(For Effective Date, See note.) Conclusiveness

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Probate
  5. Solemn Form
  6. (For Effective Date, See note.) Conclusiveness

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  1. Probate in solemn form is conclusive upon all persons served with notice, including persons waiving service of notice or served with notice through a guardian ad litem or other appropriate representative, and upon all beneficiaries under the will who are represented by the personal representative.
  2. As to heirs and other persons required to be served with notice by Code Section 53-5-22 who are not effectively served with notice in a manner adequate to satisfy subsection (a) of this Code section, a proceeding to probate in solemn form shall otherwise be as conclusive as if probate had been in common form.
  3. Except as otherwise provided in subsections (a) and (b) of this Code section, a proceeding to probate in solemn form is conclusive against all persons, regardless of service or notice, six months from the date the order admitting such will to probate in solemn form is entered by the court in such proceeding.

(Code 1981, §53-5-20, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-21/HB 865.)

Cross references.

- Subscribing witness's testimony, § 24-9-903.

Law reviews.

- For article discussing methods of summary distribution and settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 71 Mercer L. Rev. 327 (2019). For comment on Byrd v. Riggs, 209 Ga. 930, 76 S.E.2d 774 (1953), see 16 Ga. B.J. 338 (1954); 18 Ga. B.J. 211 (1955). For comment on the constitutionality of Ga. L. 1958, pp. 657, 658; as amended by Ga. L. Ex. Sess., 1964, pp. 16, 17, reducing the number of required witnesses to a will to two, in light of the constitutional provision that no law shall refer to more than one subject matter, see 1 Ga. St. B.J. 126 (1964).

COMMENT

This section carries forward the substance of the last two sentences of subsection (a) of former OCGA Sec. 53-3-13.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-602, and former O.C.G.A. § 53-3-13 are included in the annotations for this Code section.

Caveator was party and could not later protest.

- It was proper to dismiss without a hearing a caveat to a will based on lack of testamentary capacity because it was clear that the caveator's allegations were fatally deficient. The caveator had not sought to set aside the probate court's order probating the will; by signing a letter of assent, the caveator had consented to the immediate probate of the will, which established, among other things, that the testator had sufficient mental capacity; and although the caveator contended that distribution of the estate should be governed by an alleged contract between the parties, the caveator had not appealed the probate court's finding that the court lacked subject matter jurisdiction to consider the alleged contract. In re Estate of Brice, 288 Ga. App. 449, 654 S.E.2d 420 (2007).

Probate of a will does not decide upon the right of disposal; it decides merely upon the factum of the will. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-602).

Court of ordinary (now probate court) has original and exclusive jurisdiction over the probate of wills; and the issue to be decided on an application for probate is devisavit vel non, and does not include any issue as to the validity of the testator's title. Cone v. Johnston, 202 Ga. 420, 43 S.E.2d 545 (1947) (decided under former Code 1933, § 113-602).

In a proceeding to probate a will in solemn form, the only issue is devisavit vel non, will or not. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-602).

Fact that the issue in an application for probate is devisavit vel non does not mean that proof of occurrences subsequent to the proper execution of a valid will that, in law, voids the document is inadmissible. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-602).

Issue of devisavit vel non does not include any issue as to the title or the ownership of property, and a court of ordinary (now probate court), and a superior court on appeal from that court, has no jurisdiction to try and determine the question of the validity or invalidity of a contract by legatees disposing of property contrary to the terms of a will offered for probate. Cone v. Johnston, 202 Ga. 420, 43 S.E.2d 545 (1947) (decided under former Code 1933, § 113-602).

Cited in Witcher v. JSD Props., LLC, 286 Ga. 717, 690 S.E.2d 855 (2010); Zinkhan v. Bruce, 305 Ga. App. 510, 699 S.E.2d 833 (2010).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-602, are included in the annotations for this Code section.

Probate in solemn form required notice to all heirs at law under former Code 1933, § 113-602 and such notice should be personal if the party resides in the state, but may be made by publication upon proper order of court when such party resided outside the state or was unknown under former Code 1933, § 43-5-21. 1954-56 Op. Att'y Gen. p. 916 (decided under former Code 1933, § 113-602).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 735 et seq. 80 Am. Jur. 2d, Wills, §§ 932, 937, 1035 et seq., 1063.

C.J.S.

- 95 C.J.S., Wills, §§ 447 et seq., 472, 473, 616 et seq., 800 et seq.

ALR.

- Probate of will or proceedings subsequent thereto as affecting right to probate later codicil or will, and rights and remedies of parties thereunder, 107 A.L.R. 249; 157 A.L.R. 1351.

Probate of copy of lost will as precluding later contest of will under doctrine of res judicata, 55 A.L.R.3d 755.

Wills: challenge in collateral proceeding to decree admitting will to probate, on ground of fraud inducing complainant not to resist probate, 84 A.L.R.3d 1119.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration, 2 A.L.R.4th 1315.


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