(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).
COMMENTSubsection (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 DECISIONSANALYSIS
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.