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).
COMMENTThis 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satisfy O.C.G.A. § 53-4-30 since it was not a written contract promising to make a will for valuable consideration and was revoked upon the decedent's execution of a will in 2004; the 2000 will was a revocable will reflecting the decedent's testamentary intent at the time the decedent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).