(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).
COMMENTThis 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.