(For Effective Date, See note.) Conditions That Are Impossible, Illegal, or Against Public Policy; Conditions in Terrorem

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Wills
5. Construction of Will; Testamentary Gifts
6. (For Effective Date, See note.) Conditions That Are Impossible, Illegal, or Against Public Policy; Conditions in Terrorem

1. Conditions in a will that are impossible, illegal, or against public policy shall be void.
2. A condition in terrorem shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem is violated, in which event the direction in the will shall be carried out, except as otherwise provided in subsection (c) of this Code section.
3. A condition in terrorem shall not be enforceable against an interested person for:
   1. Bringing an action for interpretation or enforcement of a will;
   2. Bringing an action for an accounting, for removal, or for other relief against a personal representative; or
   3. Entering into a settlement agreement.

(Code 1981, §53-4-68, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-15/HB 865.)

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 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).

COMMENT

This section carries over former OCGA Sec. 53-2-107 and broadens the second paragraph of that section by allowing a condition in terrorem to take effect not merely in the event there is a limitation over to some other named person (as provided in the former statute) but rather in any case in which the will contains directions as to how the property is to be distributed if the condition in terrorem is violated.

JUDICIAL DECISIONS

Condition valid.

- Condition in an in terrorem clause that provided for forfeiture of a legacy if a beneficiary contested the will was not void under O.C.G.A. § 53-4-68(b) as a disposition of the property was provided for if the condition was violated; because an action seeking removal of the executor did not challenge the validity of the will, appellant beneficiary would not violate the in terrorem clause. Sinclair v. Sinclair, 284 Ga. 500, 670 S.E.2d 59 (2008).

Applicability.

- Decedent's bequest to decedent's widow was not subject to any condition but was an outright gift, and therefore O.C.G.A. § 53-4-68(a), which voided conditions that were against public policy, did not apply to divest the bequest to the widow, although the widow was found to have committed undue influence in the decedent's pre-decease conveyance of property to herself and her son. Pate v. Wilson, 286 Ga. 133, 686 S.E.2d 88 (2009).

RESEARCH REFERENCES

ALR.

- Effect of testamentary gift to child conditioned upon specified arrangements for parental control, 11 A.L.R.4th 940.

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