A beneficiary taking under a will shall allow all the provisions of the will to be executed as far as the beneficiary can. A beneficiary who has a claim adverse to the will shall be required to elect whether to claim under the will or against it. However, the mere fact that the beneficiary is also a creditor shall not necessitate an election.
(Code 1981, §53-4-69, enacted by Ga. L. 1996, p. 504, § 10.)
Cross references.- Equitable principles governing elections between benefits, § 23-1-24.
COMMENTThis section carries over former OCGA Sec. 53-2-111.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3910, are included in the annotations for this Code section.
Doctrine of election does not apply to residuary legatees. McGinnis v. McGinnis, 1 Ga. 496 (1846) (decided under former law).
Election without knowledge of deed.
- Election to take under will in ignorance of deed of testator is not such as to estop legatee from claiming adversely to the will. Shewmake v. Robinson, 148 Ga. 287, 96 S.E. 564 (1918) (decided under former Civil Code 1910, § 3910).
When devise and deed to same person.
- When a testator makes a will and subsequently conveys the land therein devised by deed, if the devise and the deed be to the same person, and other benefits are given to that person by the will, one is not put to an election to claim under the will or the deed, one may claim under both. Johnson v. Hayes, 139 Ga. 218, 77 S.E. 73 (1913) (decided under former Civil Code 1910, § 3910).
Time of election.
- There is no time prescribed within which either party shall claim the right of putting the other to election. Each case must depend upon its own circumstances. McGinnis v. McGinnis, 1 Ga. 496 (1846) (decided under former law).
Cited in McFadden v. Dale, 155 Ga. 256, 116 S.E. 596 (1923).
RESEARCH REFERENCES
ALR.
- Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator's death, 7 A.L.R.4th 989.
What constitutes transfer outside the will precluding surviving spouse from electing statutory share under Uniform Probate Code § 2-301, 11 A.L.R.4th 1213.
Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary, 23 A.L.R.4th 369.