(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).
COMMENTThis 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 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).
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