line R.R. v. Sweat, 177 Ga. 698, 171 S.E. 123 (1933) (decided under former Code 1933, § 113-901).

Before heirs at law of an intestate can recover land, the heirs must allege and prove that there is no administration upon the heirs' estate, or, if there is an administrator, that the administrator has consented to their bringing the suit. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949), later appeal, 207 Ga. 226, 60 S.E.2d 242 (1950) (decided under former Code 1933, § 113-901).

When the administrator makes a collusive conveyance for the purpose of defrauding those interested in the estate and obtaining a benefit to the administrator, and refuses to give consent for the heirs to sue, they may bring an equitable action against the administrator and the persons charged with being in collusion with the administrator, for the purpose of protecting their rights. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-901).

While an heir may bring an action to recover property of heir's intestate where there is no administrator, or where the administrator consents to the action, the law plainly gives the administrator the right to recover property held adversely to the estate of the intestate. Andrews v. Walden, 208 Ga. 340, 66 S.E.2d 801 (1951) (decided under former Code 1933, § 113-901).

An heir at law seeking to recover in one's own name all or a part of the estate of a decedent must allege and prove that there was no administration of the estate in this state, or that the administrator was discharged before suit, or that the administrator had consented to the suit. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-901).

Temporary administrator takes no interest in land of the estate, and cannot bring an action for its recovery or consent to such an action being brought. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-901).

Courts favor disposition in kind.

- As real estate descends to the heirs in this state, it would seem to be the policy of the courts to favor the heirs by a division of the lands in kind, and they will not be sold, unless it be necessary to pay debts or to have a distribution. McCook v. Pond, 72 Ga. 150 (1883) (decided under former Code 1882, §§ 2246, 2483).

Effect of bankruptcy automatic stay.

- Under Georgia law, when the debtor's mother died intestate, title to the mother's real property automatically vested in the heirs at law which included the debtor and, thus, at the time the debtor filed the debtor's bankruptcy case, the debtor held an interest in the property and the debtor's interest as heir became property of the estate. Because under Georgia law, the appointment of an administrator divested the heirs of their ownership interests directly in the property, a petition for appointment of an administrator was an act to obtain possession of property of the estate in violation of the automatic stay and, further, because it was commenced against the debtor as an heir of the estate, it violated the stay as the commencement of a judicial proceeding against the debtor. In re Holyfield, Bankr. (Bankr. N.D. Ga. June 3, 2019).

Vesting and Recovery of Personal Property

Administration according to law of domicile.

- All personalty of a deceased person passes and is administered according to the law of the deceased's domicile. Fenn v. Castelanna, 196 Ga. 22, 25 S.E.2d 796 (1943) (decided under former Code 1933, § 113-901).

Distribution according to law of jus domicilii.

- It is a part of the law prevailing in Georgia that personal property should be distributed according to the jus domicilii. Squire v. Vazquez, 52 Ga. App. 215, 183 S.E. 127 (1935) (decided under former Code 1933, § 113-901).

If the owner of personal property dies, it is not necessarily the law of the country in which the property is or in which the owner thereof dies, but the law of the country or state of the domicile of the deceased that will regulate the disposition, transmission, or succession of such property. Squire v. Vazquez, 52 Ga. App. 215, 183 S.E. 127 (1935) (decided under former Code 1933, § 113-901).

Title to personal property vests in personal representative.

- Title to personal property, including choses in action, upon the death of the owner, passes to the owner's personal representative, and not to the owner's heirs at law. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

Upon the death of a person intestate, choses in action in the deceased's favor pass to the deceased's administrator; and the deceased's heirs at law can take no more than an equitable interest therein, except through the intermediation of the administrator. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

Action to recover personal property must be instituted by personal representative.

- When the beneficiary of a war risk insurance certificate (under the World War Veterans' Act of 1924, § 303 as amended, see now 38 U.S.C. § 750), survives the insured but dies before receiving all of the installments which were payable and applicable, the estate of the insured is wholly substituted as the payee, and all of such payments become assets of the estate of the insured upon the instant of the insured's death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of the insured's residence; such heirs to be determined as of the date of the insured's death, and not as of the date of the death of the beneficiary. White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932) (decided under former Code 1933, § 113-901).

Suit cannot be maintained by the distributees of an estate to recover personal property belonging to such estate, except through the legal representative in the absence of special circumstances authorizing such a proceeding in equity. Jones v. Gann, 184 Ga. 722, 193 S.E. 174 (1937) (decided under former Code 1933, § 113-901).

Title to personal property, such as promissory notes, owned by one who dies intestate vests in the intestate's administrator for the benefit of heirs and creditors. McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941) (decided under former Code 1933, §§ 113-901 and 113-907).

When insurer agreed to pay to the insured in the event of the insured's becoming disabled from sickness and confined to the insured's bed weekly benefits and the insured became disabled from sickness, and the company refused to pay some of the weekly benefits, any right to recover the weekly benefits was in the insured until the insured's death and if any right to recover them survived the insured's death, it would be in the insured's administrator if the insured died intestate. Bailey v. Bankers Health & Life Ins. Co., 69 Ga. App. 71, 24 S.E.2d 740 (1943) (decided under former Code 1933, §§ 113-901 and 113-907).

Heirs, although all of the heirs are sui juris and of full age, cannot maintain an action at law upon a chose in action in favor of the intestate, notwithstanding there is no administrator and all debts due by the intestate have been paid. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

When under a will an executor assents to a devise or legacy of a promissory note, the property is no longer part of the estate since by assenting the executor loses all control and interest in the property and the right to sue on the note passes to the devisee or legatee. Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-901).

Administrator, not the heir, should bring suit on a promissory note unless it is shown that the note was endorsed or assigned by the administrator or was set apart to the heir by adjudication of the ordinary (now probate judge). Hemphill v. Simmons, 120 Ga. App. 823, 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-901).

Right to Possession

1. Real Property

Title to land vests in heirs subject to right of administrator to recover.

- On the death of the owner, the title to land vests immediately in the owner's heirs at law, and, on the appointment of an administrator, the right to the possession of the whole estate is in the administrator; but, insofar as real estate is concerned, this is a qualified right solely for the purpose of paying debts and for distribution when necessary. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-907).

Administrator, who was also estate creditor, still required to publish notice of sale.

- Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-9).

Right to Recovery

1. Recovery by Administrator

Administrator has exclusive right to bring actions on behalf of estate.

- In order for a widow to be the personal representative of her deceased husband, who died intestate leaving no lineal descendants, in the sense that she may sue as the representative of the estate to cancel a deed, it is essential that at the time the suit is instituted there be no outstanding debts against the estate. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946) (decided under former Code 1933, § 113-907).

An estate is not a legal entity which can be a party plaintiff to legal proceedings because the exclusive right to bring actions on behalf of an estate (including attachment and garnishment proceedings) is in the legal representative, executor, or administrator, of the estate. Orange County Trust Co. v. Takowsky, 119 Ga. App. 366, 166 S.E.2d 913 (1969) (decided under former Code 1933, § 113-907).

Administrator need not allege necessity to recover against one not an heir.

- As against one not an heir, an administrator may maintain an action for the recovery of land belonging to the estate of one's intestate without showing a necessity to administer the land for the purpose of paying debts. Morris v. Mobley, 171 Ga. 224, 155 S.E. 8 (1930) (decided under former Civil Code 1910, § 3933); Nixon v. Nixon, 192 Ga. 629, 15 S.E.2d 883 (1941);(decided under former Code 1933, § 113-907).

When a suit is brought by an administrator of a decedent against a stranger for the recovery of land belonging to intestate's estate, no proof is necessary, except that the property belonged to the administrator's intestate, and that it is being withheld from the administrator by the defendant. Paris v. Treadaway, 173 Ga. 639, 160 S.E. 797 (1931) (decided under former Civil Code 1910, § 3933).

Administrator has exclusive right to sue for recovery of personal property.

- Suit in equity cannot be maintained, at the instance of distributees of an estate, to recover personal property thereof, except through the legal representative of the estate, unless there be collusion, insolvency, unwillingness to collect the assets, or some other like special circumstances. Holt v. Industrial Life & Health Ins. Co., 182 Ga. 563, 186 S.E. 193 (1936) (decided under former Code 1933, § 113-907).

Suit cannot be maintained by the distributees of an estate to recover personal property belonging to such estate, except through the legal representative, in the absence of special circumstances authorizing such a proceeding in equity. Jones v. Gann, 184 Ga. 722, 193 S.E. 174 (1937) (decided under former Code 1933, § 113-907).

Upon the death of a person intestate, choses in action in the deceased's favor pass to the administrator; and the deceased's heirs at law can take no more than an equitable interest therein, except through the intermediation of the administrator. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-907).

Heirs, although all of them are sui juris and of full age, cannot maintain an action at law upon a chose in action in favor of the intestate, notwithstanding there is no administrator and all debts due by the intestate have been paid. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640, 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-907).

If personal property is held adversely to an estate which has no legal representative, the only legal way to recover it is to have an administrator appointed and have the administrator bring suit in the administrator's name as such representative. Epps v. Epps, 141 Ga. App. 659, 234 S.E.2d 140 (1977) (decided under former Code 1933, § 113-907).

2. Recovery by Heirs at Law

Right of heirs to sue in their own names generally.

- Literal application of former Code 1933, §§ 113-907 and 113-1512 would lead to the inevitable conclusion that the heirs would under no circumstances be allowed to sue in their own name when there was an administrator unless the administrator consented thereto. But the Supreme Court has broadened the meaning of former Code 1933, § 113-1521 to include a situation where the administrator refuses, and especially where this refusal is fraudulent or collusive, and in such a situation this right of action in the heir exists in the same manner and to the same extent only as it does in the administrator, thus if it exists in the same manner and to the same extent, then it should be given the same effect. Estes v. Collum, 91 Ga. App. 186, 85 S.E.2d 561 (1954) (decided under former Code 1933, § 113-907).

When there is no administration, the heirs at law can sue to recover realty of an estate in their own right. Arnold v. Freeman, 181 Ga. 654, 183 S.E. 811 (1935) (decided under former Code 1933, § 113-907).

Right of heir to recover requires proof of lack of administration or consent of administrator.

- If there is no administrator the heirs may sue for realty; or the administrator may consent to a suit for realty by the heirs, or may assign a claim to a creditor or distributee, if the administrator be unwilling to sue; but without some special reason, a suit in equity cannot be maintained by creditors, distributees, or legatees for the recovery of property of the decedent from a third person. Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604, 48 Am. R. 585 (1883) (decided under former Code 1982, § 2485).

While an administrator is entitled to the possession of the lands for the purpose of paying debts and division, yet when there is no administration or if the administrator consents thereto, the heirs at law may take possession of the lands or may sue for them in their own right, and in such a suit by the heirs, it is necessary that the petition allege that there was no administration or that the administrator has been discharged before the suit was filed or that the administrator consented to the bringing of such action by the heirs, but it is not required in such an action that the petitioners allege that there are no debts against the estate. Shirley v. Mulligan, 202 Ga. 746, 44 S.E.2d 796 (1947) (decided under former Code 1933, § 113-907).

An heir at law seeking to recover in the heir's own name all or a part of the estate of a decedent must allege and prove that there was no administration of the estate in this state or that the administrator was discharged before suit, or that the administrator had consented to the suit. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907); Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951);(decided under former Code 1933, § 113-907).

Proof of collusion or fraud by administrator.

- When the administrator makes a collusive conveyance for the purpose of defrauding those interested in the estate and obtaining a benefit personally, and refuses to give consent for the heirs to sue, the heirs may bring an equitable action against the administrator and the persons charged with being in collusion with the administrator for the purpose of protecting their rights. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907).

When an administrator is insolvent, unwilling to collect assets, or is in collusion with others to defraud the estate and refuses to sue, the heirs may sue in their own name and make the administrator a party defendant; this is an exception to or modification of the general rule that heirs may sue only if there is no administrator or if the administrator assents thereto as provided by statute. Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311 (1951) (decided under former Code 1933, § 113-907).

Petition by the widow and sole heir at law of a named person who died intestate with no administration on his estate, alleging that before her husband's death, he had purchased a tract of land, paid the purchase money, and entered into possession of the land, and that since his death other claimants had entered into possession thereof, as the plaintiff merely sought to recover the land with mesne profits, and the suit was filed in the county where the land lay, stated a cause of action. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-907).

Petition, filed by the widow and sole heir at law of a landowner, stating that he died intestate and that there was no administration on his estate, presented a case wherein whatever right or title he might have had descended to her with the right to sue therefor in her own name. Strickland v. Jenkins, 198 Ga. 15, 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-907).

Two destitute orphan girls were entitled in equity to maintain a suit in their own names for the amount alleged to be due them as heirs of a beneficiary under an insurance policy, in the absence of an administration of the beneficiary's estate, where administration would involve an expense almost equal to the sum sued for. Holt v. Industrial Life & Health Ins. Co., 182 Ga. 563, 186 S.E. 193 (1936) (decided under former Code 1933, § 113-907).

When, in a suit by heirs at law to cancel a deed, the petition alleges that there is an administrator, but does not allege the assent of the administrator for the heirs to bring the suit, and does not charge fraud or collusion on the part of the administrator, the petition sets forth no right of action. Clark v. Woody, 197 Ga. 683, 30 S.E.2d 181 (1944) (decided under former Code 1933, § 113-907).

In an action for trespass to real estate of an intestate, committed after the intestate's death, when it did not appear that an administrator had been appointed at the time of the trespass and had taken possession to pay debts and for distribution, and it appeared that the plaintiff was the sole heir at law of the intestate and was in possession as such at the time of the trespass, and when the plaintiff otherwise made a prima facie case, it was error to grant a nonsuit. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-907).

Equity will not intervene on behalf of a creditor, distributee, or legatee for the recovery of an intestate's property from a third person, except when the special circumstances shown are the collusion or insolvency of the administrator or the administrator's failure or unwillingness to collect assets. Morgan v. Woods, 69 Ga. 599 (1882) (decided under former Code 1882, § 2485); Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604, 48 Am. R. 585 (1883); Moughon v. Masterson, 140 Ga. 699, 79 S.E. 561 (1913) (decided under former Code 1882, § 2485); Jones v. McLeod, 61 Ga. 602 (1878);(decided under former Civil Code 1910, § 3933).See also (decided under former Code 1873, § 2485).

Creditors may not sue when the administrator is solvent. Jordan v. Jordan, 16 Ga. 446 (1854) (decided under former law).

Best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of the ordinary (now judge of probate court), or of another who has examined the records in the court of ordinary (now probate court) where letters of administration should have been granted, that no such letters are shown by those records. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-907).

Evidence was not sufficient to prove that there had been no administration at all upon nonresident's estate in Georgia since there was no evidence as to whether or not the deceased had property in this state in a county or counties other than the one county in which the deceased proved no administration was had. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-907).

Presumed assent.

- Even in the absence of express assent to a transfer of real property to the beneficiaries, a co-executor's participation in a prior settlement which resulted in the transfer, in the co-executor's individual capacity as a beneficiary, was conduct which showed the co-executor's assent by presumption or implication to the decree of title to the property in the beneficiaries. Baggett v. Baggett, 270 Ga. App. 619, 608 S.E.2d 688 (2004) (decided under former O.C.G.A. § 53-4-9).

Recovery of Estate

1. In General

Right of administrator to recover lands held by heirs for payment of debts.

- Heirs at law are entitled to the possession of lands owned by an intestate at the time of death, until those lands are needed for the purpose of administration; that is, when necessary, the administrator has a qualified right thereto to pay debts and to make legal distribution. Smith v. Fischer, 52 Ga. App. 598, 184 S.E. 406 (1936) (decided under former Code 1933, § 113-908).

While an heir may bring an action to recover property of an intestate when there is no administrator, or when the administrator consents to the action, the law plainly gives the administrator the right to recover property held adversely to the estate of an intestate. Andrews v. Walden, 208 Ga. 340, 66 S.E.2d 801 (1951) (decided under former Code 1933, § 113-908).

When an administrator sues for land, the administrator makes out a prima facie case for the land's recovery upon proof that the administrator's intestate died seized thereof, and that the estate owes debts, which makes it necessary for the personal representative to administer the land for the payment thereof, the administrator having obtained leave to sell the land, and such prima facie case, the suit being against the heirs at law of a deceased son of the intestate, is not overcome by evidence that the deceased son had made declarations that in his lifetime there had been between the heirs a division in kind of the lands formerly owned by the intestate and that the portion sued for had by such division been set apart to him. Hortman v. Vissage, 193 Ga. 596, 19 S.E.2d 523 (1942) (decided under former Code 1933, § 113-908).

Administrator, who was also estate creditor, still had to publish notice of proposed sale.

- Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by former O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-10).

Proof required to defeat right of administrator to recover land for distribution.

- In order to defeat the right of an administrator to recover the land for distribution, it is necessary for the heir in possession not only to show that the land can be divided in kind, but that it is the purpose and intention and desire of all the heirs that the land shall be so divided. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

2. Order of Sale

Application for order of sale must allege necessity.

- When an administrator applies for leave to sell the land of an intestate, it is essential that the administrator should allege that the sale is necessary for the purpose either of paying debts or making distribution; the ordinary (now judge of probate court) has no authority whatever to grant an administrator leave to sell land, unless it is necessary for one or the other of these purposes. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-908).

Order authorizing sale by administrator as conclusive proof of necessity of sale.

- Order granting leave to the administrator to sell the lot on which the dwelling was located is conclusive on the defendants as to the necessity of such sale by the administrator. City of Griffin v. McKneely, 101 Ga. App. 811, 115 S.E.2d 463 (1960) (decided under former Code 1933, § 113-908).

Order of sale not binding upon heir unless personal notice given.

- Such an order for sale or distribution is not "conclusive evidence of either fact" unless personal notice has been given an heir in possession. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

When it is sought to use the order as conclusive evidence against the heir in such a proceeding, the heir is entitled, under the statute as construed by this court, to personal notice of the application. Unless this character of notice is given, the court is without jurisdiction to render a conclusive judgment, and the heir is at liberty to attack the judgment. The order is, however, in any event prima facie evidence against the heir. But the prima facie showing made against the heir by the order may be overcome, in a proper case, by any competent evidence showing that there is no necessity for a sale. Jones v. Wilson, 227 Ga. 360, 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

Administrator liable for rents accruing after grant of order to sell.

- When an administrator is granted leave to sell the land of the estate for the purpose of paying debts and distribution, the administrator may collect rents accruing afterwards, and the administrator and the administrator's sureties may be held liable therefor on the administrator's bond. Whether the same would be true as to rents accruing after the intestate's death, but before the order granting leave to sell, it does not appear that rents for any such period would be involved. Jones v. Wilson, 195 Ga. 310, 24 S.E.2d 34 (1943) (decided under former Code 1933, § 113-908).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-901, are included in the annotations for this Code section.

Notes given for purchase price of land are personalty and are subject to administration when holder dies intestate. 1962 Op. Att'y Gen. p. 609 (decided under former Code 1933, § 113-901).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 5 et seq., 12, 14 et seq. 31 Am. Jur. 2d, Executors and Administrators, §§ 243 et seq., 337, 366, 367, 391, 392, 436, 463, 464, 490, 504, 535, 540, 542, 678 et seq., 688, 725, 728, 730, 731, 732, 744 et seq., 799 et seq., 803, 877, 964 et seq., 1124, 1126, 1133, 1136, 1141, 1145, 1168, 1169.

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 1 et seq., 9 et seq., 73 et seq. 33 C.J.S., Executors and Administrators, § 133 et seq. 34 C.J.S., Executors and Administrators, §§ 172, 219 et seq., 321 et seq., 332 et seq., 396, 397, 398, 401, 664, 659, 667, 677, 679, 690, 702, 766, 770, 773, 828, 903.

ALR.

- "Descendants" as a word of purchase or of limitation within rule in Shelley's Case, 13 A.L.R. 392.

Decree directing distribution of estate to person who is dead, 25 A.L.R. 1563.

Release to ancestor by heir expectant, 28 A.L.R. 427.

Who entitled to rent on death of landlord, 31 A.L.R. 4.

Does right of grantor to maintain a suit in equity to set aside his conveyance for cause survive to his heir, 33 A.L.R. 51.

Validity and effect of transfer of expectancy by prospective heir, 44 A.L.R. 1465; 121 A.L.R. 450.

Real property in other state, or its value, as a factor in computation of the interest of husband or wife in other's estate, 66 A.L.R. 733.

Remarriage as affecting one's status as a "widow" or "widower" for purposes of statute of descent and distribution or other statute employing such term, 72 A.L.R. 1324.

Inheritable quality of possibility of reverter, 77 A.L.R. 344.

Governing law as to rights of spouse in estate of deceased spouse, 88 A.L.R. 861.

Rights as between surviving spouse and holder of leasehold interest under a lease from deceased spouse in respect of improvements made pursuant to provisions of lease, 92 A.L.R. 1382.

Adopted child as within term "issue" in statute relating to decedents' estates, 98 A.L.R. 190.

Treatment of real property acquired by executor or administrator upon foreclosure or other enforcement of mortgage or other lien against it in favor of decedent, as personal property for purposes of administration, 110 A.L.R. 1397.

Validity and effect of transfer of expectancy by prospective heir, 121 A.L.R. 450.

Time as of which members of class described as testator's "heirs," "next of kin," "relations," etc., to whom a future gift is made are to be ascertained, 127 A.L.R. 602; 169 A.L.R. 207.

Term "heirs" or "heirs at law" employed in will to designate beneficiaries of a single gift of both real and personal property, as applicable to the personal property, 147 A.L.R. 497.

Husband or wife as heir within provision of will or trust, 157 A.L.R. 347; 79 A.L.R.2d 1438.

Respective rights and obligations of testamentary trustee and one whom will permits to occupy property, 172 A.L.R. 1283.

Personal liability of executor or administrator for interest on legacies or distributive shares where payment is delayed, 18 A.L.R.2d 1384.

Death or divorce of blood relative as affecting relationship by affinity for purposes of inheritance, succession, or estate tax, 26 A.L.R.2d 271.

Time of ascertainment of settlor's heirs and distributees who take on failure of the trust, 27 A.L.R.2d 691.

Time within which personal representative must commence action for refund of legacy or distribution, 29 A.L.R.2d 1248.

Accountability of personal representative of his use of decedent's real estate, 31 A.L.R.2d 243.

Validity, construction, and effect of provisions in life or accident policy in relation to military service, 36 A.L.R.2d 1018.

Construction, application, and effect of statutes providing for descent of property of surviving spouse which had been derived from earlier deceased spouse, 49 A.L.R.2d 391.

Statutes dealing with existing intestate administration, upon discovery of will, 65 A.L.R.2d 1201.

Power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death, 72 A.L.R.2d 285.

Rights as between designated beneficiary and heirs or legatees of deceased employee covered by private pension or retirement plan, 72 A.L.R.2d 924.

Rights in growing, unmatured annual crops as between personal representatives of decedent's estate and heirs or devisees, 92 A.L.R.2d 1373.

Who may exercise voting power of corporate stock pending settlement of estate of deceased owner, 7 A.L.R.3d 629.

To whom does title to burial lot pass on testator's death, in absence of specific provision in his will, 26 A.L.R.3d 1425.

Right of adopted child to inherit from intestate natural grandparent, 60 A.L.R.3d 631.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.

53-2-8. Death intestate, and without ascertainable heirs, of spouse of intestate decedent.

  1. When the spouse of an intestate decedent dies intestate and without ascertainable heirs within six months of the decedent's death, any undistributed property of the decedent to which the spouse had been entitled prior to the spouse's death shall not escheat but shall be distributed to the heirs of the decedent who would have inherited the property under the intestacy laws if the spouse had predeceased the decedent.
  2. The nonexistence of heirs of the spouse may be determined by publication as provided in Code Section 53-2-51. If no heir of the spouse appears, the property, less the expenses of the proceedings to determine the nonexistence of heirs, shall be paid over as provided in subsection (a) of this Code section.

(Code 1981, §53-2-8, enacted by Ga. L. 1996, p. 504, § 10.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "Code Section" was substituted for "Code section" in the first sentence in subsection (b).

COMMENT

This section is a modification of former OCGA Sec. 44-5-199. The purpose of this section is to provide an alternative intestacy rule to prevent the escheat of certain property of a decedent if the decedent's spouse dies intestate within six months without ascertainable heirs. Under this section, any property of the first decedent to which the spouse is entitled but which has not yet been distributed to the spouse will instead be distributed to the heirs of the first decedent as if the spouse had predeceased the decedent. The law relating to escheat is codified at Code Sec. 53-2-50.

ARTICLE 2 JUDICIAL DETERMINATION OF HEIRS AND INTERESTS

53-2-20. Jurisdiction of probate or superior court.

The identity or interest of any heir may be resolved judicially upon application to the probate court that has jurisdiction by virtue of a pending administration or that would have jurisdiction in the event of an administration of the estate of the decedent. Alternatively, the petition may be filed in the superior court of the county where the probate court having jurisdiction, as defined in this Code section, is located. The proceedings for the determination of such questions shall conform to the requirements set forth in this article.

(Code 1981, §53-2-20, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries over former OCGA Sec. 53-4-30.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1958, p. 361, § 1, are included in the annotations for the Code section.

Probate court lacks jurisdiction to enforce contract to adopt.

- Court of ordinary (now probate court) is without jurisdiction to entertain an action to enforce an alleged contract of a decedent to adopt the plaintiff, and to declare the plaintiff to be an heir of the decedent. Lackey v. Lackey, 216 Ga. 177, 115 S.E.2d 565 (1960) (decided under Ga. L. 1958, p. 361, § 1).

Cited in Fuller v. Fuller, 107 Ga. App. 429, 130 S.E.2d 520 (1963); Waters v. Roberts, 116 Ga. App. 620, 158 S.E.2d 428 (1967); Kilgo v. Keaton, 227 Ga. 563, 181 S.E.2d 821 (1971); Stanton v. Dickson, 240 Ga. 15, 239 S.E.2d 741 (1977); Lambert v. Allen, 146 Ga. App. 617, 247 S.E.2d 200 (1978); Carr v. Kupfer, 250 Ga. 106, 296 S.E.2d 560 (1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, § 116.

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 82, 87, 88.

ALR.

- Questions regarding rights of inheritance or other rights in respect of another's estate after death as proper subject of declaratory action before latter's death, 139 A.L.R. 1239.

Right of executor or administrator to appeal from order granting or denying distribution, 16 A.L.R.3d 1274.

Conflict of laws as to pretermission of heirs, 99 A.L.R.3d 724.

53-2-21. Filing of petition.

Any personal representative, guardian, conservator, committee, trustee, fiduciary, or other person having a status which by operation of law or written instrument devolves upon such person a duty of distributing property to heirs may file a petition for determination of heirship as provided in Code Section 53-2-20. The petition shall allege the names, addresses, ages, and relationship, so far as known to the petitioner, of all parties at interest other than creditors and the nature and character of such interests. The petition shall further allege whether the petitioner has reason to apprehend that there may be others entitled to participate in the distribution whose names are unknown to the petitioner.

(Code 1981, §53-2-21, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries over former OCGA Sec. 53-4-31. For general provisions on the filing of petitions in the probate court, see Chapter 11 of this Title.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1958, p. 361, § 2, are included in the annotations for this Code section.

Cited in Waters v. Roberts, 116 Ga. App. 620, 158 S.E.2d 428 (1967); Stanton v. Dickson, 240 Ga. 15, 239 S.E.2d 741 (1977); Lambert v. Allen, 146 Ga. App. 617, 247 S.E.2d 200 (1978).

RESEARCH REFERENCES

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 83, 84.

ALR.

- Form and sufficiency of allegations of heirship, 110 A.L.R. 1239.

Questions regarding rights of inheritance or other rights in respect of another's estate after death as proper subject of declaratory action before latter's death, 139 A.L.R. 1239.

53-2-22. Petition by person claiming to be heir or distributee.

Any individual claiming to be an heir or any person in any way interested as a distributee in any property under the laws of intestacy may apply to either the probate court or the superior court specified in Code Section 53-2-20 to have the claim of heirship and quantity of interest established. The petition in such a case shall contain the same averments as to all parties at interest required of persons filing under Code Section 53-2-21 with the person charged with the duty of distribution being named as a party.

(Code 1981, §53-2-22, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries over former OCGA Sec. 53-4-32. For general provisions on the filing of petitions in the probate court, see Chapter 11 of this Title.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1958, p. 361, § 3, are included in the annotations for this Code section.

Action to determine heirship to be brought against all interested parties.

- An action by one who deems oneself to be an heir or to be interested as a distributee must be brought against the person charged with the duty of distribution and against all other known parties at interest except creditors of the estate. Pike v. Armburst, 117 Ga. App. 756, 161 S.E.2d 896 (1968) (decided under Ga. L. 1958, p. 361, § 3).

Cited in Stanton v. Dickson, 240 Ga. 15, 239 S.E.2d 741 (1977).

RESEARCH REFERENCES

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 83, 84.

ALR.

- Form and sufficiency of allegations of heirship, 110 A.L.R. 1239.

Time as of which members of class described as grantor's or settler's "heirs," "next of kin," "relations," and the like to whom a future gift is made, are to be ascertained, 38 A.L.R.2d 327.

Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary, 23 A.L.R.4th 369.

53-2-23. Superior court procedure.

Upon the filing in a superior court of a petition described in Code Section 53-2-21 or 53-2-22, service on the parties in interest shall be effected in the same manner as prescribed in cases in which equitable relief is sought; and the case shall thereafter proceed to judgment in the manner provided for such cases by the rules of practice in the superior courts.

(Code 1981, §53-2-23, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-4-33.

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, § 115. 27A Am. Jur. 2d, Equity, § 13 et seq.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 82.

53-2-24. Probate court procedure.

Upon the filing in a probate court of a petition described in Code Section 53-2-21 or 53-2-22, a citation shall be issued and parties in interest shall be served as provided in Chapter 11 of this title.

(Code 1981, §53-2-24, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section replaces former OCGA Secs. 53-4-34 and 53-4-35.

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, § 114 et seq.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 83 et seq.

ALR.

- Necessity that newspaper be published in English language to satisfy requirements regarding publication of legal or official notice, 90 A.L.R. 500.

Concealment of or failure to disclose existence of person interested in estate as extrinsic fraud which will support attack on judgment in probate proceedings, 113 A.L.R. 1235.

53-2-25. Intervention by person claiming to be heir or distributee.

Any individual claiming to be an heir or any person in any way interested as a distributee and who is not named as such in any petition filed and pending under this article may file a motion to intervene in the proceeding.

(Code 1981, §53-2-25, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-4-36. The procedure for filing a motion to intervene appears in the Georgia Civil Practice Act at OCGA Secs. 9-11-5 and 9-11-24.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-4-36 are included in the annotations for this Code section.

Cited in O'Regan v. Brennan, 204 Ga. App. 50, 418 S.E.2d 389 (1992).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, § 114 et seq.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 83 et seq.

53-2-26. Effect of findings of court.

In the absence of fraud, the findings of the superior court or the probate court shall be binding and conclusive as to every person and as to every issue decided.

(Code 1981, §53-2-26, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries over paragraph (a) of OCGA Sec. 53-4-37.

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, § 115.

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 87, 88.

ALR.

- Concealment of or failure to disclose existence of person interested in estate as extrinsic fraud which will support attack on judgment in probate proceedings, 113 A.L.R. 1235.

Judgment denying validity of will because of undue influence, lack of mental capacity, or the like, as res judicata as to validity of another will, deed, or other instrument, 25 A.L.R.2d 657.

53-2-27. DNA testing for kinship; procedure; costs.

  1. When the kinship of any party in interest to a decedent is in controversy in any proceeding under this article, a superior court may order the removal and testing of deoxyribonucleic acid (DNA) samples from the remains of the decedent and from any party in interest whose kinship to the decedent is in controversy for purposes of comparison and determination of the statistical likelihood of such kinship. The superior court may order the disinterment of the decedent's remains if reasonably necessary to obtain such samples. If the proceedings are pending in the probate court, the motion shall be transferred to the superior court for determination.
  2. The order may be made only on motion for good cause shown and upon notice to all parties in interest and shall specify the time, place, manner, conditions, and scope of the removal and testing of samples, and the person or persons by whom it is to be made. Such motion, when made by a party in interest, shall be supported by affidavit setting forth:
    1. The factual basis for a reasonable belief that the party in interest whose kinship to the decedent is in controversy is or is not so related; and
    2. If disinterment of the decedent's remains is sought, the factual basis for a reasonable belief that reliable DNA samples from the decedent are not otherwise reasonably available from any other source.
  3. Upon request, the movant shall deliver to all parties in interest a copy of a detailed written report of the tester and of any other expert involved in the determination of such statistical likelihood setting out his or her findings, including the results of all tests made and conclusions or opinions based thereon.
  4. The costs of obtaining and testing of such samples, including the costs of disinterment and reinterment of the remains of the decedent, if necessary, as well as the costs of providing the report, shall be assessed against and paid by the moving party.

(Code 1981, §53-2-27, enacted by Ga. L. 2002, p. 1081, § 1.)

Law reviews.

- For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010). For note on the 2002 enactment of this Code section, see 19 Ga. St. U.L. Rev. 347 (2002).

ARTICLE 3 DISTRIBUTION OF ESTATE IN KIND

53-2-30. Authority of administrator; method of distribution provided for in will.

  1. An administrator may distribute all or a portion of an intestate estate in kind in a distribution that is pro rata as to each asset.
  2. An administrator may distribute all or a portion of an intestate estate in kind in a distribution that is not pro rata as to each asset only upon the written consent of all the heirs or upon an order of the probate court made pursuant to a petition filed by an heir or the administrator.
  3. Nothing in this Code section shall be construed as limiting or restricting the method of distribution provided for in a will or as requiring the approval of the probate court for a distribution or division in kind made pursuant to the directions in a will. In all cases where the will directs or authorizes a distribution or division in kind but fails to direct specifically how or by whom the distribution or division in kind is to be made, it shall be the duty and authority of the executor or administrator with the will annexed to make the distribution or division in kind.

(Code 1981, §53-2-30, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section replaces former OCGA Sec. 53-4-11. Subsection (c) carries forward the provisions of former OCGA Sec. 53-4-11(b). Two options for distributions in kind are available under this section. The administrator may make the distribution in kind without the consent of the heirs or a court order if the distribution is made pro rata as to each asset. If the distribution in kind is to be made in a manner that is not pro rata as to each asset, the administrator may do so only if all the heirs consent or pursuant to an order from the probate court. The procedure for filing a petition for such order is described in the subsequent Code sections.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1812, Cobb's 1851 Digest, p. 292, Code 1863, § 2542, Code 1868, § 2543, Code 1873, § 2584, Code 1882, § 2584, Civil Code 1895, § 3479, Civil Code 1910, § 4057, Code 1933, § 113-1018, and former O.C.G.A. § 53-4-11 are included in the annotations for this Code section.

Sections which carry provisions into effect.

- Former Code 1933, §§ 1019 and 1020 provided the machinery for carrying into effect the provisions of former Code 1933, § 113-1018. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Two features of former Code 1933, § 113-1018 were especially to be noted: (1) the application may be made by the "representative" of the estate - it is clearly intended to embrace executors as well as administrators; and (2) the statute contemplates a proceeding for the distribution of the estate. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

This statutory proceeding is really a legal substitute for the final division and final settlement of accounts by an administrator or an executor. It constitutes the last step in winding up an estate with the stamp of judicial approval on the distribution of the estate as made by the representative. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Proceedings under this statute were not in the nature of a partition of specific property, but contemplated a final and complete distribution of the assets of the estate. The devisees and legatees are to receive their share, and all of their share of the estate not previously delivered to them. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Cited in Cunningham v. Schley, 34 Ga. 395 (1866); Southwestern R.R. v. Thomason, 40 Ga. 408 (1869); Hooper v. Howell, 50 Ga. 165 (1873); Rogers v. Dickey, 117 Ga. 819, 45 S.E. 71 (1903); Alaculsey Lumber Co. v. Flemister, 146 Ga. 310, 91 S.E. 104 (1916); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Matson v. Crowe, 193 Ga. 578, 19 S.E.2d 288 (1942); Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 1, 2, 13. 31 Am. Jur. 2d, Executors and Administrators, §§ 914, 945, 946, 972, 979, 985 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 600, 605, 611, 614, 628, 644.

ALR.

- Partition: division of building, 28 A.L.R. 727.

Probate of will as condition precedent to suit for partition by devises, 141 A.L.R. 1311.

Right to partial distribution of estate or distribution of particular assets, prior to final closing, 18 A.L.R.3d 1173.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.

53-2-31. Petition in probate court; distribution in kind not pro rata.

An heir or the administrator may petition the probate court for an order allowing a distribution in kind that is not pro rata as to each asset. The petition shall set forth the names and addresses of all the heirs and the requested distribution of the assets. Upon the filing of the petition, a citation shall be issued and parties in interest shall be served as provided in Chapter 11 of this title.

(Code 1981, §53-2-31, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section replaces former OCGA Sec. 53-4-11(a).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1812, Cobb's 1851 Digest, p. 292, Code 1863, § 2542, Code 1868, § 2543, Code 1873, § 2584, Code 1882, § 2584, Civil Code 1895, § 3479, Civil Code 1910, § 4057, Code 1933, § 113-1018, and former O.C.G.A. § 53-4-11 are included in the annotations for this Code section.

Sections which carry provisions into effect.

- Former Code 1933, §§ 1019 and 1020 provided the machinery for carrying into effect the provisions of former Code 1933, § 113-1018. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Two features of former Code 1933, § 113-1018 were especially to be noted: (1) the application may be made by the "representative" of the estate - it is clearly intended to embrace executors as well as administrators; and (2) the statute contemplates a proceeding for the distribution of the estate. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

This statutory proceeding is really a legal substitute for the final division and final settlement of accounts by an administrator or an executor. It constitutes the last step in winding up an estate with the stamp of judicial approval on the distribution of the estate as made by the representative. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Distribution in kind.

- A proceeding under this statute differs from a final approval and settlement of an administrator's account after the division of an estate only in that the statute permits the delivery of the assets in kind and relieves the administrator from the necessity of reducing the assets to the form of cash. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

If it was practicable, the ordinary (now probate judge) can order a distribution in kind on the application of the administrator or any distributee of the estate provided all the distributees should agree to such a division; for any one of them would have the right to insist upon a sale of the estate and a distribution of the proceeds. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1018).

Judgment of probate court presumed fair and competent.

- Probate court by express statute being clothed with jurisdiction generally to divide the property of decedents in kind, and being a court of original and competent jurisdiction for that purpose, it must be conclusively presumed that the court had before it all necessary and competent evidence to authorize the judgment. In these circumstances, the courts are always extremely loath to enter upon an investigation de novo. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Equitable claims between cotenants.

- Probate court is without jurisdiction to resolve a dispute which involves equitable claims asserted by cotenants. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-1018).

Jurisdiction of superior court to interpret will.

- Though it is the rule that a direct proceeding to construe a will must be brought in a court of equity, when the construction of a will is incidentally involved in a proceeding over which the probate court has jurisdiction, this court has jurisdiction under such conditions to interpret the will so far as may be necessary in the proceeding before it. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Where devisee brings equitable petition against coexecutors of an estate seeking a partition of the property of the estate through a sale by the receiver, and alleging that more than 20 years had elapsed since the executors had qualified, that all the debts of the estate had been paid, and that executors were in possession of all real and personal property belonging to the estate, the allegations are insufficient to authorize the grant of the prayers for equitable petition between the devisees because plaintiff devisee has a full and adequate remedy under the law in the court of ordinary (now probate court) to require executors to distribute the estate by division or partition. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953) (decided under former Code 1933, § 113-1018).

Exercise by the superior court of the court's equity jurisdiction in order to fully and adequately resolve all issues between tenants in common would not be an interference with the orderly administration of an estate. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-1018).

Partition action by tenant.

- Existence or nonexistence of administration of the estate does not preclude the bringing of a partition action by a tenant in common. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-1018).

Effect of order of probate court setting apart portion of estate to beneficiary.

- An order of the probate court, setting apart a given portion to a beneficiary necessarily constitutes a double-barreled adjudication that such beneficiary is entitled to the amount of property awarded, and that the beneficiary is not entitled to more than that awarded the beneficiary. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1018).

Cited in Cunningham v. Schley, 34 Ga. 395 (1866); Southwestern R.R. v. Thomason, 40 Ga. 408 (1869); Hooper v. Howell, 50 Ga. 165 (1873); Rogers v. Dickey, 117 Ga. 819, 45 S.E. 71 (1903); Alaculsey Lumber Co. v. Flemister, 146 Ga. 310, 91 S.E. 104 (1916); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Matson v. Crowe, 193 Ga. 578, 19 S.E.2d 288 (1942); Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 1, 2, 13. 31 Am. Jur. 2d, Executors and Administrators, §§ 914, 945, 946, 972 et seq., 979, 985 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 482, 487, 493, 496, 515, 519.

ALR.

- Partition: division of building, 28 A.L.R. 727.

Probate of will as condition precedent to suit for partition by devises, 141 A.L.R. 1311.

Right to partial distribution of estate or distribution of particular assets, prior to final closing, 18 A.L.R.3d 1173.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.

53-2-32. Order of probate court.

If no objection is made to the petition, the probate court shall order the administrator to distribute the assets in the manner requested in the petition. If objection is made, upon the evidence submitted, the probate court shall divide the assets in kind in shares that are pro rata or are not pro rata as to each asset and order the administrator to distribute the shares accordingly.

(Code 1981, §53-2-32, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

COMMENT

This section replaces former OCGA Secs. 53-4-12 and 53-4-13. The section eliminates the use of three appraisers and instead has the probate court order the administrator to distribute assets in kind in accordance with the petition unless an objection to the petition is made. If an objection is made, the court is to hear the petition and then, in the court's discretion, order a distribution in kind that is or is not pro rata as to each asset.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-1019 and 113-1020, are included in the annotations for this Code section.

Effecting provisions.

- Former Code 1933, §§ 1019 and 1020 provide the machinery for carrying into effect the provisions of former Code 1933, § 113-1018. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1019).

Judgment of probate court presumed fair and proper.

- Probate court by express statute being clothed with jurisdiction generally to divide the property of decedents in kind, and being a court of original and competent jurisdiction for that purpose, it must be conclusively presumed that the court had before it all necessary and competent evidence to authorize the judgment. In these circumstances, the courts are always extremely loath to enter upon an investigation de novo. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1020).

When parties holding as heirs an undivided interest in lands have abandoned, without formally dismissing, a proceeding instituted in the superior court for partition, and agreed among themselves to institute such a proceeding in the court of ordinary (now probate court) to bring about a partition of the same lands, and this is done by appropriate proceeding in that court, resulting in a judgment confining the assignment of the various parcels by the appraisers, no objection being filed or appeal taken, they are bound by such judgment. They will not subsequently be permitted to disregard such judgment, and seek, by amendment to the original petition in superior court, another partitioning of such lands. Zeagler v. Zeagler, 192 Ga. 453, 15 S.E.2d 478 (1941) (decided under former Code 1933, § 113-1020).

When devisee brings equitable petition against coexecutors of an estate seeking a partition of the property of the estate through a sale by the receiver, and alleging that more than 20 years had elapsed since the executors had qualified, that all the debts of the estate had been paid, and that executors were in possession of all real and personal property belonging to the estate, the allegations are insufficient to authorize the grant of the prayers for equitable petition between the devisees because plaintiff devisee has a full and adequate remedy under the law in the court of ordinary (now probate court) to require executors to distribute the estate by division or partition. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953) (decided under former Code 1933, § 113-1020).

Cited in McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Beard v. Beard, 197 Ga. 487, 29 S.E.2d 595 (1944); Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 488 et seq., 972, 976 et seq., 982, 985 et seq., 987.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 648 et seq., 634, 635, 637.

ALR.

- Partition: division of building, 28 A.L.R. 727.

Failure of decree or order of distribution of decedent's estate to describe specifically the property or property interests involved, or misdescription thereof, 120 A.L.R. 630.

Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.

ARTICLE 4 DISPENSING WITH ADMINISTRATION

53-2-40. Petition.

  1. When an individual has died intestate and there has been no personal representative appointed in this state, any heir of the decedent may file a petition praying for an order that no administration is necessary. The petition shall be filed in the probate court of the county of the domicile of the decedent, if the decedent was domiciled in this state, or in the county in which real property is located, if the decedent was not domiciled in this state.
  2. The petition shall show: the name and domicile of the decedent; the names, ages or majority status, and domicile of the heirs of the decedent; a description of the property in this state owned by the decedent; that the estate owes no debts or that there are known debts and all creditors have consented or will be served as provided in Chapter 11 of this title; and that the heirs have agreed upon a division of the estate among themselves. The agreement containing original signatures of all the heirs, attested to by a clerk of the probate court or a notary public, shall be attached to the petition. Property subject to an outstanding security deed or agreement may be subject to this proceeding only if the holder of the security deed consents or is served and makes no objection.
  3. The personal representative of a deceased heir is authorized to agree to the division on behalf of that heir.
  4. In any case involving the approval of a petition for an order that no administration is necessary, where there is an interest in real property, the court shall file, within 30 days of granting such petition, a certified copy of the order granting the petition that no administration is necessary in each county in this state in which the deceased owned real property, to be recorded in the deed records of the county and indexed under the name of the deceased in the grantor index. Such order shall be accompanied by the same fee for filing deeds with the clerk of the superior court. The filing fee and any fee for the recording of such order shall be taxed as costs to the estate. The certified copy of the order granting the petition that no administration is necessary shall set forth:
    1. The date of the order granting such petition;
    2. The name and address of the deceased;
    3. The interest in the property acquired by each party; and
    4. The name and address of all parties that take title to the real property pursuant to the order issued by the court.

(Code 1981, §53-2-40, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 5; Ga. L. 1998, p. 1586, § 10; Ga. L. 2008, p. 715, § 8/SB 508.)

Law reviews.

- For article discussing methods of summary distribution and settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

This section carries over former OCGA Sec. 53-10-1 with the modifications that the petition must include a copy of the agreement for division of property and must state either that the estate owes no debts or that there are known debts and all the creditors have consented or will be served. The petition must be filed in the county of the decedent's domicile rather than the county of residence as required under former OCGA Sec. 53-10-1. Subsection (c) allows the personal representative of a deceased heir to agree to the division on behalf of that heir. (See Code section 53-11-2, which authorizes the guardian of an heir to consent on behalf of the heir.)

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1958, p. 355, § 1, and former O.C.G.A. § 53-10-1 are included in the annotations for this Code section.

Counteraffidavit.

- Duty of an heir opposing a petition for an order dispensing with administration to file a counteraffidavit in opposition to a motion for summary judgment on the petition arises only after the movant has made a prima facie showing of entitlement to judgment. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-1).

Fact questions preclude summary judgment.

- Fact questions, precluding summary judgment on a petition for an order dispensing with administration, existed when the record showed only that there was an estate consisting of a checking account and unidentified household furnishings, that there were debts owed by the decedent, and that the heirs had not agreed amicably to a division of the assets. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-1).

Cited in Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173, 132 S.E.2d 538 (1963); Clark v. Perrin, 224 Ga. 307, 161 S.E.2d 874 (1968); Babb v. Potts, 183 Ga. App. 785, 360 S.E.2d 44 (1987).

Order Dispensing with Administration Generally

Outstanding order dispensing with administration of decedent's estate would not be bar to probate of decedent's will. Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536 (1969) (decided under Ga. L. 1958, p. 355, § 1).

Cannot support plea of res judicata.

- Probate court's order on petition for no administration necessary cannot support plea of res judicata because it is subject to trial de novo in the superior court; i.e., the probate court's order is not final. Hurst v. Gray, 251 Ga. 856, 310 S.E.2d 524 (1984) (decided under former O.C.G.A. § 53-10-1).

Party who has previously applied for and obtained order dispensing with administration of an estate, an essential condition precedent being "that the estate of the decedent owes no debts," is thereafter precluded from asserting any claim the party may have had against the estate for debts which the party voluntarily paid. Shaw v. Davis, 119 Ga. App. 801, 168 S.E.2d 853 (1969) (decided under Ga. L. 1958, p. 355, § 1).

Petition

Omissions or mistakes cured by amendment.

- Statutory requirements that the petition allege the names, ages, and residences of the heirs, and the existence of an agreement for division, are matters which may be cured by amendment if they are omitted or improperly stated. Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966) (decided under Ga. L. 1958, p. 355, § 1).

Presumption of agreement for amicable division.

- Bringing of a petition under this statute by those who allege themselves to be all of the heirs at law of a deceased gives rise to a presumption that they have reached an agreement for an amicable division of the estate among themselves, whether it be alleged in the petition or not. Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966) (decided under Ga. L. 1958, p. 355, § 1).

Jurisdiction

Basis for proceeding in probate court.

- Intestacy of a deceased person and the fact that no permanent administration in this state has been had upon the estate are the bases for the proceeding in the court of ordinary (now probate court) to dispense with the administration of an estate. Roughton v. Jones, 225 Ga. 774, 171 S.E.2d 536 (1969) (decided under Ga. L. 1958, p. 355, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 6, 8 et seq.

10A Am. Jur. Pleading and Practice Forms, Executors and Administrators, § 925.

C.J.S.

- 26B C.J.S., Descent and Distribution, § 78. 33 C.J.S., Executors and Administrators, §§ 7, 8, 11, 13.

53-2-41. Issuance of citation and order; objections.

  1. Upon the filing of a petition that states that there are known creditors of the estate who are to be served, a citation shall be issued and any creditors of the estate shall be served as provided in Chapter 11 of this title.
  2. If any creditor, whether the debt is due or not, objects to the granting of the order, the court shall refuse to grant an order finding that no administration is necessary so long as such objection is not withdrawn.
  3. In the event no creditor files objection to the granting of the order or if all objections are withdrawn, the probate court shall ascertain the heirs of the decedent and whether they are all of age and suffering under no disability or are represented by a guardian or a personal representative. If the court finds that all the heirs have consented and that the estate of the decedent owes no debts or that all creditors have consented or withdrawn any objection, the court shall then enter an order in the proceedings finding that no administration is necessary. Should property described in the petition be located in a county other than the county in which the petition is filed, a certified copy of the proceedings, including any agreement filed pursuant to Code Section 53-2-40, and the order of the probate court thereon may be entered in the office of the clerk of the superior court of the county in which the property is located.
  4. An order finding that no administration is necessary shall confirm the vesting of title to the decedent's property in the heirs in the amounts and portions described in Code Section 53-2-1, or, if different, in the agreement filed by the heirs in accordance with Code Section 53-2-40.
  5. Property thereafter sold or encumbered by the heirs of the decedent to a purchaser or lender who acts in good faith reliance upon the order shall be discharged from all claims and rights of the creditors of the deceased owner, except such claims, liens, judgments, security deeds, mortgages, or encumbrances as have been filed for record in the manner required by law so as to constitute notice thereof at the time of such sale or encumbrance by the heirs.
  6. Nothing in this chapter shall be deemed to apply to or adversely affect liens for taxes or liens arising from the giving or signing of the bond of a public official.

(Code 1981, §53-2-41, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article discussing methods of summary distribution and settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971).

COMMENT

This section carries over the paragraphs (b) through (e) of former OCGA Sec. 53-10-2 and Sec. 53-10-3. Paragraph (a) of OCGA Sec. 53-10-2 is now encompassed in Chapter 11 of this Title. The remaining paragraphs of former OCGA Sec. 53-10-2 have been modified to reflect that the heirs for whom a guardian or a personal representative has been appointed may consent to an order dispensing with administration and to clarify that the order dispensing with administration has the effect of vesting title in the heirs in accordance with the state's laws of intestate distribution or, if different, the agreement set forth by the heirs as a part of their petition.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1959, p. 111, § 1, and former O.C.G.A. § 53-10-2 are included in the annotations for this Code section.

Ordinary (now probate judge) is not required to make finding as to agreement for division or to incorporate any reference to it in the ordinary's order. Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966) (decided under Ga. L. 1959, p. 111, § 1).

Counteraffidavit.

- Duty of an heir opposing a petition for an order dispensing with administration to file a counteraffidavit in opposition to a motion for summary judgment on the petition arises only after the movant has made a prima facie showing of entitlement to judgment. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-2).

Fact questions preclude summary judgment.

- Fact questions, precluding summary judgment on a petition for an order dispensing with administration, existed since the record showed only that there was an estate consisting of a checking account and unidentified household furnishings, that there were debts owed by the decedent, and that the heirs had not agreed amicably to a division of the assets. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-2).

Cited in Michael v. Poss, 209 Ga. 559, 74 S.E.2d 742 (1953); Shadburn v. Tapp, 209 Ga. 887, 77 S.E.2d 7 (1953); Robbins v. Riales, 221 Ga. 225, 144 S.E.2d 80 (1965); Hayes v. Strickland, 112 Ga. App. 567, 145 S.E.2d 728 (1965); Babb v. Potts, 183 Ga. App. 785, 360 S.E.2d 44 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1959, p. 111, § 1, are included in the annotations for this Code section.

Taxes are debts for purposes of this statute. 1971 Op. Att'y Gen. No. U71-58 (decided under Ga. L. 1959, p. 111, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 1, 11 et seq., 21, 48.

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 74, 75, 78, 81, 112 et seq. 33 C.J.S., Executors and Administrators, §§ 7, 8, 11, 13.

53-2-42. Right of action by creditor.

After the granting of an order by the probate court that no administration is necessary, any creditor of the decedent shall have a right of action on the unsatisfied debts against the heirs, to the extent of the value of property received by the heirs.

(Code 1981, §53-2-42, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries over former OCGA 53-10-4 with modifications to reflect the changes made in the previous Code sections.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1958, p. 355, § 7 are included in the annotations for this Code section.

Cited in Hayes v. Strickland, 112 Ga. App. 567, 145 S.E.2d 728 (1965).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Descent and Distribution, §§ 133, 134, 136, 138, 143 et seq.

C.J.S.

- 26B C.J.S., Descent and Distribution, §§ 71, 112 et seq.

ALR.

- Jurisdiction and power of equity to subject legacy, devise, or distributive share in estate to claim of creditor of legatee, devisee, or distributee, 123 A.L.R. 1293.

ARTICLE 5 ESCHEAT

Law reviews.

- For comment, "Unwrapping Escheat: Unclaimed Property Laws and Gift Cards," see 60 Emory L.J. 971 (2011).

53-2-50. Definition.

As used in this article, the term "escheat" is the reversion of property to the state upon a failure of heirs of a decedent to appear and make claim for or against property owned by the decedent at death for which no other disposition was provided either by will or otherwise.

(Code 1981, §53-2-50, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

Former Title 53 contained no definition of the term "escheat".

RESEARCH REFERENCES

Am. Jur. 2d.

- 27A Am. Jur. 2d, Escheat, §§ 1 et seq., 10 et seq., 20 et seq., 40 et seq.

C.J.S.

- 33 C.J.S., Executors and Administrators, § 7. 34 C.J.S., Executors and Administrators, § 503.

ALR.

- Amendment of claim against decedent's estate after expiration of time for filing claims, 56 A.L.R.2d 627.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

Statute of limitations: effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

53-2-51. Procedure.

  1. If no person has appeared and claimed to be an heir within four years from the date letters of any kind on an intestate decedent's estate were granted, the personal representative shall petition the probate court of the county in which the letters were granted for determination that property has escheated to the state. Such a petition shall set forth the full name of the decedent, the date of death, the fact that no person has appeared and claimed to be an heir, and the property of the estate which may have escheated to the state.
  2. Upon filing of the petition, the probate court shall issue a citation as provided Chapter 11 of this title, requiring the heirs, if any, to file any objection to the petition by a date that is at least 60 days from the date of the citation, and shall order notice by publication to all heirs of the decedent as provided in Code Section 53-11-4.
  3. If no individual files objection as an heir who is entitled to the property on or before the date set in the citation, the court shall order the property to be paid over and distributed to the county board of education to become a part of the educational fund.
  4. If an individual files objection as an heir who is entitled to property, such claim shall be tried as other actions before the court. In such case, no property shall be paid over or distributed to the county board of education until the claim is determined in such manner as to establish that any individual making the claim is not entitled to the property.
  5. When property is paid over or distributed to a county board of education, the administration of the estate shall be terminated following a final return and the granting of a petition for discharge.
  6. The proceedings shall be conclusive upon and shall bind all the heirs of the estate.
  7. All expenses incurred in the administration of such proceedings shall be paid from the property or proceeds of the estate.

(Code 1981, §53-2-51, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 11.)

COMMENT

The sections in this Chapter replace former OCGA Secs. 44-5-190 through 44-5-198. The sections provide that an escheat may occur after four years from the date letters of administration are granted, rather than five years, as provided under former OCGA Sec. 44-5-191. These sections also provide that, once it has been determined in the appropriate manner that an escheat has occurred, the determination shall be binding on all heirs. Under former OCGA Sec. 44-5-194, an heir could file a claim up to three years following the escheat of property to the County Board of Education. OCGA Sec. 44-5-199, which deals with the distribution of property if spouses die intestate within six months of each other, has been modified and appears at Code Sec. 53-2-8.

JUDICIAL DECISIONS

No express statement found.

- Because the only references to mutuality in a joint will under O.C.G.A. § 53-4-31 were in the title of the instrument and in the attestation clause, those references were insufficient to constitute either an "express statement" required by O.C.G.A. § 53-2-51, or an express written "contract" requirement of O.C.G.A. § 53-4-30, and there was no clear and definite agreement so as to trigger the fraud exception; accordingly, the surviving wife's deed of gift of real property to a nephew was not precluded, and the will was revocable because there was no express-written contract to the contrary. Hodges v. Callaway, 279 Ga. 789, 621 S.E.2d 428 (2005).

CHAPTER 3 YEAR'S SUPPORT

Cross references.

- Prosecution by surviving spouse, children, and others of action concerning chose in action assigned by deceased plaintiff to spouse, children, and others as part of year's support, § 9-2-30.

Editor's notes.

- This chapter was effective January 1, 1998, to the extent that no vested rights of title, year's support, succession, or inheritance are impaired, as provided by the version of Code Section 53-1-1 enacted by Ga. L. 1996, p. 504, § 10, as amended by Ga. L. 1997, p. 1352, § 1.

Ga. L. 1996, p. 504, § 10, effective January 1, 1998, repealed the Code sections formerly codified at this chapter, and enacted the current chapter. The former chapter consisted of §§ 53-3-1 through53-3-80, and was based on Laws 1792, Cobb's 1851 Digest, p. 307; Laws 1805, Cobb's 1851 Digest, p. 283; Laws 1807, Cobb's 1851 Digest, pp. 315, 1129; Laws 1810, Cobb's 1851 Digest, pp. 284, 316; Laws 1838, Cobb's 1851 Digest, p. 285; Laws 1845, Cobb's 1851 Digest, p. 348; Ga. L. 1855-56, p. 233, § 14; Ga. L. 1859, p. 33, §§ 3-5; Orig. Code 1863, §§ 2390-2404, 2406, 2448, 2449; Ga. L. 1866, p. 66, § 1; Code 1868, §§ 2386-2400, 2402, 2444, 2445; Code 1873, §§ 2421-2435, 2437, 2480, 2481; Ga. L. 1878-79, p. 146, § 1; Code 1882, §§ 2421-2426, 2428-2435a, 2437, 2480; Ga. L. 1894, p. 102, §§ 1, 4-9; Civil Code 1895, §§ 3279-3292, 3294, 3296-3306, 3350, 3351; Ga. L. 1908, p. 85, §§ 1, 2; Civil Code 1910, §§ 3853-3866, 3868, 3870-3882, 3926, 3927; Code 1933, §§ 113-601 through 113-618, 113-620.1, 113-701 through 113-710; Ga. L. 1943, p. 423, § 1; Ga. L. 1945, p. 142, § 2; Ga. L. 1945, p. 401, § 1; Ga. L. 1946, p. 83, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 535, § 1; Ga. L. 1955, p. 217, § 1; Ga. L. 1958, p. 657, §§ 4-9; Ga. L. 1959, p. 136, §§ 2-4; Ga. L. 1961, p. 558, §§ 1, 3, 4; Ga. L. 1966, p. 455, §§ 1, 2; Ga. L. 1967, p. 28, §§ 1-5; Ga. L. 1975, p. 764, § 1; Ga. L. 1976, p. 640, § 1; Ga. L. 1978, p. 1605, § 1; Ga. L. 1983, p. 511, § 1; Ga. L. 1984, p. 658, § 1; Ga. L. 1984, p. 681, § 1; Ga. L. 1984, p. 834, §§ 3, 4; Ga. L. 1985, p. 149, § 53; Ga. L. 1985, p. 1650, §§ 1, 2; Ga. L. 1986, p. 436, § 1; Ga. L. 1986, p. 982, §§ 18, 19; Ga. L. 1990, p. 350, § 1.1; Ga. L. 1991, p. 394, §§ 1, 2; Ga. L. 1993, p. 1081, § 1; Ga. L. 1995, p. 10, § 53.

Law reviews.

- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey of wills, trusts, and administration of estates law, see 41 Mercer L. Rev. 411 (1989). For note, "Determining Eligibility for Year's Support in Georgia: The Tension Between Status and Dependence Requirements," see 22 Ga. L. Rev. 1167 (1988).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. Ch. 5, T. 53 are included in the annotations for this Code section.

Former O.C.G.A. Ch. 5, T. 53 was not unconstitutional, since a 1979 amendment to this chapter removed gender classification for year's support eligibility, and since the year's support statute when first adopted was not violative of the Constitution under court interpretations of that period. Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982) (decided under former O.C.G.A. Ch. 5, T. 53).

Applicability of Civil Practice Act.

- O.C.G.A. § 9-11-55(a), a provision of the Civil Practice Act regarding the opening of default judgments, governs an application for year's support and caveat filed in probate court. Greene v. Woodard, 198 Ga. App. 427, 401 S.E.2d 617 (1991) (decided under former O.C.G.A. Ch. 5, T. 53).

53-3-1. Preference and entitlement.

  1. As used in this chapter, the terms "child" or "children" mean any minor child who would be entitled to inherit if the child's parent died intestate.
  2. Among the necessary expenses of administration and to be preferred before all other debts, except as specifically provided otherwise in this chapter, is the provision of year's support for the family.
  3. The surviving spouse and minor children of a testate or intestate decedent are entitled to year's support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent's death.

(Code 1981, §53-3-1, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article discussing decisions involving the year's support provision of the Georgia Code, see 3 Ga. St. B.J. 427 (1967). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article surveying legislative and judicial developments in Georgia's will, trusts, and estate laws, see 31 Mercer L. Rev. 281 (1979). For article surveying Georgia cases in the area of wills, trusts, and administration of estates from June 1979 through May 1980, see 32 Mercer L. Rev. 249 (1980). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For annual survey article discussing wills, trusts, and administration of estates, see 51 Mercer L. Rev. 487 (1999). For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For note, "Preventing Spousal Disinheritance in Georgia," see 19 Ga. L. Rev. 427 (1984). For note on 1991 amendment of former O.C.G.A. § 53-5-2, see 8 Ga. St. U.L. Rev. 216 (1992). For note on 1993 enactment of former O.C.G.A. § 53-5-1.1, see 10 Ga. St. U.L. Rev. 236 (1993).

COMMENT

Subsection (a) carries forward subsection (a) of former OCGA Sec. 53-5-2. Subsection (b) carries forward former OCGA Sec. 53-5-1 and omits the 1979 effective date of the application of the year's support statute to widowers. This subsection also clarifies that both the spouse and the surviving minor children are entitled to year's support and uses the definition of year's support that appeared in former OCGA Sec. 53-5-2. The word "money" from that definition is omitted because the word is subsumed in the word "property". The omission is not intended to signal that money cannot be awarded. Subsection (c) carries forward former OCGA Sec. 53-5-1.1.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1838, Cobb's 1851 Digest, p. 296, former Laws 1850, Cobb's 1851 Digest, p. 297, former Code 1863, § 2531, former Code 1868, § 2530, former Code 1873, § 2751, former Code 1882, § 2571, former Civil Code 1895, § 3465, former Civil Code 1910, § 4041, former Code 1933, § 113-1002, and former O.C.G.A. §§ 53-5-1 and53-5-2 are included in the annotations for this Code section.

Former O.C.G.A. Ch. 5, T. 53 was not unconstitutional, since former O.C.G.A. § 53-5-1 removed gender classification for year's support eligibility, and since the year's support statute when first adopted was not violative of the Constitution under court interpretations of that period. Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982) (decided under former O.C.G.A. § 53-5-1).

Purpose.

- Prime purpose of this statute is to provide a suitable support and maintenance for the widow and minor children, if any, of a father who has died. The state gives the year's support a priority over all debts, even though reduced to judgment, and a priority over the taxes due the sovereign state. Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932) (decided under former Code 1933, § 113-1002).

Statute has for its purpose the joint support and maintenance of the widow and the minor children. It is based on considerations of public policy; and as the provisions of the statutes in reference thereto are to be construed in favor of the beneficiaries entitled to support, proceedings thereunder are to be construed in favor of the intended beneficiaries of the law. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951);(decided under former Code 1933, § 113-1002).

Beneficent purpose of the provision for a year's support is to see that the widow and minor children, upon the death of the husband and father, shall not be cut adrift, but shall have immediate relief by having set apart funds or property to carry them through the period of a year, taking into consideration the circumstances and standing of the family previous to the death of the husband, and also keeping in view the solvency of the estate. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942) (decided under former Code 1933, § 113-1002).

Purpose of this statute is to provide a support for a limited period for those members of the family whom the deceased was, while in life, legally bound to support. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

An award entered after the 1979 amendment of year's support statute, but from an estate of a decedent who died before the amendment, is valid. Lawrence v. Lawrence, 254 Ga. 692, 333 S.E.2d 610 (1985) (decided under former O.C.G.A. § 53-5-1).

When property is set apart to a widow and the widow's minor children the property is intended to be used for their joint support and maintenance. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Entitlement to a year's support award is a matter of status, and is established by demonstrating that the applicant belongs within one of the classes of intended beneficiaries codified in subsection (b) of former O.C.G.A. § 53-5-2. Gentry v. Black, 256 Ga. 569, 351 S.E.2d 188 (1987) (decided under former O.C.G.A. § 53-5-2); Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999);(decided under former O.C.G.A. § 53-5-2).

When one establishes that he or she is the spouse of the deceased, eligibility for year's support is also established. Gentry v. Black, 256 Ga. 569, 351 S.E.2d 188 (1987) (decided under former O.C.G.A. § 53-5-2).

Entitlement to the right to a year's support is a matter of status. It vests upon the death of the spouse. Wigley v. Hambrick, 193 Ga. App. 903, 389 S.E.2d 763 (1989), cert. denied, 193 Ga. App. 911, 389 S.E.2d 763 (1990) (decided under former O.C.G.A. § 53-5-2).

Year's support is designed to care for widow during the first year following her husband's death. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Award of property continues after the expiration of the year, so long as the property lasts, to be used for the support of the widow during her life and the children until the children are married or reach majority. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Personal items from the marital residence.

- Genuine issue of material fact existed as to whether certain personal items the executor demanded to be returned from a decedent's widow were taken from the marital residence and were thus included in the year's support awarded to the widow, making summary judgment improper. Rabun v. Rabun, 341 Ga. App. 878, 802 S.E.2d 296 (2017).

Year's support reflects public policy.

- Law does not require that a father provide for the support of his children after his death. Public policy, of course, favors the support of minor children by the father's estate after his death. Russell v. Fulton Nat'l Bank, 247 Ga. 556, 276 S.E.2d 641, overruled on other grounds, Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981) (decided under former O.C.G.A. § 53-5-2).

Courts favor year's support. Rakestraw v. Rakestraw, 70 Ga. 806 (1883) (decided under former Code 1882, § 2571); Cheney v. Cheney, 73 Ga. 66 (1884);(decided under former Code 1882, § 2571).

A year's support is an anomaly and special favorite of legislation and jurisprudence. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

Policy of the law is to protect this favored creature of the law and preserve the property or money set aside as a year's support for that purpose and none other. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

Year's support proceeds on the theory that a widow is entitled to it, regardless of everything else. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002).

Widow of a deceased person is entitled to a year's support out of his estate, whether he dies testate or intestate. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002); Saxon v. Aycock, 72 Ga. App. 728, 34 S.E.2d 914 (1945);(decided under former Code 1933, § 113-1002).

Hinge upon which right of year's support hangs is legal obligation to support during lifetime of deceased. The granting of a year's support is an extension of that obligation beyond the life of the person so obligated, thereby creating a debt of the estate as a necessary expense of administration. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

Statutes to be construed liberally.

- Statutes providing for a year's support and fixing its priority are to be construed liberally in favor of the dependents. Olmstead v. Clark, 181 Ga. 478, 182 S.E. 513 (1935) (decided under former Code 1933, § 113-1002); Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945); Howard v. Howard, 150 Ga. App. 213, 257 S.E.2d 336 (1979) (decided under former Code 1933, § 113-1002);(decided under former Code 1933, § 113-1002).

Solvency of estate immaterial.

- Year's support provided for by statute will be allowed whether the decedent's estate is solvent or insolvent. Hopkins v. Long, 9 Ga. 261 (1851) (decided under former Laws 1850, Cobb's 1851 Digest, p. 297); Jackson v. Corbin, 39 Ga. 102 (1869); McNair v. Rabun, 159 Ga. 401, 126 S.E. 9 (1924) (decided under former Code 1868, § 2530);(decided under former Civil Code 1910, § 4041).

On the filing of caveats the appraisers may take the question of solvency into consideration when determining the amount of support. Aiken v. Davidson, 146 Ga. 252, 91 S.E. 34 (1916) (decided under former Civil Code 1910, § 4041); McNair v. Rabun, 159 Ga. 401, 126 S.E. 9 (1924);(decided under former Civil Code 1910, § 4041).

Right to support for widow and minor children is absolute. Brown v. Joiner, 77 Ga. 232, 3 S.E. 157 (1886) (decided under former Code 1882, § 2571); Swain v. Stewart, 98 Ga. 366, 25 S.E. 831 (1896); Miller v. Miller, 105 Ga. 305, 31 S.E. 186 (1898) (decided under former Civil Code 1895, § 3465); Goss v. Harris, 117 Ga. 345, 43 S.E. 734 (1903); Anders v. First Nat'l Bank, 165 Ga. 682, 142 S.E. 98 (1928) (decided under former Civil Code 1895, § 3465);(decided under former Civil Code 1895, § 3465);(decided under former Civil Code 1910, § 4041).

Right to support cannot be divested by a contingency occurring after the right accrues. Goss v. Harris, 117 Ga. 345, 43 S.E. 734 (1903) (decided under former Civil Code 1895, § 3465); Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972);(decided under former Code 1933, § 113-1002).

Right to support may be divested by agreement. Clark v. Emerson, 141 Ga. 612, 81 S.E. 870 (1914) (decided under former Civil Code 1910, § 4041); Bates v. Burden, 148 Ga. 157, 96 S.E. 178 (1918);(decided under former Civil Code 1910, § 4041).

Because the husband's petition for divorce was filed hours before his death, the paragraph of the parties' post-nuptial agreement that went into effect if one spouse filed for a divorce controlled and provided that the wife was entitled to one-half of the items listed on an exhibit and not a year of support as sought by the wife. In re Estate of Boyd, 340 Ga. App. 744, 798 S.E.2d 330 (2017).

Award of year's support may operate to defeat intentions of testator.

- Whenever a year's support is carved out of property disposed of by will, the intention of the testator is defeated pro tanto, and there seems to be no greater antagonism in setting aside as a year's support a part of property which the executors have been directed to keep together than there is in taking property away from a person to whom it has been devised or bequeathed and devoting it to a year's support. In either case, the right to a year's support overrides the testator's instructions. Burch v. Harrell, 57 Ga. App. 514, 196 S.E. 205 (1938) (decided under former Code 1933, § 113-1002).

Year's support may not operate to divest minor heir of interest in property.

- Considering both the benevolent purposes of the year's support law as well as the clear intent of other laws to protect the rights and claims of minors, the award of a year's support cannot operate to divest a minor heir of the minor's interest in property unless it appears that appropriate steps were taken to protect the minor's interest. Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970) (decided under former Code 1933, § 113-1002).

Year's support may be set aside for fraud. Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982) (decided under former O.C.G.A. § 53-5-2).

Cited in Cleghorn v. Johnson, 69 Ga. 369 (1882); Farris v. Battle, 80 Ga. 187, 7 S.E. 262 (1887); Maddox v. Patterson, 80 Ga. 719, 6 S.E. 581 (1888); McDowell v. McMurria, 107 Ga. 812, 33 S.E. 709, 73 Am. St. R. 155 (1899); Hill v. Van Duzer, 111 Ga. 867, 36 S.E. 966 (1900); Wright v. Roberts, 116 Ga. 194, 42 S.E. 369 (1902); Sexton v. Burruss, 144 Ga. 192, 86 S.E. 537 (1915); Jones v. Wilkes, 146 Ga. 803, 92 S.E. 517 (1917); Ellis v. Hogan, 147 Ga. 609, 95 S.E. 4 (1918); Phillips v. Cook, 158 Ga. 151, 123 S.E. 108 (1924); Federal Land Bank v. Henson, 166 Ga. 857, 144 S.E. 728 (1928); Grant v. Sosebee, 173 Ga. 98, 159 S.E. 672 (1931); Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932); State Banking Co. v. Hinton, 178 Ga. 68, 172 S.E. 42 (1933); National City Bank v. Welch, 53 Ga. App. 528, 186 S.E. 596 (1936); Hill v. Hill, 55 Ga. App. 500, 190 S.E. 411 (1937); Redwine v. Frizzell, 184 Ga. 230, 190 S.E. 789 (1937); Parks v. Gresham, 185 Ga. 470, 195 S.E. 728 (1938); Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938); Minchew v. Juniata College, 188 Ga. 517, 4 S.E.2d 212 (1939); Harrell v. Burch, 195 Ga. 96, 23 S.E.2d 434 (1942); Jones v. Federal Land Bank, 196 Ga. 419, 26 S.E.2d 731 (1943); Fulcher v. Fulcher, 75 Ga. App. 480, 43 S.E.2d 588 (1947); Bush v. Reconstruction Fin. Corp., 79 Ga. App. 25, 52 S.E.2d 515 (1949); McDaniel v. Selman, 79 Ga. App. 259, 53 S.E.2d 391 (1949); Carroll v. Hill, 80 Ga. App. 576, 56 S.E.2d 821 (1949); Dorsey v. Georgia R.R. Bank & Trust Co., 82 Ga. App. 237, 60 S.E.2d 828 (1950); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Harnesberger v. Davis, 86 Ga. App. 41, 70 S.E.2d 615 (1952); Holland v. Froklis, 89 Ga. App. 768, 81 S.E.2d 317 (1954); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); United States v. First Nat'l Bank & Trust Co., 297 F.2d 312 (5th Cir. 1961); Samples v. Samples, 107 Ga. App. 788, 131 S.E.2d 584 (1963); Williams v. Ross, 228 F. Supp. 751 (N.D. Ga. 1963); Park v. Minton, 229 Ga. 765, 194 S.E.2d 465 (1972); Gibson v. McWhirter, 230 Ga. 545, 198 S.E.2d 205 (1973); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Payne v. Bradford, 231 Ga. 487, 202 S.E.2d 422 (1973); Walker v. Smith, 130 Ga. App. 16, 202 S.E.2d 469 (1973); Barone v. Adcox, 235 Ga. 588, 221 S.E.2d 6 (1975); Clavin v. Clavin, 238 Ga. 421, 233 S.E.2d 151 (1977); Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979); Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981); Nationwide Mut. Ins. Co. v. Walls, 546 F. Supp. 30 (S.D. Ga. 1982); Nationwide Mut. Ins. Co. v. Gay, 165 Ga. App. 293, 299 S.E.2d 611 (1983); Young v. Ellis, 250 Ga. 838, 301 S.E.2d 271 (1983); Hughes v. Hughes, 169 Ga. App. 850, 314 S.E.2d 920 (1984); Powell v. Thorsen, 253 Ga. 572, 322 S.E.2d 261 (1984); Gentry v. Black, 178 Ga. App. 284, 342 S.E.2d 729 (1986); Byrd v. McKinnon, 189 Ga. App. 768, 377 S.E.2d 686 (1989); State Farm Mut. Auto. Ins. Co. v. Day, 195 Ga. App. 823, 394 S.E.2d 913 (1990); Wynn v. Wynn, 202 Ga. App. 679, 415 S.E.2d 287 (1992); Baulding v. Turner, 208 Ga. App. 548, 430 S.E.2d 836 (1993); Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).

Application Generally

1. In General

When obligation is continuously recognized for two years preceding death without challenge by deceased, the deceased's estate is subject to debt of year's support. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

Award of year's support to spouse upheld.

- When co-executors failed to include in the record on appeal the transcript of the hearing on the decedent's spouse's petition for a year's support and the order showed that the probate court properly considered a lump sum death benefit payment to the spouse from the decedent's employer, there was no basis in the record for the court to reverse an award to the spouse under O.C.G.A. § 53-3-1(c). In re Estate of Battle, 263 Ga. App. 73, 587 S.E.2d 140 (2003).

Denial of application of year's support upheld.

- Summary judgment in favor of a caveator, and against a wife, on the wife's application for year's support from the estate of the wife's decedent husband was properly denied as the wife opted instead to accept a $5,000 bequest from the husband's will in lieu of a year's support under a prenuptial agreement which was found to be valid, binding, and enforceable, and the wife failed to show any evidence of duress, coercion, fraud, misrepresentation, unconscionability, or changed circumstances which would have voided the agreement. Hiers v. Estate of Hiers, 278 Ga. App. 242, 628 S.E.2d 653 (2006).

Superior court's order reversing a year's support award in the amount of $30,000, along with title to a vehicle and antique furniture, and instead enforcing an oral agreement for an equal division of the assets of the estate after payment of all expenses was proper as: (1) the surviving wife failed to testify as to the amount of money needed to maintain the standard of living for a period of 12 months after the decedent husband died; (2) the wife presented no evidence of any income earned during the marriage; (3) no evidence documenting the wife's medical expenses incurred during the marriage was presented; and (4) the wife's testimony about the decline in the standard of living was relevant under O.C.G.A. § 53-3-7(c)(3), but provided little guidance to the court. Taylor v. Taylor, 288 Ga. App. 334, 654 S.E.2d 146 (2007), cert. denied, 2008 Ga. LEXIS 322 (Ga. 2008).

Denial of spouse's petition for year's support improper.

- Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

2. Arbitrary Exclusion of Minor Children

Arbitrary exclusion of minor children from application prohibited.

- To arbitrarily discriminate against the minor child under the application for 12 months' support, and so set apart to the widow the entire assets of an insolvent estate, is such as to render such action nugatory and void; and a judgment based on such action is void as a matter of law. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Civil Code 1910, § 4041).

When the appraisers assumed that it was not compulsory on them to set aside any portion of the estate for the benefit of the minor, who was, so far as the record shows, more dependent upon his father's estate for support and maintenance than the widow who received the entire net amount of the insolvent estate, the appraisers acted under a mistake of law causing the judgment thereby obtained to be set aside. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Civil Code 1910, § 4041).

When the entire estate is set aside to the widow alone, arbitrarily excluding any minor children by depleting the assets of the estate, the award of the appraisers to the widow must be disallowed. Collins v. Collins, 110 Ga. App. 569, 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).

Vesting

1. In General

Applicability and purpose.

- Right to year's support by a widower is a vested right, superior to any encumbrances or debts or other legal entitlement of or to the estate, including bequests to legatees under a testate deceased; it is intended to protect the widow or widower and minor child and children even if the award overrides a testamentary bequest to another. Goodman v. Independent Life & Accident Ins. Co., 196 Ga. App. 783, 397 S.E.2d 56 (1990) (decided under former O.C.G.A. § 53-5-2).

Widow is entitled to a year's support to be set apart to the widow out of the estate of the widow's deceased husband, whether he died testate or intestate, and this right is absolute and is superior to all other claims against the estate, except as provided by law. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1002).

2. Vesting of Right to Year's Support

Right of widow of decedent to a year's support is a "vested" right, and the courts are jealous of any attempt to encroach upon it. Seiden v. Southland Chenilles, Inc., 195 F.2d 899 (5th Cir. 1952) (decided under former Code 1933, § 113-1002).

Statute permits separate portions of a decedent's estate to be set aside as year's support to the widow and to children of the deceased. Collins v. Collins, 110 Ga. App. 569, 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).

Right to year's support vests upon death of deceased.

- Right to a year's support out of the estate of a deceased, which is given to the widow and minor children by statute, vests upon the death of the deceased. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1002).

Right to a 12 months' support vests immediately on death of decedent. Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 151 S.E. 796 (1930) (decided under former Civil Code 1910, § 4041).

Right to a year's support vests in a widow and minor children at the time of the death of the husband and father. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Seiden v. Southland Chenilles, Inc., 195 F.2d 899 (5th Cir. 1952);(decided under former Code 1933, § 113-1002).

Right to a year's support vests in the widow and minor children, if any, immediately upon the death of the husband. McDaniel v. Kelley, 61 Ga. App. 105, 5 S.E.2d 672 (1939) (decided under former Code 1933, § 113-1002).

3. Vesting of Title

Title to property set aside as a year's support vests in the widow and minor children; the interest of a minor in the title is not divested upon the minor's reaching majority, and upon the death of the widow, if she survives the minor's majority, and the majority of any remaining children, the minor is entitled to the minor's proportionate interest in such of the property as then remains unconsumed. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

Year's support for a widow can be set apart to her only from the estate of her deceased husband; and if property included therein does not as a matter of fact constitute a part of his estate, the judgment of the court of ordinary (now probate court) simply will not attach to such property, but will be void as applied thereto. Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1002).

Year's support can only be set aside from property interests which were a part of the decedent's estate at the time of her death. A judgment of the probate court is void as to any property set aside which was not a part of the decedent's estate at her death. Johnson v. Johnson, 199 Ga. App. 549, 405 S.E.2d 544 (1991) (decided under former O.C.G.A. § 53-5-2).

Widow receives such title as husband had.

- When property is set apart to a widow as a year's support she receives just such title as her deceased husband had, and acquires no greater title by reason of the setting apart to her. Stephens v. Carter, 215 Ga. 355, 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).

All that the year's support award does is vest in the widow whatever interest, legal or equitable, that husband had in the property. Stephens v. Carter, 215 Ga. 355, 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).

Year's support may be set apart out of any assets to which the husband or father had legal title at the time of his death. In addition thereto, property in which the deceased had an equity at the time of his death may be set aside for a year's support. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Provision for periodic payment from fund.

- When the appraisers of estate set aside as a year's support to the widow a sum of money in the hands of the husband's administrator, with the provision that the sum be turned over to the widow in periodic payments, no objection being filed to the return of the appraisers, absolute title to the fund vests in the widow from the time the return is made to the ordinary (now probate judge). May v. Braddock, 92 Ga. App. 302, 88 S.E.2d 539 (1955) (decided under former Code 1933, § 113-1002).

Award from trust.

- Even if no legal title remained in the decedent at her death, if her estate retained an equitable interest as beneficiary of the alleged trust, a year's support may include an award of such interest. Johnson v. Johnson, 199 Ga. App. 549, 405 S.E.2d 544 (1991) (decided under former O.C.G.A. § 53-5-2).

Title must be in decedent at the time of death in order for a year's support to be assignable from specified property. Scruggs v. Morel, 22 Ga. App. 93, 95 S.E. 316 (1918) (decided under former Civil Code 1910, § 4041).

Year's support may not attach to alienated property.

- Widow is not entitled to have a year's support set apart in land to which the husband during his lifetime conveyed all his title, since such year's support can only be set aside from property of the estate of the husband. Plowden v. Plowden, 47 Ga. App. 751, 171 S.E. 388 (1933) (decided under former Code 1933, § 113-1002).

A judgment of the court of ordinary (now probate court) allowing a year's support for the family of deceased will not attach to property which has been conveyed away by the deceased prior to his death and is no longer a part of his estate; the rule is the same as applied to the legal title, although the property was conveyed as security only. Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935) (decided under former Code 1933, § 113-1002).

When the father of certain minor children made a deed conveying to them a lot of land already encumbered, and actually delivered the deed to them, they were not estopped, after the death of the father, from claiming a year's support out of the proceeds of the sale of the land under an execution in favor of certain creditors of the estate, by reason of the fact that the deed had been delivered to them and they had received it, and that therefore the land was no longer a part of the estate of the deceased father. Pierce v. J.A. Alford & Sons, 180 Ga. 327, 179 S.E. 84 (1935) (decided under former Code 1933, § 113-1002).

4. Unconsumed Property

Unconsumed property generally.

- General allowance from the estate of a decedent for a year's support, if not consumed during the year, will stand over for the support of the widow and minors afterwards so long as they are members of the family and fill this description. Children attaining majority or ceasing by marriage to be of the family, cannot, during that time coerce partition of land thus allowed and set apart, the whole land being charged with the support of the family. Whitt v. Ketchum, 84 Ga. 128, 10 S.E. 503 (1889) (decided under former Code 1882, § 2571).

Disposition of unconsumed property upon death of widow.

- Because the statute expressly states that the year's support for the family may be set aside on the application of the widow, when it is set aside, the provision so made inures to the benefit of the class named in the statute. Accordingly, a widow and three children, who are unmarried minors and members of the family at the time of their father's death, are vested with an undivided one-fourth interest each in the lands set apart under the year's support; and the interest which minors take under a year's support is not divested upon reaching majority; and after the widow's death such children are entitled to their proportionate interest in the unconsumed property; and the proportionate interest of the widow under the year's support goes to her heirs at law upon her death intestate. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

5. Lack of Administration No Bar to Vesting

Year's support not dependent upon qualification of legal representative.

- Right to a year's support accrues upon the death of the husband or parent, and not upon the qualification of the legal representative of the estate. Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711 (1943) (decided under former Code 1933, § 113-1002).

Procurement of the year's support is not dependent upon an administration of the estate. Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711 (1943) (decided under former Code 1933, § 113-1002).

Appraisers

1. Duties

Language of statute was mandatory, for the statute declares that it shall be the duty of the appraisers to set apart and assign "to such widow and children." De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Code 1933, § 113-1002).

Duties of appraisers generally.

- When a widow makes application, for a year's support for herself and the minor child of the deceased husband by a former marriage, and the order of the ordinary (now probate judge) appointing appraisers directs them to set apart a year's support for the widow and minor child, it is the duty of the appraisers to set apart and assign to such widow and child a sufficiency for their maintenance and support for the space of 12 months from the date of administration, if there be such. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Code 1933, § 113-1002).

On an application by a widow for a year's support the duties of the appraisers are purely ministerial. Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935) (decided under former Code 1933, § 113-1002).

2. Return

Award of the appraisers is prima facie correct, and the burden is on objectors to disapprove the award's correctness. Smith v. Smith, 115 Ga. 692, 42 S.E. 72 (1902) (decided under former Civil Code 1895, § 3465); Touchton v. Mock, 91 Ga. App. 689, 86 S.E.2d 699 (1955);(decided under former Code 1933, § 113-1002).

When appraisers have set aside a year's support to a widow, and a caveat thereto has been filed by the administrator of the estate, irrespective of whether the burden of proof rests on the widow or on the administrator, the return of the appraisers makes a prima facie case for the widow, and, in the absence of any evidence tending to show the circumstances and standing of the family before the death of the husband, or as to the solvency of the estate, a verdict in favor of the claimant sustaining the return of the appraisers is demanded as a matter of law. Wilson v. Wilson, 54 Ga. App. 770, 189 S.E. 71 (1936) (decided under former Code 1933, § 113-1002).

When the appraisers set aside, as a year's support to the widow, property valued at $300.00, and the only evidence in rebuttal of the presumption of the correctness of the year's support was that various sums of money from the sale of property of the estate had been paid to the widow by the administrator, and there was still unpaid an indebtedness against the estate of $150.00, and there was no evidence tending to show that the value of the property set aside as a year's support was in excess of the amount necessary for the support of the widow, estimated according to the circumstances and standing of the family previous to the death of the husband, although the property set aside may have consisted of all of the estate and no assets were left with which to pay the indebtedness, the evidence was insufficient to rebut the presumption of the correctness of the return of the appraisers. Wilson v. Wilson, 54 Ga. App. 770, 189 S.E. 71 (1936) (decided under former Code 1933, § 113-1002).

When excessiveness of the award of a year's support is the sole issue involved, the return of the appraisers is prima facie correct, the burden is upon the party disputing the return to show otherwise, and in the absence of evidence tending to show the circumstances and standing of the family before the testator's death or as to the solvency of the estate, a verdict sustaining the return is demanded as a matter of law. Bright v. Knecht, 182 Ga. App. 820, 357 S.E.2d 159 (1987) (decided prior to 1986 amendment of former O.C.G.A. § 53-5-2).

Caveat as remedy for incorrect or improper return.

- When objections to the return of the appraisers to set apart and assign a 12 months' support to the widow and children of a decedent have been filed and sustained, so as to have the effect of amending the return, the return of the appraisers and the judgment may be recorded, and will be effective to set apart as a 12 months' support the property or money included in the report as corrected and amended by the judgment. Davis v. City of Atlanta, 182 Ga. 242, 185 S.E. 279 (1936) (decided under former Code 1933, § 113-1002).

If, in making their return, the appraisers have acted upon insufficient or misleading information as to the property owned by the decedent at the time of decedent's death, or as to any other relevant fact upon which their return may in part be predicated, the law provides a remedy for any person whose legal rights may be injuriously affected thereby, by giving to such person the right to caveat the return; and, upon a trial of the issue thus raised before the ordinary (now probate judge), all the relevant facts may be developed by competent and legal evidence introduced for this purpose, and the return, if incorrect and improper, under the facts disclosed, may be corrected. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Return of appraisers not vitiated by mere irregularities.

- Mere irregularities, such as the number of minors being mistakenly stated in other portions of the proceedings, do not have the effect of vitiating the return of the appraisers in the year's support proceedings. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

Failure of the appraisers in year's support proceeding to take the prescribed oath is an irregularity which alone will not vitiate their return. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1002).

Appraisers not required to place value upon property.

- It is not required by law, nor is it essential to the return, that the appraisers specifically find the value of the property, or in the return place a value upon the property. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Widow's right to a year's support is not affected by the appraisers' dereliction of duty for which the widow is not responsible. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Ordinary's (now probate judge) duty is ministerial, unless objections are filed to the return of the appraisers; but, when objections are filed, the ordinary discharges a judicial function in determining their validity. Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935) (decided under former Code 1933, § 113-1002).

Character of Award

Appraisers or jury to determine character of year's support.

- It is for the appraisers or the jury, as the case might be, to determine whether the year's support allowance should be in money to be charged to the property of the estate, or should be in property of the estate measured by money. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553, 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).

Widow is entitled to have a year's support allowance in property, instead of cash, unless the appraisers or the jury should determine to the contrary, and a year's support to a widow and children may be set apart from property of which their husband and father died possessed, to be estimated according to the circumstances and standing of the family previous to the death of their husband and father. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553, 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).

There is no provision of law by which the widow is bound to accept cash offered by the judgment creditors of her husband, in lieu of a year's support allowance, even though the amount offered is the amount at which the appraisers had valued the year's support allowance set apart by them. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553, 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).

The award of a year's support to a widow holding the security deed should be made of the equity of redemption as to the remainder interest, or of the remainder interest subjected to the outstanding security deed, rather than in the value of the remainder interest before deducting the debts against the estate. Strickland v. Miles, 131 Ga. App. 300, 205 S.E.2d 880 (1974) (decided under former Code 1933, § 113-1002).

Widow entitled to interest following delayed payment.

- When a cash award of a year's support to a widow could not be paid until four years after the judgment, the widow was entitled to interest from the date of the judgment. Clark v. Georgia R.R. Bank & Trust Co., 182 Ga. 472, 185 S.E. 716 (1936) (decided under former Code 1933, § 113-1002).

Inclusion of medical services in year's support authorized.

- If the circumstances of the decedent, and the standing of decedent's family during decedent's lifetime, were such as to warrant reasonable medical attention to the wife, in the event such were necessary, if such medical services are required by the widow during the year following the death of the husband, the medical services should be considered in fixing the amount to be allowed her as a year's support. Walraven v. Walraven, 76 Ga. App. 713, 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1002).

Amount

Setting aside of whole estate valued in excess of $1,600.00.

- Statute, which requires that the whole estate, when the estate's value is $1,600.00 or less, be set aside for a year's support, does not inhibit the setting aside of the whole estate when the estate's value exceeds $1,600.00, and the question of whether or not the amount set aside by the appraisers is excessive is one of fact solely for the determination of the jury. Edwards v. Addison, 187 Ga. 756, 2 S.E.2d 77 (1939) (decided under former Code 1933, § 113-1002).

Theory of this statute is that the amount set aside be "a sufficiency from the estate for support and maintenance for the space of 12 months from the date of administration." Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Dependency.

- Amount to be set apart for a year's support is governed in part by dependency. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).

Sufficiency estimated according to circumstances of family.

- Year's support to a widow and children may be set apart from property of which their husband and father died possessed, the same to be either in property or money, and to be "a sufficiency from the estate for their support and maintenance for the space of 12 months . . . estimated according to the circumstances and standing of the family previous to the death" of their husband and father. Lang v. Hopkins, 10 Ga. 37 (1851) (decided under former Laws 1850, Cobb's 1851 Digest, p. 297); Cheney v. Cheney, 73 Ga. 66 (1884);(decided under former Code 1882, § 2571).

Other support available.

- When the surviving wife had no other support available except welfare, which she had not sought, and her daughter's voluntary contributions from her own personal assets, such resources did not need to be weighed in the mix of the statute's contemplated "support available." Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).

Whole amount allowed the widow should be sufficient to support and maintain the widow, including necessary medical service, in keeping with the circumstances and standing of the family previous to the death of the husband; due regard being had to the solvency of the estate. Walraven v. Walraven, 76 Ga. App. 713, 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1002).

Consideration of lifestyle prior to death.

- Upon the trial of an issue formed by a caveat to the return of the appraisers setting aside a year's support, evidence of the size of the estate and amount of property owned by the wife individually during the lifetime of the husband is immaterial and irrelevant. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

An inquiry into the circumstances and standing of the family for the purpose of setting aside a year's support to the widow must be limited to the circumstances and standing of the family as affected by the estate of the deceased husband. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Evidence was insufficient to establish the fact that a passenger automobile sold to a widow (a sharecropper) was a necessity of life, so as to make funds set aside to her and her minor children as a year's support subject to an execution for the balance due on the purchase price of the automobile. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

In determining the year's support to be set apart for a beneficiary entitled to it, consideration should not be given to provision otherwise made for such beneficiary. Byrd v. Byrd, 223 Ga. 24, 153 S.E.2d 422 (1967) (decided under former Code 1933, § 113-1002).

One-time purchases, repairs, and expenses.

- Probate court was not forbidden by law to accommodate the need, in the year following testator's death, for one-time purchases, repairs, and expenses which would restore the testator's spouse's standard of living during marriage. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).

Evidence of "cruel treatment" of decedent by widow.

- Probate court did not abuse the court's discretion in setting aside decedent's house and furnishings, where evidence of the widow's "cruel treatment" toward decedent was conflicting, and the mere fact that the court may have slightly miscalculated the widow's gross income or living expenses was of no consequence in light of the entire record. Bell v. Bell, 201 Ga. App. 218, 411 S.E.2d 47 (1991) (decided under former O.C.G.A. § 53-5-2).

Medical expenses.

- Provision for reasonable medical attention to the surviving spouse during the year following testator's death, when it is necessary and the circumstances and standing of the family before the death would warrant it, may be considered in fixing the amount of year's support. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).

A $10,000.00 award for a year's support was not contrary to law and evidence, nor arbitrary and grossly insufficient, since the trial court did not abuse the court's discretion in the manner in which the court applied the statutory year's support determination methods of subsections (b) and (c) of former O.C.G.A. § 53-5-2. Baker v. Baker, 194 Ga. App. 477, 390 S.E.2d 892 (1990) (decided under former O.C.G.A. § 53-5-2).

Time period considered in determining standard of living.

- Court did not err in weighing into the balance the standard of living which the surviving wife was able to maintain during her marriage to the testator before the life-altering, terminal disability which deprived them both of their accustomed lifestyle since: (1) the statute does not limit consideration to the year before the death or any particular time other than "prior to the death of the testator or intestate"; (2) the right to year's support is founded on status, and the surviving wife enjoyed the status of spouse from 1972 to 1996; and (3) the court was not required to blind itself to the fact that the greatly reduced standard of living was occasioned by the very circumstance which rendered the surviving wife urgently needy in the 12 months subsequent to her husband's death. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).

Since there was conflicting evidence as to the value of the widow's separate estate, the value of the property she was awarded as year's support, her needs, and her standard of living prior to her husband's death, the court did not abuse the court's discretion in making the award. McClure v. Mason, 228 Ga. App. 797, 493 S.E.2d 16 (1997) (decided under former O.C.G.A. § 53-5-2).

Jury authorized to increase or decrease appraiser designated year's support.

- When authorized by the pleadings and evidence in a trial de novo, the court should charge that the jury may find that the applicant is entitled to more or less than the appraisers designated as a reasonable year's support for the applicant. Hayes v. Hay, 92 Ga. App. 88, 88 S.E.2d 306 (1955) (decided under former Code 1933, § 113-1002).

On the retrial of a case in the superior court, the return of the appraisers may be changed or modified as to the amount of property set apart. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Jury's duty is to determine from the evidence how much would be a sufficiency from the estate for the widow's support and maintenance for the space of 12 months to be estimated according to the circumstances and standing of the family previous to the death and keeping in view also the solvency of the estate. Carter v. Carter, 139 Ga. App. 548, 228 S.E.2d 708 (1976) (decided under former Code 1933, § 113-1002).

Jury authorized to make general estimate as to value of property.

- Since it is not required that the specific property set aside as a year's support should be of any specific value, but only that it be a sufficiency, either in itself or when taken in connection with money, for the support of the applicants for one year, the jury, in setting aside specific property for a year's support, may, from the general nature and description of the property as it appears from the evidence, without any evidence otherwise as to its value, make a general estimate of the value of the property and determine its sufficiency as respects its value for a year's support. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Valuation of property.

- Verdict which sets aside as a year's support specifically designated property, each item of which is in the verdict specifically valued by the jury, together with a designated sum of money, is not, insofar as it estimates the value of the property set aside in a sum in excess of the estimated value of the same property contained in the return of the appraisers, invalid or without evidence to support it, in the absence of any evidence as to the value of the property. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Court is not required in the court's written order to assign a monetary value to any property awarded. McClure v. Mason, 228 Ga. App. 797, 493 S.E.2d 16 (1997) (decided under former O.C.G.A. § 53-5-2).

Support of the family of a deceased person should be paid out of the general funds of the estate, without regard or reference to the solvency or insolvency of the estate. Matthews v. Manhattan Life Ins. Co., 55 Ga. App. 204, 189 S.E. 858 (1937) (decided under former Code 1933, § 113-1002).

Priority

Year's support is the highest claim against an estate, whether testate or intestate. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

Among the necessary expenses of administration is the provision for the support of the family of the deceased, which can be accomplished only by an application for a year's support and for each year thereafter that the estate is kept together. White v. Wright, 211 Ga. 556, 87 S.E.2d 394 (1955) (decided under former Code 1933, § 113-1002).

Year's support is on the same footing as expenses of administration, and is not subject to the law of distribution of estates or to debts against an estate, or liens against the property, except where it is made so by law. Robson v. Harris, 82 Ga. 153, 7 S.E. 926 (1888) (decided under former Code 1882, § 2571); Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930);(decided under former Civil Code 1910, § 4041).

Year's allowance is upon the footing of expenses of administration; indeed, a part of them. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

A 12 months' support is not a debt, but is an encumbrance higher than a debt. Barron v. Burney, 38 Ga. 264 (1868) (decided under former Code 1863, § 2531); Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 151 S.E. 796 (1930);(decided under former Civil Code 1910, § 4041).

Year's support is one of the necessary expenses of administration and is an encumbrance higher than any debt. Montgomery v. McCants, 49 Ga. App. 324, 175 S.E. 397 (1934) (decided under former Code 1933, § 113-1002).

Vesting of year's support to exclusion of other debts.

- Title to property set apart to a widow and child or children, in pursuance of the law, as a year's support for the family of the decedent, vests in the family to the exclusion of all debts, "except as otherwise specially provided" by law. Bank of Hampton v. Smith, 177 Ga. 532, 170 S.E. 508 (1933) (decided under former Code 1933, § 113-1002).

Allowance of a year's support from property belonging to the husband's estate is to be taken as higher than any debt and is to be regarded as a part of expenses of administration. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942) (decided under former Code 1933, § 113-1002).

Although the law provides that the year's support is to be preferred above "all other debts," the provision for a year's support is not a debt at all, but is an encumbrance higher than any debt. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

Provision for the support of the family of the decedent is classed as one of the necessary expenses of administration, and is made for a class as a whole, and not for the benefit of one or some of that class. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

The year's support takes precedence even of taxes due the state. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).

Claim of a widow for a year's support is superior to legacies given by her husband in his will. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Money set aside as a year's support cannot be subjected to the claim of creditors of the wife, other than those creditors who have provided or furnished the family with support or the necessities of life. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

Property received by the widow as a year's support is exempt from levy for any but debts created for her actual maintenance and support. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Property of a decedent may be sold free from a year's support only under the provisions of Ga. L. 1955, p. 731, § 1 by a sale or conveyance made under court order or under power contained in a will by the representative prior to the setting apart of such year's support. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Year's support superior to judgment for alimony.

- While a judgment for alimony, payable in monthly installments of money, creating a special lien on land may not be classed as an ordinary debt, being more than such a debt, it is a debt within the meaning of the law, providing that a year's support to the family of the deceased shall be "preferred over all other debts." Wainwright v. Morrow, 180 Ga. 120, 178 S.E. 155 (1935) (decided under former Code 1933, § 113-1002).

Priority status of year's support predicated on public policy.

- Year's support set apart to a widow and minor children takes precedence, not only over debts due by the decedent, but even of taxes which are due the state; and this is based upon a sound public policy looking to the protection of widows and children out of the estate of a decedent for the space of 12 months, and until such time as they may provide support for the future. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).

Title of widow subordinate to prior lien.

- When the decedent husband, under a foreclosure of his security deed, acquired title to the property subsequently set apart to his widow as a year's support, after the lien of a paving assessment had attached thereto, her title was subordinate to such lien of the city, and the court did not err in so holding. Paulk v. City of Ocilla, 188 Ga. 69, 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1002).

Year's support is superior to liens created by the decedent, or liens arising by operation of law during the decedent's ownership, except for purchase money. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).

While it is true that, except as to conveyances of title to secure debt, a year's support is superior to liens created by a decedent, or liens arising by operation of law during decedent's ownership, and the widow thus takes the interest of the decedent stripped of all such inferior claims, the title of the widow to the property set apart as a year's support is not superior to liens which had already adhered against the property before the decedent husband acquired the property. Paulk v. City of Ocilla, 188 Ga. 69, 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1002).

While a lien arising by operation of law after one's death could hardly be a "debt" within the purview of former Code 1933, § 113-1002, it may be a "claim against the estate" within the meaning of former Code 1933, § 113-1508. Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1002).

Management and Control

Widow, as the head of the family, is vested with the exclusive right to manage and control the property for the joint benefit of herself and minor children, and, after the marriage or majority of the children, for the benefit of herself alone for life, including the power to sell the entire interest in the property for such purpose. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976);(decided under former Code 1933, § 113-1002).

If necessary, the property awarded to a widow and minor child may be consumed or exhausted, and so long as it lasts it will be subject to exclusive use by the widow during her life, after the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1002).

When realty is set aside as a year's support to a widow and three minor children, and all the minors have since attained their majority, the title is vested in them jointly, subject to the right of the widow to sell the entire interest for her maintenance and support. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002).

When a year's support was set aside to the widow and three minor children jointly, the title thereto vested in them for their joint support and maintenance, and the other children had no interest therein. When the minor children married or attained their majority, the right of support and maintenance from the property set aside as a year's support belonged to the widow alone as long as she lives or the property lasted, and she was entitled to the property's use and control. She could sell the property for her maintenance and support. The children who have attained their majority have no right to participate in the property's consumption or its control. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002).

Once the children attain their majority, title remains vested in them jointly, subject to the right of the widow to sell all or part of the property for her maintenance and support. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Widow may maintain suit to control property.

- Although property set aside as a year's support may have been set aside to the widow and minor children, the widow nevertheless has the right to control the property, and can, in her own name, maintain a suit in trover for the property's conversion. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1002).

Power of widow to encumber property restricted.

- Although the Georgia cases have held that when there is a widow and no minor children, complete title vests in the widow, the cases nevertheless restrict her power to encumber her year's support unless for actual need for her maintenance. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Widow as quasi-trustee of minor children.

- Under the right of the widow to dispose of property set apart for the support of herself and her minor children under her care, even without an order of court, she acts as the quasi-trustee of the minor children, who with herself are entitled to all of the support. She may thus not only lawfully sell, but lawfully execute a mortgage or security deed conveying the property to obtain funds for such support, or for the purpose of building or repairing a dwelling for herself and such children. Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939) (decided under former Code 1933, § 113-1002).

Award to widow and minor children made in gross.

- When an application for a year's support is made by a widow for herself and her minor child, the law contemplates that an award shall be made to such widow and minor child in gross, and not that awards shall be made to them separately; so that, although the legal title will vest in them share and share alike, the use of the entire property shall be a joint one for the support of both the mother and the child, and of neither to the exclusion of the other, so long as the widow lives and until the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1002).

When property is set aside in gross, the widow and minor children become owners in common, and share equally in the title. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

Georgia law without doubt permits, and in some cases requires, separate portions of the estate to be set aside as a year's support to the widow and children of the deceased. Gale v. Stewart, 105 Ga. App. 767, 125 S.E.2d 694 (1962) (decided under former Code 1933, § 113-1002).

Child is not divested of the child's interest upon reaching majority while the widow is alive or while any of the child's siblings are still minors, even though the child is not entitled to the control or possession of the property or to any support therefrom. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Use and possession of a sui juris child's undivided interest is merely postponed to the child until the death of the widow and the reaching of age of majority of all the children. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

When all of the beneficiaries of a year's support cease to exist as such,

- any of the property set aside which may be unconsumed belongs to them or their heirs in common. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

Testamentary disposition by widow of children's share prohibited.

- While the widow is entitled, after the child or children reach majority, to the possession of the entire property for her support and maintenance, and has the right to sell the property for such purpose, this does not include the power to give the children's share of the property to another by will. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 53-5-2 are included in the annotations for this Code section.

Payment of tax liability prior to award of year's support.

- Award of year's support cannot divest a tax lien which has already been paid in full and satisfied prior to the award. 1985 Op. Att'y Gen. No. U85-45 (decided under former O.C.G.A. § 53-5-2).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 662, 677 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 430 et seq.

ALR.

- Right of nonresident to widow's or child's allowance out of estate of one who was domiciled in state, 26 A.L.R. 132.

Bank deposit to credit of decedent or other indebtedness to him as subject to widow's or family allowance or other estate exemption, as affected by right of bank to apply deposit, or of other debtor to assert counterclaim or setoff, 108 A.L.R. 773.

Family allowance granted widow as payable from community interests of decedent and widow, 9 A.L.R.2d 529.

Effect of extrajudicial separation on surviving spouse's right to widow's allowance, 34 A.L.R.2d 1056.

Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.

Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent, 51 A.L.R.2d 1026.

Who is included in term "family" or "household" in statutes relating to family allowance or exemption out of decedent's estate, 88 A.L.R.2d 890.

Effect of testamentary gift on widow's right to fixed statutory allowance or allowance for support, 97 A.L.R.2d 1319.

Statutory family allowance to minor children as affected by previous agreement or judgment for their support, 6 A.L.R.3d 1387.

Waiver of right to widow's allowance by postnuptial agreement, 9 A.L.R.3d 955.

Eligibility of illegitimate child to receive family allowance out of estate of his deceased father, 12 A.L.R.3d 1140.

Right to partial distribution of estate or distribution of particular assets, prior to final closing, 18 A.L.R.3d 1173.

Family allowance from decedent's estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.

Waiver of right to widow's allowance by antenuptial agreement, 30 A.L.R.3d 858.

Validity of inter vivos trust established by one spouse which impairs the other spouse's distributive share or other statutory rights in property, 39 A.L.R.3d 14.

Extension of time within which spouse may elect to accept or renounce will, 59 A.L.R.3d 767.

53-3-2. Events barring right to support.

  1. A surviving spouse's right to year's support shall be barred by the marriage or death of the spouse prior to the filing of the petition for year's support.
  2. A minor child's right to year's support shall be barred by the marriage or death of the minor or by the minor's attaining the age of 18 years prior to the filing of the petition for year's support.

(Code 1981, §53-3-2, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

Subsection (a) carries forward the rule that appeared in former OCGA Sec. 53-5-2(d). Subsection (b) carries forward former OCGA Sec. 53-5-3.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1002, Ga. L. 1958, p. 378, § 1, and former O.C.G.A. § 53-5-2 are included in the annotations for this Code section.

Annulment of subsequent remarriage.

- When wife died in 1982, husband remarried in 1984, husband petitioned for a year's support from estate of deceased former wife's estate, and then husband obtained decree of annulment of second marriage, the trial court erred in excluding from evidence the marriage certificate and the proffered testimony concerning the nature of the actual relationship between petitioner for a year's support and the second woman, since given the financial benefits which petitioner and the woman stood to achieve after the caveat was filed by having their marriage annulled, a manifest injustice could result if caveators were not permitted to go behind the annulment decree in an attempt to prove that the couple had in fact cohabitated as man and wife both before and after the entry of the annulment decree. Hamrick v. Bonner, 182 Ga. App. 76, 354 S.E.2d 687 (1987) (decided under former O.C.G.A. § 53-5-2).

Married daughter not entitled to year's support.

- Minor daughter, married at the time of her father's death, and not a member of his household, but living with and supported by her husband, is not entitled to a year's support out of her deceased parent's estate. Having no right to any benefit obtained by the mother, plaintiff was not represented by her or bound by her acts. Therefore, while the other children of the decedent father were so bound, she was not estopped or precluded from attacking the validity of the proceedings. Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939) (decided under former Code 1933, § 113-1002).

Repudiating judgments.

- When a widow applied for and was awarded a year's support for herself and her son from the probate court, she could not afterwards repudiate judgments which she secured for their own benefit. Sheffield v. Estate of Sheffield, 172 Ga. App. 469, 323 S.E.2d 679 (1984) (decided under former O.C.G.A. § 53-5-2).

Cited in Collins v. Collins, 224 Ga. 671, 164 S.E.2d 139 (1968).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1958, p. 378, § 1 are included in the annotations for this Code section.

Minor's right to year's support barred.

- A "year's support" is barred by a minor's attaining the age of 18 years prior to the filing of the application for a "year's support." 1975 Op. Att'y Gen. No. U75-95 (decided under Ga. L. 1958, p. 378, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, § 686 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 452, 465.

ALR.

- Widow's or family allowance out of decedent's estate as surviving death or marriage of widow or minor children, or attainment of majority by children, 144 A.L.R. 270.

Who is included in term "family" or "household" in statutes relating to family allowance or exemption out of decedent's estate, 88 A.L.R.2d 890.

53-3-3. Provision in will in lieu of support; election.

A testator by will may make provision for the spouse in lieu of year's support, in which case the surviving spouse must make an election.

(Code 1981, §53-3-3, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-5.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4045, former Code 1933, §§ 113-1002 and 113-1007, and former O.C.G.A. §§ 53-5-2 and53-5-5 are included in the annotations for this Code section.

Testamentary provision in lieu of year's support must be clearly expressed.

- In case of testacy, in order to put the widow to an election between the provisions made in her favor in the will and her right to a year's support, such testamentary provision in her favor must be either expressly made in lieu of a year's support, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of year's support would be inconsistent with the will or so repugnant to its provisions as necessarily to defeat them. Chambliss v. Bolton, 146 Ga. 734, 92 S.E. 204 (1917) (decided under former Civil Code 1910, § 4045); Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940); Bowen v. Bowen, 200 Ga. 572, 37 S.E.2d 797 (1946) (decided under former Code 1933, § 113-1007); Samples v. Samples, 107 Ga. App. 788, 131 S.E.2d 584 (1963); Studstill v. Studstill, 130 Ga. App. 803, 204 S.E.2d 496 (1974) (decided under former Code 1933, § 113-1007); Young v. Ellis, 250 Ga. 838, 301 S.E.2d 271 (1983);(decided under former Code 1933, § 113-1007);(decided under former Code 1933, § 113-1007);(decided under former O.C.G.A. § 53-5-5).

Widow's claim for a year's support is not barred by accepting provisions made for her in her husband's will when the will does not show a plain and manifest intention on the part of the testator that the provisions made for the wife should be in lieu of a year's support, although the will provides that the executors conduct certain farming operations and pay the profits thereof to the wife, and that his property be kept "intact" and none of the lands be sold unless absolutely necessary. Burch v. Harrell, 57 Ga. App. 514, 196 S.E. 205 (1938) (decided under former Code 1933, § 113-1007).

When husband's will provides that all of the property of the testator is devised to the widow and the daughter for life, with remainder over to other children of the testator, and that the property of the testator be kept intact as long as either the widow or daughter should live, the wife's claim for a year's support is inconsistent with and repugnant to the will and necessarily defeats the provisions of the will, in that the allowance of a year's support to the widow will defeat the testamentary scheme of the testator, which was to provide for his wife and daughter and to keep his estate intact so long as either of them should live. Therefore the widow may elect whether she will take a life estate under the will or a year's support. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1007).

When by the will the widow is devised a life estate in all of the testator's property, in order to put her to an election between the provisions of the will in her favor and her right to a year's support, such provisions in the will must be either expressly made in lieu of a year's support, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of year's support would be inconsistent with the will or so repugnant to the will's provisions as necessarily to defeat the provisions. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1007).

When the will does not expressly require an election by the widow and there is no conflict of facts requiring submission to a jury, the trial court has the duty as a matter of law to determine if the will can be read to give the "clear and manifest implication" necessary to require an election of the widow. Studstill v. Studstill, 130 Ga. App. 803, 204 S.E.2d 496 (1974) (decided under former Code 1933, § 113-1007).

Will which did not provide that the devise of income from real property to the widow was in lieu of a year's support, as might have been done under the statute, does not preclude the widow's right to claim a year's support. Strickland v. Miles, 131 Ga. App. 300, 205 S.E.2d 880 (1974) (decided under former Code 1933, § 113-1007).

When the will devised to the widow a life estate in the marital home, and directed payment by the estate of taxes, insurance, and certain maintenance expenses on the family home, and it contained a further provision relative to income to the widow during her lifetime, inasmuch as the unquestioned desire of the testator was to provide certain basic needs to the wife during her lifetime, there was no manifest implication of the will that would require the widow to elect between a year's support and the benefits of the will. Young v. Ellis, 250 Ga. 838, 301 S.E.2d 271 (1983) (decided under former O.C.G.A. § 53-5-5).

Acceptance of testamentary provision as renunciation of right to year's support.

- Even though the will of a decedent provides that his widow shall take under the will only if she renounces her right to a year's support, she must do some act which shows her acceptance of that provision in lieu of a year's support. Walraven v. Walraven, 76 Ga. App. 713, 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1007).

When after will was probated, widow was entitled, under the will's terms, to receive, use and consume as her own what she testified she had received, this would not bar her right to a year's support or require her to account therefor in having year's support set apart. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1007).

Withdrawal of funds by a widow from a joint checking account with her deceased husband, after his death, is not tantamount to an election to take under the will of her deceased husband, particularly when there was evidence of excessive medical expenses of the widow following her husband's death. Howard v. Howard, 150 Ga. App. 213, 257 S.E.2d 336 (1979) (decided under former Code 1933, § 113-1007).

Estoppel.

- When a widow claims the legacy in lieu of a year's support made under the will and at the same time makes application to the ordinary (now probate judge) for a year's support, any interested person may file a caveat to the return of the appraisers, and may set up as a bar to the allowance of year's support an inconsistent election on the part of the widow, whereby under the provisions of the will she has estopped herself from such an allowance. Bowen v. Bowen, 200 Ga. 572, 37 S.E.2d 797 (1946) (decided under former Code 1933, § 113-1007).

Question of fact.

- Summary judgment was not proper when a question of fact remained as to whether the funds received by the surviving spouse passed to her outside the estate and did not constitute an election to take under the will and if she was therefore entitled to the statutory year's support. Wynn v. Wynn, 202 Ga. App. 679, 415 S.E.2d 287 (1992) (decided under former O.C.G.A. § 53-5-5).

Trial court erred in granting summary judgment against a widow where she testified that she was unaware of her year's support rights at the time of her election to take two real-property bequests under the will and the executor presented no evidence that she knew the condition of the estate at that time. Brown v. Estate of Brown, 246 Ga. App. 332, 539 S.E.2d 824 (2000) (decided under former O.C.G.A. § 53-5-5).

Grant of life estate to widow under will does not preclude award of year's support. Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982) (decided under former O.C.G.A. § 53-5-2).

Testamentary gift in addition to a year's support.

- Widow's claim for a year's support is not barred by accepting provisions made for her in her husband's will when the will does not show a plain and manifest intention on the part of the testator that the provisions made for the wife should be in lieu of a year's support, although the will provides that the executors conduct certain farming operations and pay the profits thereof to the wife, and that his property be kept "intact" and none of the lands be sold unless absolutely necessary. Burch v. Harrell, 57 Ga. App. 514, 196 S.E. 205 (1938) (decided under former Code 1933, § 113-1002).

Life estate in widow.

- When under a will the widow is given a life estate in all of the property, it is correct and proper for the appraisers to carve her year's support allowance out of the remainder interest, when that is the only interest, other than the life estate, created by the will. Saxon v. Aycock, 72 Ga. App. 728, 34 S.E.2d 914 (1945) (decided under former Code 1933, § 113-1002).

Widow is entitled to a 12 months' support out of the estate of her deceased husband, notwithstanding the fact that he left to her by will, which was probated over her caveat thereto, a life estate in all of his property real and personal. Russell v. Hall, 245 Ga. 677, 266 S.E.2d 491 (1980) (decided under former Code 1933, § 113-1002).

Will provisions in lieu of year's support.

- Testator can make provisions in the testator's will for the benefit of his widow and in lieu of a year's support, and when this is done the widow must elect as between the provisions of the will for her benefit and her right to a year's support. Saxon v. Aycock, 72 Ga. App. 728, 34 S.E.2d 914 (1945) (decided under former Code 1933, § 113-1002).

When husband's will provides that all of the property of the testator is devised to the widow and the daughter for life, with remainder over to other children of the testator, and that the property of the testator be kept intact as long as either the widow or daughter should live, the wife's claim for a year's support is inconsistent with and repugnant to the will and necessarily defeats the provisions of the will, in that the allowance of a year's support to the widow will defeat the testamentary scheme of the testator, which was to provide for his wife and daughter and to keep his estate intact so long as either of them should live. Therefore, the widow may elect whether she will take a life estate under the will or a year's support. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1002).

Waiver by electing to take inconsistent benefit.

- When a husband as the head of a family has a homestead set apart for himself and wife, and the widow after his death continues upon the property constituting the homestead for a great number of years, enjoying during that period the rents, issues, and profits of the homestead, she will not be allowed, after the expiration of such a time, to take a year's support out of the homestead property, but will be conclusively presumed to have made an election in favor of the enjoyment of the homestead as such, and against the right to have a year's support set apart to her. McDaniel v. Kelley, 61 Ga. App. 105, 5 S.E.2d 672 (1939) (decided under former Code 1933, § 113-1002).

In case of testacy, in order to put the widow to an election between the provisions made in her favor in the will and her right to a year's support under the statute, such testamentary provision in her favor must be either expressly made in lieu of year's support, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of year's support would be inconsistent with the will or so repugnant to its provisions as necessarily to defeat them. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002); Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940);(decided under former Code 1933, § 113-1002).

Widow may waive her statutory right to a year's support by her election to take an inconsistent benefit. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

Cited in McNair v. Robun, 159 Ga. 401, 126 S.E. 9 (1924); Smalley v. Bassford, 191 Ga. 642, 13 S.E.2d 662 (1941); Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943); Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947); Strother v. Kennedy, 218 Ga. 180, 127 S.E.2d 19 (1962); Russell v. Hall, 245 Ga. 677, 266 S.E.2d 491 (1980); Hiers v. Estate of Hiers, 278 Ga. App. 242, 628 S.E.2d 653 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, § 1416.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 342.

ALR.

- Right of one who elects against will to share in lapsed legacy, 26 A.L.R. 91.

Does surviving spouse who elects against will take by way of distributive share or by way of inheritance from deceased spouse, 160 A.L.R. 429.

Election by spouse to take under or against will as exercisable by agent or personal representative, 83 A.L.R.2d 1077.

Waiver of right to widow's allowance by postnuptial agreement, 9 A.L.R.3d 955.

Extension of time within which spouse may elect to accept or renounce will, 59 A.L.R.3d 767.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another, 69 A.L.R.3d 1081.

Liability for administration expenses of spouse electing against will, 89 A.L.R.3d 315.

Construction, application, and effect of statutes which deny or qualify surviving spouse's right to elect against deceased spouse's will, 48 A.L.R.4th 972.

53-3-4. "Homestead" defined; taxes and tax liens.

  1. As used in this Code section, the term "homestead" shall have the same meaning as set forth in Code Section 48-5-40.
    1. In solvent and insolvent estates, all taxes and liens for taxes accrued for years prior to the year of the decedent's death against the homestead set apart and against any equity of redemption applicable to the homestead set apart shall be divested as if the entire title were included in the year's support. Additionally, as elected in the petition, property taxes accrued in the year of the decedent's death or in the year in which the petition for year's support is filed or, if the petition is filed in the year of the decedent's death, in the year following the filing of the petition shall be divested if the homestead is set apart for year's support.
    2. In solvent and insolvent estates, if the homestead is not claimed, all taxes and liens for taxes accrued for years prior to the year of the decedent's death against the real property set apart and against any equity of redemption applicable to the real property set apart shall be divested as if the entire title were included in the year's support. Additionally, as elected in the petition, property taxes accrued in the year of the decedent's death or in the year in which the petition for year's support is filed or, if the petition is filed in the year of the decedent's death, in the year following the filing of the petition shall be divested if the real property is set apart for year's support.

(Code 1981, §53-3-4, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 12; Ga. L. 2016, p. 349, § 1/HB 547.)

The 2016 amendment, effective July 1, 2016, added subsection (a); designated the previously existing provisions as paragraph (b)(1), and, in paragraph (b)(1), substituted "homestead" for "real property" throughout; and added paragraph (b)(2).

Law reviews.

- For annual survey of wills, trusts, guardianships, and fiduciary administration, see 68 Mercer L. Rev. 321 (2016).

COMMENT

This section replaces the provision that appeared in former 53-5-2(b) relating to the divesting of taxes. This section provides that taxes and liens that accrued in the years before the year the decedent died shall be divested. Additionally, the petitioner may elect to have divested property taxes from either the year the decedent died or the year the petition is filed. If the petition is filed the year the decedent died, then the petitioner may elect between that year or the year following the filing of the petition.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1002, are included in the annotations for this Code section.

Married daughter not entitled to year's support.

- Minor daughter, married at the time of her father's death, and not a member of his household, but living with and supported by her husband, is not entitled to a year's support out of her deceased parent's estate. Having no right to any benefit obtained by the mother, plaintiff was not represented by her or bound by her acts. Therefore, while the other children of the decedent father were so bound, she was not estopped or precluded from attacking the validity of the proceedings. Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939) (decided under former Code 1933, § 113-1002).

Paramount right of United States to collect taxes.

- Even though Georgia law exempts property set aside as year's support from levy in favor of general creditors, this exemption would not be valid as against the right of the United States to collect an assessment for income taxes. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

53-3-5. Filing of petition.

  1. Upon the death of any individual leaving an estate solvent or insolvent, the surviving spouse or a guardian or other person acting in behalf of the surviving spouse or in behalf of a minor child may file a petition for year's support in the probate court having jurisdiction over the decedent's estate. If the petition is brought by a guardian acting on behalf of a minor child, no additional guardian ad litem shall be appointed for such minor child unless ordered by the court.
  2. The petition shall set forth, as applicable, the full name of the surviving spouse, the full name and birthdate of each surviving minor child and a schedule of the property, including household furniture, which the petitioner proposes to have set aside. The petition shall fully and accurately describe any real property the petitioner proposes to have set aside with a legal description sufficient under the laws of this state to pass title to the real property.
  3. A petition for year's support shall be filed within 24 months of the date of death of the decedent.

(Code 1981, §53-3-5, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 13.)

Law reviews.

- For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 65 Mercer L. Rev. 295 (2013).

COMMENT

This section contains provisions from former O.C.G.A. Secs. 53-5-2 and 53-5-6. The time period for applying for year's support is shortened to the 24-month period following the decedent's death. The entitlement to year's support in subsequent years, which appeared in former O.C.G.A. Sec. 53-5-4, is repealed.

JUDICIAL DECISIONS

General Consideration

Cited in Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2530, former Code 1933, § 113-1002, and former O.C.G.A. § 53-5-2 are included in the annotations for this Code section.

No one can become a beneficiary merely because he or she happens to be an heir at law of the deceased. Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931) (decided under former Civil Code 1910, § 4041).

Application Generally

1. In General

An application for a year's support is a suit in a court to recover a right. Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711, answer conformed to, 69 Ga. App. 667, 26 S.E.2d 722 (1943) (decided under former Code 1933, § 113-1002).

It is immaterial who makes the application required by statute for the 12 months' support for the family of the deceased, so that the representative of the deceased's estate has notice; therefore, such an application by the temporary administrator and the action of the ordinary (now probate judge) thereon is not void as against creditors. Mackie, Beattie & Co. v. Glendenning, 49 Ga. 367 (1873) (decided under former Code 1868, § 2530).

Widow who acts as executor may apply for year's support. Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982) (decided under former O.C.G.A. § 53-5-2).

For whom the widow may act.

- In making the application for year's support the widow may act for herself and the minor children. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002).

Repudiating judgments.

- When widow applied for and was awarded a year's support for herself and her son from the probate court, she could not afterwards repudiate judgments which she secured for their own benefit. Sheffield v. Estate of Sheffield, 172 Ga. App. 469, 323 S.E.2d 679 (1984) (decided under former O.C.G.A. § 53-5-2).

Denial of spouse's petition for year's support improper.

- Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

2. Qualification of Minor Children for Beneficial Interest

Minor children must be named or described in application.

- In order for minor children to take an interest in property set apart as a year's support, it should in some manner appear in the application that it is made in their behalf; and when it affirmatively appears that the application was made by the widow, and that minor children were not referred to therein by name or otherwise, they take no interest in the property set apart. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Gale v. Stewart, 105 Ga. App. 767, 125 S.E.2d 694 (1964);(decided under former Code 1933, § 113-1002).

Names or number of children need not appear in application for year's support.

- In order for minor children to take an interest in the property set apart for year's support it is not necessary that their names appear in application therefore, nor does the fact that the number of the children was not set out affect their rights. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002).

When one who is not mentioned in a year's support, either by name or description, that one can take no beneficial interest thereunder; however, it is not necessary that the names or number of the minor children appear in the proceeding for them to take an interest in the property set apart. Thus, the minor children take a beneficial interest in property set apart under a year's support proceeding in which a named "widow, and . . . minor children" are designated in various portions of the proceeding. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

Year's support to minor child.

- When plaintiff takes no beneficial interest in the property set aside to the widow, plaintiff is not barred, on account of the allowance to the widow, from obtaining a year's support as a minor child of the deceased. Gale v. Stewart, 105 Ga. App. 767, 125 S.E.2d 694 (1962) (decided under former Code 1933, § 113-1002).

3. Independent Application by Excluded Persons

Person excluded from application for year's support may initiate independent proceeding.

- When one person files an application for year's support, another person who is not mentioned in the application can take no beneficial interest in the result of the proceeding. In such a situation, an independent proceeding for year's support would be proper by the one excluded. Collins v. Collins, 110 Ga. App. 569, 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 332, 333.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 452, 453, 471, 472, 477.

ALR.

- Who is included in term "family" or "household" in statutes relating to family allowance or exemption out of decedent's estate, 88 A.L.R.2d 890.

53-3-6. Issuance of citation and publication of notice; mailing of petition to tax commissioner.

  1. As used in this Code section, the term "interested person" means the decedent's children, spouse, other heirs, beneficiaries, creditors, and any others having a property right in or claim against the estate of the decedent which may be affected by the year's support proceedings.
  2. Upon the filing of the petition, the probate court shall issue a citation and publish a notice once a week for four weeks, citing all persons concerned to show cause by a day certain why the petition for year's support should not be granted.
    1. If there is a personal representative of the decedent's estate, then, in addition to the citation and notice required by subsection (b) of this Code section, the probate court shall cause a copy of the citation to be sent by mail to the personal representative of the decedent's estate. The copy of the citation shall be mailed not less than 21 days prior to the date and time shown in the citation.
    2. If there is no personal representative of the decedent's estate, then, in addition to the citation and notice required by subsection (b) of this Code section, the petitioner or the attorney for the petitioner shall file with the probate court an affidavit, upon oath, showing the name, last known address, and age if less than age 18 of each interested person and stating that the petitioner or the attorney for the petitioner has listed all known interested persons and has made reasonable inquiry to ascertain the names, last known addresses, and ages of all interested persons. The probate court shall mail a copy of the citation to each interested person shown on the affidavit not less than 21 days prior to the date and time shown in the citation.
    3. If the sole personal representative of the decedent's estate and the petitioner or the guardian of the petitioner are the same person, then paragraph (2) of this subsection shall govern as if the decedent's estate had no personal representative.
  3. The probate court shall mail a copy of the petition within five days of its filing to the tax commissioner or tax collector of any county in this state in which real property proposed to be set apart is located.

(Code 1981, §53-3-6, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 14.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, the second enacted version of subsection (c) was redesignated as subsection (d).

Law reviews.

- For article discussing decisions involving the year's support provision of the Georgia Code, see 3 Ga. St. B.J. 427 (1967). For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982).

COMMENT

This section carries forward the provisions of former OCGA Sec. 53-5-8 that relate to the filing of the petition, the mailing of a copy of the petition to the tax commissioner, and the notice given to the personal representative of the estate and interested persons. Provisions relating to the actual award of year's support appear in Section 53-3-7.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 2573, former Civil Code 1895, § 3467, former Civil Code 1910, § 4043, former Code 1933, §§ 113-1005, 113-1005.1, 113-1005.2, and 113-1005.3, and former O.C.G.A. § 53-5-9 are included in the annotations for this Code section.

Year's support.

- In a probate matter, a trial court erred by dismissing an executor's objection to the setting aside of certain real property as a year's support in favor of an estate as the executor had filed an objection within 15 days of the default order amending the year's support order, pursuant to O.C.G.A. § 9-11-55(a), and by paying costs. The provisions of § 9-11-55(a) relating to the opening of default judgments as a matter of right within 15 days of default applied to a year's support proceedings in probate court. In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).

Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

Due process requirements satisfied.

- After the executor of a decedent's will was given notice of a widow's application for year's support, due process requirements were satisfied. Ingram v. Ruff, 236 Ga. App. 309, 511 S.E.2d 549 (1999).

Absence of signatures.

- Conformed copy of a lost will was properly admitted into evidence, notwithstanding that the copy did not bear signatures of either the testator or the witnesses, especially as the attorney who prepared and witnessed the will testified that the copy was the same as the executed original. Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111 (1998).

Evidence held sufficient to rebut presumption of revocation.

- Presumption of revocation was properly found to have been rebutted since (1) the attorney who prepared the will kept in touch with the testator until shortly before the testator's death, and the testator never mentioned changing or revoking the testator's will, and (2) just a month before the testator's death, the testator affirmed to the testator's daughter that the testator wished certain property to be disposed of as stated in the will and never indicated any desire to revoke or change the testator's will. Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111 (1998).

Return by appraisers required within 30 days of appointment.

- Provision as to time within which appraisers may make their return is directory; and if they should fail to make their return within the statutory period, the ordinary (now probate judge) could compel them to act, or appoint new appraisers. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

After the ordinary (now probate judge) receives a belated return and cites interested parties, by publication as prescribed by law, to show cause why the return should not be approved and made the judgment of the court, and such return is duly approved, it is too late for a creditor to object that the return was not made within 30 days of the appointment of the appraisers. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

Widow's right to a year's support is not affected by the appraisers' dereliction of duty for which she is not responsible. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

Incomplete listing of interested persons.

- Widow's application for a year's support was not void merely because the list of interested persons may have been incomplete. Scott v. Grant, 227 Ga. App. 1, 487 S.E.2d 627 (1997) (decided under former O.C.G.A. § 53-5-8).

Service of notice of action.

- Filing an application for year's support without proper service does not toll the three-year limitation period of former O.C.G.A.53-5-2(d) for year's support proceedings. In re Estate of Reece, 243 Ga. App. 173, 532 S.E.2d 726 (2000) (decided under former O.C.G.A. § 53-5-8).

Cited in Mathews v. Rountree, 123 Ga. 327, 51 S.E. 423 (1905); Foster v. Turnbull, 126 Ga. 654, 55 S.E. 925 (1906); Winn v. Lunsford, 130 Ga. 436, 61 S.E. 9 (1908); Young v. Anderson, 19 Ga. App. 551, 91 S.E. 900 (1917); Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932); Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932); Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Sanders v. Fulton County, 111 Ga. App. 434, 142 S.E.2d 293 (1965); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976); Sudderth v. Bailey, 239 Ga. 385, 236 S.E.2d 823 (1977); Richards v. Wadsworth, 230 Ga. App. 421, 496 S.E.2d 535 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 488 et seq., 717.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 472.

ALR.

- Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.

53-3-7. Hearing and determination.

  1. If no objection is made after the publication of the notice, or, if made, is disallowed or withdrawn, the probate court shall enter an order setting aside as year's support the property applied for in the petition.
  2. If objection is made, the probate court shall hear the petition and, upon the evidence submitted, shall determine the property to be set aside according to the standards set out in subsection (c) of this Code section. If an appeal is taken, pending the appeal the petitioners shall be furnished with necessaries by the personal representative of the estate, as allowed by the probate court.
  3. If objection is made to the amount or nature of the property proposed to be set aside as year's support, the court shall set apart an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent, taking into consideration the following:
    1. The support available to the individual for whom the property is to be set apart from sources other than year's support, including but not limited to the principal of any separate estate and the income and earning capacity of that individual;
    2. The solvency of the estate; and
    3. Such other relevant criteria as the court deems equitable and proper.

      The petitioner for year's support shall have the burden of proof in showing the amount necessary for year's support.

(Code 1981, §53-3-7, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article discussing decisions involving the year's support provision of the Georgia Code, see 3 Ga. St. B.J. 427 (1967). For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

COMMENT

This section carries forward and combines provisions from former OCGA Sec. 53-5-2(c) and 53-5-8(b).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 2573, former Civil Code 1895, § 3467, former Civil Code 1910, § 4043, former Code 1933, §§ 113-1005, 113-1005.1, 113-1005.2, and 113-1005.3, and former O.C.G.A. § 53-5-9 are included in the annotations for this Code section.

Excessive award.

- Award of title to the entire marital residence as year's support exceeded the amount necessary to support the surviving spouse for 12 months from the decedent's death; the surviving spouse's contributions during marriage did not entitle the surviving spouse to support based on an equitable interest in the marital residence. Hunter v. Hunter, 256 Ga. App. 898, 569 S.E.2d 919 (2002).

Award of year's support to spouse upheld.

- When co-executors claimed that the probate court erred by failing to consider the value of the room and board the decedent's spouse received in lieu of wages from the spouse's own employer and that it improperly assumed that the spouse alone would need an amount of money equal to the amount the spouse and the decedent together had spent on living expenses in the last year of decedent's life but the co-executors failed to include in the record on appeal the transcript of the hearing on the decedent's spouse's petition for a year's support, there was no basis in the record for the court to reverse under O.C.G.A. § 53-3-7(c) an award to the spouse. In re Estate of Battle, 263 Ga. App. 73, 587 S.E.2d 140 (2003).

Award of year's support improper.

- Undisputed evidence demanded that in light of the decedent's spouse's resources, the spouse's application for a year's support had to be denied and a directed verdict had to be granted against the spouse and in favor of the decedent's children; the evidence showed that during the 12 months following decedent's death, the spouse received $126,000 in cash from the decedent's assets outside of probate and received $22,019 in income for a total of $148,019. Allgood v. Allgood, 263 Ga. App. 177, 587 S.E.2d 377 (2003).

Superior court's order reversing a year's support award in the amount of $30,000, along with title to a vehicle and antique furniture, and instead enforcing an oral agreement for an equal division of the assets of the estate after payment of all expenses was proper as: (1) the wife failed to testify as to the amount of money needed to maintain the standard of living for a period of 12 months after the decedent husband died; (2) the wife presented no evidence of any income earned during the marriage; (3) no evidence documenting the wife's medical expenses incurred during the marriage was presented; and (4) the wife's testimony about the decline in the standard of living was relevant under O.C.G.A. § 53-3-7(c)(3), but provided little guidance to the court. Taylor v. Taylor, 288 Ga. App. 334, 654 S.E.2d 146 (2007), cert. denied, 2008 Ga. LEXIS 322 (Ga. 2008).

Because it appeared from the testimony that a widow's standard of living was improved after receiving an award of year's support after the decedent's death, and that the widow had the resources independent of the year's support to afford those improvements, the award was erroneously entered; thus, the trial court erred in denying a motion for involuntary dismissal filed by the decedent's only child. Anderson v. Westmoreland, 286 Ga. App. 561, 649 S.E.2d 820 (2007), cert. denied, 2007 Ga. LEXIS 676 (Ga. 2007).

Denial of spouse's petition for year's support improper.

- Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

Superior court erred in setting aside the year's support award for failure to provide evidence of the amount sufficient to constitute a year's support because the only issue properly before the superior court on appeal from the probate court under O.C.G.A. § 5-3-29 was whether or not an objection had been made to the petitioner's petition for year's support, and because the superior court found that no objection had been made to the petition for year's support, the court erred in placing the burden of proof to show the amount sufficient for year's support upon the petitioner as the language of O.C.G.A. § 53-3-7(c) indicated that the petitioner shouldered that burden of proof only once an objection had been made. Garren v. Garren, 316 Ga. App. 646, 730 S.E.2d 123 (2012).

Cited in Mathews v. Rountree, 123 Ga. 327, 51 S.E. 423 (1905); Foster v. Turnbull, 126 Ga. 654, 55 S.E. 925 (1906); Winn v. Lunsford, 130 Ga. 436, 61 S.E. 9 (1908); Young v. Anderson, 19 Ga. App. 551, 91 S.E. 900 (1917); Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932); Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932); Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Sanders v. Fulton County, 111 Ga. App. 434, 142 S.E.2d 293 (1965); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976); Sudderth v. Bailey, 239 Ga. 385, 236 S.E.2d 823 (1977); Richards v. Wadsworth, 230 Ga. App. 421, 496 S.E.2d 535 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 488 et seq., 717.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 472.

ALR.

- Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.

53-3-8. Minor children by different spouses.

  1. If the decedent leaves minor children by different spouses, the probate court shall specify the portion going to the children of the former spouse or spouses, which portion shall vest in those children.
  2. If the decedent leaves minor children and the surviving spouse is the parent of the minor children, the probate court may in its discretion specify separate portions for the minor children and the surviving spouse if the court deems the award of separate portions to be in the best interests of the parties, and the portions shall vest separately in the surviving spouse and the children.

(Code 1981, §53-3-8, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 6.)

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

This section carries forward former OCGA Sec. 53-5-9.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1108, and former O.C.G.A. § 53-5-9 are included in the annotations for this Code section.

Language of this statute is mandatory when the statute declares that, when there are two sets of minor children by different wives, the appraisers shall specify the portion going to the children of the deceased wife for the support and maintenance of such minors. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Code 1933, § 113-1008).

Georgia law without doubt permits, and in some cases requires, separate portions of the estate to be set aside as year's support to the widow and to children of the deceased. Gale v. Stewart, 105 Ga. App. 767, 125 S.E.2d 694 (1962) (decided under former Code 1933, § 113-1002).

Cited in McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946); State Farm Mut. Auto. Ins. Co. v. Day, 195 Ga. App. 823, 394 S.E.2d 913 (1990).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 686 et seq., 717.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 452, 472.

53-3-9. Vesting of title to property set apart.

  1. Except as otherwise provided in Code Section 53-3-8, title to the property set apart shall vest in the surviving spouse and child or children or, if there is no surviving spouse, in the children, share and share alike; and the property shall not be administered as the estate of the deceased spouse or parent.
  2. When property is set apart as a year's support for the benefit of the surviving spouse alone, the spouse shall thereafter own the same in fee, without restriction as to use, encumbrance, or disposition.

(Code 1981, §53-3-9, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article discussing title by year's support, see 2 Ga. B.J. 45 (1940).

COMMENT

This section carries forward former OCGA Sec. 53-5-10.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4084, former Code 1933, § 113-1006, and former O.C.G.A. § 53-5-10 are included in the annotations for this Code section.

Title to property set apart as a year's support to a widow and minor children vests in them for such purpose, share and share alike. Moore v. Pittman, 185 Ga. 619, 196 S.E. 50 (1938) (decided under former Code 1933, § 113-1006).

Vesting of title.

- Property duly set apart to the widow, or widow and minor child, of an intestate as a year's support vests in them, and is not subject to be administered as a part of the estate of the deceased husband or father. Holamon v. Jenkins, 50 Ga. App. 129, 177 S.E. 262 (1934) (decided under former Code 1933, § 113-1006).

When property owned by one at the time of one's death is set apart to one's minor children as a year's support, the title thereto vests in such children share and share alike, and a child's arrival at majority does not divest his or her legal interest. Pardue Medicine Co. v. Pardue, 194 Ga. 516, 22 S.E.2d 143 (1942) ??? (decided under former Code 1933, § 113-1006).

When a year's support was set aside to the widow and three minor children jointly under former Code 1933, § 113-1002, the title thereto vested in them for their joint support and maintenance, and the other children had no interest therein. When the minor children married or attained their majority, the right of support and maintenance from the property set aside as a year's support belonged to the widow alone as long as the property lasted or as she lived, and she was entitled to its use and control. She could sell the property for her maintenance and support. The children who have attained their majority have no right to participate in its consumption or its control. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1006).

When uncontradicted evidence showed that the application for a year's support made by widow was not admitted to record, and there was no judgment by the ordinary (now probate judge) making the return of the appraisers the judgment of the court of ordinary (now probate court), title to the property did not vest in the widow under a valid year's support proceeding. Miles v. Blanton, 211 Ga. 754, 88 S.E.2d 273 (1955) (decided under former Code 1933, § 113-1006).

Interest of a minor child in the estate awarded is not divested upon the child reaching majority, and upon the death of the child's mother, the child is entitled to the child's proportionate interest in such of the property as remains unconsumed. Barber v. Dunn, 225 Ga. 134, 166 S.E.2d 572 (1969) (decided under former Code 1933, § 113-1006).

Title to property set apart to a widow and child or children, as a year's support vests in the family to the exclusion of all debts, "except as otherwise specially provided" by law. Bank of Hampton v. Smith, 177 Ga. 532, 170 S.E. 508 (1933) (decided under former Civil Code 1910, § 4044).

Award of year's support to widow and minor child made in gross.

- When property is set aside to a widow and minor children in gross, the widow and minor children become owners of the property in common, and share equally in the title. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1006).

When an application for a year's support is made by a widow for herself and her minor child, the law contemplates that an award shall be made to such widow and minor child in gross, and not that awards shall be made to them separately; so that, although the legal title will vest in them share and share alike, the use of the entire property shall be a joint one for the support of both the mother and the child, and of neither to the exclusion of the other, so long as the widow lives and until the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1006).

When property is set apart as a year's support for the benefit of the widow alone, she owns the property in fee, without restriction as to use, incumbrance, or disposition. Strickland v. Strickland, 99 Ga. App. 531, 109 S.E.2d 289 (1959) (decided under former Code 1933, § 113-1006).

Exclusive use.

- If necessary, the property awarded to a widow and minor child may be consumed or exhausted, and so long as it lasts, it will be subject to exclusive use by the widow during her life, after the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1006).

Property awarded to the widow alone as a year's support may be freely sold or encumbered like any other property. Pierce v. Moore, 244 Ga. 739, 261 S.E.2d 647 (1979) (decided under former Code 1933, § 113-1006).

Year's support property subject to sale for personal debts.

- When a widow was awarded her deceased husband's real property as a year's support, the property was subject to sheriff's sale for the widow's personal debts. Martin v. Jones, 266 Ga. 156, 465 S.E.2d 274 (1996) (decided under former O.C.G.A. § 53-5-10).

Because the law does not confer upon the appraisers the power to direct that the fund be paid to a widow over a period of time, husband's estate is not held together during the time that the fund is in the hands of husband's legal representative subject to the use of the widow; estate of the husband is divested of any interest in the money. May v. Braddock, 92 Ga. App. 302, 88 S.E.2d 539 (1955) (decided under former Code 1933, § 113-1006).

Right to testamentary disposition of property awarded as year's support.

- While the widow is entitled, after the child or children reach majority, to the possession of the entire property for her support and maintenance, and has the right to sell the property for such purpose, this does not include the power to give the children's share of the property to another by will. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1006); Barber v. Dunn, 225 Ga. 134, 166 S.E.2d 572 (1969);(decided under former Code 1933, § 113-1006).

When property is set apart as a year's support for the benefit of the widow alone, the fee vests in her, and she can make a testamentary disposition of the unconsumed portion thereof; and, accordingly, the petition of another seeking to recover an interest in the property as an heir at law failed to set forth a cause of action. Hiers v. Striplin, 210 Ga. 293, 79 S.E.2d 539 (1954) (decided under former Code 1933, § 113-1006).

Effect of judgment setting apart year's support.

- Judgment setting apart a year's support is not void on the ground that the appraisers have not filed with their report a plat of the land set apart. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1006).

When no caveat to widow's application for support was filed, and citation had issued and been published as required by law, a court of equity would not set aside the judgment of the court of ordinary (now probate court) for irregularities. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1006).

Judgment setting apart a year's support to a widow and her minor children has the same binding force and effect as that of any other judgment rendered by a court of competent jurisdiction and cannot be collaterally attacked. Wayne County Bd. of Comm'rs of Rds. & Revenue v. Reddish, 220 Ga. 262, 138 S.E.2d 375 (1964) (decided under former Code 1933, § 113-1006).

Disposition of unconsumed property.

- When all of the beneficiaries of a year's support cease to exist as such, any of the property set aside which may be unconsumed belongs to them or their heirs in common. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1006).

Cited in Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Davis v. City of Atlanta, 182 Ga. 242, 185 S.E. 279 (1936); Dowdy v. Dowdy, 187 Ga. 26, 199 S.E. 191 (1938); Whitfield v. Maddox, 189 Ga. 878, 8 S.E.2d 54 (1940); Gaddy v. Harmon, 191 Ga. 563, 13 S.E.2d 357 (1941); Harnesberger v. Davis, 86 Ga. App. 41, 70 S.E.2d 615 (1952); Calloway v. Dubose, 89 Ga. App. 513, 80 S.E.2d 62 (1954); Strain v. Monk, 212 Ga. 194, 91 S.E.2d 505 (1956); Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960); United States v. First Nat'l Bank & Trust Co., 297 F.2d 312 (5th Cir. 1961); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Barone v. Adcox, 235 Ga. 588, 221 S.E.2d 6 (1975); Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982); Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 324 et seq., 330 et seq.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 470, 482.

ALR.

- Widow's or family allowance out of decedent's estate as surviving death or marriage of widow or minor children, or attainment of majority by children, 144 A.L.R. 270.

Nontrust life estate expressly given for support and maintenance, as limited thereto, 26 A.L.R.2d 1207.

Rights in survival benefits under public pension or retirement plan as between designated beneficiary and heirs, legatees, or personal representative of deceased employee, 5 A.L.R.3d 644.

53-3-10. Property inside or outside county.

The probate court may award year's support as to property located inside or outside the county where the decedent was domiciled at the time of death; and title to property both inside and outside the county where the decedent was domiciled at the time of death shall vest in the surviving spouse, spouse and children, or children only, as applicable.

(Code 1981, §53-3-10, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-7.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1947, p. 866, § 1, are included in the annotations for this Code section.

Cited in Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 324, 325, 335.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 452, 453, 471, 472, 477.

ALR.

- Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.

53-3-11. Awarding interest in real property.

  1. When the probate court grants an order for year's support which awards an interest in real property located in this state, within 30 days after granting the order the court shall cause a certificate for the order to be filed with the clerk of the superior court in the county of this state where the real property or any part of the real property is located. The certificate shall:
    1. Identify in the manner provided in Code Section 53-3-5 those individuals receiving the interest;
  2. The certificate to be filed under subsection (a) of this Code section shall be accompanied by the same fee required for the filing of deeds with the clerk of the superior court. The filing fee and any fee for the certificate shall be taxed as costs to the estate.
  3. The clerk of any superior court receiving the certificate provided in subsection (a) of this Code section shall file and record the certificate upon the deed records of that county. The certificate shall be indexed according to the names appearing on the certificate as follows:
    1. The grantor is the name of decedent; and
    2. The grantee is the name of the individual or individuals to whom the award was made.
  4. Upon the filing and recording as provided in subsection (c) of this Code section, the certificate shall be returned to the probate court from whom it was received, for inclusion in the probate court's permanent file. The probate court shall not be required to enter a certificate on the minutes of the court after the return of a certificate recorded under subsection (c) of this Code section.

(2) Identify the interest received;

(3) Contain a legal description sufficient under the laws of this state to pass title to the real property in which the interest was received, provided that the words "Also lands in ________________________ County(ies)," which accurately identifies other counties within which the real property is located, shall be sufficient to describe real property located outside the county to which the order or a copy of the order was sent; and

Contain a certification by the probate court that the information in the certificate is correct.

(Code 1981, §53-3-11, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Recording of deeds and other instruments generally, § 44-2-1 et seq.

COMMENT

This section carries forward former OCGA Sec. 53-5-11.

RESEARCH REFERENCES

C.J.S.

- 34 C.J.S., Executors and Administrators, § 481.

ALR.

- Family allowance granted widow as payable from community interests of decedent and widow, 9 A.L.R.2d 529.

53-3-12. Fees.

  1. The fees of the probate court shall be paid by the petitioner for year's support out of the fund set apart.
  2. The probate court may issue a writ of fieri facias against the personal representative of the estate for the amount awarded as provided in subsection (a) of this Code section.

(Code 1981, §53-3-12, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-12. Former Sec. 53-5-13, providing for probate court approval of the payment of debts by the surviving spouse, is repealed.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1009, are included in the annotations for this Code section.

Cited in Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935).

RESEARCH REFERENCES

C.J.S.

- 34 C.J.S., Executors and Administrators, § 481.

53-3-13. Sale or conveyance of property by personal representative prior to award.

The right of a surviving spouse or minor child to year's support from the estate of a decedent shall be barred by a sale or conveyance made prior to the award of year's support by the personal representative of the estate under authority of a court of competent jurisdiction or under power in a will; provided, however, that the sale or conveyance shall bar year's support and rights to year's support only as to the property sold or conveyed.

(Code 1981, §53-3-13, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-14.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1972, p. 731, § 1, and former O.C.G.A. § 53-5-14 are included in the annotations for this Code section.

Property of a decedent may be sold free from a year's support only under the provisions of this statute by a sale or conveyance made under court order or under power contained in a will by the representative prior to the setting apart of such year's support. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under Ga. L. 1972, p. 731, § 1).

Widow's application for year's support is not barred by executor's deed of assent as to the property conveyed therein by operation of this statute. Anderson v. Groover, 242 Ga. 50, 247 S.E.2d 851 (1978) (decided under Ga. L. 1972, p. 731, § 1).

An executor's assent to devise does not come within the meaning of this statute, which was intended to offer protection to third-party purchasers of property in an estate against claims for year's support, and was not intended to exempt devises and legacies from year's support. Anderson v. Groover, 242 Ga. 50, 247 S.E.2d 851 (1978) (decided under Ga. L. 1972, p. 731, § 1).

Widow of the decedent was entitled to a year's support since the estate still contained over $45,000.00 and no action had been taken by the executor to obtain the court's permission to distribute those funds to the minor child of the decedent; the executor's attempt to designate the funds for the minor by purchasing a cashier's check after the application was filed by the widow was of no avail. Evans v. Evans, 236 Ga. App. 896, 514 S.E.2d 74 (1999) (decided under former O.C.G.A. § 53-5-14).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 324, 326, 327.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 453, 456, 459, 465.

53-3-14. Real property subject to option to purchase or contract to sell.

If year's support is set apart for the benefit of any individual in or with respect to real property on which there is a recorded option to purchase or contract to sell outstanding at the time the same is so set apart, the individual and any purchasers or lessees of the real property, after the same has been so set apart, shall take the real property or any interest therein subject to all of the rights and privileges of the grantee of the option or contract and of any assignees of the option or contract if the assignment or assignments are also recorded.

(Code 1981, §53-3-14, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For note, "Advantages and Disadvantages of Intestate Death for Married Persons With an Estate of $120,000 or Less," see 9 Ga. St. B.J. 102 (1972).

COMMENT

This section carries forward former OCGA Sec. 53-5-17.

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 690, 691.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 454, 456.

ALR.

- Time in which option created by will to purchase real estate is to be exercised, 82 A.L.R.3d 790.

53-3-15. Conveyance, contract, or lien made by surviving spouse or guardian.

A conveyance, contract, or lien made or created by the surviving spouse or by the guardian of the minor child or children shall be superior to the title and interest of the surviving spouse or minor child or children under year's support subsequently applied for and set apart.

(Code 1981, §53-3-15, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-16.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 861, § 5, are included in the annotations for this Code section.

Cited in Whitfield v. Maddox, 189 Ga. 870, 8 S.E.2d 57 (1940); Parks v. Fort Oglethorpe State Bank, 225 Ga. 54, 166 S.E.2d 27 (1969); Pierce v. Moore, 244 Ga. 739, 261 S.E.2d 647 (1979).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 690, 691.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 454, 482, 473.

ALR.

- Statutory family allowance to minor children as affected by previous agreement or judgment for their support, 6 A.L.R.3d 1387.

Family allowance from decedent's estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.

53-3-16. Real property subject to purchase money mortgage.

Whenever the vendor of real property makes a deed to such real property and takes a mortgage to secure the purchase money for such real property, neither the surviving spouse nor the children of the vendee shall be entitled to year's support in the real property as against the vendor or the vendor's heirs or assigns until the purchase money is fully paid.

(Code 1981, §53-3-16, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For comment on King v. Dalton, 85 Ga. App. 641, 69 S.E.2d 907 (1952), see 15 Ga. B.J. 211 (1952).

COMMENT

This section carries forward former OCGA Sec. 53-5-17.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1890-91, p. 227, § 1, former Civil Code 1895, § 3472, former Civil Code 1910, § 4048, and former Code 1933, § 113-1010, are included in the annotations for this Code section.

Statute presents an exception to the general law that a widow's right to a year's support takes precedence over all other debts. Ullman v. Brunswick Title Guarantee & Loan Co., 96 Ga. 625, 24 S.E. 409 (1895) (decided under Ga. L. 1890-91, p. 227 § 1); Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488, 77 S.E. 589 (1913);(decided under former Civil Code 1910, § 4048).

General rule and not the exception applies when the consideration for a mortgage is other than the purchase money for the land. Derrick v. Sams, 114 Ga. 81, 39 S.E. 924 (1901) (decided under former Civil Code 1895, § 3472).

Statute affects property rights and must be strictly construed. King v. Dalton, 85 Ga. App. 641, 69 S.E.2d 907 (1952), for comment, see 15 Ga. B.J. 211 (1952) (decided under former Code 1933, § 113-1010).

Purchase money mortgage superior to year's support.

- When the purchaser of land under a bond for title or other executory contract of sale agrees therein to pay the purchase money thereof and the taxes thereon, and the purchaser is put in possession of the land, and the equitable interest of the purchaser is set apart as a year's support to his widow and minor children, the widow would have to pay off the purchase-money debt, including the taxes which accrued on the property, before she would be entitled to enjoy such equitable interest against the claim of the state and county for taxes due on the land. Beaton v. Ware County, 171 Ga. 798, 156 S.E. 672 (1931) (decided under former Civil Code 1910, § 4048).

Year's support under former Civil Code 1910, § 4048 was not superior to the claim of a creditor of the decedent, who holds title to the land as vendor thereof under an executory contract of sale, or under a deed to secure debt. So, when the vendor conveys the property to another, and takes a mortgage to secure the purchase money, the claim of the vendor is superior to a year's support. Beaton v. Ware County, 171 Ga. 798, 156 S.E. 672 (1931) (decided under former Civil Code 1910, § 4048).

Former Code 1933, § 113-1010 did not amend former Code 1933, § 113-1508 except as to make a year's support inferior to the lien or claim of a vendor for the purchase money of land. King v. Dalton, 85 Ga. App. 641, 69 S.E.2d 907 (1952), for comment, see 15 Ga. B.J. 211 (1952) (decided under former Code 1933, § 113-1010).

Statute does not attempt or purport to regulate or change the general law as to the priority of the payment of the debts of a deceased person, as set forth in former Code 1933, § 113-1508. King v. Dalton, 85 Ga. App. 641, 69 S.E.2d 907 (1952), for comment, see 15 Ga. B.J. 211 (1952) (decided under former Code 1933, § 113-1010).

Cited in House v. Johnson, 171 Ga. 209, 154 S.E. 879 (1930); Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 690, 691.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 454.

53-3-17. Personal property subject to mortgage or other security interest.

Whenever the vendor of personal property, at the time of selling and delivering such personal property, takes a mortgage or other security interest to secure the payment of the purchase money for such personal property, neither the surviving spouse nor the minor child or children of the vendee shall be entitled to year's support in the personal property as against the vendor or the vendor's heirs, personal representatives, or assigns until the purchase money of the personal property is fully paid; provided, however, that the mortgage or other security interest shall expressly state that the same is executed and delivered for the purpose of securing the debt for the purchase.

(Code 1981, §53-3-17, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-18.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4049 and former Code 1933, § 113-1011, are included in the annotations for this Code section.

Superiority of purchase-money mortgage. Purchase-money mortgage on personalty is superior to a year's support in such mortgaged property, regardless of whether the bill of sale to secure a debt is recorded or is not recorded. Hammett v. Citizens & S. Nat'l Bank, 231 Ga. 400, 202 S.E.2d 66 (1973) ??? (decided under former Code 1933, § 113-1010).

When an agreement is made for the furnishing of money to pay for personalty added or to be added to real estate as improvements thereto and it is specifically agreed that such described goods whether affixed to the premises or not, are and should remain personal property and that the lender has security title to and a security interest in those goods until the note is fully paid, the language in such agreement is sufficient to meet the requirements of this statute that it was executed and delivered for the purpose of securing the debt for such purchase money. Hammett v. Citizens & S. Nat'l Bank, 231 Ga. 400, 202 S.E.2d 66 (1973) ??? (decided under former Code 1933, § 113-1010).

Only a mortgage expressly made for the balance of the purchase money comes within the favored position allowed by statute. Hartley v. Smith, 152 Ga. 723, 111 S.E. 41 (1922) ??? (decided under former Civil Code 1910, § 4049).

Cited in Cobb v. Hall, 136 Ga. 254, 71 S.E. 145 (1911); Gresham v. Loganville Banking Co., 32 Ga. App. 177, 122 S.E. 806 (1924); Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933); Bell v. Bell, 210 Ga. 295, 79 S.E.2d 524 (1954).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 690, 691.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 454.

ALR.

- Bank deposit to credit of decedent or other indebtedness to him as subject to widow's or family allowance or other estate exemption, as affected by right of bank to apply deposit, or of other debtor to assert counterclaim or setoff, 108 A.L.R. 773.

53-3-18. Landlord's lien on crops.

Whenever a tenant dies owing a landlord for rent or for supplies for which the landlord has a special lien on the crops made on the lands rented from the landlord in the year the rent accrued or supplies were furnished, neither the surviving spouse nor spouse and minor children nor minor child or children only of the tenant shall be entitled to year's support out of the crops so planted or grown in that year as against the landlord until the accounts for the rent and supplies are fully paid, provided that the surviving spouse shall be entitled to year's support in such part of the crop as may remain after the landlord's lien for rent and supplies shall have been discharged.

(Code 1981, §53-3-18, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-19.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4050 and former Code 1933, § 113-1012, are included in the annotations for this Code section.

Cited in Moore v. Ramsey & Legwen, 144 Ga. 118, 86 S.E. 219 (1915); Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 690, 691.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 454.

53-3-19. Conveyance or encumbrance by surviving spouse of property set aside; effect.

  1. When property is set apart as year's support for the joint benefit of the surviving spouse and the minor child or children, a conveyance or encumbrance of the same or any or all parts of such property by the surviving spouse shall convey or encumber the title and interest of the spouse and shall be binding and conclusive upon the spouse.
  2. The conveyance or encumbrance of any or all the property set apart as year's support for the joint benefit of the surviving spouse and the minor child or children shall convey or encumber and be binding and conclusive upon the child or children and person claiming through or under them only when approved by the probate court of the county in which the year's support award was made. No such approval shall be necessary to bind a child who is sui juris and who joins with the surviving spouse in making the conveyance or encumbrance.
  3. The purchaser or lender shall not be responsible for the proper use or application of the proceeds derived from a sale or encumbrance contemplated under this Code section.

(Code 1981, §53-3-19, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-20.

JUDICIAL DECISIONS

Interest in year's support property.

- Trial court did not err in refusing to set aside as void any sale of year's support property by a mother because the question of the extent of the daughters' interests in the year's support property was resolved in a partitioning judgment, which awarded the daughters their share of the year's support property; because the partitioning judgment was not appealed, the daughters could not complain that the daughters had a greater interest in the property than that which was awarded. Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).

53-3-20. Conveyance or encumbrance by surviving spouse of property set aside; approval of probate court.

  1. The approval of the probate court required by subsection (b) of Code Section 53-3-19 shall be obtained in the following manner: The surviving spouse shall petition the probate court, stating the purposes of the proposed conveyance or encumbrance and describing the property the spouse desires to convey or encumber, the nature of the proposed conveyance or encumbrance, and the names, last known addresses, and ages of the children for whose benefit the year's support was set apart. If the surviving spouse has died, the petition may be made by the guardian for any one or more of the children for whose benefit the year's support was set apart. The probate court shall set a date for hearing on the petition and shall appoint a guardian ad litem who shall accept the appointment in writing to represent the minor children. Not less than ten days prior to the date set for the hearing, personal service shall be made on each child for whose benefit the year's support was set apart who has attained the age of 18 at the time the petition is filed. If the surviving spouse does not know and cannot easily ascertain the addresses of any of the children, service shall be made by publishing notice of the date and purpose of the hearing one time and by posting a copy of the notice at the courthouse not less than ten days prior to the date set for the hearing. In addition to publication, the probate court shall mail a copy of the notice to the last known address of each child whose current address is unknown, not less than ten days prior to the date set for such hearing. Objections, if any, shall be made in writing.
  2. At the hearing, the probate court shall determine that service has been made as required by this Code section and that the purpose or purposes of the proposed conveyance or encumbrance are proper and shall pass an order reciting due compliance with this Code section and approval of the proposed conveyance or encumbrance, which order shall be final and conclusive.
  3. The proceedings shall be indexed and recorded in books to be kept for that purpose by the probate court in each county in which any of the property is located.
  4. An appeal shall lie in the manner, under the restrictions, and with the effect provided for appeals from the probate court in other cases.

(Code 1981, §53-3-20, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-5-21.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-5-21 are included in the annotations for this Code section.

Interlocutory award of year's support.

- Former O.C.G.A. § 53-5-21 gave a right to appeal to the superior court an award of year's support, even if the estate is not fully probated or administered. Goodman v. Independent Life & Accident Ins. Co., 196 Ga. App. 783, 397 S.E.2d 56 (1990) (decided under former O.C.G.A. § 53-5-21).

Interest in year's support property.

- Trial court did not err in refusing to set aside as void any sale of year's support property by a mother because the question of the extent of daughters' interests in the year's support property was resolved in a partitioning judgment, which awarded the daughters their share of the year's support property; because the partitioning judgment was not appealed, the daughters could not complain that the daughters had a greater interest in the property than that which was awarded. Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).

Cited in McCoy v. Patten Ga. Corp., 260 Ga. 877, 401 S.E.2d 9 (1991).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 53-5-21 are included in the annotations for this Code section.

What must be kept in books established.

- Clerks of probate courts must enter documents and proceedings in sets of books established by O.C.G.A. §§ 15-9-37(8) and former53-5-21 and must also enter them in minutes of court under § 15-9-37(7), if such matters are applications to court or orders of court, or otherwise show what was done in probate court. 1981 Op. Att'y Gen. No. U81-41 (decided under former O.C.G.A. § 53-5-21).

CHAPTER 4 WILLS

Article 1 General Provisions.
Article 2 Testamentary Capacity.
Article 3 Execution and Attestation.
Article 4 Joint or Mutual Wills.
Article 5 Revocation and Republication.
Article 6 Construction of Will; Testamentary Gifts.
Editor's notes.

- This chapter was effective January 1, 1998, to the extent that no vested rights of title, year's support, succession, or inheritance are impaired, as provided by the version of Code Section 53-1-1 enacted by Ga. L. 1996, p. 504, § 10, as amended by Ga. L. 1997, p. 1352, § 1.

Ga. L. 1996, p. 504, § 10, effective January 1, 1998, repealed the Code sections formerly codified at this chapter, and enacted the current chapter. The former chapter consisted of §§ 53-4-1 through53-4-54, and was based on Laws 1766, Cobb's 1851 Digest, p. 292; Laws 1804, Cobb's 1851 Digest, p. 291; Laws 1810, Cobb's 1851 Digest, p. 253; Laws 1812, Cobb's 1851 Digest, p. 292; Laws 1816, Cobb's 1851 Digest, p. 293; Laws 1821, Cobb's 1851 Digest, p. 293; Laws 1827, Cobb's 1851 Digest, p. 294; Laws 1829, Cobb's 1851 Digest, p. 295; Laws 1841, Cobb's 1851 Digest, p. 296; Laws 1843, Cobb's 1851 Digest, p. 296; Laws 1845, Cobb's 1851 Digest, p. 297; Laws 1850, Cobb's 1851 Digest, p. 299; Ga. L. 1853-54, p. 41, §§ 1, 2; Ga. L. 1855, p. 227, § 2; Ga. L. 1859, p. 35, § 1; Ga. L. 1859, p. 36, § 2; Orig. Code 1863, §§ 1711, 1712, 1751, 1752, 2226, 2451, 2452, 2454, 2455, 2530, 2537-2545, 2628; Ga. L. 1865-66, p. 85, § 1; Ga. L. 1865-66, p. 102, § 1; Code 1868, §§ 1751, 1752, 1791, 1792, 2220, 2447-2450, 2529, 2538-2547, 2628; Ga. L. 1871-72, p. 48, § 1; Code 1873, §§ 1761, 1762, 1800, 1801, 2246, 2483-2486, 2570, 2579-2588, 2670; Ga. L. 1882-83, p. 47, § 1; Ga. L. 1882-83, p. 66, § 1; Code 1882, §§ 1761, 1762, 1800, 1801, 2246, 2483-2486, 2570, 2579-2588, 2670; Ga. L. 1884-85, p. 135, § 1; Civil Code 1895, §§ 2510, 2511, 3081, 3353-3355, 3357, 3358, 3464, 3474-3483, 3576; Civil Code 1910, §§ 3029, 3030, 3657, 3929-3931, 3933, 3934, 4040, 4052-4061, 4156; Ga. L. 1922, p. 47, § 1; Ga. L. 1931, p. 114, § 1; Code 1933, §§ 85-1102, 113-901 through 113-905, 113-907, 113-908, 113-1001, 113-1013 through 113-1022; Ga. L. 1941, p. 331, § 1; Ga. L. 1943, p. 236, §§ 1, 2; Ga. L. 1947, p. 1141, § 1; Ga. L. 1952, p. 288, §§ 1, 3; Ga. L. 1958, p. 361, §§ 1-8; Ga. L. 1959, p. 299, § 1; Ga. L. 1964, p. 139, § 1; Ga. L. 1967, p. 746, §§ 1-4; Ga. L. 1968, p. 1093, § 1; Ga. L. 1971, p. 403, § 2; Ga. L. 1972, p. 880, § 1; Ga. L. 1980, p. 1432, § 1; Ga. L. 1982, p. 3, § 53; Ga. L. 1985, p. 1257, § 1; Ga. L. 1987, p. 632, § 1; Ga. L. 1988, p. 1720, §§ 18, 19; Ga. L. 1991, p. 660, §§ 1, 2; Ga. L. 1992, p. 6, § 53.

RESEARCH REFERENCES

Decisionmaking at the End of Life, 63 Am. Jur. Trials 1.

ARTICLE 1 GENERAL PROVISIONS

53-4-1. Power of testator.

A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator's spouse and descendants.

(Code 1981, §53-4-1, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article discussing the pretermitted heir, see 10 Ga. L. Rev. 447 (1976). For note, "Preventing Spousal Disinheritance in Georgia," see 19 Ga. L. Rev. 427 (1984).

COMMENT

This section carries over portions of former OCGA Sec. 53-2-9. The second sentence of former OCGA Sec. 53-2-9(b), which required close scrutiny of a will that excluded the testator's spouse or children, is not carried forward because the laws relating to undue influence, fraud, and testamentary capacity cover such situations and because the Georgia courts have held that that sentence could be evaded by leaving a spouse or child some nominal sum, such as $1.00. The exclusion of the second sentence is not meant to signal a change in the law or policy of the state.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3832, former Code 1933, § 113-106, and former O.C.G.A. § 53-2-9 are included in the annotations for this Code section.

Close scrutiny when wife or child excluded.

- Under the general rules of evidence, every presumption is in favor of the probate of a will after it is shown that the testator was of sound mind and disposing memory at the time the will was executed; but under the statutory provisions, if it appears that the testator has excluded his wife, and that he has no child, there is but little, if any, presumption in favor of the propounder; for the will is to be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion, or fraud, or any undue influence or unfair dealing, probate should be refused. Rules as to the nature of proof and the quantum of evidence necessary for a caveator to produce and present to the court and jury, in ordinary cases of probate of wills, can have no application in the face of the declaration that probate of a will of the class referred to should be refused upon the slightest evidence of any of the ingredients of operative causes set forth in law. The law does not define the term "slightest evidence," but it is the superlative degree of the adjective "slight," and therefore must mean very slight. Deans v. Deans, 171 Ga. 644, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832); Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949);(decided under former Code 1933, § 113-106).

When one bequeaths one's entire estate to strangers to the exclusion of one's spouse and children, upon the slightest evidence of the aberration of intellect, or collusion or fraud, or any undue influence or unfair dealing, probate should be refused. Crawford v. Crawford, 218 Ga. 369, 128 S.E.2d 53 (1962) (decided under former Code 1933, § 113-106).

Evidence of aberration of intellect would, when coupled with the fact that the testator bequeathed the testator's entire estate to a stranger to the exclusion of an afflicted child as well as the testator's other children, make a question for the jury to weigh the testimony and determine whether or not the testator had the mental capacity to make a will at the time of the will's execution. English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965) (decided under former Code 1933, § 113-106).

Application of pre-1998 probate code.

- Trial court did not err when the court applied the law in place before the 1998 probate code was adopted to determine whether a husband and wife had a contract not to revoke their joint and mutual will because the issue was not the propriety of the devises in the will but whether the husband and wife had a contract not to revoke the will; the 1998 probate code only applies to contracts entered into on or after January 1, 1998, so it would not apply to any contract allegedly made in 1980. Davis v. Parris, 289 Ga. 201, 710 S.E.2d 757 (2011).

Statute expressly authorizes a testator to give one's entire estate to strangers, to the exclusion of one's spouse and children. Marshall v. Trust Co., 231 Ga. 415, 202 S.E.2d 94 (1973) (decided under former Code 1933, § 113-106).

Word "strangers" in legal contemplation has a meaning distinctly different from the meaning in common usage or parlance. For instance, one who is not a party to a contract is generally referred to as a stranger to the contract. The word is often used in a legal sense to convey the meaning converse to "privy" or "privity." Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

"Strangers" may include anyone other than wife or child.

- When a father, who has no wife, by will leaves one's entire estate to persons other than one's child, one is leaving it to "strangers" within the meaning of the law. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

Statute expressly authorizes a testator to give one's entire estate to strangers, who might be one's concubines, to the exclusion of one's spouse and children. Hood v. First Nat'l Bank, 219 Ga. 283, 133 S.E.2d 19 (1963) (decided under former Code 1933, § 113-106).

Common-law spouse of a testator is not a stranger within the meaning of the law, and the "slightest evidence of aberration of intellect" test of the law does not apply. Yuzamas v. Yuzamas, 241 Ga. 577, 247 S.E.2d 73 (1978) (decided under former Code 1933, § 113-106).

Protection for wives and children.

- Statute which formed a distinct class to protect - the wife and children of a testator - there is no reference or provision for the husband, and therefore no law upon which the husband could caveat his wife's will, except those provided for any other heirs. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

Provisions of statute are applicable to a wife and child or children; a child or children where there is no wife; and to a wife alone where there is neither child nor children. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-106).

Application only if party excluded in will.

- Statute should be applied only if party is altogether excluded in the will. Johnson v. Sullivan, 247 Ga. 663, 278 S.E.2d 640 (1981) (decided under former Code 1933, § 113-106).

When testator's wife is altogether excluded by the terms of the will, the provisions of this statute apply. Gornto v. Gornto, 217 Ga. 136, 121 S.E.2d 139 (1961) (decided under former Code 1933, § 113-106).

Exclusion of wife prerequisite to statute's application.

- Provisions of this statute are applicable only when the wife, there being no child or children, is altogether excluded in the will of her husband. Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434 (1955) (decided under former Code 1933, § 113-106).

Small bequest to wife.

- Statute is not applicable when the testator having no children and approximately two years after separating from his wife, executed a will which provided for a $1.00 bequest to his wife. Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434 (1955) (decided under former Code 1933, § 113-106).

Child excluded.

- When one who has been altogether excluded in a will establishes the fact that one is a child of the testator, the trial judge must give in charge to the jury the rule of this statute. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

Provisions of this statute have no application where testator made a nominal bequest to his daughter, since daughter was not altogether excluded in the will. Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961) (decided under former Code 1933, § 113-106).

Jury must determine whether circumstances require grant or refusal of probate. Under the provisions of this statute, it is for the jury to determine whether there are any circumstances, even very slight, which make it the duty of the jury to refuse probate of a will. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

What one might think of the moral duty of a testator to provide for his wife and children cannot properly affect a construction of this statute. Hood v. First Nat'l Bank, 219 Ga. 283, 133 S.E.2d 19 (1963) (decided under former Code 1933, § 113-106).

Evidence of mental state on execution date controlling.

- Evidence that testator had suffered aberration of intellect on dates other than the date of execution of the will did not bar probate when the evidence did not indicate such aberration on the date of execution and there was no evidence of a continuously disabling mental disorder. Dean v. Morsman, 254 Ga. 169, 327 S.E.2d 212 (1985) (decided under former O.C.G.A. § 53-2-9).

Evidence of undue influence on execution date controlling.

- Evidence that indicated sole beneficiary's great influence over testator in different areas of the testator's life did not bar probate where, on the date of execution of the will, testator appeared to be acting on testator's own volition and not pursuant to beneficiary's undue influence. Dean v. Morsman, 254 Ga. 169, 327 S.E.2d 212 (1985) (decided under former O.C.G.A. § 53-2-9).

No evidence of undue influence.

- Testator's exclusion of her children in a will leaving her property to a grandchild could not be refused probate because there was not even the slightest evidence of undue influence. Joseph v. Grisham, 267 Ga. 677, 482 S.E.2d 251 (1997) (decided under former O.C.G.A. § 53-2-9).

Invalidation of will on ground of unreasonableness.

- Fact that testator made dispositions of property in the testator's will that favored the propounder and other people, and did not favor the caveator, did not show that the will could be invalidated on the ground of unreasonableness, as the testator was free under the law to bequeath the majority of the testator's estate to other relatives rather than the caveator, who was the testator's estranged wife. Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

Intent to exclude will contestant.

- Probate court erred in finding a genuine issue of material fact regarding a will contestant's beneficiary status because although there could be a genuine issue of fact as to the contestant's status as the testator's daughter, resolution of that issue was unnecessary in determining the daughter's status under the will, which clearly and unambiguously expressed the testator's intent that only the daughters born of the testator's marriage would share as children thereunder; the plain terms of the will clearly reflected the testator's intent to exclude the contestant because the contestant was not mentioned in any portion of the will, as contrasted with the daughters, who were specifically designated as the testator's "two living children," were named co-executors, and were named as trustees of respective trusts created for each of them from the family trust, and by defining the term "children" as "lawful blood descendants," the testator demonstrated the testator's intent that the testator's child born out of wedlock not be included as a beneficiary under the will. Hood v. Todd, 287 Ga. 164, 695 S.E.2d 31 (2010).

Cited in Scott v. Wimberly, 188 Ga. 148, 3 S.E.2d 71 (1939); First Nat'l Bank v. Robinson, 209 Ga. 582, 74 S.E.2d 875 (1953); Williams v. Jones, 219 Ga. 45, 131 S.E.2d 553 (1963); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967); Clavin v. Clavin, 238 Ga. 421, 233 S.E.2d 151 (1977); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977); Bloodworth v. Bloodworth, 240 Ga. 614, 241 S.E.2d 827 (1978); Russell v. Fulton Nat'l Bank, 248 Ga. 421, 283 S.E.2d 879 (1981); Coggin v. Fitts, 268 Ga. 112, 485 S.E.2d 495 (1997).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 58 et seq., 68, 70, 90, 93, 371, 394 et seq.

C.J.S.

- 95 C.J.S., Wills, §§ 30, 42, 172, 173, 357 et seq., 379, 380, 382.

ALR.

- Validity of provision in will vesting discretion in executor or third person as to objects of testator's bounty, 3 A.L.R. 297; 45 A.L.R. 1440.

Will as exclusive means of exercising power conferred by will to dispose of property, 20 A.L.R. 388.

Release to ancestor by heir expectant, 28 A.L.R. 427.

Applicability of doctrine of advancements to testate succession, 32 A.L.R. 730.

Intention of testator as regards child not provided for by will as affecting applicability of statutes to prevent disinheritance of children, 65 A.L.R. 472.

Right of heirs or next of kin to attack devise to corporation on ground of its incapacity to take, 69 A.L.R. 1359.

Constitutionality and construction of statute which in effect varies the quantum of evidence necessary to establish lack of testamentary capacity or undue influence according to the relationship to deceased of the persons affected, 74 A.L.R. 236.

Language of will excluding or restricting one as beneficiary, as excluding him from class to whom gift is made in another part of will, 80 A.L.R. 140.

Admissibility and weight on issue of mental capacity or undue influence in respect of will or conveyance, of instruments previously executed by the person in question, 82 A.L.R. 963.

What institutions or gifts are within statutes declaring invalid bequests for charitable, benevolent, religious, or similar purposes, if made within a specified period before testator's death, or prohibiting, or limiting the amount of, such bequests, 111 A.L.R. 525.

Standing of heir or next of kin to attack gift or conveyance made by ancestor in his lifetime as affected by will by which he is disinherited in whole or part; or to contest will as affected by the gift or conveyance or prior will by which he is similarly disinherited, 112 A.L.R. 1405.

Legal capacity of one whom testator had agreed to adopt, but whose adoption had not been effected, to contest will, 112 A.L.R. 1422.

Power and duty of probate court to set aside decree admitting forged instrument to probate as a will, 115 A.L.R. 473.

Nature of, and remedies for enforcement of, the interest which a pretermitted child takes by virtue of statute where parent leaves will, 123 A.L.R. 1073.

Validity of provision in deed or other instrument creating a cotenancy that neither tenant shall encumber or dispose of his interest without consent of the other, 124 A.L.R. 222.

Statute regarding right of surviving spouse in estate of deceased spouse as affecting contract or waiver in that regard executed before passage of the statute, 137 A.L.R. 1099.

Refund under annuity contract upon death of annuitant as part of his estate for purposes of forced heirship or statute limiting amount of disposable estate of decedent survived by spouse or child, 142 A.L.R. 609.

Illegitimate child as within contemplation of statute regarding rights of child pretermitted by will, or statute preventing disinheritance of child, 142 A.L.R. 1447.

Disinheritance provision or mere nominal bequest as affecting application of statute for benefit of pretermitted children, 152 A.L.R. 723.

Waiver, or failure to invoke protection, of statute regarding amount, or time of making, of bequest to religious, charitable, or other specified classes of institutions, 154 A.L.R. 682.

Instructions, in will contest, defining natural objects of testator's bounty, 11 A.L.R.2d 731.

Admissibility in will contest of financial condition or needs of those constituting natural objects of testator's bounty, 26 A.L.R.2d 374.

Validity, construction, and effect of provisions in life or accident policy in relation to military service, 36 A.L.R.2d 1018.

Wills: validity of condition of gift depending on divorce or separation, 14 A.L.R.3d 1219.

Wills: bequest or devise referring to services to be rendered by donee to testator during latter's lifetime as absolute or conditional gift, 22 A.L.R.3d 771.

Validity and construction of testamentary gift to political party, 41 A.L.R.3d 833.

Validity of testamentary provision making gift to person or persons meeting specified qualification and authorizing another to determine who qualifies, 74 A.L.R.3d 1073.

Effect of invalidity of provision conditioning testamentary gift upon divorce of beneficiary, on alternative provision conditioning gift upon spouse's death, 74 A.L.R.3d 1095.

Exercise by will of trustor's reserved power to revoke or modify inter vivos trust, 81 A.L.R.3d 959.

Wills: condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith, 89 A.L.R.3d 984.

Conflict of laws as to pretermission of heirs, 99 A.L.R.3d 724.

Modern status: validity and effect of mortmain statutes, 6 A.L.R.4th 603.

Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary, 23 A.L.R.4th 369.

Adopted child as subject to protection of statute regarding rights of children pretermitted by will, or statute preventing disinheritance of child, 43 A.L.R.4th 947.

What passes under term "personal property" in will, 31 A.L.R.5th 499.

Adopted child as within class named in testamentary gift, 36 A.L.R.5th 395.

53-4-2. When will takes effect.

A will shall take effect instantly upon the death of the testator however long probate may be postponed.

(Code 1981, §53-4-2, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For comment on Jenkins v. United States, 296 F. Supp. 203 (M.D. Ga. 1968), see 3 Ga. L. Rev. 766 (1969).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-105, are included in the annotations for this Code section.

Application of pre-1998 probate code.

- Trial court did not err when the court applied the law in place before the 1998 probate code was adopted to determine whether a husband and wife had a contract not to revoke their joint and mutual will because the issue was not the propriety of the devises in the will but whether the husband and wife had a contract not to revoke the will; the 1998 probate code only applies to contracts entered into on or after January 1, 1998, so it would not apply to any contract allegedly made in 1980. Davis v. Parris, 289 Ga. 201, 710 S.E.2d 757 (2011).

Statute did not mean that an unprobated will is operative.

- Only after a will is probated will rights in property be fixed retrospectively with reference to the law and factual circumstances existing at the time of the testator's death. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff'd, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105).

It is necessary to probate a will before the will can be recognized as an instrument affecting rights in property. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff'd, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105).

Will is to be taken as speaking from the time of the death of the testator. Moore v. Segars, 192 Ga. 190, 14 S.E.2d 752 (1941) (decided under former Code 1933, § 113-105).

To take effect a will not only must be a validly executed instrument disposing of the testator's property at the testator's death, but it must remain so right up to its effective date, the testator's death. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-105).

If futurity is annexed to the substance of the gift, the vesting is suspended; but if it relates to the time of payment only, the title vests instantly upon the death of the testator. Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940) (decided under former Code 1933, § 113-105).

Cited in Parks v. Gresham, 185 Ga. 470, 195 S.E. 728 (1938); Fitzgerald v. Morgan, 193 Ga. 802, 20 S.E.2d 73 (1942); Nixon v. Nixon, 194 Ga. 301, 21 S.E.2d 702 (1942); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970); Mitchell v. Mitchell, 279 Ga. 282, 612 S.E.2d 274 (2005).

RESEARCH REFERENCES

ALR.

- Governing law of will as affected by change of domicil after its execution, 57 A.L.R. 229.

Time as of which members of class described as testator's "heirs," "next of kin," "relations," etc., to whom a future gift is made, are to be ascertained, 169 A.L.R. 207.

Legal status of posthumously conceived child of decedent, 17 A.L.R.6th 593.

53-4-3. Determination whether instrument is will.

No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will.

(Code 1981, §53-4-3, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward former OCGA Sec. 53-2-41.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-102, and former O.C.G.A. § 53-2-41 are included in the annotations for this Code section.

Distinction between deed and will.

- A paper reciting: "I [the maker], being in good health and of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me at any time heretofore made," and containing an attestation clause reciting that the paper is "signed, sealed, published, and delivered by the" maker "as and for her last will and testament," and that the witnesses, four in number, have subscribed their names in the maker's presence and in the presence of each other, and which at the time of the paper's execution is delivered to the party for whose benefit the paper is made as the will of the maker, though the devising or granting clause may contain language appropriate to a deed in some respects, is not a deed, but is an instrument testamentary in character. Page v. Jones, 186 Ga. 485, 198 S.E. 63 (1938) (decided under former Code 1933, § 113-102).

When the owner of property transfers the property inter vivos to another person in trust, the disposition is not testamentary merely because the interest of the beneficiary does not take effect in enjoyment or possession before the death of the settler, or because in addition the settler reserves power to revoke or modify the trust; in such a case the trust is created in the lifetime of the settler and the mere fact that the settler can destroy the trust or alter the trust does not make the disposition testamentary, although if the trust were not to arise until the settler's death the intended trust would be testamentary. Wilder v. Howard, 188 Ga. 426, 4 S.E.2d 199 (1939) (decided under former Code 1933, § 113-102).

If an instrument in the form of a deed conveys an estate in praesenti, although the right of possession be postponed, the instrument is a deed; but, if the instrument conveys no present estate or right, but is an attempt to convey an estate or right in the property upon the death of the grantor, the instrument is testamentary in character and will not be upheld as a deed. Smith v. Thomas, 199 Ga. 396, 34 S.E.2d 278 (1945) (decided under former Code 1933, § 113-102).

If deed were testamentary in character, it would be of no effect, since it was not executed in the manner which would entitle it to probate as a will. Childs v. Mitchell, 204 Ga. 542, 50 S.E.2d 216 (1948) (decided under former Code 1933, § 113-102).

If the intention by the grantor is to convey a present estate, although possession be postponed until the death of the grantor, the instrument is a deed. Martin v. Smith, 211 Ga. 600, 87 S.E.2d 406 (1955) (decided under former Code 1933, § 113-102).

Deed containing this reservation: "This conveyance is made with the distinct reservation by the grantor that she retains for herself an exclusive control of all of said lands as long as she may live, and to have the right to use them as her own and as she sees fit, including the working and selling of timber during the remainder of her natural life," is a warranty deed, and not a will. Martin v. Smith, 211 Ga. 600, 87 S.E.2d 406 (1955) (decided under former Code 1933, § 113-102).

An instrument containing a reservation by a grantor, who reserved a life estate, of the right to dispose of the land that the grantor owned during the grantor's lifetime is a deed rather than an attempted will. The grantee received a vested remainder subject to divestment should the grantor dispose of the property. Harris v. Neely, 257 Ga. 361, 359 S.E.2d 885 (1987) (decided under former O.C.G.A. § 53-2-41).

Directed verdict denial proper.

- In a will contest action between a goddaughter and a first cousin, the trial court properly denied the challenging first cousin's motion for a directed verdict because the testimony of the goddaughter, viewed in her favor, supported the finding both that the testatrix intended the two documents at issue together to express her desired dispository scheme and that the two documents were presented together for attestation; thus, the evidence supported the jury's finding that the two documents together did in fact create a valid will. Lee v. Swain, 291 Ga. 799, 733 S.E.2d 726 (2012).

Cited in Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931); Caswell v. Caswell, 177 Ga. 153, 169 S.E. 748 (1933); Chance v. Buxton, 177 F.2d 297 (5th Cir. 1949); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Black v. Poole, 230 Ga. 129, 196 S.E.2d 20 (1973); Akin v. Patton, 235 Ga. 51, 218 S.E.2d 802 (1975); Thomas v. Jackson, 238 Ga. 90, 231 S.E.2d 50 (1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 4, 5, 9 et seq., 19. 80 Am. Jur. 2d, Wills, §§ 849, 850.

C.J.S.

- 95 C.J.S., Wills, §§ 167 et seq., 176, 177, 831.

ALR.

- May instrument inter vivos operate also as a will, or part of will, 45 A.L.R. 843.

Delivery of deed to third person to be delivered to grantee after grantor's death, 52 A.L.R. 1222.

Letter as a will or codicil, 54 A.L.R. 917; 40 A.L.R.2d 698.

Notation on note or securities as a will or codicil, 62 A.L.R. 292.

Language of will excluding or restricting one as beneficiary, as excluding him from class to whom gift is made in another part of will, 80 A.L.R. 140.

Construction and application of provision of will expressly giving executor or trustee power to mortgage realty, 115 A.L.R. 1417.

Testamentary character of memorandum or other informal writing not testamentary on its face regarding ownership or disposition of specific personal property, 117 A.L.R. 1327.

Judgment based on construction of instrument as res judicata of its validity, 164 A.L.R. 873.

Term "proceeds" in will or other trust instrument as indicating intention as to whether assets are to constitute principal or income, 1 A.L.R.2d 194.

Admissibility of extrinsic evidence upon issue of testamentary intent, 21 A.L.R.2d 319.

Effect on validity and character of instrument in form of deed of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 31 A.L.R.2d 532.

Validity of will written on disconnected sheets, 38 A.L.R.2d 477.

Admissibility of testator's declarations upon issue of genuineness or due execution of purported will, 62 A.L.R.2d 855.

Authorization by trust instrument of investment of trust funds in nonlegal investments, 78 A.L.R.2d 7.

Effect of mistake of draftsman (other than testator) in drawing will, 90 A.L.R.2d 924.

Wills: bequest or devise referring to services to be rendered by donee to testator during latter's lifetime as absolute or conditional gift, 22 A.L.R.3d 771.

Wills: effect of gift to be disposed of "as already agreed" upon or the like, 85 A.L.R.3d 1181.

Payable-on-death savings account or certificate of deposit as will, 50 A.L.R.4th 272.

Adoption as precluding testamentary gift under natural relative's will, 71 A.L.R.4th 374.

Adopted child as within class named in testamentary gift, 36 A.L.R.5th 395.

ARTICLE 2 TESTAMENTARY CAPACITY

53-4-10. Minimum age; conviction of crime.

  1. Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action.
  2. An individual who has been convicted of a crime shall not be deprived of the power to make a will.

(Code 1981, §53-4-10, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Age of majority, § 39-1-1.

Law reviews.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

COMMENT

This section combines the provisions of former OCGA Sec. 53-2-20, 53-2-22, and 53-2-26.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-201 and 113-206, and former O.C.G.A. §§ 53-2-20 and53-2-22 are included in the annotations for this Code section.

When testamentary capacity is the issue, capacity must be determined by the condition of the mind at the time of the execution of the will. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-201).

Though, as tending to illustrate the condition of the mind, evidence may be received as to what was the mental capacity at a prior or a subsequent time, yet if it be certain from all the testimony that at the time of the execution of the instrument there was no want of testamentary capacity, the instrument offered will not be refused probate on the ground of lack of sound and disposing mind and memory. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-201).

Although evidence as to the mental capacity at a time prior or subsequent to the execution of the will may be shown to illustrate the condition of the testator's mind, still the controlling question to be determined, when testamentary capacity is the issue, is whether the testator had sufficient testamentary capacity at the time of executing the will. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-201).

Neither age and physical impairments, nor declarations made subsequent to the execution of the will and contrary to the will's terms are sufficient alone to raise issues of mental incapacity. Irvin v. Askew, 241 Ga. 565, 246 S.E.2d 682 (1978) (decided under former Code 1933, § 113-201).

What is mental capacity to make a will is a question of fact.

- On the trial of an issue of devisavit vel non, whether the alleged testator had mental capacity to make a will at the time of signing the paper is a question for decision by the jury, and a witness cannot testify as to such legal conclusion. Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 113-201).

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-201).

Understanding nature of testament.

- Person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and by one who is capable of remembering generally the property subject to disposition and the persons related to that person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable the testator to have a decided and rational desire as to the disposition of the testator's property, this will suffice. Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939) (decided under former Code 1933, § 113-201); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-201).

Testimony as to mental status is necessarily opinionative, and the law requires that before a will can be probated, and subscribing witnesses shall be inquired of as to apparent capacity or noncapacity; the fact that a witness witnesses a will qualifies the witness to give an opinion on that subject. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

When the testimony of both expert and nonexpert witnesses was insufficient to overcome the positive testimony of two of the subscribing witnesses, the testimony of the other subscribing witness being inconclusive, that at the time the will was executed the testator apparently had testamentary capacity, the evidence demanded a verdict in favor of the propounder. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-201).

When there is an issue as to the testamentary capacity of the testator, the opinion as to the sanity of the testator may be given in evidence by a witness who attested the will without first stating the facts upon which one bases such opinion. Brooker v. Brooker, 208 Ga. 387, 67 S.E.2d 117 (1951) (decided under former Code 1933, § 113-201).

When although the pleadings raised an issue as to testamentary capacity of the testator, not a single witness testified that the testator was not of sound and disposing memory at the time of executing or acknowledging the will, there was no evidence to carry this issue to the jury. Brooker v. Brooker, 208 Ga. 387, 67 S.E.2d 117 (1951) (decided under former Code 1933, § 113-201).

Presumption favoring testamentary capacity is necessarily a rebuttable presumption, and the capacity of the testator is always a proper subject of inquiry. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

Burden is on the propounder to show the factum of the will, free and voluntary action, and apparent testamentary capacity, and when this is shown, together with the presumption of testamentary capacity which exists in the absence of proof, a prima facie case for the propounder is made out. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201); Johnson v. Sullivan, 247 Ga. 663, 278 S.E.2d 640 (1981);(decided under former Code 1933, § 113-201).

While the presumption in favor of testamentary capacity exists, the presumption alone is not sufficient to make out for the propounder a prima facie case. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201); Johnson v. Sullivan, 247 Ga. 663, 278 S.E.2d 640 (1981);(decided under former Code 1933, § 113-201).

Law, in its zealousness always to safeguard the rights of a deceased testator, although presuming testamentary capacity, deems it wise not to rely solely upon that presumption, but to make inquiry into the immediate circumstances of the execution of the will from those who were present at the time. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

Charge that the presumption is always in favor of a mental capacity to make a will, where elsewhere in the charge the jury was instructed that the burden was on the propounder to establish the factum of the will, that it was freely and voluntarily made, and that the testator apparently had sufficient mental capacity to make a will, as a prerequisite to the making out by the propounder of a prima facie case was not error. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-201).

Affidavit of neurologist found sufficient to create issue of fact as to testamentary capacity. See Baldwin v. First Tenn. Bank, 251 Ga. 561, 307 S.E.2d 919 (1983) (decided under former O.C.G.A. § 53-2-20).

Designation of beneficiaries to annuities.

- A 15-year old ward had the authority to designate beneficiaries to the ward's annuities. Bacon v. Smith, 222 Ga. App. 542, 474 S.E.2d 728 (1996) (decided under former O.C.G.A. § 53-2-22).

Cited in Brumbelow v. Hopkins, 197 Ga. 247, 29 S.E.2d 42 (1944); Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961); Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-206, are included in the annotations for this Code section.

When an inmate donates the inmate's body by will, and the body is not claimed, notice should be posted on the courthouse door for 24 hours and the board should be notified of the name of the school or college specified by the inmate in the inmate's will. 1965-66 Op. Att'y Gen. No. 66-84 (decided under former Code 1933, § 113-206).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 2, 47 et seq., 53, 54, 62 et seq.

Intentional Omission of Child from Will, 6 POF2d 95.

Determination of Heirship, 12 POF2d 459.

Mentally Disordered Testator's Execution of Will During Lucide Interval, 18 POF2d 1.

Decedent's Gift to Heir as Advancement, 35 POF2d 357.

Lack of Testamentary Capacity by Reason of Insane Delusion, 40 POF2d 339.

Alzheimer's and Multi-Infarct Dementia - Incapacity to Execute Will, 17 POF3d 219.

AIDS Dementia - Incapacity to Execute Will, 19 POF3d 335.

Proof of Incompetency, 62 POF3d 197.

Determination of Heirship, 68 POF3d 93.

Proof of Decedent's Intent That Inter Vivos Gift to Heir Constitutes Advancement, 83 POF3d 295.

C.J.S.

- 95 C.J.S., Wills, §§ 3, 4 et seq.

ALR.

- Will of blind person, 9 A.L.R. 1416; 37 A.L.R. 603.

Epilepsy as affecting testamentary capacity, 16 A.L.R. 1418.

Admissibility of evidence other than testimony of subscribing witnesses to prove due execution of will, or testamentary capacity, 63 A.L.R. 1195.

Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199.

Necessity of affirmative evidence of testamentary capacity to make prima facie case in will contest, 110 A.L.R. 675.

Admissibility of evidence on question of testamentary capacity or undue influence in a will contest as affected by remoteness, relative to the time when the will was executed, of the facts or events to which the evidence relates, 124 A.L.R. 433.

Illustrations of instructions or requested instructions as to effect of unnaturalness or unreasonableness of provisions of will on question of testamentary capacity or undue influence, 137 A.L.R. 989.

Soldiers' and seamen's wills, 152 A.L.R. 1450.

Proper form of question to witness or of testimony of witness, as regards mental condition of person whose capacity to execute a will is in issue, 155 A.L.R. 281.

Admissibility of declaration by beneficiary named in will in support of claim of undue influence or lack of testamentary capacity, 167 A.L.R. 13.

Admissibility and probative force, on issue of competency to execute an instrument, of evidence of incompetency at other times, 168 A.L.R. 969.

Insane delusion as invalidating a will, 175 A.L.R. 882.

Admissibility of testator's declarations upon issue of genuineness or due execution of purported will, 62 A.L.R.2d 855.

Admissibility, on issue of testamentary capacity, of previously executed wills, 89 A.L.R.2d 177.

Effect of guardianship of adult on testamentary capacity, 89 A.L.R.2d 1120.

Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

Wills: testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 A.L.R.3d 889.

Partial invalidity of will: may parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence, 64 A.L.R.3d 261.

Convict's capacity to make will, 84 A.L.R.3d 479.

53-4-11. Decided and rational desire; incapacity to contract; insanity; advanced age or eccentricity.

  1. Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
  2. An incapacity to contract may coexist with the capacity to make a will.
  3. An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
  4. Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.

(Code 1981, §53-4-11, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Capacity of parties to enter into contracts, § 13-3-20 et seq.

Law reviews.

- For article, "The Georgia Law of Insanity," see 3 Ga. B.J. 28 (1941). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For note discussing early development of rules governing capacity to make will in Georgia, see 24 Ga. B.J. 257 (1961).

COMMENT

This section carries over the concepts of former OCGA Secs. 53-2-21, 53-2-23, and 53-2-25. Former Code Sec. 53-2-21 described the capacity necessary to make a will as including a "decided and rational desire" on the part of the testator: "decided, as distinguished from the wavering, vacillating fancies of a distempered intellect, and rational, as distinguished from the ravings of a madman, the silly pratings of an idiot, the childish whims of imbecility, or the excited vagaries of a drunkard." The changes from the former Code section are not intended to change the standard for determining testamentary capacity, but rather to eliminate from the Code language that was merely illustrative and, in some cases, outdated. The terms "insane" and "monomania," while of uncertain medical meaning, are retained because they have been defined or referred to often in Georgia case law.

Former OCGA Sec. 53-2-24 is not carried forward so that individuals who are suffering from disabilities such as hearing or speech impairments or visual impairments may make wills in the same way as individuals who do not suffer from such impairments.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-202, 113-204, and 113-205, and former O.C.G.A. §§ 53-2-21 and53-2-23 are included in the annotations for this Code section.

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-204).

Person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and by one who is capable of remembering generally the property subject to disposition and the persons related to that person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable the testator to have a decided and rational desire as to the disposition of the testator's property, this will suffice. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205); Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939); Fowler v. Fowler, 197 Ga. 53, 28 S.E.2d 458 (1943) (decided under former Code 1933, § 113-204); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-205);(decided under former Code 1933, § 113-205).

As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but when it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204).

In order to execute a will it is necessary, as a minimum, that the testator have a rational desire as to the disposition of the testator's property. It takes a greater intellect to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

While the fact that a person did or did not become insolvent, displease one's family, or become dependent as the result of signing a deed is not evidence of mental capacity, yet if his or her mental capacity was so impaired that he or she did not know at the time whether such would or could be the case, then such person would not have the capacity to make a will much less the capacity to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Testamentary capacity to change will.

- Despite the fact that the testator was old and frail, the testator did not lack testamentary capacity to change the will, disinheriting the testator's son. Harper v. Harper, 274 Ga. 542, 554 S.E.2d 454 (2001).

To establish incapacity in a grantor, one must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means not a partial but an entire loss of understanding. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Weak have the same rights as the prudent and strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

Weak have the same rights as the strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. If the testator has sufficient intellect to enable the testator to have a rational desire as to the disposition of one's property, this is sufficient. The condition of the testator's mind at the time of the execution of the will determines whether the testator can make a valid will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204); Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969);(decided under former Code 1933, § 113-204).

Terminal cancer patient capacity to execute wills while taking prescription medications.

- When a testator, who had been diagnosed with terminal cancer, executed one will in February 2004 and another shortly before the testator's death in October 2004, there was sufficient evidence to support a jury's finding that the testator lacked testamentary capacity at the time the testator executed the October will; there was evidence that the testator was taking medication that had as possible side effects hallucination, disorientation, impaired mental performance, and confusion; that two days before the will was executed, the testator had difficulty completing sentences, was somewhat forgetful, and denied having siblings; and that on the day the will was executed, a witness, who described the testator as "morphined up," saw a beneficiary of the will repeatedly administer medicine to the testator via an eyedropper used to administer narcotics. Lillard v. Owens, 281 Ga. 619, 641 S.E.2d 511 (2007).

Trial court was authorized to conclude that a decedent's will was invalid based on the decedent's lack of testamentary capacity under O.C.G.A. § 53-4-11 based on evidence that the decedent was confused and disoriented, did not recognize family members, and had a car accident after which doctors found the decedent was unable to make decisions personally. Burchard v. Corrington, 287 Ga. 786, 700 S.E.2d 365 (2010).

Physical infirmities and weakness of intellect resulting from old age do not constitute mental incapacity to make a will, unless such weakness actually amounts to imbecility. Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-205).

Condition of the testator's mind at the time of the execution of the will determines whether or not the testator can make a valid will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

Impact of dementia.

- In a will contest, it was error to grant propounders' motion for judgment notwithstanding the verdict as there was some evidence that the 95-year-old decedent lacked testamentary capacity, including expert testimony that the decedent suffered from some degree of dementia and testimony that the decedent appeared confused and spoke of deceased relations as if the relatives were alive. Mosley v. Warnock, 282 Ga. 488, 651 S.E.2d 696 (2007).

Unreasonable disposition of property alone insufficient to prove testamentary incapacity.

- An unnatural or unreasonable disposition of one's property is not of itself sufficient to justify a finding that a testator was lacking in testamentary capacity. Watkins v. Jones, 184 Ga. 831, 193 S.E. 889 (1937) (decided under former Code 1933, § 113-205).

Reasonableness or unreasonableness of the disposition of a testator's estate has strong evidential value on the issue as to the testator's testamentary capacity and when the extent of the mental weakness is in doubt. Ellis v. Britt, 181 Ga. 442, 182 S.E. 596 (1935) (decided under former Code 1933, § 113-205).

When to the probate of a will a caveat has been filed on the grounds of testamentary incapacity or undue influence, and there is doubt as to the extent of weakness of intellect, the reasonableness or unreasonableness of the disposition of the estate may be considered by the jury. In the trial of such issue the source from which the property disposed of by the will came into the decedent's possession may be shown. Shaw v. Fehn, 196 Ga. 661, 27 S.E.2d 406 (1943) (decided under former Code 1933, § 113-205).

When, in probate proceeding, there is nothing in the testimony taken as a whole to support a finding that when the will was executed testator did not possess testamentary capacity, it was therefore erroneous to submit that issue to the jury. Brumbelow v. Hopkins, 197 Ga. 247, 29 S.E.2d 42 (1944) (decided under former Code 1933, § 113-205).

On the propounding of a will, where the question is insanity, monomania, or undue influence, the unreasonableness of the disposition of the will is always a question to be considered by the jury. A reasonable disposition of property, without more, strongly indicates mental capacity to make a will. An unreasonable disposition of property may indicate a lack of mental capacity to make a will. It follows that a reasonable or unreasonable disposition of property, regardless of the nature of the insanity or inability alleged, should be given much consideration by the jury, if any doubt exists from the evidence as to the testator's ability to make the alleged will. Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329 (1947) (decided under former Code 1933, § 113-205).

The reasonableness, or unreasonableness of a will, while a legitimate subject of investigation by a jury in case of doubt as to the testator's capacity to make a will, is not to be considered until such a doubt has been first created by other evidence. Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329 (1947) (decided under former Code 1933, § 113-205).

Sufficient evidence of revocation of will.

- Evidence presented at trial was sufficient for the trial court to find, as a matter of fact, that the decedent had the necessary mental capacity to revoke a 1988 will because the record showed that the relevant circumstances had changed significantly in the 16 years since the execution of the 1988 will, giving the decedent good reasons to want to revoke the old will such as several people listed in the 1988 will having died, including both of the co-executors named. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

Cited in Crow v. Whitworth, 170 Ga. 242, 152 S.E. 445 (1930); Shankle v. Crowder, 174 Ga. 399, 163 S.E. 180 (1932); Baucum v. Harper, 176 Ga. 296, 168 S.E. 27 (1933); Martin v. Martin, 185 Ga. 349, 195 S.E. 159 (1938); Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938); Orr v. Blalock, 195 Ga. 863, 25 S.E.2d 668 (1943); Brazil v. Roberts, 198 Ga. 477, 32 S.E.2d 171 (1944); Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E.2d 329 (1947); Norman v. Hubbard, 203 Ga. 530, 47 S.E.2d 574 (1948); Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948); Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961); English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965); Powell v. Thigpen, 230 Ga. 760, 199 S.E.2d 251 (1973); Bishop v. Kenny, 266 Ga. 231, 466 S.E.2d 581 (1996).

Capacity to Contract versus Testamentary Capacity

Different capacities involved.

- An incapacity to contract is not inconsistent with the capacity to make a will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936), later appeal, 185 Ga. 443, 195 S.E. 746 (1938) (decided under former Code 1933, § 113-202).

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-202).

It takes a greater quantum or higher degree of mentality to make a contract than it does to make a will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202).

While the fact that a person did or did not become insolvent, displease one's family, or become dependent as the result of signing a deed is not evidence of mental capacity, yet if his or her mental capacity was so impaired that he or she did not know at the time whether such would or could be the case, then such person would not have the capacity to make a will, much less the capacity to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

Person is insane when he or she is not possessed of mind and reason equal to a full and clear understanding of the nature and consequence of his or her act in making the contract. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

In order to execute a will it is necessary, as a minimum, that the testator have a rational desire as to the disposition of one's property. It takes a greater intellect to execute a deed. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

An incapacity to contract is not inconsistent with the capacity to make a will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

Insane Persons

Insanity defined.

- Person is insane when he or she is not possessed of mind and reason equal to a full and clear understanding of the nature and consequence of his or her act in making the contract. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Issue of mental capacity to make a will is confined to the mental condition of the testator at the time the will was executed. Scott v. Gibson, 194 Ga. 503, 22 S.E.2d 51 (1942) (decided under former Code 1933, § 113-204).

Not only may an insane person make a will during a lucid interval, but a person may be feeble and suffering from an illness that today might cause sufficient reason to be wanting, and yet tomorrow or at another time even in the same day sufficient reason (mental capacity) would be present. Scott v. Gibson, 194 Ga. 503, 22 S.E.2d 51 (1942) (decided under former Code 1933, § 113-204).

Although evidence as to the mental capacity at a time prior or subsequent to the execution of the will may be shown to illustrate the condition of the testator's mind, still the controlling question to be determined, when testamentary capacity is the issue, is whether the testator had sufficient testamentary capacity at the time of executing the will. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-204).

To make one incapable of making a will from insanity there must be a "total deprivation of reason." However old, feeble, weak-minded, capricious, or notionate one may be, if one "be able to have a decided and rational desire as to the disposition of his property," one is not wanting in testamentary capacity. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-205).

Delusions have to be insane to deprive one of testamentary capacity.

- In a dispute concerning the distribution of the decedent's estate, the evidence was legally insufficient to sustain the verdict finding that the decedent lacked testamentary capacity because there was no evidence that the decedent lacked the ability to form a decided and rational desire as to the disposition of the decedent's property; and the caveators expressly disclaimed that the decedent was insane or suffered from monomania, and, instead, they merely argued that the decedent suffered from delusions; however, the caveators' claim nevertheless failed as the case law was clear that not every delusion deprived one of testamentary capacity, rather, it had to be an insane delusion, but none of the decedent's delusions were insane ones. Meadows v. Beam, 302 Ga. 494, 807 S.E.2d 339 (2017).

Testamentary capacity of epileptic.

- An epileptic, when not in the throes of an attack of epilepsy, is not less capacitated than a lunatic in a lucid interval, and it is well settled law that a lunatic during a lucid interval may make a will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204).

Intellect Necessary for Testamentary Capacity

When testamentary capacity is the issue, it must be determined by the condition of the mind at the time of the execution of the will. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

To establish incapacity in a grantor, the grantor must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means not a partial but an entire loss of understanding. Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

When, in a probate proceeding, there is nothing in the testimony taken as a whole to support a finding that when the will was executed testator did not possess testamentary capacity, it was erroneous to submit that issue to the jury. Brumbelow v. Hopkins, 197 Ga. 247, 29 S.E.2d 42 (1944) (decided under former Code 1933, § 113-202).

Law does not withhold from the aged, the feeble, the weak-minded, the capricious, or the notionate, the right to make a will, provided such person has a decided and rational desire as to the disposition of one's property. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

Weak have the same rights as the strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. If the testator has sufficient intellect to enable the testator to have a rational desire as to the disposition of the testator's property, this is sufficient. The condition of the testator's mind at the time of the execution of the will determines whether the testator can make a valid will. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202); Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969);(decided under former Code 1933, § 113-202).

"Decided" means a mental capacity to frame a desire that is certain, or with distinct limits, and "rational" means that the desire must be consistent with reason. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202).

"Decided" does not connote stubbornness, or even mental strength; it simply means that the mind must have capacity enough to frame a desire that is certain, or one that has distinct limits. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

To be rational does not mean that the desire must spring from a strong intellect, but that it is consistent with reason. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

Attention is to be given, not so much to the abstract state of the mind, as to the mind's capacity for the precise thing in hand. For a man may say and do things which a medical man would take as evidence of insanity, and yet it may be that one is nevertheless able to have a decided rational desire as to the disposition of one's property. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-202).

Understanding nature of testament.

- Person has testamentary capacity who understands the nature of a testament or will, viz., that is a disposition of property subject to disposition and the persons related to the person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-202); Morgan v. Bell, 189 Ga. 432, 5 S.E.2d 897 (1939); Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202);(decided under former Code 1933, § 113-202).

Petition to probate the will was properly granted as the decedent had testamentary capacity because the evidence did not show a total absence of mind and the attorneys who took part in the preparation and/or execution of the will testified that the decedent appeared to understand what the decedent was doing and to be of sound mind when the decedent signed the document. O'Callaghan v. Samples, 354 Ga. App. 42, 840 S.E.2d 139 (2020).

Condition of the testator's mind at the time of the execution of the will determines whether or not the testator can make a valid will. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936) (decided under former Code 1933, § 113-202).

Though, as tending to illustrate the condition of the mind, evidence may be received as to what was the mental capacity at a prior or a subsequent time, yet if it be certain from all the testimony that at the time of the execution of the instrument there was no want of testamentary capacity, the instrument offered will not be refused probate on the ground of lack of sound and disposing mind and memory. Hill v. Deal, 185 Ga. 42, 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

Schizophrenia patient had knowledge about nature and extent of estate.

- In a probate case, when the decedent was diagnosed with schizophrenia in 1973, the probate court did not err in denying the sister's caveat and in admitting the will to probate as the decedent did not lack testamentary capacity because the decedent had enough knowledge about the nature and extent of the decedent's estate to sustain a finding that the decedent had a decided and rational desire as to the disposition of the decedent's property; the medical records reflected that the decedent's state of mind improved close in time to the execution of the will; and, even if there was some evidence that the decedent was not lucid at times, the record did not demand a finding that the decedent was not lucid when the decedent executed the will. Webb v. Reeves, 299 Ga. 760, 791 S.E.2d 35 (2016).

Monomaniacs

Monomania defined.

- Monomania exists when one, because of partial insanity, becomes imbued with an hallucination or delusion that something extravagant exists which has no existence whatever, and is incapable of being permanently reasoned out of that conception. Moreland v. Word, 209 Ga. 463, 74 S.E.2d 82 (1953) (decided under former Code 1933, § 113-204).

Monomania distinguished from sane desires.

- Monomania is a mental disease; an insane delusion such as will deprive one of testamentary capacity. Monomania must be distinguished from an expressed desire to exclude a person from a will because of ill will, bad judgment, animosity, prejudice, or other conditions of mind which can be coexistent with sanity. Russell v. Fulton Nat'l Bank, 248 Ga. 421, 283 S.E.2d 879 (1981) (decided under former Code 1933, § 113-204).

Showing of hallucinations or insane delusions is essential to proving monomania. Hammett v. Reynolds, 243 Ga. 669, 256 S.E.2d 354 (1979) (decided under former Code 1933, § 113-204).

Testator's belief that a spouse had been intimate with another does not amount to an insane delusion so as to constitute monomania. Hammett v. Reynolds, 243 Ga. 669, 256 S.E.2d 354 (1979) (decided under former Code 1933, § 113-204).

Mental incapacity due to monomania directed toward parent.

- When caveat to application to probate a will brought by child of testator alleged mental incapacity due to monomania, the evidence showing that the testator had without cause maintained an antagonistic attitude toward caveator even before she was born, by physical attacks upon her mother, and continued numerous acts of cruelty toward the caveator for about 30 years, and the substance of this voluminous evidence was stated as a basis for a hypothetical question which was propounded to a psychiatrist, and upon which the psychiatrist gave the opinion answer that the testator suffered monomania as to the caveator, there was a conflict in the evidence rendering it reversible error to direct a verdict in favor of the propounder of the will. Duncan v. Mayfield, 209 Ga. 882, 76 S.E.2d 805 (1953) (decided under former Code 1933, § 113-204).

Monomania not shown.

- Evidence of the testator's lack of trust of her daughter and her daughter's companion, and concern that the companion was taking advantage of her daughter, was not sufficient to establish monomania. Joseph v. Grisham, 267 Ga. 677, 482 S.E.2d 251 (1997) (decided under former O.C.G.A. § 53-2-23).

Pleading and Practice

Burden is on the propounder to show the factum of the will, free and voluntary action, and apparent testamentary capacity, and when this is shown, together with the presumption of testamentary capacity which exists in the absence of proof, a prima facie case for the propounder is made out. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

When the witnesses, both for the propounder and the caveator, testified to the effect that the deceased had perfectly normal periods up until a very short time before death, almost all the facts relied upon to establish the mental incapacity of the deceased occurred after the will was executed, most of them very shortly before death, the only doctor who testified said that the next year after the will was executed the deceased was perfectly normal, and on the date the will was executed, the deceased went to the office of the deceased's attorney and in a perfectly intelligent manner furnished the information for the preparation of the will, all of the subscribing witnesses testifying that the deceased was perfectly normal the day the will was executed, the evidence was not sufficient to carry the burden placed by law upon the caveator. Orr v. Orr, 208 Ga. 431, 67 S.E.2d 209 (1951) (decided under former Code 1933, § 113-202).

Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of the will's execution the testator apparently had sufficient mental capacity to make the will, and, in making the will, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator. Cornelius v. Crosby, 243 Ga. 26, 252 S.E.2d 455 (1979) (decided under former Code 1933, § 113-202).

While the presumption in favor of testamentary capacity exists, the presumption alone is not sufficient to make out for the propounder a prima facie case. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

There is no less reason to presume sane action in the execution of a will than in other instances of human relations and conduct. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Presumption favoring testamentary capacity is necessarily a rebuttable presumption, and the capacity of the testator is always a proper subject of inquiry. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Cross examination on effect of wills in terrorem clause.

- In a will contest, the caveator was properly prevented from cross-examining the executor as to the effect of the will's in terrorem clause as the uncontroverted testimony showed that the testator was of sound mind and was not influenced by the desires of others, and evidence as to the effect of the forfeiture provision would not have been probative of either undue influence or the lack of testamentary capacity. Caswell v. Caswell, 285 Ga. 277, 675 S.E.2d 19 (2009).

Inquiry into peculiar circumstances required.

- Law, in its zealousness always to safeguard the rights of a deceased testator, although presuming testamentary capacity, deems it wise not to rely solely upon that presumption, but to make inquiry into the immediate circumstances of the execution of the will from those who were present at the time. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Charge that the presumption is always in favor of a mental capacity to make a will, where elsewhere in the charge the jury was instructed that the burden was on the propounder to establish the factum of the will, that it was freely and voluntarily made, and that the testator apparently had sufficient mental capacity to make a will, as a prerequisite to the making out by the propounder of a prima facie case was not error. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Evidence of testator's mental condition at times other than the signing of the will does not controvert positive testimony of subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Russell v. Fulton Nat'l Bank, 248 Ga. 421, 283 S.E.2d 879 (1981) (decided under former Code 1933, § 113-202).

Trial court properly denied a granddaughter's motion for judgment notwithstanding the verdict following a jury verdict upholding the last will and testament of her grandmother giving the bulk of her estate to her grandson because a videotape of the execution of the will, the will's witnesses, and other evidence established the grandmother's testamentary capacity. Patterson-Fowlkes v. Chancey, 291 Ga. 601, 732 S.E.2d 252 (2012).

Ruling upholding the 2010 will was affirmed because subscribing witnesses stated in an affidavit that the testatrix was mentally competent when the will was executed, it was self-proved, and contained an affidavit complying with O.C.G.A. § 53-4-24, which created a presumption that the will was executed with the requisite testamentary formalities, including that the testatrix had sufficient mental capacity to do so, and the challenger failed to rebut that presumption. Woods v. Stonecipher, 349 Ga. App. 698, 824 S.E.2d 633 (2019).

Affidavit of neurologist found sufficient to create issue of fact as to testamentary capacity. Baldwin v. First Tenn. Bank, 251 Ga. 561, 307 S.E.2d 919 (1983) (decided under former O.C.G.A. § 53-2-21).

Relevancy of prior wills.

- In a will contest action, the trial court did not abuse the court's discretion in admitting the three wills executed by the decedent as the wills were relevant to the issue of whether the trust agreement that was executed was a result of undue influence and the objector expressly conceded at the end of trial that the decedent's capacity to execute the trust agreement and related deeds was no longer an issue before the jury. Horton v. Hendrix, 291 Ga. App. 416, 662 S.E.2d 227 (2008), cert. denied, No. S08C1574, 2008 Ga. LEXIS 780 (Ga. 2008).

For charge defining testamentary capacity, see Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944) (decided under former Code 1933, §§ 113-202, 113-205).

Sanity or insanity is a proper subject for opinion evidence. Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

Testimony as to mental status is necessarily opinionative, and the law requires that before a will can be probated, the subscribing witnesses shall be inquired of as to apparent capacity or noncapacity; the fact that a witness witnesses a will qualifies the witness to give an opinion on that subject. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

When there is conflicting evidence as to testamentary capacity to make a will, and sufficient evidence to establish the absence of testamentary capacity, the verdict of the jury finding in favor of the caveat will not be set aside on the ground that there is lack of evidence to support the verdict. Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485 (1944) (decided under former Code 1933, § 113-202).

While ordinarily the sufficiency of the reasons given by witnesses for their opinions as to a person's sanity or insanity cannot be determined as a matter of law by the court, but is a question for the jury, yet, where it plainly and indisputably appears that the reasons are insufficient, the court may on review so hold as a matter of law. Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

When there was no testimony of any expert witnesses showing or tending to show mental incapacity of the testator, and the testimony of every nonexpert witness to that effect was based on acts, conduct, and sayings of the testator which did not within themselves show mental incapacity to make a will, such testimony was therefore insufficient to support a verdict finding for the caveators. Espy v. Preston, 199 Ga. 608, 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

When the testimony of both expert and nonexpert witnesses was insufficient to overcome the positive testimony of two of the subscribing witnesses, the testimony of the other subscribing witness being inconclusive, that at the time the will was executed the testator apparently had testamentary capacity, the evidence demanded a verdict in favor of the propounder. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202).

As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but when it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Anderson v. Anderson, 210 Ga. 464, 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202).

When two subscribing witnesses give positive testimony that testator had testamentary capacity at the time the will was executed, evidence of testator's mental condition at times other than the signing of the will will not controvert the positive testimony of the subscribing witnesses unless it is proof of testamentary incapacity at the time the will was signed. Yuzamas v. Yuzamas, 241 Ga. 577, 247 S.E.2d 73 (1978) (decided under former Code 1933, § 113-202).

Charge that "an insane person generally may make a will" is clearly an erroneous statement of the law. Milam v. Terrell, 214 Ga. 199, 104 S.E.2d 219 (1958) (decided under former Code 1933, § 113-204).

General rule is that a charge on legal principles must be adjusted to the pleadings and the evidence; hence when there was no evidence which would have authorized a verdict on the issue of monomania (because of testator's belief that beneficiary was the testator's illegitimate son) the failure to charge on that subject was not error. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-204).

Existence of monomania is question for jury.

- When all that the testimony of the witnesses for the caveator amounted to was that the testator was highly eccentric and that the testator had delusional ideas that people were trying to harm the testator, and the uncontroverted evidence showed that the testator not only conducted the testator's brokerage business while a patient in a mental institution, but that the testator continued to conduct the business until the testator's death approximately two years after execution of the will, and that the testator was not suffering from monomania about the testator's money, the caveator did not carry the burden of proving lack of testamentary capacity. Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434 (1955) (decided under former Code 1933, § 113-204).

Question of whether the beliefs harbored by the testator were insane delusions springing from a disordered intellect, or merely illogical deductions from actual facts, was a question for the jury. Johnson v. Dodgen, 244 Ga. 422, 260 S.E.2d 332 (1979) (decided under former Code 1933, § 113-204).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 47 et seq., 62 et seq., 70 et seq., 74 et seq., 105.

C.J.S.

- 95 C.J.S., Wills, §§ 4 et seq., 9, 10.

ALR.

- Epilepsy as affecting testamentary capacity, 16 A.L.R. 1418.

Admissibility and weight on issue of mental capacity or undue influence in respect of will or conveyance, of instruments previously executed by the person in question, 82 A.L.R. 963.

Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199.

Admissibility of evidence of reputation on issue of mental condition, or testamentary or contractual incapacity or capacity, 105 A.L.R. 1443.

Relative weight of testimony of attesting witnesses in support of mental competency of testator, 123 A.L.R. 88.

Proper form of question to witness or of testimony of witness, as regards mental condition of person whose capacity to execute a will is in issue, 155 A.L.R. 281.

Admissibility of declaration by beneficiary named in will in support of claim of undue influence or lack of testamentary capacity, 167 A.L.R. 13.

Insane delusion as invalidating a will, 175 A.L.R. 882.

Admissibility in will contest of financial condition or needs of those constituting natural objects of testator's bounty, 26 A.L.R.2d 374.

Effect of guardianship of adult on testamentary capacity, 89 A.L.R.2d 1120.

Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

Wills: testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 A.L.R.3d 889.

Validity of testamentary exercise of power of appointment by donee sane when will was executed but insane thereafter, 19 A.L.R.4th 1002.

Alzheimer's disease as affecting testamentary capacity, 47 A.L.R.5th 523.

53-4-12. Freedom of volition.

A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator's freedom of volition, such as fraudulent practices upon the testator's fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.

(Code 1981, §53-4-12, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For comment on Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948), see 11 Ga. B.J. 348 (1949).

COMMENT

This section carries over and combines former OCGA Secs. 53-2-6 and 53-2-7.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3834, former Code 1933, §§ 113-208 and 113-209, and former O.C.G.A. 53-2-6 are included in the annotations for this Code section.

Purpose of undue influence rule.

- The undue influence rule not only does not challenge the right of the citizen to make a will, but contemplates added protection of that right, and works destruction to any disposition by will and testament of property by any person other than the person entitled to make disposition thereof. Franklin v. First Nat'l Bank, 187 Ga. 268, 200 S.E. 679 (1938) (decided under former Code 1933, § 113-208).

Freedom of volition essential for valid will.

- Anything which destroys freedom of volition invalidates a will, such as fraudulent practices or any undue influence whereby the will of another is substituted for the wishes of the testator. Crow v. Whitworth, 170 Ga. 242, 152 S.E. 445 (1930) (decided under former Civil Code 1910, § 3834).

Cited in Boyles v. Morgan, 168 Ga. 804, 149 S.E. 149 (1929); Scott v. Wimberly, 188 Ga. 148, 3 S.E.2d 71 (1939); Moreland v. Word, 209 Ga. 463, 74 S.E.2d 82 (1953); Northwestern Univ. v. Crisp, 211 Ga. 636, 88 S.E.2d 26 (1955); Kellar v. Edwards, 214 Ga. 633, 106 S.E.2d 787 (1959); Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961); Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964); Akin v. Patton, 235 Ga. 51, 218 S.E.2d 802 (1975); Cames v. Joiner (In re Joiner), 319 Bankr. 903 (Bankr. M.D. Ga. 2004); Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

Essential Elements of Undue Influence

Time of submission of will for probate cannot be basis for undue influence.

- Fact that the propounder may have submitted will for probate sooner than might seem appropriate under the proprieties cannot be said to have any bearing upon the question as to whether or not the instrument was procured under undue influence at the time of its execution. Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948), for comment, see 11 Ga. B.J. 348 (1949) (decided under former Code 1933, § 113-208).

What constitutes undue influence.

- Undue influence, to invalidate a will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and be operative on the mind of the testator at the time the will is executed. It must destroy the free agency of the testator and constrain the testator to do what is against the testator's will, but what the testator is unable to refuse. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208); Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963);(decided under former Code 1933, § 113-208).

Undue influence in procuring a will to be made must amount to moral coercion; it must destroy the free agency of the testator and constrain the testator to do what is against the testator's will but which the testator is unable to refuse. Griffin v. Barrett, 183 Ga. 152, 187 S.E. 828 (1936), later appeal, 185 Ga. 443, 195 S.E. 746 (1938) (decided under former Code 1933, § 113-208).

The undue influence which the law contemplates as a ground to invalidate a properly executed will must be such as amounts to fraud, deceit, force, or coercion, destroying the testator's free agency. It must also be operative at the time the will is executed, and not merely at some other time. Boland v. Aycock, 191 Ga. 327, 12 S.E.2d 319 (1940) (decided under former Code 1933, § 113-208).

Undue influence or fraud, to invalidate the will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed. Butler v. Lashley, 197 Ga. 461, 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-208).

Undue influence which operates to invalidate a will is such influence as amounts either to deception, or to force and coercion, destroying free agency. Butler v. Lashley, 197 Ga. 461, 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-208); Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967), for comment, see 11 Ga. B.J. 348 (1949) (decided under former Code 1933, § 113-208); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

To be sufficient to invalidate a will on the ground of undue influence, the evidence must show that such influence amounted to fear, force, overpersuasion, or coercion, to the extent of destroying the free agency and will power of the testator, and in effect made the will the mental offspring of another; and it must be shown that the undue influence was operative on the mind of the testator at the time the will was actually executed and published. Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-208); Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964);(decided under former Code 1933, § 113-208).

Undue influence in procuring a will may exist in many forms, and it may be operated through diverse channels; the existence and effective power of undue influence is not always susceptible of direct proof, but may be proved by circumstantial evidence. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).

Such influence that is obtained by flattery, importunity, superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against one's will what one is unable to refuse, such is the kind of influence which the law condemns as undue. Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208).

There can be no fatally undue influence without a person incapable of protecting oneself as well as a wrongdoer to be resisted. Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977);(decided under former Code 1933, § 113-208).

Undue influence must exist at time of execution of will.

- Evidence of undue influence over the mind and will of the testator at another time will not invalidate a will. Only such influence which exists at the time of the purported will's execution destroys the testator's freedom of volition so as to invalidate a will. Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).

It must be shown that the undue influence was operative on the mind of the testator at the time the will was actually executed and published. Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208); Sauls v. Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977);(decided under former Code 1933, § 113-208).

For undue influence to be a proper ground of caveat, it must exist at the time of the will's execution. Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 554 (1983) (decided under former O.C.G.A. § 53-2-6).

Undue influence exercised prior to execution of the paper may continue to operate on the mind of the testator until the paper is actually executed; and if upon account thereof the testator executes a paper in which the will of the person exercising the influence is substituted for that of the testator, the paper will be void, though the influence commenced at an antecedent date. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Undue influence of wife may continue subsequent to death of wife.

- If the undue influence was exercised by a wife, the effect thereof may have continued after her death and may have been operative upon her husband at the time he executed the paper shortly after her death. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Undue influence is a question of fact requiring jury consideration.

- It cannot be said as a matter of law that undue influence shown to have been exerted by the wife was not operative upon the husband at the time he executed his will, where the wife died only a short time before the paper was executed. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Mere absence of direct evidence and circumstances showing that the propounder practiced fraud or undue influence at or about the time the last will was executed did not demand a finding in favor of the propounder since there was evidence, direct and circumstantial, from which the jury could have drawn the conclusion that the last will as executed by the testator resulted from prior fraud and undue influence practiced by the propounder upon the testator, and that these prior actions of the propounder controlled the mind of the testator at the time the testator executed the last will. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).

Trial court properly denied the motions for a directed verdict and for a judgment notwithstanding the verdict filed by the executors of a will and trust because there was sufficient evidence to support the jury's finding that the documents were invalid as a product of undue influence based on the executors taking complete control of the elderly testator and isolating the testator from the testator's sons, as well as substituting desires and having the testator sign a new will and trust, which benefitted the executors and excluded the testator's wife and sons. Davison v. Hines, 291 Ga. 434, 729 S.E.2d 330 (2012).

Will propounder was not entitled to a directed verdict in a will caveat as the evidence established a question for the jury on the issue of undue influence because there was more than merely an opportunity for the propounder to influence the testator; there was also evidence of the testator's diminished mental faculties and an established confidential relationship between the propounder and the testator. Odom v. Hughes, 293 Ga. 447, 748 S.E.2d 839 (2013).

No undue influence when attorney not agent of propounder.

- When attorney who drafted the will was not an agent of the propounder, and since no agent of the propounder was present when the will was executed, an inference is assumed that there was no undue influence at the crucial time of execution. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-6).

Fraud

Fraud is a distinct head of objection to the validity of a will, from importunity and undue influence; usually they are the very opposites of each other. Both are equally destructive of the validity of a will. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, §§ 113-208, 113-209).

Fraud, to invalidate a will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed. Butler v. Lashley, 197 Ga. 461, 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-209).

Fraud must affect testator's plan in making will.

- There was no fraud when the basis for such claim was the attorney's failure to inform testator as to the powers and fees of an executor, matters which did not affect the testator's plan in making the testator's will. Yancey v. Hall, 265 Ga. 466, 458 S.E.2d 121 (1995) (decided under former Code 1933, § 113-209).

Trial court properly granted a will beneficiary summary judgment on the issue of fraud because there was no evidence in the record that would create a genuine issue of material fact as to fraud since the alleged two misrepresentations were not shown to have been relied upon by the testator when the will was created. Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).

Representations of infidelity sufficient to raise presumption of fraud.

- For one to represent to a wife that her husband is unfaithful to his marital vows, and giving to another the love and affection due his wife, whether the representation of infidelity be true or false, is likely to strongly influence her in the disposition of the property she may leave; hence, the evidence on behalf of the caveators was sufficient on the issue of fraud to have gone to the jury. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-209).

Effect of fraud practiced prior to execution of will.

- Mere absence of direct evidence and circumstances showing that the propounder practiced fraud at or about the time the last will was executed did not demand a finding in favor of the propounder where there was evidence, direct and circumstantial, from which the jury could have drawn the conclusion that the last will as executed by the testator resulted from prior fraud practiced by the propounder upon the testator, and that these prior actions of the propounder controlled the mind of the testator at the time the testator executed the last will. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-209).

Fraud established.

- There was sufficient evidence to support the jury's finding that a testator's will was procured by fraud because the propounder and the propounder's wife encouraged the caveator and the caveator's spouse to go on vacation, and they embarked on a campaign to convince the testator that the caveator had stolen all the testator's money, left the testator broke, and abandoned the testator; those were misrepresentations, but the misrepresentations worked because the testator changed the testator's will to disinherit the caveator completely, and as a result of those misrepresentations, the testator went into the meeting with the attorney who drafted the will intending to leave the testator's entire estate to the propounder, and the testator would have done so were it not for the attorney's suggestion that the testator leave something to the caveator's children, who were the testator's grandchildren. McDaniel v. McDaniel, 288 Ga. 711, 707 S.E.2d 60 (2011).

Pleading and Practice

1. In General

Burden of proof shifts to caveator when prima facie case made by propounder of will.

- Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of the will's execution the testator apparently had sufficient mental capacity to make the will, and, in making the will, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator. Cornelius v. Crosby, 243 Ga. 26, 252 S.E.2d 455 (1979) (decided under former Code 1933, § 113-208).

Cross examination of executor on effect of in terrorem.

- In a will contest, the caveator was properly prevented from cross-examining the executor as to the effect of the will's in terrorem clause as the uncontroverted testimony showed that the testator was of sound mind and was not influenced by the desires of others, and evidence as to the effect of the forfeiture provision would not have been probative of either undue influence or the lack of testamentary capacity. Caswell v. Caswell, 285 Ga. 277, 675 S.E.2d 19 (2009).

Jury question as to undue influence.

- It is for the jury to say under the circumstances, whether undue influence has been exercised. Bryan v. Norton, 245 Ga. 347, 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).

It is reversible error to charge on undue influence when there is no evidence to show that undue influence was exerted upon a testator, resulting in the testator making the will. Orr v. Blalock, 195 Ga. 863, 25 S.E.2d 668 (1943) (decided under former Code 1933, § 113-208).

2. Proof

Requirements for rebuttable presumption of undue influence.

- In order to give rise to the rebuttable presumption that a will is the void product of undue influence, the evidence must show a confidential relationship wherein the primary beneficiary was capable of exerting the power of leadership over the submissive testator. Crumbley v. McCart, 271 Ga. 274, 517 S.E.2d 786 (1999).

Use of circumstantial evidence permissible as proof of undue influence.

- Undue influence in procuring a will may exist in many forms, and it may be operated through diverse channels; the existence and effective power of undue influence is not always susceptible of direct proof and undue influence may be proved by circumstantial evidence. Stephens v. Bonner, 174 Ga. 128, 162 S.E. 383 (1932) (decided under former Civil Code 1910, § 3834).

Very wide range of testimony is permissible on the issue of undue influence, due to the fact that it seldom can be shown except by circumstantial evidence. It results from the circumstances and surroundings of the testator and the testator's associations with the person or persons exercising the undue influence. Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938) (decided under former Code 1933, § 113-208); Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949);(decided under former Code 1933, § 113-208).

It is proper to consider the testator's dealings and associations with the beneficiaries, the testator's habits, motives, feelings, the testator's strength or weakness of character, the testator's confidential, family, social, and business relations, the reasonableness or unreasonableness of the will, the testator's mental and physical condition at the time the will was made; the testator's manner and conduct, and generally every fact which will throw light on the issue raised by the charge of undue influence. Stephens v. Bonner, 174 Ga. 128, 162 S.E. 383 (1932) (decided under former Civil Code 1910, § 3834); Peretzman v. Simon, 185 Ga. 681, 196 S.E. 471 (1938); Fowler v. Fowler, 197 Ga. 53, 28 S.E.2d 458 (1943) (decided under former Code 1933, § 113-208); Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952);(decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

In determining whether undue influence had been exercised by the wife, so as to substitute her will for that of her husband in his last will and testament, all of the circumstances including the conduct and demeanor of the parties with respect to each other, their comparative ages and mental capacity, and especially any physical and mental infirmity due to advanced age of the husband, may be taken into consideration. Trust Co. v. Ivey, 178 Ga. 629, 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Allegations of undue influence must be accompanied by the particular facts. Bare conclusions such as "fraud, scheme, device, and undue influence" are insufficient allegations in a caveat to present an issue. English v. Shivers, 219 Ga. 515, 133 S.E.2d 867 (1963) (decided under former Code 1933, § 113-208).

Where the caveat is stripped of allegations as to matters which do not appear to have had any bearing or influence upon the testator in the making of the testator's will and nothing remains except bare conclusions of the pleader as to fraud, scheme, device, and undue influence, the caveat does not provide sufficient issues to challenge the validity of the will. Marlin v. Hill, 192 Ga. 434, 15 S.E.2d 473 (1941) (decided under former Code 1933, § 113-208).

Allegations of a caveat need not in each instance furnish the exact or precise words and language employed for the purpose of unduly influencing the testator or the exact dates upon which this is said to have occurred. Levens v. Levens, 203 Ga. 646, 47 S.E.2d 748 (1948) (decided under former Code 1933, § 113-208).

Insufficient allegation of fraud or undue influence.

- Allegations in a caveat to the probate of a will, "that the deceased had been insane for six or seven years prior to his death, was insane at the time the alleged will was signed, if he ever signed it, and that said alleged will is only the will" of named beneficiaries and "ought not to be probated as the will" of the alleged testator, and that the caveator had paid for the funeral expenses of the decedent without any knowledge that the chief named beneficiaries "had had decedent make a will giving them everything he had, if he ever signed the will," were insufficient to present any issue as to fraud or undue influence. Hastings v. Hastings, 175 Ga. 805, 166 S.E. 192 (1932) (decided under former Civil Code 1910, § 3834).

Ruling upholding the 2010 will was affirmed because subscribing witnesses stated in an affidavit that the testatrix was mentally competent when the will was executed, it was self-proved, and contained an affidavit complying with O.C.G.A. § 53-4-24, which created a presumption that the will was executed with the requisite testamentary formalities, including that the testatrix had sufficient mental capacity to do so, and the challenger failed to rebut that presumption. Woods v. Stonecipher, 349 Ga. App. 698, 824 S.E.2d 633 (2019).

Allegations of mental incapacity require examination of reasonableness of will.

- When a will is attacked upon the grounds of the mental incapacity of the testator, and of undue influence in the procurement of the will, it is always proper to inquire whether the provisions of the will are just and reasonable, and in accord with the state of the testator's family relations, or the contrary. Knox v. Knox, 213 Ga. 677, 101 S.E.2d 89 (1957) (decided under former Code 1933, § 113-208).

Evidence required to show undue influence varies as to peculiar circumstances.

- Rules of evidence take into account the peculiar circumstances surrounding the issue of undue influence and acts, conduct, and circumstances may constitute undue influence when exercised on a person of failing mind, poor health, and other mental and bodily enfeeblements which would not be such undue influence as to void a will executed by a person of sound mind, good health, and intelligence. Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208).

Quantity of influence varies with the circumstances of each case, according to the relations existing between the parties and the strength or weakness of mind of the testator; thus, the amount of influence necessary to dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208).

Undue influence necessary to dominate a mind impaired by age, disease, or dissipation is less than that required to control a strong mind. Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).

Mere confidential relationship insufficient as proof of undue influence.

- Person standing in a confidential relation to another is not prohibited from exercising any influence whatever to obtain a benefit to oneself. The influence must be what the law regards as undue influence; such influence that is obtained by flattery, importunity, superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency or to constrain one to do against one's will what one is unable to refuse. Daniel v. Etheredge, 198 Ga. 191, 31 S.E.2d 181 (1944) (decided under former Code 1933, § 113-208); Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

Merely showing that the persons receiving substantial benefits under the instrument sought to be propounded occupied a confidential relationship to the testator and had an opportunity to exert undue influence is insufficient to show undue influence. Crews v. Crews, 219 Ga. 459, 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).

Trial court properly granted a will beneficiary summary judgment on the issue of undue influence because the caveators failed to come forward with any evidence that the beneficiary attempted to influence the making or the contents of the testator's will despite the existence of a confidential relationship. Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).

Presumption arises when such beneficiary is not natural object of maker's bounty.

- When a person obtaining a substantial benefit under a will occupies a confidential relationship toward the maker of the will and is not a natural object of the maker's bounty, a presumption of undue influence arises if it is shown that the will was made at the request of such person. Bryan v. Norton, 245 Ga. 347, 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).

Representation of infidelity between spouses as undue influence.

- For one to represent to a wife that her husband is unfaithful to his marital vows, and giving to another the love and affection due his wife, whether the representation of infidelity is true or false, is likely to strongly influence her in the disposition of the property she may leave; hence, the evidence on behalf of the caveators was sufficient on the issues of fraud and undue influence to have gone to the jury. Stephens v. Brady, 209 Ga. 428, 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).

Presumption of undue influence is rebuttable.

- Presumption of undue influence based on the existence of confidential relations between the beneficiary and the testator and the active participation of the beneficiary in the execution of the will is rebuttable by any evidence showing that the testator acted freely and voluntarily in making the testator's will and not under the coercion of the person charged with undue influence. Bryan v. Norton, 245 Ga. 347, 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).

Requirements for rebuttable presumption.

- Caveator, who was disinherited under father's will, failed to show that the caveator's brother, who inherited, or the caveator's brother's son, exerted undue influence over testator. Harper v. Harper, 274 Ga. 542, 554 S.E.2d 454 (2001).

Honest persuasion and argument, even to the extent of importunity, is not undue influence. Sweat v. Hughes, 219 Ga. 703, 135 S.E.2d 409 (1964) (decided under former Code 1933, § 113-208).

Persuasion is not undue influence.

- Honest persuasion to make a will of a certain kind, though constant and importunate and though accompanied by tears and entreaties, does not constitute undue influence, in the absence of fraud or duress, even though the testator yields to the influence in order to have quiet or peace of mind, or to keep the respect or love of members of the testator's family; provided the testator is in a mental condition to make a choice between following the testator's original intention or of yielding the testator's view in favor of the wishes of the other person. Boland v. Aycock, 191 Ga. 327, 12 S.E.2d 319 (1940) (decided under former Code 1933, § 113-208).

Honest persuasion to make a will of a certain kind, though constant and importunate and though accompanied by tears and entreaties, does not constitute undue influence, in the absence of fraud or duress, provided the testator is in a mental condition to make a choice between following the testator's original intention or of yielding the testator's view in favor of the wishes of the other person. Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948) (decided under former Code 1933, § 113-208); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

Mere opportunity does not constitute undue influence.

- Evidence which does no more than show opportunities for exerting influence falls short of showing the exercise of undue influence required to invalidate a will. Orr v. Blalock, 195 Ga. 863, 25 S.E.2d 668 (1943) (decided under former Code 1933, § 113-208); Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948); Brown v. Bryant, 220 Ga. 80, 137 S.E.2d 36 (1964) (decided under former Code 1933, § 113-208); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967);(decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

Evidence of the caveators on the question of whether the paper propounded for probate was the result of undue influence exercised over the mind of the testator failed to present an issue for the jury; it showed no more than a mere opportunity to exercise undue influence, which is not sufficient. Bailey v. Bailey, 204 Ga. 556, 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-208).

When testimony shows at most only an opportunity on the part of a brother to impose his wishes upon his sister, the testator, the opportunity alone is insufficient to establish undue influence. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-208).

It is not sufficient to establish undue influence to show merely that the persons receiving substantial benefits under the instrument sought to be propounded occupied a confidential relationship to the testator and had an opportunity to exert undue influence. Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208); Gornto v. Gornto, 217 Ga. 136, 121 S.E.2d 139 (1961);(decided under former Code 1933, § 113-208).

Sufficient evidence to find testator unduly influenced. See Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838 (1983) (decided under former O.C.G.A. § 53-2-6).

No lack of testamentary capacity.

- Daughter failed to show lack of testamentary capacity despite the fact that the testator's medical record contained the word "dementia" without an indication as to whether it was used as a diagnosis, a report from family members, or a matter for concern at later examinations; the testator's accountant and lawyer testified that the testator was aware of the property the testator possessed and of the relatives and that the testator expressed an intelligent scheme of disposition. Curry v. Sutherland, 279 Ga. 489, 614 S.E.2d 756 (2005).

Undue influence established.

- Evidence did not demand a verdict contrary to that returned by the jury, which found that in executing a new will that favored the appellants over the appellees, the testator had been subject to undue influence by the appellants; there was evidence that the testator was cared for 24 hours a day by the appellants, who administered medication to the testator; that an appellant was with the testator during visits; that the appellees felt uncomfortable when visiting; that an appellant had the testator's financial power of attorney, wrote checks on the testator's accounts, and kept the testator's books; that two of the appellants had an attorney draft the new will and provided the attorney with an estate distribution plan; that the new will was witnessed by a neighbor and two cousins of the appellants; that an appellant administered a narcotic to the testator on the day the new will was executed; that the appellants did not inform the appellees of the new will; and that the terms of the new will were inconsistent with the testator's repeated statements to others that the parties were to be treated equally. Lillard v. Owens, 281 Ga. 619, 641 S.E.2d 511 (2007).

Trial court correctly denied an executor's motion for directed verdict in an action wherein the child of the testator filed a caveat and objection to the probate of the testator's last will and testament on the grounds that the will was the product of undue influence as sufficient evidence existed to support the conclusion that undue influence was used to have the testator bequeath the only asset, namely a home, to the caregiver who was hired by the executor. The record established that the executor blocked calls from the testator's child, refused to let the child see the testator, and a confidential relationship was established between the caregiver and the testator as the caregiver took an active role in the planning, preparation, and execution of the will. Bean v. Wilson, 283 Ga. 511, 661 S.E.2d 518 (2008).

Evidence regarding the circumstances and surroundings of the testator and the testator's associations authorized the jury's finding that the testator's will was the product of undue influence because the propounder and the propounder's wife encouraged the caveator and the caveator's wife, who had moved in with the testator and the testator's wife and provided the care they needed, to leave the state for a vacation, and in their absence the propounder poisoned the testator's mind against the caveator, telling the testator falsely that the caveator had stolen all the caveator's money, that the testator was broke, and that the caveator had abandoned the testator and would not return; acting under the influence of the propounder and the propounder's wife, the testator secured a restraining order that prevented the caveator from seeing the testator for six months after the caveator returned, and the testator's will radically changed the distribution of the estate envisioned by the testator in a previous will by changing the will to disinherit the caveator completely. McDaniel v. McDaniel, 288 Ga. 711, 707 S.E.2d 60 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 371 et seq., § 394 et seq.

Undue Influence in Execution of Will, 36 POF2d 109.

C.J.S.

- 95 C.J.S., Wills, §§ 343, 345 et seq., 686 et seq.

ALR.

- Fraud as distinguished from undue influence as ground for contesting will, 28 A.L.R. 787; 92 A.L.R. 790.

Presumption and burden of proof as to undue influence on testator, 66 A.L.R. 228; 154 A.L.R. 583.

Admissibility and weight on issue of mental capacity or undue influence in respect of will or conveyance, of instruments previously executed by the person in question, 82 A.L.R. 963.

Undue influence by third person in which immediate beneficiary did not participate, 96 A.L.R. 613.

Form and particularity of allegations to raise issue of undue influence, 107 A.L.R. 832.

Admissibility of evidence on question of testamentary capacity or undue influence in a will contest as affected by remoteness, relative to the time when the will was executed, of the facts or events to which the evidence relates, 124 A.L.R. 433.

Admissibility of declarations of testator on issue of undue influence, 148 A.L.R. 1225.

Admissibility of declaration by beneficiary named in will in support of claim of undue influence or lack of testamentary capacity, 167 A.L.R. 13.

Rights and remedies against one who induces, prevents, or interferes in the making, changing, or revoking of a will, or holds the fruits thereof, 11 A.L.R.2d 808.

Judgment denying validity of will because of undue influence, lack of mental capacity, or the like, as res judicata as to validity of another will, deed, or other instrument, 25 A.L.R.2d 657.

Admissibility in will contest of financial condition or needs of those constituting natural objects of testator's bounty, 26 A.L.R.2d 374.

Drawing will or deed under which he figures as grantee, legatee, or devisee as ground of disciplinary action against attorney, 98 A.L.R.2d 1234.

Presumption or inference of undue influence from testamentary gift to relative, friend, or associate of person preparing will or procuring its execution, 13 A.L.R.3d 381.

Wills: undue influence in gift to testator's attorney, 19 A.L.R.3d 575.

Solicitation of testator to make a will or specified bequest as undue influence, 48 A.L.R.3d 961.

Existence of illicit or unlawful relation between testator and beneficiary as evidence of undue influence, 76 A.L.R.3d 743.

Liability in damages for interference with expected inheritance or gift, 22 A.L.R.4th 1229.

Action for tortious interference with request as precluded by will contest remedy, 18 A.L.R.5th 211.

Attorneys at law: disciplinary proceedings for drafting instrument such as will or trust under which attorney-drafter or member of attorney's family or law firm is beneficiary, grantee, legatee, or devisee, 80 A.L.R.5th 597.

ARTICLE 3 EXECUTION AND ATTESTATION

Law reviews.

- For article suggesting that nuncupative wills should no longer be recognized in Georgia, see 11 Ga. L. Rev. 297 (1977). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 61 Mercer L. Rev. 385 (2009).

RESEARCH REFERENCES

Decedent's Gift to Heir as Advancement, 35 POF2d 357.

Proof of Decedent's Intent That Inter Vivos Gift to Heir Constitutes Advancement, 83 POF3d 295.

ALR.

- Governing law of will as affected by change of domicil after its execution, 57 A.L.R. 229.

Admissibility and credibility of testimony of subscribing witness tending to impeach execution of will or testamentary capacity of testator, 79 A.L.R. 394.

Necessity that attesting witnesses to will subscribe in presence of each other, 99 A.L.R. 554.

Law in effect at time of execution of will or at time of death of testator as controlling, 129 A.L.R. 859.

Soldiers' and seamen's wills, 147 A.L.R. 1297; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447.

Effectiveness of nuncupative will where essential witness thereto is beneficiary, 28 A.L.R.2d 796.

Validity of will written on disconnected sheets, 38 A.L.R.2d 477.

Weight and effect of presumption or inference of due execution of will, 40 A.L.R.2d 1223.

"Attestation" or "witnessing" of will, required by statute, as including witnesses' subscription, 45 A.L.R.2d 1365.

Effect of failure of attesting witness to observe testator's capacity, 69 A.L.R.2d 662.

Validity of will as affected by fact that witnesses signed before testator, 91 A.L.R.2d 737.

What amounts to "last sickness" or the like within requirement that nuncupative will be made during last sickness, 8 A.L.R.3d 952.

Requirement that holographic will, or its material provisions, be entirely in testator's handwriting as affected by appearance of some printed or written matter not in testator's handwriting, 37 A.L.R.4th 528.

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R.5th 965.

53-4-20. (See Editor's notes.) Required writing; signing; witnesses; codicil.

  1. A will shall be in writing and shall be signed by the testator or by some other individual in the testator's presence and at the testator's express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator's will.
  2. A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness's presence and at that witness's direction.
  3. A codicil shall be executed by the testator and attested and subscribed by witnesses with the same formality as a will.

(Code 1981, §53-4-20, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Execution of writings and contracts, § 1-3-10.

Editor's notes.

- The general provisions concerning the competency of witnesses, referred to in the Comment, are now found at O.C.G.A. § 24-6-601.

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Law reviews.

- For article analyzing execution and attestation requirements in Georgia and advocating certain reforms, see 11 Ga. L. Rev. 297 (1977). For article advocating abolition of the prohibition against proxy signatures and repeal of this Code section as unnecessary, see 11 Ga. L. Rev. 297 (1977). For article surveying developments in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For comment on the constitutionality of Ga. L. 1958, p. 657; as amended by Ga. L. 1964, Ex. Sess, p. 16, reducing the number of required witnesses to a will to two, in light of the constitutional provision that no law shall refer to more than one subject matter, see 1 Ga. St. B.J. 126 (1964).

COMMENT

This section carries forward former OCGA Secs. 53-2-40 and 53-2-43, adding the concept from Georgia case law that a testator may sign by mark. Former OCGA Sec. 53-2-43(b) is clarified, stating that no other individual may sign a witness's name to the will. (For general provisions as to the competency of witnesses, see OCGA Sec. 24-9-1 et seq.) This section also carries forward the concept from former OCGA Sec. 53-2-5 that a codicil must be executed with the same formality as a will.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-109 and 113-301, and former O.C.G.A. § 53-2-40 are included in the annotations for this Code section.

Purpose.

- Substantive origin of the statute of frauds, as well as that of the former section, was the need to establish rules for the execution of wills which precluded as well as possible the occurrence of fraud in the disposition of estates, often the result of a life's labor. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Law provides no special formalities about the witnesses to a will; it is sufficient if the witnesses attest and subscribe the will in the presence of the testator; the law implies the request in the consummation of the act, and no special request by the testator is necessary. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Attestation of a will by the subscribing witnesses, signed by the witnesses in the presence of the testator and with the testator's knowledge may be treated as the equivalent of a request by the testator that these persons subscribe their names as witnesses to the paper, and especially when such testator is shown to have been seeking witnesses for the purpose of having the witnesses attest the testator's will. Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975) (decided under former Code 1933, § 113-301).

Designation-of-beneficiary document insufficient to operate as will.

- Although the designation-of-beneficiary document for purposes of decedent's teachers' retirement system benefits executed by the decedent in 1965 did contain the signature of a notary public, as well as the signature of the decedent's employer, there was no showing that these persons signed the document in the presence of the decedent as attesting witnesses and therefore the document could not operate as a will. Kirksey v. Teachers' Retirement Sys., 250 Ga. 884, 302 S.E.2d 101 (1983) (decided under former O.C.G.A. § 53-2-40).

Discussion of history of former provisions.

- See Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Cited in Rea v. Pursley, 170 Ga. 488, 154 S.E. 325 (1930); Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932); Bloodworth v. McCook, 193 Ga. 53, 17 S.E.2d 73 (1941); Denmark v. Rushing, 208 Ga. 557, 67 S.E.2d 766 (1951); Graham v. Stansell, 218 Ga. 832, 131 S.E.2d 103 (1963); Crews v. Cook, 220 Ga. 479, 139 S.E.2d 490 (1964); Lee v. Green, 222 Ga. 141, 149 S.E.2d 86 (1966); Black v. Poole, 230 Ga. 129, 196 S.E.2d 20 (1973); Lamb v. Bryan, 236 Ga. 237, 223 S.E.2d 122 (1976); Johnson v. Shook, 156 Ga. App. 878, 275 S.E.2d 815 (1981).

Writing Required

Wills must be in writing, and executed according to prescribed formalities, and a failure to dispose of property cannot be supplied by showing sayings and statements of the testator that the testator desired or intended to dispose of the property in a certain way, or that the testator understood that the will disposed of the property in a way different from that expressed in the will. Lining v. Jackson, 203 Ga. 22, 45 S.E.2d 410 (1947) (decided under former Code 1933, § 113-301).

When the only objection which the caveator makes to the appointment of an administrator is that it was the intention of the testator that the property should go to the caveator, and there is nothing in the will to indicate that such was the testator's intent, the court properly sustained the demurrer (now motion to dismiss) to the caveat. Lining v. Jackson, 203 Ga. 22, 45 S.E.2d 410 (1947) (decided under former Code 1933, § 113-301).

Provisions of the English statute 29 Car. 2 c. 3, § 7, known as the statute of frauds, that all declarations and creations of trusts shall be manifested and proved by writing signed by the party, who was by law enabled to declare such trust, or the party's last will in writing, or else shall be void, were embodied in former Code 1933, § 20-401 (see O.C.G.A. § 13-5-30), which provided that any contract for the sale of lands, or concerning land, must be in writing; former Code 1933, § 108-105 (see O.C.G.A. § 53-12-23), which provided that all express trusts shall be created or declared in writing; and former Code 1933, § 113-301, which provided that all wills (except nuncupative wills), disposing of real or personal property, shall be in writing, signed by the party making the will or by some other person in the party's presence and by the party's express direction, and be attested and subscribed in the presence of competent witnesses. Woo v. Markwalter, 210 Ga. 156, 78 S.E.2d 473 (1953) (decided under former Code 1933, § 113-301).

Signing and Attestation of Will

Attestation clause.

- Paper testamentary in its nature does not require for its due execution an attesting clause declaring it a will, and reciting its execution according to the terms of the statute, pointing out how wills shall be executed. If it be subscribed by the testator, in the presence of the witnesses, and be attested and subscribed by the witnesses in the testator's presence, it is sufficient. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Acknowledgment may be inferred.

- Acknowledgment by testator need not be explicit, but may be inferred from conduct. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-40).

Testator may sign using any name or signature intended to authenticate an instrument as testator's will. Mitchell v. Mitchell, 245 Ga. 291, 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Testator's mark sufficient to show intent to authenticate will.

- Trial court did not err in granting a propounder's motion for summary judgment on the issue of whether a testator's will was properly executed because pursuant to O.C.G.A. § 53-4-20(a), the testator's mark was sufficient to show that she intended to authenticate the instrument as her will, and her intent to authenticate the will could not be questioned simply because she needed physical assistance to mark the instrument; the testator was unable to place her signature on the will, so one of the witnesses assisted her by moving her hand to the signature line, and it was her intent that the mark would serve as her signature. Strong v. Holden, 287 Ga. 482, 697 S.E.2d 189 (2010).

"Express direction" required by statute may be by express conduct as well as by express words. Mitchell v. Mitchell, 245 Ga. 291, 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Testator's hand resting upon the pen while it was being manipulated to produce the testator's signature constitutes the testator's "express direction" within the meaning of law. Mitchell v. Mitchell, 245 Ga. 291, 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Attorney's assistance in helping testator sign will.

- When there was evidence that the attorney who prepared the will enabled the testator, who because of the testator's physical condition could not write, to make the testator's mark by placing the testator's hand upon the pen as the mark was made, this was sufficient to authorize the jury to find that the testator signed the will. Crutchfield v. McCallie, 188 Ga. 833, 5 S.E.2d 33 (1939) (decided under former Code 1933, § 113-301).

Particular acts of authentication.

- Statute does not of itself make that which is attested by a witness the signature of the testator. Like the statute of frauds upon which it was modeled, it does not set forth any particular acts of authentication by the testator to be attested by the witnesses. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Testator to sign in presence of witnesses.

- To constitute a legal execution of an instrument purporting to be a will, it is absolutely necessary that the attesting witnesses either actually see the testator sign the instrument, or that the testator acknowledge the testator's signature thereto either expressly or impliedly. Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1962) (decided under former Code 1933, § 113-301); Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975);(decided under former Code 1933, § 113-301).

As with questions of the authenticity of the testator's signature, of the testamentary capacity of the testator, and of the undue influence upon the testator of others in making the testator's will, the signing, or acknowledgment of the testator's signature, by the testator in the presence of attesting witnesses is a matter of proof. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Attestation of a will requires that the testator must either sign in the presence of the witness or acknowledge the testator's signature to the witness. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-40).

Testator must be able to see witnesses sign a will.

- Line-of-vision test of former O.C.G.A. § 53-4-20, under which a testator must be able to see the witnesses sign the testator's will from the place where the testator is situated without changing the testator's place if the testator so desires is part of O.C.G.A. § 53-4-20 as revised in 1998; revised statutory language must be construed to be consistent with existing law unless a contrary intent is clear from the language of the revised statute, and because no contrary intent appears in § 53-4-20, which mirrors the language of the previous version, the formalities of the former Georgia Probate Code for the execution of a will are maintained. McCormick v. Jeffers, 281 Ga. 264, 637 S.E.2d 666 (2006).

Will not signed in the presence of the testator.

- Will of a testator was improperly admitted to probate under the line-of-vision test of O.C.G.A. § 53-4-20(b) because the witnesses signed the will at a dining room table where the testator could not see them without changing position from the bedroom chair where the testator had signed the will; because the evidence unequivocally established that the testator could not have seen the witnesses sign the will if the testator desired to do so, any presumption of proper execution arising from the will's attestation clause was rebutted by clear proof that the will was not properly executed in that the witnesses did not sign the will in the testator's presence. McCormick v. Jeffers, 281 Ga. 264, 637 S.E.2d 666 (2006).

Signature of witnesses in each others' presence.

- It is not necessary that the subscribing witnesses sign in the presence of each other; it is sufficient if each signs in the presence of the testator. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Testator and witnesses in adjoining rooms.

- If the situation and circumstances of the testator and the attesting witnesses to a will at the time of the will's attestation are such that the testator, in the testator's actual position, might have seen the act of attestation, the requirement of the law that the witnesses shall sign in the testator's presence is sufficiently met. Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975) (decided under former Code 1933, § 113-301).

Subscribing witnesses can attest a will, even though the witnesses and the testator are in adjoining rooms in the same house, if the testator in the testator's actual location might have seen the attestation. Newton v. Palmour, 245 Ga. 603, 266 S.E.2d 208 (1980) (decided under former Code 1933, § 113-301).

Signatures not required to be on same page.

- Provisions of the code regarding signing and attestation of a will do not require that the signatures of the testator and of the witnesses be on the same page and such a requirement is not imposed by case law. In re Estate of Brannon, 264 Ga. 84, 441 S.E.2d 248 (1994) (decided under former O.C.G.A. § 53-2-40).

When all of the signature pages are physically connected as part of the will, the fact that a testator's signature and the signatures of witnesses do not appear on the same page does not in itself invalidate the execution of the will. In re Estate of Brannon, 264 Ga. 84, 441 S.E.2d 248 (1994) (decided under former Code 1933, § 113-301).

Priority of signatures.

- Rules of construction as laid down in Duffie v. Corridon, 40 Ga. 122 (1869), Brooks v. Woodson, 87 Ga. 379, 13 S.E. 712 (1890) and those cases following, that witnesses attest a testator's signature and that a will is rendered invalid if a witness signs before the testator no matter whether the signatures are affixed in the same continuous transaction, are rationalizations opposing the effectuation of testamentary desires while offering no preventative for fraud. They will no longer be followed because there can be no fraud when all parties sit at the same table and affix their signatures in the presence of each other regardless of who signs first. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Even though witnesses attest to the will as declared by the testator and no priority of signature of testator and witnesses should be assigned in the execution of a will, the requirement that the testator must sign or acknowledge the testator's signature in the presence of the witnesses is not eliminated. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Attestation clause raises presumption of legality of will.

- Proper attestation clause to a duly signed and attested will raises a presumption that the will was legally executed; however, this presumption is rebuttable by clear proof to the contrary. Newton v. Palmour, 245 Ga. 603, 266 S.E.2d 208 (1980) (decided under former Code 1933, § 113-301).

Guardian ad litem as competent witness.

- Guardian ad litem is a competent witness to the will of the guardian's ward. Bagwell v. Estate of Gibson, 258 Ga. 785, 374 S.E.2d 732 (1989) (decided under former O.C.G.A. § 53-2-40).

Attestation sufficient to avoid summary judgment against probate.

- Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to will caveators in a will propounder's action seeking to probate a decedent's will, since the decedent had sufficiently signed the will on the signature line of the self-proving clause, pursuant to former O.C.G.A. § 53-2-40.1, and there existed two competent witness signatures which were sufficient for attestation purposes; accordingly, the statutory requirements for proper execution of a will under former O.C.G.A. § 53-2-40 appeared to have been met and a jury issue was raised as to whether, in fact, the requirements were met. Miles v. Bryant, 277 Ga. 362, 589 S.E.2d 86 (2003) (decided under former O.C.G.A. § 53-2-40).

Witness also signing as notary.

- It was error to grant summary judgment to a caveator in a will contest in which the first of three witnesses signed both as a witness and as a notary. Even if the first witness did not intend to act as a witness, if the first witness and a second witness signed the will in the decedent's presence, then O.C.G.A. § 53-4-20(b), requiring two witnesses, was satisfied even if a third witness signed outside the decedent's presence; furthermore, although O.C.G.A. § 45-17-8(c)(1) disqualified a witness from also acting as a notary, the first witness's disqualification as a notary was immaterial because the will was not a self-proving one requiring a notary. Land v. Burkhalter, 283 Ga. 54, 656 S.E.2d 834 (2008).

Requirements of statute met.

- Will met the requirements of O.C.G.A. § 53-4-20(b) because the will was executed by the testator and signed by two subscribing witnesses, the one surviving witness testified as to the will's due execution, and the caveators presented no evidence challenging the validity of the signatures or the testator's capacity. Peterson v. Harrell, 286 Ga. 546, 690 S.E.2d 151 (2010).

Codicil not properly executed.

- Trial court erred in finding that a codicil to a testator's will was valid because the propounders failed to prove due execution of the codicil when the testator failed to sign or acknowledge the testator's signature on the first codicil in the presence of at least, and possibly both, subscribing witnesses pursuant to O.C.G.A. § 53-4-20(b); the testimony of one of the subscribing witnesses was unequivocal that the testator did not sign the first codicil in the witness's presence and did not acknowledge the testator's signature. Parker v. Melican, 286 Ga. 185, 684 S.E.2d 654 (2009).

Question as to whether requirements of attestation were met.

- In a brother's action to probate a will, the trial court erred in granting summary judgment to the sister because a question of fact for a jury existed as to whether the testimony from the witnesses, and the presence of the witnesses' initials on each page along with the testator's signature met the requirement for attestation. Wilbur v. Floyd, 353 Ga. App. 864, 839 S.E.2d 675 (2020).

Pleading and Practice

Propounder of will must prima facie prove factum of will.

- When the court charged the substance of the provisions of the statute for the attestation of wills, it was not error, without request, to fail to charge the jury the exact language of the statute. Middleton v. Waters, 205 Ga. 847, 55 S.E.2d 359 (1949) (decided under former Code 1933, § 113-301).

In a proceeding to probate a will the burden is upon the propounder to prima facie prove the factum of the will, that is, that the will was executed with requisite formalities; that the testator executed the will freely and voluntarily, and was at the time of sound and disposing mind and memory. This burden carried, the onus of proving the will is not valid for one of the reasons alleged in the caveat shifts to the caveator. Bianchini v. Wilson, 220 Ga. 816, 141 S.E.2d 889 (1965) (decided under former Code 1933, § 113-301).

The propounder of a will carries the burden of proving a prima facie case by presenting the subscribing competent witnesses who testified that the testator signed the will in their presence, after the will had been read, and that the testator possessed the mentality to know what the testator was doing. Waters v. Arrendale, 223 Ga. 617, 157 S.E.2d 289 (1967) (decided under former Code 1933, § 113-301).

Burden of proof.

- Trial court did not err in finding that a codicil to a testator's will was invalid because the court properly charged the jury that the caveators had no burden to prove the grounds of their caveats to the propounders' petition to probate codicils; because testamentary capacity and voluntary execution were necessary elements of the propounders' case, the burden of persuasion remained on the propounders to prove their assertions by a preponderance of the evidence, and in the absence of an asserted affirmative defense, the caveators had no duty to affirmatively prove anything but were required only to come forward with evidence to rebut the propounders' prima facie case as to essential elements. Parker v. Melican, 286 Ga. 185, 684 S.E.2d 654 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-301, are included in the annotations for this Code section.

Witnesses for holographic wills.

- There is no exception to the requirement of two witnesses in favor of holographic wills. 1967 Op. Att'y Gen. No. 67-62 (rendered under former Code 1933, § 113-301).

Any writing expressing the intention of the testator and duly executed may be a will provided the writing is intended by such instrument to convey no interest until after death. 1967 Op. Att'y Gen. No. 67-302 (rendered under former Code 1933, § 113-301).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 170 et seq., 197 et seq., 216, 240, 245 et seq., 298, 302, 303, 306.

C.J.S.

- 95 C.J.S., Wills, §§ 1, 194, 195, 214, 217 et seq., 253 et seq.

ALR.

- Imputation to attesting witness of notice of contents of instrument, 4 A.L.R. 716.

Knowledge derived from family correspondence as qualifying one to testify as to genuineness of handwriting, 7 A.L.R. 261.

Effect of purported subscribing witness's denial or forgetfulness of signature by mark, 17 A.L.R. 1267.

Will as exclusive means of exercising power conferred by will to dispose of property, 20 A.L.R. 388.

Testator's name in body of instrument as sufficient signature where statute does not require will to be signed at end, 29 A.L.R. 891.

Manner of signing as affecting sufficiency of signature of testator, 31 A.L.R. 682; 42 A.L.R. 954; 114 A.L.R. 1110.

Duty of attesting witness with respect to testator's capacity, 35 A.L.R. 79.

Letter as a will or codicil, 54 A.L.R. 917; 40 A.L.R.2d 698.

Effect of testator's attempted physical alteration of will after execution, 62 A.L.R. 1367; 24 A.L.R.2d 514.

Admissibility of evidence other than testimony of subscribing witnesses to prove due execution of will, or testamentary capacity, 63 A.L.R. 1195.

Effect of illegibility of signature of testator or witness to will, 64 A.L.R. 208.

Presumption as to due execution of will from attestation, with or without attestation clause, 76 A.L.R. 617.

Codicil as affecting application of statutory provision to will, or previous codicil not otherwise subject, or as obviating objections to lack of testamentary capacity, undue influence, or defective execution otherwise fatal to will, 87 A.L.R. 836.

Necessity that attesting witnesses to will subscribe in presence of each other, 99 A.L.R. 554.

Probate of will or proceedings subsequent thereto as affecting right to probate later codicil or will, and rights and remedies of parties thereunder, 107 A.L.R. 249; 157 A.L.R. 1351.

Validity, construction, and application of codicil or other testamentary instrument authorizing certain person to change will or to make disposition of testator's property contrary to provisions of will, 108 A.L.R. 1098.

Retrospective application of statute concerning execution of wills, 111 A.L.R. 910.

Acknowledgment of signature by testator or witness to will as satisfying statutory requirement that testator or witness sign in the presence of each other, 115 A.L.R. 689.

Testamentary character of memorandum or other informal writing not testamentary on its face regarding ownership or disposition of specific personal property, 117 A.L.R. 1327.

Relative weight of testimony of attesting witnesses in support of mental competency of testator, 123 A.L.R. 88.

Changes by one other than testator after execution of holographic will as affecting its character as such, 124 A.L.R. 633.

Necessity of, and what amounts to, request on part of testator to the witnesses to attest or subscribe will, 125 A.L.R. 414.

Necessity that attesting witness to will not signed by testator in his presence shall have seen latter's signature on paper, 127 A.L.R. 384.

Codicil as effective to prevent lapse of legacy or devise in consequence of death of legatee or devisee after execution of will and before execution of codicil, 146 A.L.R. 1366.

Incorporation of extrinsic writings in will by reference, 173 A.L.R. 568.

Place of signature of holographic wills, 19 A.L.R.2d 926.

Codicil as validating will or codicil which was invalid or inoperative at time of its purported execution, 21 A.L.R.2d 821.

Codicil as reviving revoked will or codicil, 33 A.L.R.2d 922.

Interlineations and changes appearing on face of will, 34 A.L.R.2d 619.

Failure of attesting witness to write or state place of residence as affecting will, 55 A.L.R.2d 1053.

Codicil as reviving adeemed or satisfied bequest or devise, 58 A.L.R.2d 1072.

Competency of named executor as subscribing witness to will, 74 A.L.R.2d 283.

What constitutes the presence of the testator in the witnessing of his will, 75 A.L.R.2d 318.

Validity of will as affected by fact that witnesses signed before testator, 91 A.L.R.2d 737.

Statute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath, 94 A.L.R.2d 921.

Civil liability of witness falsely attesting signature to document, 96 A.L.R.2d 1346.

Validity of a will signed by testator with the assistance of another, 98 A.L.R.2d 824.

Validity of will signed by testator's mark, stamp, or symbol, or partial or abbreviated signature, 98 A.L.R.2d 837.

Sufficiency of testator's acknowledgment of signature from his conduct and the surrounding circumstances, 7 A.L.R.3d 317.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

What amounts to "last sickness" or the like within requirement that nuncupative will be made during last sickness, 8 A.L.R.3d 952.

Necessity of laying foundation for opinion of attesting witness as to mental condition of testator, 17 A.L.R.3d 503.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered, 17 A.L.R.3d 603.

Wills: place of signature of attesting witness, 17 A.L.R.3d 705.

Effect upon testamentary nature of document of expression therein of intention to make more formal will, further disposition of property, or the like, 46 A.L.R.3d 938.

Enforcement of preference expressed by decedent as to disposition of his body after death, 54 A.L.R.3d 1037.

Wills: separate gifts to same person in same or substantially same amounts made in separate wills or codicils, as cumulative or substitutionary, 65 A.L.R.3d 1325.

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R.5th 965.

53-4-21. Knowledge of contents of will by testator.

Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator's signature or acknowledgment of that signature is presumed to show such knowledge.

(Code 1981, §53-4-21, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward the first two sentences of OCGA Sec. 53-2-42. Former OCGA Sec. 53-2-42 also stated that greater proof will be necessary to show that the testator knew the will's contents if the scrivener or the scrivener's immediate family receive substantial amounts under the will. The reference is repealed as unnecessary in that suspicious circumstances such as those described will result in closer scrutiny of the circumstances surrounding the will execution under the theories of duress and undue influence. Likewise, former OCGA Sec. 53-2-46, dealing with the competency required of an interpreter who is used to convey the wishes of the testator to the scrivener or the witnesses, is repealed as unnecessary.

JUDICIAL DECISIONS

Presumption testator knew contents of will.

- Trial court did not err in granting a propounder's motion for summary judgment on the issue of whether a testator's will was properly executed because pursuant to O.C.G.A. § 53-4-21, the testator's signature on the will gave rise to a presumption that she knew the contents of the will; the mere fact that only portions of the will were read aloud to the testator was of no consequence. Strong v. Holden, 287 Ga. 482, 697 S.E.2d 189 (2010).

Because a parent's will was plain and unambiguous and did not contain a residue clause, the lapsed gift of the residue passed to the parent's three daughters by intestacy according to O.C.G.A. § 53-4- 65(b); although the parent expressed disappointment with two daughters and left them specific bequests of $10.00 each, the parent did not express an intent to disinherit the daughters. Banner v. Vandeford, 293 Ga. 654, 748 S.E.2d 927 (2013).

Cited in Cames v. Joiner (In re Joiner), 319 Bankr. 903 (Bankr. M.D. Ga. 2004).

53-4-22. Competency of witness.

  1. Any individual who is competent to be a witness and age 14 or over may witness a will.
  2. If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will.

(Code 1981, §53-4-22, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Competency of witnesses generally, § 24-6-601 et seq.

Editor's notes.

- The general provisions concerning the competency of witnesses, referred to in the Comment, are now found at O.C.G.A. § 24-6-601.

Law reviews.

- For article, "Execution, Revocation and Revalidation of Wills: A Critique of Existing Statutory Formalities," see 11 Ga. L. Rev. 297 (1977).

COMMENT

Subsection (a) carries over the concept of competency of witnesses from former OCGA Sec. 53-2-45, adding that the witness to a will must be age 14 or over. (Case law indicates that an individual who is age 14 or over is presumed competent to witness a will.) The competency of witnesses is defined in OCGA Sec. 24-9-1 and Article 1 of Title 9 of the Code. Subsection (b) carries forward the concept of former OCGA Sec. 53-2-44 that the witness must be competent only at the time of attestation, not necessarily at the time of probate.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-305, and former O.C.G.A. § 53-2-42 are included in the annotations for this Code section.

Statute requires that a testator have knowledge of the contents of the will at the time of execution, not that the testator recall the contents at some subsequent time. If the latter were required no validly executed will would be secure against failure of memory or mental aberration which so often result as time goes by. White v. Irwin, 220 Ga. 836, 142 S.E.2d 255 (1965).

Failure to have will read back insufficient as proof of lack of knowledge.

- When a will was written as directed by the testator, and the evidence shows that the testator wishes were carefully and thoroughly discussed in the process and expressed in the will, the fact that the will was not read back to the testator after the will was written, in the absence of any other evidence that the testator did not know the contents of the will, is ineffective as showing a lack of knowledge on the part of the testator. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-305).

"Clear and convincing evidence" not required.

- Former O.C.G.A. § 53-2-42 contained no "clear and convincing evidence" standard of proof of the testator's knowledge of the will's contents. Lowe v. Young, 260 Ga. 890, 400 S.E.2d 619 (1991) (decided under former O.C.G.A. § 53-2-42).

Scrivener's testimony.

- When there was evidence that the will was read to the testator - who was mentally alert, coherent, able to speak and respond to questions - and that the testator verbally assented to the will, the fact that this was the scrivener's testimony did not vitiate the evidence, but merely went to the evidence's credibility, which was a jury issue. Lowe v. Young, 260 Ga. 890, 400 S.E.2d 619 (1991) (decided under former O.C.G.A. § 53-2-42).

Cited in Pitman v. Oliver, 184 Ga. 840, 193 S.E. 884 (1937); Davis v. Aultman, 199 Ga. 129, 33 S.E.2d 317 (1945); Bodeker v. Purdy, 209 Ga. 648, 74 S.E.2d 856 (1953); Howington v. Howington, 242 Ga. 767, 251 S.E.2d 514 (1979).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 169, 269, 370. 80 Am. Jur. 2d, Wills, §§ 840 et seq., 885. 81 Am. Jur. 2d, Witnesses, § 637.

C.J.S.

- 95 C.J.S., Wills, §§ 171, 223, 260 et seq., 582 et seq., 629.

ALR.

- Knowledge derived from family correspondence as qualifying one to testify as to genuineness of handwriting, 7 A.L.R. 261.

Competency of husband or wife of beneficiary as attesting witness to will, 25 A.L.R. 308.

Manner of signing as affecting sufficiency of signature of testator, 31 A.L.R. 682; 42 A.L.R. 954; 114 A.L.R. 1110.

Presumption as to due execution of will from attestation, with or without attestation clause, 76 A.L.R. 617.

Sufficiency, as to form, of signature to holographic will, 75 A.L.R.2d 895.

Sufficiency of testator's acknowledgment of signature from his conduct and the surrounding circumstances, 7 A.L.R.3d 317.

Wills: testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 A.L.R.3d 889.

Wills: necessity that attesting witness realize instrument was intended as will, 71 A.L.R.3d 877.

53-4-23. Testamentary gift to witness or witness's spouse.

  1. If a subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will.
  2. An individual may be a witness to a will by which a testamentary gift is given to that individual's spouse, the fact going only to the credibility of the witness.

(Code 1981, §53-4-23, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Competency of witnesses generally, § 24-6-601 et seq.

Law reviews.

- For article discussing competency requirement for witnesses to a will in Georgia, see 11 Ga. L. Rev. 297 (1977).

COMMENT

This section carries over former OCGA Sec. 53-2-45.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 269, 274. 80 Am. Jur. 2d, Wills, § 885. 81 Am. Jur. 2d, Witnesses, § 637.

C.J.S.

- 95 C.J.S., Wills, § 260 et seq.

ALR.

- Competency of husband or wife of beneficiary as attesting witness to will, 25 A.L.R. 308.

53-4-24. Self-proved will or codicil.

  1. At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.

(b) The affidavit shall be evidenced by a certificate, affixed with the official seal of the notary public, that is attached or annexed to the will or codicil, in form and content substantially as follows:

STATE OF GEORGIA COUNTY of ____________ Before me, the undersigned authority, on this day personally appeared ____________ , ____________ , and ____________ , known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said individuals being by me duly sworn, ____________ , testator, declared to me and to the witnesses in my presence that said instrument is the last will and testament or a codicil to the last will and testament of the testator and that the testator had willingly made and executed it as a free act and deed for the purposes expressed therein. The witnesses, each on oath, stated to me in the presence and hearing of the testator that the testator had declared to them that the instrument is the testator's last will and testament or a codicil to the testator's last will and testament and that the testator executed the instrument as such and wished each of them to sign it as a witness; and under oath each witness stated further that the witness had signed the same as witness in the presence of the testator and at the testator's request; that the testator was 14 years of age or over and of sound mind; and that each of the witnesses was then at least 14 years of age. __________________________________________________________________ Testator __________________________________________________________________ Witness __________________________________________________________________ Witness Sworn to and subscribed before me by ____________ , testator, and sworn to and subscribed before me by ____________ and ____________ , witnesses, this ________ day of _____________ , ______ . (SEAL) (Signed) ______________________________ (Official Capacity of Officer)

A self-proved will or codicil may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently from a will or codicil that is not self-proved. In particular, without limiting the generality of the foregoing sentence, a self-proved will or codicil may be contested, revoked, or amended in exactly the same fashion as a will or codicil that is not self-proved.

(Code 1981, §53-4-24, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1999, p. 81, § 53.)

Law reviews.

- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

COMMENT

This section combines and carries over former OCGA Sec. 53-2-40.1 and portions of former OCGA Sec. 53-2-5. The self-proving procedure described in this section is available for both wills and codicils. See Code Sec. 53-11-7 for an explanation of the term "notary public," which is used in subsection (a).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-2-40.1 are included in the annotations for this Code section.

Location of signature.

- Even though the testator did not sign the last page of the will relating to the disposition of the testator's estate, the will was valid since the testator's signature appeared on the next page, the self-proving affidavit. Hickox v. Wilson, 269 Ga. 180, 496 S.E.2d 711 (1998) (decided under former O.C.G.A. § 53-2-40.1)

Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to will caveators in a will propounder's action seeking to probate a decedent's will since the decedent had sufficiently signed the will on the signature line of the self-proving clause, pursuant to former O.C.G.A. § 53-2-40.1, and there existed two competent witness signatures which were sufficient for attestation purposes; accordingly, the statutory requirements for proper execution of a will under former O.C.G.A. § 53-2-40 appeared to have been met and a jury issue was raised as to whether, in fact, the requirements were met. Miles v. Bryant, 277 Ga. 362, 589 S.E.2d 86 (2003) (decided under former O.C.G.A. § 53-2-40.1)

Admission of self-proved will.

- Under O.C.G.A. § 53-4-24(c), when a will is self-proved, it "may be admitted to probate without the testimony of any subscribing witness." In fact, compliance with the requirements of execution are presumed without the live testimony or affidavits of witnesses; that is, under O.C.G.A. § 53-5-21(a), the affidavit creates a presumption regarding the prima facie case, subject to rebuttal. Singelman v. Singelman, 273 Ga. 894, 548 S.E.2d 343 (2001).

Self-proving affidavit attached to a testator's will created a rebuttable presumption that the signature and attestation requirements were met and allowed the will to be admitted into evidence without the testimony of the witnesses to the will or other proof that the formalities for the will's execution were met. Duncan v. Moore, 275 Ga. 656, 571 S.E.2d 771 (2002).

In a sister's challenge to her brother's will, the probate court erred in finding that the will was not sufficiently proven due to the executor's failure to produce the witnesses; the will had an attached self-proving affidavit and could be admitted without other proof that formalities of execution were met, pursuant to O.C.G.A. § 53-4-24. Reeves v. Webb, 297 Ga. 405, 774 S.E.2d 641 (2015).

Ruling upholding the 2010 will was affirmed because subscribing witnesses stated in an affidavit that the testatrix was mentally competent when the will was executed, it was self-proved, and contained an affidavit complying with O.C.G.A. § 53-4-24, which created a presumption that the will was executed with the requisite testamentary formalities, including that the testatrix had sufficient mental capacity to do so, and the challenger failed to rebut that presumption. Woods v. Stonecipher, 349 Ga. App. 698, 824 S.E.2d 633 (2019).

Cited in Tuttle v. Ryan, 282 Ga. 652, 653 S.E.2d 50 (2007).

ARTICLE 4 JOINT OR MUTUAL WILLS

53-4-30. Contract concerning succession.

A contract made on or after January 1, 1998, that obligates an individual to make a will or a testamentary disposition, not to revoke a will or a testamentary disposition, or to die intestate shall be express and shall be in a writing that is signed by the obligor.

(Code 1981, §53-4-30, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 7.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "January 1, 1998," was substituted for "the effective date of this Code section".

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

This section adds the requirement that a contract concerning succession must be express and in a writing signed by the obligor.

JUDICIAL DECISIONS

No express written contract found.

- Because the only references to mutuality in a joint will under O.C.G.A. § 53-4-31 were in the title of the instrument and in the attestation clause, those references were insufficient to constitute either an "express statement" required by O.C.G.A. § 53-2-51 or an express written "contract" requirement of O.C.G.A. § 53-4-30, and there was no clear and definite agreement so as to trigger the fraud exception; accordingly, the surviving wife's deed of gift of real property to a nephew was not precluded, and the will was revocable because there was no express written contract to the contrary. Hodges v. Callaway, 279 Ga. 789, 621 S.E.2d 428 (2005).

Decedent's son, grandson, and friend did not prove a written will contract meeting the requirements of O.C.G.A. § 53-4-30 because handwritten memorandum discovered after the decedent's death did not reflect the consideration the son, grandson, and friend described as part of the will contract and did not embody any promise on the decedent's part, but the notes simply stated the decedent's wishes as to the disposal of property and the handling of the estate; the signature is, in fact, a mandatory statutory requirement under O.C.G.A. § 53-4-30. Newton v. Lawson, 313 Ga. App. 29, 720 S.E.2d 353 (2011).

Decedent's son, grandson, and friend did not prove a written will contract meeting the requirements of O.C.G.A. § 53-4-30 because the decedent's 2000 will could not be relied upon to satisfy O.C.G.A. § 53-4-30 since it was not a written contract promising to make a will for valuable consideration and was revoked upon the decedent's execution of a will in 2004; the 2000 will was a revocable will reflecting the decedent's testamentary intent at the time the decedent executed the will, and the decedent changed the testamentary intent when the decedent executed the 2004 will. Newton v. Lawson, 313 Ga. App. 29, 720 S.E.2d 353 (2011).

A 1997 will made by a father and mother was merely joint, and it contained no contractual language indicating any intent of the father or the mother that the will should be considered irrevocable; therefore, after the father's death, the mother could make a new will that disinherited her daughter. Oravec v. Phillips, 298 Ga. 846, 785 S.E.2d 295 (2016).

Court erred by granting summary judgment to executor on breach of oral contract to make will counterclaim.

- Trial court erred by granting partial summary judgment to an executor on a counterclaim brought by two stepchildren of the decedent asserting breach of an oral contract to make a will as the alleged contract predated the written will mandate of O.C.G.A. § 53-4-30 and testimony was provided that the oral agreement was witnessed and that the decedent assented to the contract. Therefore, the executor was not entitled to summary judgment on the breach of contract claim. Rushin v. Ussery, 298 Ga. App. 830, 681 S.E.2d 263 (2009).

Argument and jury instruction properly allowed.

- Trial court properly allowed argument and a jury instruction on O.C.G.A. § 53-4-30 as the parties agreed that an individual's former father-in-law promised to convey certain property to the individual and the ex-wife, upon the father-in-law's death; the jury could resolve any conflicting theories as to the ownership of the land and the applicability of O.C.G.A. §§ 23-2-131(a) and23-2-132. Jackson v. Neese, 276 Ga. App. 724, 624 S.E.2d 139 (2005).

53-4-31. Definitions.

  1. A joint will is one will signed by two or more testators that deals with the distribution of the property of each testator. A joint will may be probated as each testator's will.
  2. Mutual wills are separate wills of two or more testators that make reciprocal dispositions of each testator's property.

(Code 1981, §53-4-31, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article advocating restructuring or repeal of former Code 1933, § 113-104, see 11 Ga. L. Rev. 297 (1977). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For comment on Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), see 2 Ga. St. B.J. 258 (1965).

COMMENT

Subsection (a) of this section defines joint wills. (See OCGA Sec. 53-5-5, which requires that a will remain on file in the probate court once it is probated. In the case of a joint will, a certified copy of the joint will would be used upon the death of the second testator to die.) Subsection (b) changes the definition of mutual wills to refer only to the separate wills of two or more testators that contain reciprocal dispositions of property. The term "mutual will" under former OCGA Sec. 53-2-51 referred to one joint will or two or more separate wills that either were based on express contract or contained an express statement that they were "mutual wills".

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-104, and former O.C.G.A. § 53-2-51 are included in the annotations for this Code section.

Cited in Ricketson v. Fox, 247 Ga. 162, 274 S.E.2d 556 (1981).

Joint Wills

Joint will defined.

- Joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. Such a will contained in a single instrument is the will of each of the makers, and at the death of one, may be probated as that one's will, and be again probated at the death of the other as the will of the latter. Such wills are usually executed to make testamentary disposition of joint property. Wills may be joint or mutual, or both joint and mutual. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Joint will.

- Because the only references to mutuality in a joint will under O.C.G.A. § 53-4-31 were in the title of the instrument and in the attestation clause, those references were insufficient to constitute either an "express statement" required by O.C.G.A. § 53-2-51, or an express written "contract" requirement of O.C.G.A. § 53-4-30, and there was no clear and definite agreement so as to trigger the fraud exception; accordingly, the surviving wife's deed of gift of real property to a nephew was not precluded, and the will was revocable because there was no express written contract to the contrary. Hodges v. Callaway, 279 Ga. 789, 621 S.E.2d 428 (2005).

Joint will was revocable after one spouse's death.

- A 1997 will made by a father and mother was merely joint, and the will contained no contractual language indicating any intent of the father or mother that the will should be considered irrevocable; therefore, after the father's death, the mother could make a new will that disinherited her daughter. Oravec v. Phillips, 298 Ga. 846, 785 S.E.2d 295 (2016).

Mutual Wills

Mutual wills defined.

- Mutual wills may be defined as the separate wills of two persons, which are reciprocal in their provisions. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104); Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969);(decided under former Code 1933, § 113-104).

Mutual wills are those which contain reciprocal provisions giving the separate property of each testator to the other and such wills are specifically recognized by the law. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Mutual wills result from a mutual intention on the part of the makers thereof to make reciprocal testamentary gifts one to the other and are not dependent for their validity upon any consideration therefor. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104); Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969);(decided under former Code 1933, § 113-104).

Wills are mutual, whether jointly or separately executed, when each testator has full knowledge of the testamentary intentions of the other and when each with such knowledge and while acting in concert makes a reciprocal gift of one's separate estate to the other. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Purpose of subsection (b) was to eliminate the uncertainty that had crept into the law through the practice of courts, on an ad hoc basis, of finding wills to be "mutual" by implication. Coker v. Mosely, 259 Ga. 781, 387 S.E.2d 135 (1990) (decided under former O.C.G.A. § 53-2-51).

Acknowledgment that survivor might make new will destroys mutuality.

- Joint will in which the testators provided for a certain distribution in case of simultaneous death, or if the survivor did not make another will, recognized specifically that the survivor might make a new will to replace the joint will; thus, the will was not mutual. McPherson v. McPherson, 254 Ga. 122, 327 S.E.2d 204 (1985) (decided under former O.C.G.A. § 53-2-51).

Intention of persons to make mutual wills may be inferred from the facts and circumstances under which such wills were made, and an express agreement between testators to execute mutual wills is not essential to their validity. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Requirement for express contract.

- An oral agreement between husband and wife that the husband's children would inherit under the wife's will was not sufficient evidence of an express contract to make mutual wills. Smith v. Turner, 223 Ga. App. 371, 477 S.E.2d 663 (1996) (decided under former Code 1933, § 113-104).

Contract or agreement between joint testators may be made out from the promises made in the will. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), for comment, see 2 Ga. St. B.J. 258 (1965) (decided under former Code 1933, § 113-104); Johnson v. Harper, 246 Ga. 124, 269 S.E.2d 16 (1980) (decided under former Code 1933, § 113-104).

Agreements to make wills are not established merely because two persons simultaneously make reciprocal testamentary dispositions in favor of each other, when the language of such wills contain nothing to the effect that the instruments are the result of a contract. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), for comment, see 2 Ga. St. B.J. 258 (1965) (decided under former Code 1933, § 113-104).

Contract or agreement between the joint testators to execute mutual wills may be made out from the promises made in the will. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Fact that separate wills, with reciprocal provisions, have been executed by two persons simultaneously, or about the same time, is not of itself evidence of a contract between the testators, but such a contract may appear from the terms of the will, by direct reference or by inference. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Ample consideration for a husband's promise to devise property to his wife for life, provision to be made for a third person upon the death of the testator, is found in the promise of the wife to make a similar testamentary distribution on her part, when the proof is ample that the wife had property of her own. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Joint and mutual will.

- Trial court did not err when the court concluded that the will of a husband and wife was joint and mutual and that the husband and wife had an enforceable contract not to revoke that will because the husband and wife each agreed to give the other certain described real and personal property as valuable consideration if one or the other survived, and they also agreed that if they died simultaneously, or at the survivor's death, that the residue of the estate would go to their four children, all of whom were biologically the husband's children and two of whom were biologically the wife's children; when the husband died the wife, as the survivor, benefitted from the joint and mutual will when she probated it as the husband's last will and testament and conveyed the husband's entire estate to herself. Davis v. Parris, 289 Ga. 201, 710 S.E.2d 757 (2011).

Simultaneous execution of wills containing reciprocal dispositions.

- General rule is that, if two persons execute wills at the same time, either by one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), for comment, see 2 Ga. St. B.J. 258 (1965) (decided under former Code 1933, § 113-104).

It is the contract and not the mutual will which is irrevocable. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Impact of divorce on mutual wills.

- When the wills which the propounder and the testator made were mutual wills, then the revocation of the propounder's will by marriage would have revoked the other mutual will. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-104).

Will made pursuant to an agreement between a husband and wife, and incorporated into the divorce decree between them, can be revoked by a subsequent will. Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973) (decided under former Code 1933, § 113-104).

No express statement of mutual wills.

- Under former O.C.G.A. § 53-2-51(b), as there was no express statement in both spouses' wills that the wills were mutual wills, the existence of mutual wills could not be established. Bandy v. Henderson, 284 Ga. 692, 670 S.E.2d 792 (2008) (decided under former O.C.G.A. § 53-2-51).

Intervention of Equity to Enforce Valid Contract

Interposition of equity necessary to prevent fraud where mutual wills based on valid contract.

- When the mutual wills are the result of a contract based upon a valid consideration, and when, after the death of one of the parties, the survivor has accepted benefits under the will of the other which was executed pursuant to an agreement, equity will interpose to prevent fraud. This can be accomplished only through a court of equity, as the probate court has no jurisdiction to enforce such agreement. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Existence and proof of contract required to invoke intervention of equity.

- To enable one to invoke the intervention of equity, it is not sufficient that there are wills simultaneously made, and similar in their reciprocal provisions; but the existence of a clear and definite contract must be alleged and proved, either by evidence of an express agreement, or by unequivocal circumstances. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965) (decided under former Code 1933, § 113-104); Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969);(decided under former Code 1933, § 113-104).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 670.

C.J.S.

- 97 C.J.S., Wills, § 2026, 2027, 2029 et seq.

ALR.

- Right to revoke will executed pursuant to contract, 3 A.L.R. 172.

Right of beneficiary to enforce contract between third persons to provide for him by will, 33 A.L.R. 739; 73 A.L.R. 1395.

Inequality of estates as affecting joint and mutual wills, 148 A.L.R. 756.

Joint, mutual, and reciprocal wills, 169 A.L.R. 9.

Right of party to joint or mutual will, made pursuant to agreement as to disposition of property at death, to dispose of such property during life, 85 A.L.R.3d 8.

53-4-32. Effect of execution.

The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills.

(Code 1981, §53-4-32, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section clarifies that the execution of joint or mutual wills does not in and of itself create a presumption of a contract that the surviving testator will not revoke his or her will. See Code. Sec. 53-4-30 for the requirements for making a valid contract not to revoke a will.

JUDICIAL DECISIONS

Joint will was revocable after one spouse's death.

- A 1997 will made by a father and mother was merely joint, and the will contained no contractual language indicating any intent of the father or mother that the will should be considered irrevocable; therefore, after the father's death, the mother could make a new will that disinherited her daughter. Oravec v. Phillips, 298 Ga. 846, 785 S.E.2d 295 (2016).

53-4-33. Revocation.

  1. A joint will or mutual wills may be revoked by any testator in the same manner as any other will.
  2. Revocation of a joint will or a mutual will by one of the testators shall not revoke the will of any other testator.

(Code 1981, §53-4-33, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article advocating restructuring or repeal of former Code 1933, § 113-104, see 11 Ga. L. Rev. 297 (1977). For comment on Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), see 2 Ga. St. B.J. 258 (1965).

COMMENT

This section clarifies that joint wills and mutual wills may be revoked in the same manner as any other wills and changes former OCGA Sec. 53-2-51 so that the revocation of one joint will or mutual wills shall not result in the revocation of the other testator's portion of the joint will or of the other testator's mutual will.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-104, and former O.C.G.A. § 53-2-51 are included in the annotations for this Code section.

Cited in Ricketson v. Fox, 247 Ga. 162, 274 S.E.2d 556 (1981).

Joint Wills

Joint will defined.

- Joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. Such a will contained in a single instrument is the will of each of the makers, and at the death of one, may be probated as that one's will, and be again probated at the death of the other as the will of the latter. Such wills are usually executed to make testamentary disposition of joint property. Wills may be joint or mutual, or both joint and mutual. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Mutual Wills

Mutual wills defined.

- Mutual wills may be defined as the separate wills of two persons, which are reciprocal in their provisions. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104); Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969);(decided under former Code 1933, § 113-104).

Mutual wills are those which contain reciprocal provisions giving the separate property of each testator to the other and such wills are specifically recognized by the law. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Mutual wills result from a mutual intention on the part of the makers thereof to make reciprocal testamentary gifts one to the other and are not dependent for their validity upon any consideration therefor. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104); Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969);(decided under former Code 1933, § 113-104).

Wills are mutual, whether jointly or separately executed, when each testator has full knowledge of the testamentary intentions of the other and when each with such knowledge and while acting in concert makes a reciprocal gift of one's separate estate to the other. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Purpose of subsection (b) was to eliminate the uncertainty that had crept into the law through the practice of courts, on an ad hoc basis, of finding wills to be "mutual" by implication. Coker v. Mosely, 259 Ga. 781, 387 S.E.2d 135 (1990) (decided under former O.C.G.A. § 53-2-51).

Acknowledgment that survivor might make new will destroys mutuality.

- Joint will in which the testators provided for a certain distribution in case of simultaneous death, or if the survivor did not make another will, recognized specifically that the survivor might make a new will to replace the joint will; thus, the will was not mutual. McPherson v. McPherson, 254 Ga. 122, 327 S.E.2d 204 (1985) (decided under former O.C.G.A. § 53-2-51).

Intention of persons to make mutual wills may be inferred from the facts and circumstances under which such wills were made, and an express agreement between testators to execute mutual wills is not essential to their validity. Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Requirement for express contract.

- An oral agreement between husband and wife that the husband's children would inherit under the wife's will was not sufficient evidence of an express contract to make mutual wills. Smith v. Turner, 223 Ga. App. 371, 477 S.E.2d 663 (1996) (decided under former Code 1933, § 113-104).

Contract or agreement between joint testators may be made out from the promises made in the will. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), for comment, see 2 Ga. St. B.J. 258 (1965) (decided under former Code 1933, § 113-104); Johnson v. Harper, 246 Ga. 124, 269 S.E.2d 16 (1980) (decided under former Code 1933, § 113-104).

Contract or agreement between the joint testators to execute mutual wills may be made out from the promises made in the will. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Agreements to make wills are not established merely because two persons simultaneously make reciprocal testamentary dispositions in favor of each other, when the language of such wills contain nothing to the effect that the instruments are the result of a contract. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), for comment, see 2 Ga. St. B.J. 258 (1965) (decided under former Code 1933, § 113-104).

Fact that separate wills, with reciprocal provisions, have been executed by two persons simultaneously, or about the same time, is not of itself evidence of a contract between the testators, but such a contract may appear from the terms of the will, by direct reference or by inference. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Ample consideration for a husband's promise to devise property to his wife for life, provision to be made for a third person upon the death of the testator, is found in the promise of the wife to make a similar testamentary distribution on her part, when the proof is ample that the wife had property of her own. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Simultaneous execution of wills containing reciprocal dispositions.

- General rule is that, if two persons execute wills at the same time, either by one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965), for comment, see 2 Ga. St. B.J. 258 (1965) (decided under former Code 1933, § 113-104).

It is the contract and not the mutual will which is irrevocable. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Impact of divorce on mutual wills.

- When the wills which the propounder and the testator made were mutual wills, then the revocation of the propounder's will by marriage would have revoked the other mutual will. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-104).

A will made pursuant to an agreement between a husband and wife, and incorporated into the divorce decree between them, can be revoked by a subsequent will. Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973) (decided under former Code 1933, § 113-104).

No express statement of mutual wills.

- Under former O.C.G.A. § 53-2-51(b), as there was no express statement in both spouses' wills that the wills were mutual wills, the existence of mutual wills could not be established. Bandy v. Henderson, 284 Ga. 692, 670 S.E.2d 792 (2008) (decided under former O.C.G.A. § 53-2-51).

Intervention of Equity to Enforce Valid Contract

Interposition of equity necessary to prevent fraud where mutual wills based on valid contract.

- When the mutual wills are the result of a contract based upon a valid consideration, and when, after the death of one of the parties, the survivor has accepted benefits under the will of the other which was executed pursuant to an agreement, equity will interpose to prevent fraud. This can be accomplished only through a court of equity, as the probate court has no jurisdiction to enforce such agreement. Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969) (decided under former Code 1933, § 113-104).

Existence and proof of contract required to invoke intervention of equity.

- To enable one to invoke the intervention of equity, it is not sufficient that there are wills simultaneously made, and similar in their reciprocal provisions; but the existence of a clear and definite contract must be alleged and proved, either by evidence of an express agreement, or by unequivocal circumstances. Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965) (decided under former Code 1933, § 113-104); Citizens & S. Nat'l Bank v. Leaptrot, 225 Ga. 783, 171 S.E.2d 555 (1969);(decided under former Code 1933, § 113-104).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 670.

C.J.S.

- 97 C.J.S., Wills, § 2026, 2027, 2029 et seq.

ALR.

- Right to revoke will executed pursuant to contract, 3 A.L.R. 172.

Right of beneficiary to enforce contract between third persons to provide for him by will, 33 A.L.R. 739; 73 A.L.R. 1395.

Inequality of estates as affecting joint and mutual wills, 148 A.L.R. 756.

Joint, mutual, and reciprocal wills, 169 A.L.R. 9.

Right of party to joint or mutual will, made pursuant to agreement as to disposition of property at death, to dispose of such property during life, 85 A.L.R.3d 8.

ARTICLE 5 REVOCATION AND REPUBLICATION

53-4-40. Power of testator.

A will may be changed or revoked by the testator at any time prior to the testator's death.

(Code 1981, §53-4-40, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article discussing types of unintended revocation in Georgia, see 14 Ga. B.J. 281 (1952). For article analyzing the Georgia law relating to revocation and republication of wills, comparing it with the laws of other states, and suggesting some changes, see 11 Ga. L. Rev. 297 (1977). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010).

COMMENT

This section carries forward the first sentence of former OCGA Sec. 53-2-70. The second sentence of former OCGA Sec. 53-2-70 is repealed as unnecessary in light of the new section on joint and mutual wills contained in the preceding article.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-401, are included in the annotations for this Code section.

No revocation.

- Trial court erred in denying a widow's motion for summary judgment affirming an order admitting a decedent's 2001 will to probate as the 2001 will was not expressly revoked since there was no evidence of a subsequent will or other written instrument that was executed, subscribed, and attested with the same formality as a will, which contained a statement expressly revoking earlier wills; there was no implied revocation of the 2001 will since an implied revocation by a subsequent inconsistent will would take effect only when a subsequent will became operative, and then was only effective as to inconsistencies between the later testamentary instrument and an earlier testamentary instrument, so the subsequent inconsistent will had to be a written document, and there was no written subsequent inconsistent will. Harper v. Harper, 281 Ga. 25, 635 S.E.2d 711 (2006).

Intentional obliteration of pertinent parts of will operates as revocation.

- If testator, three years after the execution of a will, took a pen and obliterated the pertinent and material parts thereof, canceling the will and expressing the testator's intention in this respect, then the will was no longer effective, and when testator died the will was just so much paper. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-401).

Cancellation of material part of will raises presumption of revocation.

- When a paper found among a decedent's papers is offered for probate as a will, and appears to have been canceled or obliterated in a material part, a presumption arises that the cancellations or obliterations were made by the deceased, and that the deceased intended the papers to operate as a revocation. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-401).

If the will offered for probate has been revoked for any reason, it is not the will of the testator, and a judgment refusing it probate must be rendered. Payne v. Payne, 229 Ga. 822, 194 S.E.2d 458 (1972) (decided under former Code 1933, § 113-401).

Cited in Morris v. Bullock, 185 Ga. 12, 194 S.E. 201 (1937); Regents of Univ. Sys. v. Trust Co., 186 Ga. 498, 198 S.E. 345 (1938); Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955); Friedman v. Cohen, 215 Ga. 859, 114 S.E.2d 24 (1960); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Simmons v. Davis, 240 Ga. 282, 240 S.E.2d 33 (1977).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 324, 325, 469, 470, 667, 709, 710.

C.J.S.

- 95 C.J.S., Wills, §§ 1, 386.

ALR.

- Right to revoke will executed pursuant to contract, 3 A.L.R. 172.

Validity, construction, and effect of provisions of will relating to its modification or revocation, 72 A.L.R. 871.

Admissibility of declarations by testator on issue of revocation of will, 79 A.L.R. 1493; 172 A.L.R. 354.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Inequality of estates as affecting joint and mutual wills, 148 A.L.R. 756.

Conflict of laws respecting revocation of will, 9 A.L.R.2d 1412.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Wills: revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 A.L.R.2d 526.

Codicil as reviving revoked will or codicil, 33 A.L.R.2d 922.

Interlineations and changes appearing on face of will, 34 A.L.R.2d 619.

Spouse's right to take under other spouse's will as affected by antenuptial or postnuptial agreement or property settlement, 53 A.L.R.2d 475.

Construction and effect of statute providing that agreement made by a testator for sale or transfer of property disposed of by will previously made does not revoke or adeem such disposition, 62 A.L.R.2d 958.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Right of party to joint or mutual will, made pursuant to agreement as to disposition of property at death, to dispose of such property during life, 85 A.L.R.3d 8.

Establishment and effect, after death of one of the makers of joint, mutual, or reciprocal will, of agreement not to revoke will, 17 A.L.R.4th 167.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator - modern cases, 70 A.L.R.4th 323.

53-4-41. Intent.

In all cases of revocation, the intent to revoke is necessary.

(Code 1981, §53-4-41, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward the first sentence of former OCGA Sec. 53-2-71. The second section of the former Code section, which provided that an express revocation clause would not act as a revocation if such was not the testator's intent, is repealed as unnecessary.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-405, are included in the annotations for this Code section.

Cited in Graham v. Stansell, 218 Ga. 832, 131 S.E.2d 103 (1963); Howard v. Cotton, 223 Ga. 118, 153 S.E.2d 557 (1967).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 508.

C.J.S.

- 95 C.J.S., Wills, § 390.

ALR.

- Effect of testator's attempted physical alteration of will after execution, 62 A.L.R. 1367; 24 A.L.R.2d 514.

Revocation by ratification or adoption of physical destruction or mutilation of will without testator's knowledge or consent in first instance, 99 A.L.R. 524.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Testator's failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will, 61 A.L.R.3d 958.

53-4-42. Express or implied revocation.

  1. A revocation may be express or implied.
  2. An express revocation occurs when the testator by writing or action expressly annuls a will. An express revocation takes effect instantly.
  3. An implied revocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will. An implied revocation takes effect only when the subsequent inconsistent will becomes effective. If the subsequent inconsistent will fails to become effective from any cause, the implied revocation is not completed.

(Code 1981, §53-4-42, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward the provisions of former OCGA Sec. 53-2-72. This section changes the former law by deleting the phrase in former OCGA Sec. 53-2-72(b) that would allow an express revocation to become effective "independently of the validity or ultimate fate of the will or other instrument containing the revocation." (This change is in accord with the provisions of Code Sec. 53-4-45, which explain the result that occurs when an instrument that contains an express revocation is itself later revoked.) As is indicated by Code Sec. 53-1-2, the term "will" includes the term "codicil". See Code Sec. 53-4-47 for the effect of an implied revocation.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-402, are included in the annotations for this Code section.

Cited in Payne v. Payne, 213 Ga. 613, 100 S.E.2d 450 (1957); Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973).

Express Revocation

Express revocation.

- If testator, three years after the execution of a will, took a pen and obliterated the pertinent and material parts thereof, canceling the will and expressing the testator's intention in this respect, then the will was no longer effective, and when testator died the will was just so much paper. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-402).

No revocation.

- Trial court erred in denying a widow's motion for summary judgment affirming an order admitting a decedent's 2001 will to probate as the 2001 will was not expressly revoked since there was no evidence of a subsequent will or other written instrument that was executed, subscribed, and attested with the same formality as a will, which contained a statement expressly revoking earlier wills; there was no implied revocation of the 2001 will since an implied revocation by a subsequent inconsistent will would take effect only when a subsequent will became operative, and then was only effective as to inconsistencies between the later testamentary instrument and an earlier testamentary instrument, so the subsequent inconsistent will had to be a written document, and there was no written subsequent inconsistent will. Harper v. Harper, 281 Ga. 25, 635 S.E.2d 711 (2006).

Implied Revocation

Implied revocation.

- When the testator makes a different disposition of certain personal property bequeathed by the later will, this constitutes a revocation of the item as to this property in the former will. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-402).

If the testator gave a ring to the testator's son by will, the testator could revoke the bequest either by conveying the ring and giving the ring to another prior to the testator's death, so that the ring did not remain a part of the testator's estate when the testator died, or the testator could revoke this bequest in the will, or revoke the entire will. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-402).

Probate court properly denied admission to probate for a 1991 will due to an implied revocation by the 2001 will, pursuant to O.C.G.A. § 53-4-42(c), as the testator's act of replacing specific bequests in the first will with $100 bequest in the later will, and then changing the testator's wishes regarding a residuary clause, from all to the testator's then wife if she survived to a division into three in the later will, impliedly revoked the first will by the later will. Mitchell v. Mitchell, 279 Ga. 282, 612 S.E.2d 274 (2005).

Lapsed will is not tantamount to revoked will.

- Subsequent will does not amount to a revocation of a former will by implication if the sole legatee of the subsequent will dies before the testator and the will therefore lapses before the death of the testator and fails. Miller v. Marchman, 214 Ga. 355, 104 S.E.2d 888 (1958) (decided under former Code 1933, § 113-402).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 471, 474, 479, 487.

C.J.S.

- 95 C.J.S., Wills, § 398 et seq.

ALR.

- Necessity that later will refer to earlier will in order to effect a revocation under statutes providing that a will may be revoked by a subsequent will declaring the revocation, 28 A.L.R. 691.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Possibility of avoiding or limiting effect of clause in later will purporting to revoke all former wills, 125 A.L.R. 936.

Admissibility of declarations by testator on issue of revocation of will, 172 A.L.R. 354.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Wills: revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 A.L.R.2d 526.

Implied revocation of will by later will or codicil, 59 A.L.R.2d 11.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Revocation of will by nontestamentary writing, 22 A.L.R.3d 1346.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

53-4-43. Subsequent will or other written instrument.

An express revocation may be effected by a subsequent will or other written instrument that is executed, subscribed, and attested with the same formality as required for a will.

(Code 1981, §53-4-43, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward subsection (a) of former OCGA Sec. 53-2-73. Subsection (b) of former OCGA Sec. 53-2-73 is replaced by Code Sec. 53-4-45. Section 53-4-45 describes the result when a subsequent will or other writing that revokes a will is itself revoked.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3918, and former Code 1933, § 113-403, are included in the annotations for this Code section.

Unattested statements in will lack formality required to revoke.

- While statements made in the handwriting of the deceased on the margin of will opposite items obliterated or canceled, designating a contrary disposition of the property covered by such items, but unattested, as well as a general unattested statement written on the cover of the will declaring that the will was to be ineffective, and indicating a different testamentary scheme, would not operate as an express revocation in writing of the will, such declarations made in the handwriting of the testator would tend to support presumption of law that the material obliterations or cancellations were made by the testator for the purpose of revoking the will. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Civil Code 1910, § 3918).

Probate of a former will may be defeated upon proof of the execution of a later writing by the testator, which contained a clause revoking the prior will, and of the loss or destruction of the later instrument, without proof of the rest of the contents of the lost or destroyed instrument. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

While revocation of a will cannot be established by proof of parol declarations by the testator, a clause in a later written instrument, properly executed by the testator, expressly revoking a former will is not rendered ineffective merely by the loss or destruction of the instrument which contains it, and proof of the revocation clause in a later lost or destroyed will may be made by parol. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

Will revoked by subsequent will revived only by republication.

- When a will has been expressly revoked by a subsequent will executed with the same formality and attested by the same number of witnesses as are requisite for the execution of a will, the revocation or destruction of the latter does not per se revive the former, but the former will can be revived only by republication. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

No revocation.

- Trial court erred in denying a widow's motion for summary judgment affirming an order admitting a decedent's 2001 will to probate as the 2001 will was not expressly revoked since there was no evidence of a subsequent will or other written instrument that was executed, subscribed, and attested with the same formality as a will, which contained a statement expressly revoking earlier wills; there was no implied revocation of the 2001 will since an implied revocation by a subsequent inconsistent will would take effect only when a subsequent will became operative, and then was only effective as to inconsistencies between the later testamentary instrument and an earlier testamentary instrument, so the subsequent inconsistent will had to be a written document, and there was no written subsequent inconsistent will. Harper v. Harper, 281 Ga. 25, 635 S.E.2d 711 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 484, 603.

C.J.S.

- 95 C.J.S., Wills, §§ 398 et seq.

ALR.

- Necessity that later will refer to earlier will in order to effect a revocation under statutes providing that a will may be revoked by a subsequent will declaring the revocation, 28 A.L.R. 691.

Revocation of later will as reviving earlier will, 28 A.L.R. 911; 162 A.L.R. 1072.

Competency of attesting witness who is not benefited by will except as it revokes an earlier will, 64 A.L.R. 1306.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Possibility of avoiding or limiting effect of clause in later will purporting to revoke all former wills, 125 A.L.R. 936.

Admissibility of declarations by testator on issue of revocation of will, 172 A.L.R. 354.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Effect of testator's attempted physical alteration of will after execution, 24 A.L.R.2d 514.

Wills: revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 A.L.R.2d 526.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Revocation of will by nontestamentary writing, 22 A.L.R.3d 1346.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.

Revocation of prior will by revocation clause in lost will or other lost instrument, 31 A.L.R.4th 306.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

53-4-44. Destruction or obliteration of will or material portion thereof.

An express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent to revoke or by another at the testator's direction. The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.

(Code 1981, §53-4-44, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 15.)

Law reviews.

- For article surveying developments in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For article, "Wills, Trusts, and Administration of Estates," see 53 Mercer L. Rev. 499 (2001). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010).

COMMENT

This section carries forward the provisions of former OCGA Sec. 53-2-74, with the exception of the last sentence (dealing with the presumption when an immaterial portion of the will is revoked), which is repealed as unnecessarily repetitious. The new Code section also deletes the reference to duplicates of wills.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3919, former Code 1933, § 113-404, and former O.C.G.A. § 53-2-74 are included in the annotations for this Code section.

Statute requires intent to revoke and actual destruction of will.

- An intention to revoke a will and actual destruction of the will are both necessary to effect a revocation which provides for express revocation by any destruction or obliteration of the will. Payne v. Payne, 213 Ga. 613, 100 S.E.2d 450 (1957) (decided under former Code 1933, § 113-404).

Destroying of a will without intention to revoke the will would not revoke the will, neither would the intention to destroy a will without actually doing so revoke the will; there must be both. Payne v. Payne, 213 Ga. 613, 100 S.E.2d 450 (1957) (decided under former Code 1933, § 113-404).

Reason that the intention of the testator in making marks or in writing a new instrument is material is that joint operation of act and intention is necessary to revoke a will. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

Question of whether or not canceled provision is "material" is one of law. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

Drawing of pencil lines through provisions of a will is a sufficient "canceling." Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

How far the cancellation or obliteration must extend before presumption of revocation will arise is not settled. Ellis v. O'Neal, 175 Ga. 652, 165 S.E. 751 (1932) (decided under former Civil Code 1910, § 3919).

"Material" obliteration.

- Obliteration of the names of two of the four beneficiaries, whom the testator designated were to take "equally, share and share alike, per stirpes," was material because the obliteration directly affected the distribution of all property in the estate. This finding of a material obliteration gave rise to a rebuttable presumption under O.C.G.A. § 53-4-44 that the testator intended to revoke the entire will. Lovell v. Anderson, 272 Ga. 675, 533 S.E.2d 64 (2000).

Markings on a will described as smudges or a water stain, and that did not obscure names thereon, were not sufficient evidence of actual cancellation or obliteration to prove revocation. Wells v. Jackson, 265 Ga. 181, 453 S.E.2d 690 (1995) (decided under former O.C.G.A. § 53-2-74).

Will found among testator's effects in vehicle.

- Because a vehicle may be particularly personal to the vehicle's owner, it may be a repository for a testator's effects; thus, a caveator satisfied the requisite burden for purposes of summary judgment through the presumption of revocatory intent found in O.C.G.A. § 53-4-44 and the common law presumption that the testator made the obliterations to the will when the will was found in the testator's pick-up truck along with other personal items. Lovell v. Anderson, 272 Ga. 675, 533 S.E.2d 64 (2000).

No proof of revocation.

- Probate court did not err in granting summary judgment on the issue of revocation as there was no evidence the will was destroyed or revoked by another document. Milbourne v. Milbourne, 301 Ga. 111, 799 S.E.2d 785 (2017).

Cited in Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973); Richards v. Tolbert, 232 Ga. 678, 208 S.E.2d 486 (1974); Havird v. Schlachter, 266 Ga. 718, 470 S.E.2d 657 (1996); Horton v. Burch, 267 Ga. 1, 471 S.E.2d 879 (1996); Lovell v. Anderson, 272 Ga. 675, 533 S.E.2d 64 (2000).

Pleading and Practice

1. Presumption of Revocation

Presumption of intent to revoke inferred from cancellation of material parts of will.

- When an instrument found among a decedent's papers was offered for probate as decedent's will, and appeared to have been canceled or obliterated by marks drawn diagonally across certain material items thereof, the obliteration of which affected the testamentary scheme, a presumption arose that such cancellations or obliterations were made by the deceased, and that the deceased intended the markings to operate as a total revocation of the will. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Code 1933, § 113-404); King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959);(decided under former Code 1933, § 113-404).

When a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended. Langan v. Cheshire, 208 Ga. 107, 65 S.E.2d 415 (1951) (decided under former Code 1933, § 113-404).

From destruction or cancellation of duplicate will.

- Statements made in the handwriting of the deceased on the margin of a will opposite items obliterated or canceled, designating a contrary disposition of the property covered by such items, would tend to support the presumption of law that the material obliterations or cancellations were made by the testator for the purpose of revoking the will. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Civil Code 1910, § 3919).

When a testator who has executed a will in duplicate cancels or destroys one of the duplicates, the presumption is that the testator meant thereby to revoke the will. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

Statute plainly indicates that, when there has been a multiple execution of a will, the destruction of one of the executed copies by the maker of the will with intention to revoke the will has the effect of revoking all of the copies, and the same presumption of intention to revoke arises from the destruction of one of the duplicates as would arise if the destroyed copy were the only one. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

When the will when found among the papers of the testator was torn in four pieces, with the signature torn from the will, and missing, this certainly shows the will's cancellation in a material portion, the signature of a will being essential to the will's validity. This evidence of the condition of the original will, which was in the custody of the testator until the testator's death, and found among the testator's papers shortly after the testator's death, raised a presumption that the cancellation was done by the testator and that the testator intended to revoke the will. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

In a will contest the cross-propounders, in seeking to probate a copy of a material portion of a will, the original of which portion they asserted had been destroyed, had the burden of overcoming the presumption that the destruction had been done by the testator personally with the intention to revoke, and the trial judge erred in failing to instruct the jury that the burden rested on the cross-propounders to prove that the copy offered by them was in substance and intent the same as the original. Sheffield v. Sheffield, 215 Ga. 546, 111 S.E.2d 218 (1959) (decided under former Code 1933, § 113-404).

Presumption that testator made cancellations or obliterations.

- When the paper is found among the testator's effects, there is also a presumption that the testator made the cancellations or obliterations. Ellis v. O'Neal, 175 Ga. 652, 165 S.E. 751 (1932) (decided under former Civil Code 1910, § 3919); Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980);(decided under former Code 1933, § 113-404).

When there is no direct or circumstantial evidence that alterations in a will were made after the execution of the will, it must be presumed that the alterations were made by the testator, if the will was in the testator's custody until the time of the testator's death. Jordan v. Hayes, 225 Ga. 697, 171 S.E.2d 496 (1969) (decided under former Code 1933, § 113-404).

Burden is on the caveators to show that alterations in a will were not made prior to the execution of the will. Jordan v. Hayes, 225 Ga. 697, 171 S.E.2d 496 (1969) (decided under former Code 1933, § 113-404).

When there is no contention that alterations in an instrument were not made by the maker of the instrument, and there is no evidence that the alterations were made subsequently to the instrument's signing, the presumption of law is that the alterations were made prior to the signing. Jordan v. Hayes, 225 Ga. 697, 171 S.E.2d 496 (1969) (decided under former Code 1933, § 113-404).

2. Proof Required to Rebut Presumption

Proof required to rebut presumption of revocation generally.

- When there was no dispute as to the cancellation of material parts of the will and as to written declarations by the testator declaring the testator's will ineffective and no evidence to indicate that the testator intended to revoke only the canceled items, the statutory presumption as to a revocation of the entire will was not rebutted. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Civil Code 1910, § 3919).

Presumption of revocation may be rebutted, among other ways, by proof that a will was lost or destroyed prior to the death of the testator without the testator's consent, and that, when evidence to such effect is submitted, the question whether the presumption has been overcome is for determination by the jury, in view of all of the evidence and circumstances in the case, and the credibility attributed by the jury to the witnesses. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-404).

Judge may instruct the jury to the effect that the presumption in favor of revocation may be rebutted by showing that the will was not destroyed by the testator, or that if the testator did destroy the will, the testator did not thereby intend to revoke the will; provided only that such an instruction, like others, must be supported by sufficient evidence. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-404).

Presumption must be rebutted by evidence showing the obliterations and cancellations were not done with the intent to revoke the whole will. Howard v. Cotton, 223 Ga. 118, 153 S.E.2d 557 (1967) (decided under former Code 1933, § 113-404).

Declarations of testator are admissible in evidence to support or to rebut a presumption of revocation. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

When the revocation of a will must be presumed because of the will's destruction in a material part, declarations of the testator are admissible to support or rebut the presumption that the destruction was the act of the testator with the intention to revoke. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

Presumption of revocation not raised.

- In a suit asserting undue influence and seeking revocation of a testator's will, the trial court did not err in granting summary judgment to the defendant on the issue of revocation during the presentation of the plaintiff's case-in-chief because, under the change set forth in O.C.G.A. § 53-4-44 from O.C.G.A. § 53-2-74, the obliteration involved in the case, not being made on the original will, did not raise the presumption of revocation. Since the presumption was essential to the plaintiff's claim of revocation, the trial court did not err in granting summary judgment to the defendant on that claim. Morrison v. Morrison, 282 Ga. 866, 655 S.E.2d 571 (2008).

Will not revoked by cancelling portions.

- Testator only indicated a desire to cancel certain portions of the testator's will, but the testator did not indicate an intent to revoke the will; the testator struck through the names of all successor beneficiaries of a trust estate as well as language nominating a certain person as a successor trustee, the testator initialed these struck through parts, and the testator named a certain person as the testator's successor beneficiary, but the testator made no other changes to the will. Peterson v. Harrell, 286 Ga. 546, 690 S.E.2d 151 (2010).

3. Burden of Proof

Statute places burden of proof on propounder to rebut presumption of revocation.

- When alterations appear on the face of a will, and other alterations on portions of the will which have previously been incorporated in a codicil, the alterations are material as regards the codicil, since the alterations concern the very purpose and subject matter of the codicil, but if the alterations and obliterations not incorporated by, and later to, the codicil were not intended as a revocation of the codicil, the burden was on the propounders to show that fact. Langan v. Cheshire, 208 Ga. 107, 65 S.E.2d 415 (1951) (decided under former Code 1933, § 113-404).

Burden is placed upon the propounder to rebut the presumption with evidence showing no intention to revoke. Howard v. Cotton, 223 Ga. 118, 153 S.E.2d 557 (1967) (decided under former Code 1933, § 113-404).

As a general rule, the burden is on a person attacking a paper offered for probate as a will to sustain the grounds of the propounder's attack. But by express provision, when a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

4. Doctrine of Dependent Relative Revocation

Doctrine of dependent relative revocation.

- Doctrine of dependent relative revocation (conditional revocation) is a doctrine of presumed intention, and has grown up as a result of an effort which courts always make to arrive at the real intention of the testator. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

Rebuttal by propounder shifts burden of proof to caveator.

- Evidence that old will, with pencil lines drawn through property disposition provisions, was found among testator's personal papers folded together with later writing making a somewhat different disposition of the testator's property was some evidence tending to establish that the cancellation and the making of a new will were parts of one scheme, and the revocation of the old will was so related to the making of the new as to be dependent upon it; this evidence was sufficient to rebut the statutory presumption of revocation and to give rise to a presumption in favor of the propounder under the doctrine of dependent relative revocation or conditional revocation, thus shifting the burden of proof to the caveator to prove, in essence, that decedent would have preferred intestacy. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

No presumption canceled will preferred instead of intestacy.

- No mere presumption that the testator would have preferred canceled will instead of intestacy will be allowed to defeat testator's intention when it has been made to appear. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

For articulation of the doctrine of dependent relative revocation (conditional revocation), see Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

Failure to apply doctrine of dependent relative revocation.

- Trial court did not err by failing to apply the doctrine of dependent relative revocation to revive the decedent's 1988 will because based on the attorney's trial testimony, the trial court properly found that the markings on the original 1988 will that the decedent brought to a June 2004 meeting with the attorney were so extensive that it could not be determined, even by an experienced lawyer, what decedent intended to remove and what, if anything, was intended to remain. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 507 et seq., 522, 572.

C.J.S.

- 95 C.J.S., Wills, §§ 390, 410, 411, 412.

ALR.

- Effect of testator's attempted physical alteration of will after execution, 62 A.L.R. 1367; 24 A.L.R.2d 514.

Revocation by ratification or adoption of physical destruction or mutilation of will without testator's knowledge or consent in first instance, 99 A.L.R. 524.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.

Testator's failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will, 61 A.L.R.3d 958.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

53-4-45. Revival or republication of previous will.

  1. If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by a later will or other written instrument, as described in Code Section 53-4-43, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
  2. If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by an act, as described in Code Section 53-4-44, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the circumstances of the revocation of the will or other written instrument or from the testator's contemporaneous or subsequent declarations that the testator intended the previous will to take effect.
  3. If a will or other written instrument that expressly revoked or amended a previous will in part is revoked by a later will or other written instrument, as described in Code Section 53-4-43, the revoked or amended part of the previous will is revived to the extent it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
  4. If a will or other written instrument that expressly revoked or amended a previous will in part is revoked by an act, as described in Code Section 53-4-44, the revoked or amended part of the previous will is revived unless it is evident from the circumstances of the revocation of the will or other written instrument or from the testator's contemporaneous or subsequent declarations that the testator did not intend the revoked or amended part of the previous will to take effect as executed.
  5. If a will or other written instrument that expressly revoked a previous will in whole or in part is revoked by a later will or other written instrument, as described in Code Section 53-4-43, or by an act, as described in Code Section 53-4-44, and the previous will or any revoked or amended portion is not revived in accordance with the provisions of this Code section, the previous will may be republished in whole or in part in accordance with Code Section 53-4-50.

(Code 1981, §53-4-45, enacted by Ga. L. 1996, p. 504, § 10.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "Code Section" was substituted for "Code" in subsections (c) and (d).

COMMENT

This new Code section replaces former OCGA Sec. 53-2-73(b). The section is relevant in cases in which a previous will or part of a previous will has been expressly revoked or amended by a will or other written instrument ("revoking instrument") and subsequently that revoking instrument is itself revoked. (This Code section is not necessary in the case of an implied revocation because, as stated in Code Sec. 53-4-42, an implied revocation only becomes effective if the revoking instrument is still in place when the testator dies.) The revocation of the revoking instrument may occur by way of a subsequent will or other formal writing (as described in Code Sec. 53-4-43) or by an act of revocation (as described in Code Sec. 53-4-44). If the revoking instrument had revoked the previous will in its entirety, the presumption is that the previous will remains revoked (that is, the previous will is not revived) when the revoking instrument is itself revoked. This presumption may be overcome if the terms of the will or other writing that revokes the revoking instrument or the circumstances surrounding the act of revocation of the revoking instrument (including statements made by the testator) indicate that the testator intended to revive the previous will. If the previous will had been only partially revoked or amended by the revoking instrument, the previous will is presumed to be revived when the revoking instrument is revoked unless the terms of the formal writing that revokes the revoking instrument or the circumstances surrounding the act of revocation of the revoking instrument (including statements made by the testator) indicate that the testator intended that the revoked or amended provisions would not be revived. Subsection (e) provides that, even if the previous will or a portion of the previous will is not revived by virtue of the application of the first four subsections, it is still possible to republish the previous will, using the procedure described in Code Sec. 53-4-50. This new Code section is meant to supplement rather than replace the doctrine of dependent relative revocation as it has developed in the Georgia case law.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3918, and former Code 1933, § 113-403, are included in the annotations for this Code section.

Unattested statements in will lack formality required to revoke.

- While statements made in the handwriting of the deceased on the margin of will opposite items obliterated or canceled, designating a contrary disposition of the property covered by such items, but unattested, as well as a general unattested statement written on the cover of the will declaring that the will was to be ineffective, and indicating a different testamentary scheme, would not operate as an express revocation in writing of the will, such declarations made in the handwriting of the testator would tend to support presumption of law that the material obliterations or cancellations were made by the testator for the purpose of revoking the will. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Civil Code 1910, § 3918).

Probate of a former will may be defeated upon proof of the execution of a later writing by the testator, which contained a clause revoking the prior will, and of the loss or destruction of the later instrument, without proof of the rest of the contents of the lost or destroyed instrument. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

While revocation of a will cannot be established by proof of parol declarations by the testator, a clause in a later written instrument, properly executed by the testator, expressly revoking a former will is not rendered ineffective merely by the loss or destruction of the instrument which contains it, and proof of the revocation clause in a later lost or destroyed will may be made by parol. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

Will revoked by subsequent will revived only by republication.

- When a will has been expressly revoked by a subsequent will executed with the same formality and attested by the same number of witnesses as are requisite for the execution of a will, the revocation or destruction of the latter does not per se revive the former, but the former will can be revived only by republication. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 484, 603.

C.J.S.

- 95 C.J.S., Wills, §§ 398 et seq.

ALR.

- Necessity that later will refer to earlier will in order to effect a revocation under statutes providing that a will may be revoked by a subsequent will declaring the revocation, 28 A.L.R. 691.

Revocation of later will as reviving earlier will, 28 A.L.R. 911; 162 A.L.R. 1072.

Competency of attesting witness who is not benefited by will except as it revokes an earlier will, 64 A.L.R. 1306.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Possibility of avoiding or limiting effect of clause in later will purporting to revoke all former wills, 125 A.L.R. 936.

Admissibility of declarations by testator on issue of revocation of will, 172 A.L.R. 354.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Effect of testator's attempted physical alteration of will after execution, 24 A.L.R.2d 514.

Wills: revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 A.L.R.2d 526.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Revocation of will by nontestamentary writing, 22 A.L.R.3d 1346.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.

Revocation of prior will by revocation clause in lost will or other lost instrument, 31 A.L.R.4th 306.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

53-4-46. Presumption of intent.

  1. A presumption of intent to revoke arises if the original of a testator's will cannot be found to probate.
  2. A copy of a will may be offered for probate in accordance with Chapter 5 of this title in lieu of the original will if the original cannot be found to probate, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke set forth in subsection (a) of this Code section is rebutted by a preponderance of the evidence.

(Code 1981, §53-4-46, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 16.)

Law reviews.

- For article advocating repeal or amendment of this Code section, see 11 Ga. L. Rev. 297 (1977). For article, "Wills, Trusts, and Administration of Estates," see 53 Mercer L. Rev. 499 (2001).

COMMENT

This Code section replaces former OCGA Sec. 53-3-6.

JUDICIAL DECISIONS

General Provisions

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2396, former Civil Code 1895, § 3289, former Civil Code 1910, § 3863, former Code 1933, § 136-611, and former O.C.G.A. § 53-3-6 are included in the annotations for this Code section.

Construction.

- To the extent Lyons v. Bloodworth, 199 Ga. 44 (1945) involves a burden of proof other than preponderance of the evidence to overcome the presumption of revocation, it has been superseded by the Georgia General Assembly's 1996 enactment of O.C.G.A. § 54-4-46(b), specifying preponderance of the evidence as the burden of proof. Johnson v. Fitzgerald, 294 Ga. 160, 751 S.E.2d 313 (2013).

Finding that presumption rebutted upheld in absence of transcript from probate court.

- State's highest court accepted a probate court's findings that a child's evidence that the parent's will had been revoked lacked credibility, that the presumption of revocation had been rebutted, and that the proffered copy was a true copy as the child did not provide the state's highest court with a transcript of the probate court hearing. Tanksley v. Parker, 278 Ga. 877, 608 S.E.2d 596 (2005).

Cited in Batton v. Watson, 13 Ga. 63, 58 Am. Dec. 504 (1853); Ponce v. Underwood, 53 Ga. 601 (1876); Hartz v. Sobel, 136 Ga. 565, 71 S.E. 995, 38 L.R.A. (n.s.) 797, 1912D Ann. Cas. 165 (1911); Smith v. Smith, 151 Ga. 150, 106 S.E. 95 (1921); Bond v. Reid, 152 Ga. 481, 110 S.E. 281 (1922); Walden v. Mahnks, 178 Ga. 825, 174 S.E. 538 (1934); Callaway v. Callaway, 192 Ga. 25, 14 S.E.2d 473 (1941); Lyons v. Bloodworth, 199 Ga. 44, 33 S.E.2d 314 (1945); Baker v. Henderson, 208 Ga. 698, 69 S.E.2d 278 (1952); Woo v. Markwalter, 210 Ga. 156, 78 S.E.2d 473 (1953); Dockery v. Findley, 216 Ga. 807, 120 S.E.2d 608 (1961); Payne v. Payne, 229 Ga. 822, 194 S.E.2d 458 (1972); Helms v. Robertson, 236 Ga. 297, 223 S.E.2d 636 (1976); Melton v. Shaw, 237 Ga. 250, 227 S.E.2d 326 (1976); Hanners v. Sistrunk, 245 Ga. 293, 264 S.E.2d 224 (1980); McBride v. Jones, 268 Ga. 869, 494 S.E.2d 319 (1998); Murchison v. Smith, 270 Ga. 169, 508 S.E.2d 641 (1998).

Probate of Copy of Will

1. In General

Will lost before testator's death.

- Plain meaning of former Code 1933, § 53-3-6 was that when a will was lost before the death of the testator, a copy may not be probated. Woods v. Giedd, 257 Ga. 152, 356 S.E.2d 211 (1987) (decided under former O.C.G.A. § 53-3-6).

Issue of fact as to when will lost.

- Genuine issue of fact as to whether a will was in a safe-deposit box at the time the box was opened, and thus could have been lost after the testator's death, precluded summary judgment against the propounders of an unsigned copy of the will. Woods v. Giedd, 257 Ga. 152, 356 S.E.2d 211 (1987) (decided under former O.C.G.A. § 53-3-6).

Section exhaustive.

- There is no law for probating a copy of a will, except when the will has been lost or destroyed after the death of the testator, or without the testator's consent, under this statute. Godwin v. Godwin, 129 Ga. 67, 58 S.E. 652 (1907) (decided under former Civil Code 1895, § 3289).

Carbon copy of will may be probated as original will.

- When the document sought to be probated was a carbon copy, but it was executed with the same formality as the original will at the same time, and its provisions were identical with those of the original will, and the propounder seeks to probate it as an original will, and not as the copy of a lost or destroyed will, it should properly be admitted to probate, unless it was revoked by the testator during the testator's lifetime. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-611).

Proof Required

Standard of proof.

- "Preponderance of the evidence" is the correct standard applied to overcome the presumption of revocation when an original will cannot be produced. Warner v. Reynolds, 273 Ga. 802, 546 S.E.2d 520 (2001).

Proof required to probate copy of destroyed or lost will.

- In order to probate an alleged copy of a lost or destroyed will, it is necessary to prove, among other things, that the copy is in substance and intent the same as the original. Woodruff v. Woodruff, 182 Ga. 895, 187 S.E. 391 (1936) (decided under former Code 1933, § 113-611).

When cross-propounders contended that certain items of the will as originally executed by the testator had been deleted, changed, and destroyed, and sought to set up, establish, and probate what the cross-propounders contended to be a true copy of these items of the will as originally executed by the testator, the burden rested upon the cross-propounders of proving that the copy was in substance and intent the same as the original, and it was error for the court to fail to so instruct the jury. Nassau v. Sheffield, 211 Ga. 66, 84 S.E.2d 4 (1954) (decided under former Code 1933, § 113-611).

If a will was duly executed, and when propounded for probate it appears that certain provisions thereof have been changed, altered, or destroyed by a third person without the knowledge or consent of the testator, and it can be shown by the will itself, or by extrinsic evidence, what such stricken or destroyed provisions were, they can be restored, and the will as originally executed admitted to probate. Nassau v. Sheffield, 211 Ga. 66, 84 S.E.2d 4 (1954) (decided under former Code 1933, § 113-611).

Proof of execution not limited to testimony of subscribing witnesses.

- Provision of former Code 1933, § 113-611, as to clear proof "by the subscribing witnesses and other evidence" no more limits proof of the execution of a will to the testimony of the subscribing witnesses than did former Code 1933, § 113-602, relating to probate in solemn form. Since former Code 1933, § 113-611 as to probate of a copy follows the procedure for probating an original will, except that it adds the clear-proof rule, there was no error in giving in charge the basic rule of former Code 1933, § 113-601. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).

Self-proving affidavit.

- Proof of the execution of a will in case of probate in solemn form and proof of the execution of a will in a case to establish and probate a copy where the will is missing may be made in precisely the same manner and by the same character of evidence; and in both evidence other than the testimony of the subscribing witnesses, after the available witnesses have been produced at the hearing, is admissible for the purpose of proving the execution of the will, and in each this may be done despite the testimony of the witnesses against the will. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-611).

Statutory provision that the copy of a missing will be "clearly proved to be such by the subscribing witnesses and other evidence" does not limit proof of the execution of a will to the testimony of the subscribing witnesses. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-611).

In a will contest case where the testator's niece contested a will including her own daughter as a beneficiary, the later lost or destroyed will could be validated under former O.C.G.A. § 53-3-6(a) by uncontroverted evidence from the notary public who notarized the affidavit regarding the execution by the testator of a self-proving affidavit. Westmoreland v. Tallent, 274 Ga. 172, 549 S.E.2d 113 (2001) (decided under former O.C.G.A. § 53-3-6).

Proof provided to admit copy.

- Probate court properly admitted a copy of a will for probate because the propounding executor had rebutted the presumption of revocation under O.C.G.A. § 53-4-46 with evidence of a trust agreement that was named in the will and by evidence of prior wills, which showed a consistent testamentary scheme. Johnson v. Fitzgerald, 294 Ga. 160, 751 S.E.2d 313 (2013).

Presumption of Revocation

1. In General

Presumption of revocation generally.

- In every case when it is sought to have admitted to probate and record a copy of a lost or destroyed will in lieu of the original, the propounder is confronted with the presumption that the will was revoked by the testator. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).

In a will contest the cross-propounders, in seeking to probate a copy of a material portion of a will, the original of which portion the cross-propounders asserted had been destroyed, had the burden of overcoming the presumption that the destruction had been done by the testator personally with the intention to revoke, and the trial judge erred in failing to instruct the jury that the burden rested on the cross-propounders to prove that the copy offered by the cross-propounders was in substance and intent the same as the original. Sheffield v. Sheffield, 215 Ga. 546, 111 S.E.2d 218 (1959) (decided under former Code 1933, § 113-611).

When a will was lost, the presumption arose that the will was revoked, the trial court erred as a matter of law when the court held that there must first be evidence of the condition of the will before the presumption is raised. Horton v. Burch, 267 Ga. 1, 471 S.E.2d 879 (1996) (decided under former O.C.G.A. § 53-3-6).

Revocation of prior will found.

- Trial court properly determined that a decedent's 1998 will was revoked as the executor, who filed the will for probate, failed to rebut the presumption of revocation since the original was never found and evidence was presented that the decedent altered and made changes to the 1998 will based on consulting an attorney to make a new one and having two copies showing alterations and changes indicated on the copies. Mincey v. Deckle, 283 Ga. 579, 662 S.E.2d 126 (2008).

Requirements not satisfied for intent to revoke.

- It was error for the superior court to direct a verdict in favor of a propounder because under O.C.G.A. § 53-4-46, the propounder was required to prove that the propounder's mother did not deliberately discard or destroy the original of the will with the purpose of revoking the will, but the propounder did not satisfy the propounder's statutory duty, and the propounder should have filed a petition to probate a copy of a will in lieu of a lost original, which would have notified the probate court of the appropriate standards and burdens of proof; the plain language of O.C.G.A. § 53-4-46(b) clearly requires that the presumption of intent to revoke be rebutted in order for a copy of a will to be probated, and Georgia law does not allow a propounder to probate a will without fulfilling the pertinent evidentiary requirements, even when no caveat has been filed. Tudor v. Bradford, 289 Ga. 28, 709 S.E.2d 235 (2011).

2. Rebuttal

Statute is awkwardly expressed, but, properly construed, the words "in every such case" refer to every case wherein it is sought to have admitted to probate and record a copy of a lost or destroyed will in lieu of an original; and therefore, when it is sought to prove and establish a will not to be found at the death of the testator, the propounder is confronted with the presumption that the will was revoked by the testator, and that presumption must be rebutted by proof. Harris v. Camp, 138 Ga. 752, 76 S.E. 40 (1912) ??? (decided under former Civil Code 1910, § 3863).

Method of rebutting presumption of revocation.

- On the trial of an application for the probate of a copy of an alleged lost will, the declaration of an heir of the decedent, to the effect that an original will had existed and that the heir had destroyed the will, is not, unless the declarant be a party to the proceeding, admissible in evidence in favor of the propounders. Under such circumstances, the declaration is mere hearsay and is not sufficient to rebut the presumption of revocation. Scott v. Maddox, 113 Ga. 795, 39 S.E. 500, 84 Am. St. R. 263 (1901) (decided under former Civil Code 1895, § 3289).

While the statute is awkwardly expressed, the rule is that a universal presumption of revocation may be rebutted in a number of ways: first, by proof that the will was lost or destroyed subsequently to the death of the testator; or, second, the presumption of revocation may be overcome by showing that the will was destroyed prior to death, provided however it will be also shown, for example, that the testator did not have possession of the instrument after the instrument's execution, or that while the will was still in existence the testator had lost the testator's testamentary capacity to annul the will, and that such mental incapacity continued up to the time of the testator's death. Saliba v. Saliba, 201 Ga. 577, 40 S.E.2d 511 (1946) (decided under former Code 1933, § 113-611).

Presumption of revocation may be rebutted, among other ways, by proof that a will was lost or destroyed prior to the death of the testator without the testator's consent, and that, when evidence to such effect is submitted, the question whether the presumption has been overcome is for determination by the jury, in view of all of the evidence and circumstances in the case, and the credibility attributed by the jury to the witnesses. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).

Declarations of the testator are admissible in evidence either to support or to rebut the presumption of revocation, although made at any time between the making of the will and the death of the testator, and although the declarations are not shown to have accompanied any particular act of revocation or attempted revocation; their admissibility not depending upon res gestae. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611); Jackson v. Lamb, 121 Ga. App. 44, 172 S.E.2d 449 (1970);(decided under former Code 1933, § 113-611).

Presumption of revocation may be rebutted by circumstantial evidence as well as by direct evidence, and the facts and circumstances surrounding the making of a will were relevant for the purpose of showing that the testator had made a will that would inure to the benefit of the propounder, infant child of the testator's deceased brother; and also as showing circumstances tending to illustrate the probability or improbability of later revoking such will. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).

Rebuttal of the presumption of revocation of a will when only a copy is found could be made by circumstantial as well as by direct evidence, and when the direct evidence traces a will into the custody of the testator and there stops, it seems that the propounder can only assert that whatever may have happened to the will after the will's delivery to the testator, the testator did not revoke the will, and then submit circumstantial evidence, including declarations of the testator, if any, in support of such assertion. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).

Existence of sufficient rebuttal is question for jury.

- Contents of the will must be proved and the presumption of revocation by the testator, which is raised by the latter clause of this statute be rebutted by such evidence as clearly satisfies the conscience of the jury, but this may be done by the subscribing witnesses, or any other competent testimony. Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 453 (1869) (decided under former Code 1868, § 2396) Mosely v. Carr, 70 Ga. 333 (1883) See also Burge v. Hamilton, 72 Ga. 568 (1884) (decided under former Code 1882, § 2431); Gillis v. Gillis, 96 Ga. 1, 23 S.E. 107, 51 Am. St. R. 121, 30 L.R.A. 143 (1895); Harris v. Camp, 138 Ga. 752, 76 S.E. 40 (1912) (decided under Code 1882, § 2431);(decided under former Civil Code 1895, § 3289);(decided under former Civil Code 1910, § 3863).

Superior court erred in instructing the jury in a suit to probate a copy of a will, that, if the jury believes the alleged testator did not intentionally destroy the testator's will, then the form of their verdict would be, "We, the jury, find in favor of the will;" the error being that the case could not be concluded in favor of the propounder by a mere finding that the testator did not intentionally revoke the testator's will, but, over and beyond that, it would be necessary to find that the propounder had clearly proved the alleged copy "to be such." Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).

Judge may instruct the jury to the effect that the presumption in favor of revocation may be rebutted by showing that the will was not destroyed by the testator, or that if the testator did destroy the will, the testator did not thereby intend to revoke the will; provided only that such an instruction, like others, must be supported by sufficient evidence. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).

Whether or not the presumption is rebutted by the evidence offered by the propounder is for the determination of the jury. Williams v. Swint, 239 Ga. 66, 235 S.E.2d 489 (1977) (decided under former Code 1933, § 113-611).

When evidence is submitted by a proponent of a will in an attempt to overcome a presumption of revocation, the question whether the presumption has been overcome is for determination by the jury in view of all the evidence and circumstances in the case, and the credibility attributed by the jury to the witnesses. Williams v. Swint, 239 Ga. 66, 235 S.E.2d 489 (1977) (decided under former Code 1933, § 113-611).

Question of whether the propounders carried the burden of overcoming the presumption that the original will was revoked was for the jury, and in reviewing the jury verdict, the evidence must be accepted which is most favorable to the party in whose favor the verdict was rendered. Hill v. Cochran, 258 Ga. 473, 371 S.E.2d 94 (1988) (decided under former O.C.G.A. § 53-3-6).

Presumption not rebutted.

- Testator's fiance failed to rebut the presumption that the testator destroyed and intended to revoke the testator's original will created by O.C.G.A. § 53-4-46(a) although the testator's relationship with the testator's daughter was strained because the testator had control of the will, the lock box in which the will was kept had been broken into, and the testator had expressed dissatisfaction with the testator's fiance. Britt v. Sands, 294 Ga. 426, 754 S.E.2d 58 (2014).

Trial court did not err by failing to apply the doctrine of dependent relative revocation to revive the decedent's 1988 will because based on the attorney's trial testimony, the trial court properly found that the markings on the original 1988 will that the decedent brought to a June 2004 meeting with the attorney were so extensive that it could not be determined, even by an experienced lawyer, what the decedent intended to remove and what, if anything, was intended to remain. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 635, 645, 650, 659, 677, 730. 79 Am. Jur. 2d, Wills, §§ 21, 516, 571, 575.

C.J.S.

- 95 C.J.S., Wills, §§ 412, 461 et seq., 593, 721.

ALR.

- Proof of contents in establishment of lost will, 126 A.L.R. 1139.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

What constitutes fraud within statute relating to proof of will "fraudulently" destroyed during testator's lifetime, 23 A.L.R.2d 382.

What constitutes "estate" of nonresident decedent within statute providing for local ancillary administration where decedent died leaving an estate in jurisdiction, 34 A.L.R.2d 1270.

Proof of due execution of lost will, 41 A.L.R.2d 393.

Fact that instrument is designated or otherwise identified as a copy affecting its status as will, 81 A.L.R.2d 1112.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.

Probate of copy of lost will as precluding later contest of will under doctrine of res judicata, 55 A.L.R.3d 755.

Testator's failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will, 61 A.L.R.3d 958.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.

Sufficiency of evidence of nonrevocation of lost will where codicil survives, 84 A.L.R.4th 531.

53-4-47. Effect of implied revocation.

An implied revocation extends only so far as an inconsistency exists between testamentary instruments. Any portion of a prior instrument that can stand consistently with the testamentary scheme in a subsequent instrument shall remain unrevoked.

(Code 1981, §53-4-47, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section carries forward the concepts of former OCGA Sec. 53-2-75.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-406, are included in the annotations for this Code section.

Implied revocation.

- When the testator makes a different disposition of certain personal property bequeathed by the later will, this constitutes a revocation of the item as to this property in the former will. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-406).

If the testator gave a ring to the testator's son by will, the testator could revoke this bequest either by conveying the ring and giving the ring to another prior to the testator's death, so that the ring did not remain a part of the testator's estate when the testator died, or the testator could revoke this bequest in the will or revoke the entire will. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-406).

Probate court properly denied admission to probate for a 1991 will due to an implied revocation by the 2001 will, pursuant to O.C.G.A. § 53-4-42(c), as the testator's act of replacing specific bequests in the first will with $100 bequest in the later will, and then changing the testator's wishes regarding a residuary clause, from all to the testator's then wife if she survived, to a division into three in the later will, impliedly revoked the first will by the later will. Mitchell v. Mitchell, 279 Ga. 282, 612 S.E.2d 274 (2005).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 489.

C.J.S.

- 95 C.J.S., Wills, § 398 et seq.

ALR.

- Necessity that later will refer to earlier will in order to effect a revocation under statutes providing that a will may be revoked by a subsequent will declaring the revocation, 28 A.L.R. 691.

Wills: cutting down estate created by absolute direction to testamentary trustee to pay over and deliver funds by subsequent provision, making different disposition, 46 A.L.R. 781.

Conflict of laws respecting revocation of will, 9 A.L.R.2d 1412.

Implied revocation of will by later will or codicil, 59 A.L.R.2d 11.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered, 17 A.L.R.3d 603.

53-4-48. Effect of testator's marriage, or birth or adoption of child; provision in will for class of children.

  1. Except as otherwise provided in Code Section 53-4-49, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator's death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will only to the extent provided in the remainder of this Code section.
  2. A provision in a will for a class of the testator's children shall be presumed to be made in contemplation of the birth or adoption of additional members of that class, absent an indication of a contrary intent, and the mere identification in the will of children already born or adopted at the time of the execution of the will shall not defeat this presumption.
  3. If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or child shall receive the share of the estate he or she would have received if the testator had died intestate. Such share shall be paid from the net residuum remaining after all debts and expenses of administration, including taxes, have been paid. If the residuum proves to be insufficient, then testamentary gifts shall abate in the manner provided in subsection (b) of Code Section 53-4-63. Any bequest in the will in favor of the subsequent spouse or child shall be given effect and shall count toward the intestate share. If the bequest equals or exceeds the intestate share, then the subsequent spouse or child shall receive the bequest in lieu of the intestate share provided by this subsection.

(Code 1981, §53-4-48, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2002, p. 1316, § 2.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2002, "subsection (b)" was substituted for "paragraph (b)" in the third sentence in subsection (c).

Law reviews.

- For article, "The Time Gap in Wills: Problems Under Georgia's Lapse Statutes," see 6 Ga. L. Rev. 268 (1972). For article discussing the pretermitted heir, see 10 Ga. L. Rev. 447 (1976). For article criticizing former Code 1933, § 113-408 as too drastic, and suggesting revisions, see 11 Ga. L. Rev. 297 (1977). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 68 Mercer L. Rev. 321 (2016). For note, "Advantages and Disadvantages of Intestate Death for Married Persons With an Estate of $120,000 or Less," see 9 Ga. St. B.J. 102 (1972). For comment on Thornton v. Anderson, 207 Ga. 714, 64 S.E.2d 186 (1951), see 3 Mercer L. Rev. 233 (1951); 14 Ga. B.J. 86 (1951).

COMMENT

This section carries forward the portions of former OCGA Sec. 53-2-76 that relate to the marriage of the testator and the birth of a child to the testator. This section indicates that the provisions apply in the event of the birth of a posthumous child within ten months of the testator's death. This section also clarifies that the adoption of a child by the testator has the same effect as the birth of a child. If the will contemplates the marriage or birth or adoption, the event will not result in a revocation of the will. Under the presumption that a testator probably would intend to treat after-born or after-adopted children the same as children already born or adopted, the section also states that a will that provides for a class of the testator's children is deemed to be made in contemplation of the birth or adoption of additional members of that class absent an indication of an intent to the contrary. Consequently, the subsequent birth or adoption of class members will not result in the revocation of the will. For example, if a testator leaves the entire estate "to my sons" and another son is born, it is presumed that the testator wanted the will to stay in effect and merely to include the new son as a member of the class. On the other hand, if a daughter is later born to the testator (an individual, in other words, who is not a member of the class), the will would be revoked rather than stay in effect and leave the entire estate only to the testator's sons. Solely for the purposes of this Code section, the mere fact that the testator names already living children will not in and of itself defeat the notion that the gift is a gift to a class of the testator's children. See Code Sec. 53-4-58 for the result when a testator fails to provide for a child in the will because the testator believes the child to be dead.

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-408, are included in the annotations for this Code section.

Language of statute is unambiguous.

- It clearly expresses the intention of the legislature that in every case subsequent marriage or birth of a child will revoke a will, unless the will contains a provision which is made in contemplation of such an event. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Statute applies to all wills. Friedman v. Cohen, 215 Ga. 859, 114 S.E.2d 24 (1960) (decided under former Code 1933, § 113-408).

Strict construction.

- No exception will be made to the rule of the statute. Simpson v. Dodge, 220 Ga. 705, 141 S.E.2d 532 (1965) (decided under former Code 1933, § 113-408).

Meaning of "provision for."

- It is incorrect to construe the statute to mean that "provision for" is the equivalent of "in contemplation of." Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Under the law, the only questions to be decided are: (1) whether the marriage was subsequent to the will, and (2) whether the will makes any provision for that event. Johnson v. Cromer, 234 Ga. 73, 214 S.E.2d 644 (1975) (decided under former Code 1933, § 113-408).

Discretion to extend time for responses or objections to will.

- Before a will was probated, O.C.G.A. §§ 53-11-5 and53-11-10(a) provided a probate court with discretion to extend the time for the filing of responses or objections to the will in order to preserve the interests of justice; probate court properly extended the time for the decedent's widow to object or raise a claim under O.C.G.A. § 53-4-48 and to assert the statutory right to an intestate share after the initial acknowledgment and assent to the petition to probate the will which did not name the widow as a beneficiary. English v. Ricart, 280 Ga. 215, 626 S.E.2d 475 (2006).

Cited in Allen v. First Nat'l Bank, 169 F.2d 221 (5th Cir. 1948); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949); Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951); King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959); Houston v. Pollard, 217 Ga. 184, 121 S.E.2d 629 (1961); Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962); Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Brennan v. Rushing, 225 Ga. 85, 165 S.E.2d 840 (1969); Citizens & S. Nat'l Bank v. United States, 451 F.2d 221 (5th Cir. 1971); Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973); Carr v. Kupfer, 250 Ga. 106, 296 S.E.2d 560 (1982); McPherson v. McPherson, 254 Ga. 122, 327 S.E.2d 204 (1985); Brown v. Cronic, 266 Ga. 779, 470 S.E.2d 682 (1996).

Revocation by Marriage

Will revoked by subsequent marriage is revoked in toto. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 113-408).

Provision shall be made in contemplation of the event.

- Will must show that the testator had in contemplation of the event, that is the testator's future marriage; and the will must contain a provision made in contemplation of such event, otherwise the will is revoked. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Provision in a testator's will that it was made "in contemplation of marriage," so that the will would not be revoked by operation of O.C.G.A. § 53-4-48(a) upon the testator's subsequent marriage did not have to identify the person the testator intended to marry. Evans v. Palmour, 274 Ga. 283, 553 S.E.2d 585 (2001).

Revocation automatic unless express provision made in contemplation of marriage.