If a foreign will or an out-of-state will is admitted to original probate in common or solemn form, the terms of the will shall be given effect under the laws of this state and shall be subject to the same defenses and objections as a will of a testator who died domiciled in this state.
(Code 1981, §53-5-32, enacted by Ga. L. 1996, p. 504, § 10.)
Law reviews.- For comment discussing Georgia probate of will witnessed, executed, and probated in another state, in light of In re Barrie's Estate, 240 Iowa 431, 35 N.W.2d 658 (1949), see 1 Mercer L. Rev. 135 (1949).
COMMENTThis section expands the concept found in former OCGA Sec. 53-3-42 that a foreign will or out-of-state will that is admitted to original probate in Georgia will be interpreted under the laws of the state of Georgia and subject to any defenses or objections that are available against the will of a Georgia domiciliary.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former civil Code 1895, §§ 3297, 3299, and 3300, former Civil Code 1910, §§ 3871, 3873, and 3874, and former Code 1933, § 113-702, are included in the annotations for this Code section.
Execution according to Georgia law.
- Although a foreign will, which has been admitted to probate in the state where the testator lived at the time of death, may be probated in this state by the "production of an exemplification of the probate proceedings", the probate of a foreign will in Georgia is a nullity as respects real estate in Georgia where the will is attested by only two witnesses, and not by three witnesses as required by the former laws of Georgia. Gibson v. Gaines, 46 Ga. App. 458, 167 S.E. 782 (1933) (decided under former Civil Code 1910, §§ 3871, 3873 and 3874).
Administrator with the will annexed of a foreign will attested to by only two witnesses and not three as required by Georgia law, which has been probated in Georgia could not, by virtue of such probate, administer on real estate in Georgia and, where the administrator probated such foreign will in a court of ordinary (now probate court) in Georgia, in the manner as required by law, and at the same time made application for leave to sell, for the purpose of paying debts, real estate located in Georgia, it was a valid objection to such order of sale interposed by an heir at law of the testator that the probate of the will in Georgia was a nullity because it was not executed in accordance with the former laws of Georgia. Gibson v. Gaines, 46 Ga. App. 458, 167 S.E. 782 (1933) (decided under former Civil Code 1910, §§ 3871, 3873 and 3874).
Ownership of realty and residency necessary for jurisdiction by county probate court.
- Mere ownership of realty in a certain county would not confer jurisdiction upon the court of ordinary (now probate court) of such county to probate an alleged will, unless the decedent died a nonresident of this state, since the probate of a will must be made in the county of the residence of the alleged testator if a resident of this state; and, if not a resident of this state, the will may be probated in any county where real estate belonging to the testator is situated. Hungerford v. Spalding, 183 Ga. 547, 189 S.E. 2 (1936) (decided under former Code 1933, § 113-702).
When a nonresident intestate left assets in two counties of this state, administration can be granted in either, and the ordinary (now probate judge) first commencing the exercise of jurisdiction will retain jurisdiction. Crawley v. Selby, 208 Ga. 530, 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-702).
Cited in Knight v. Wheedon, 104 Ga. 309, 30 S.E. 794 (1898); McCowan v. Brooks, 113 Ga. 384, 39 S.E. 112 (1901); Casters v. Murray, 122 Ga. 396, 50 S.E. 131, 2 Ann. Cas. 590 (1905); Cook v. Sheats, 222 Ga. 70, 148 S.E.2d 382 (1966).
RESEARCH REFERENCES
Am. Jur. 2d.
- 79 Am. Jur. 2d, Wills, §§ 736, 741.
C.J.S.- 95 C.J.S., Wills, §§ 515, 558 et seq.
ALR.
- Imputation to attesting witness of notice of contents of instrument, 4 A.L.R. 716.
Retrospective application of statute concerning execution of wills, 111 A.L.R. 910.
Nonresidence of decedent owning real property in the state as affecting application of local statute relating to descent of real property, 119 A.L.R. 523.
Decree of court of domicile respecting validity or construction of will, or admitting it or denying its admission to probate, as conclusive as regards real estate in another state devised by will, 131 A.L.R. 1023.
Conflict of laws respecting wills as affected by statute of forum providing for will executed in accordance with law of another state, 169 A.L.R. 554.
Statute limiting time for probate of will as applicable to will probated in another jurisdiction, 87 A.L.R.2d 721.