Which state laws apply to a will?
When testator dies while domiciled outside of Georgia but owned Georgia property, may be admitted to:
- original probate: but must meet georgia execution and attestation requirements nadn ot have been probated anywehre else
- Anciliary probate–upon proof that it has been probated elsewhere properly
Georgia Execution Requirements
- Must be in writing
- Testator must sign the will with full intended signature (or a proxy signature but must be made at testators request and in his presence)
- Must sign in presence of the witnessess or must acknowledge his or her signature
- Must have two attesting witnesses who are not interested. Interested party can be witness but cannot take gift unless there are two additional uninterested witnesses
- Witnessess msut sign in testators presence but do not need to be in each other presence. Must see him sign the will
Attestation Clause
Not required if the will is self-proved. Rebuttable presumption that it followed the formalities
Self-proving affidavit may be signed at time of will signing that allows the signers not to have to testify to the will. Must be notarized.
Types of Will Revocation
- Valid Subsequent Instrument
- Physical Act
- Operation of Law
Valid Subsequent Instrument
Express or implied (same property going to someone else)
Express are effective immediately while implied are effective only at testators death.
Implied have a presumption for revival whereas express do not.
Physical Act Revocation
Requires act of descrution and the intent to revoke
No partial revocation by physical act in GA
Proxy Revocation must be done at the testator’s diceriont and with testator’s intent to revoke.
Physical act must affect material portion of will
If will exists and in possession of testator but cannot be found, presumption that it is revoked by physical act but is rebuttable thta not physical act was intended
Must prove its contents
Revocation by Operation of Law
- Birth or Adoption of a child–Child born after execution of the will, child receives a testate portion
- Subsequent Marriage–marries after execution of will, entitled to intestate portion unless clear and convincing language says he anticipated will or bequest in will is moret than instecasy
- Divorce or annulment–after the will is executed, all provisions in favor are revoked. Reinstate if remarried.
Revocation does not apply if clear and convincing evidence is provided to show that the testator CONTEMPLATED the indviduals
Revival of Wills
- Revoke the Revoking Will–> destruction doesn’t automatically create revival. Must have circumstances suggesting that destruction of revoking instrument intended to create revival
- Dependant Relative Revocation–> disregard physical act revocation if revocation based on mistake of law or fact (e.g. destroy revoking intrcument bc she thought it would bring back her old will.)
Types of Ambiguities
- Patent Ambugiuty–appears on the will itself
- Latent ambiguity–more than one items meets the description
Allowed to use extrinsic evidence but not for plain language
Mistakes
Will not admit evidence to correct plain language even if mistaken
Will admit evidence of a mistake if the parent beleives child to be dead and therefore does not provide for them (e.g. someone kidnapped and found)
if there are children–intestate
if there are other children, proportionately
Incorporation by Reference
if document is in existence at time of execution then document can be incorporated even if not part of the will To do so, must:
- be in exitence at the time will was executed
- will must manifest intent to incorporate the document
- will must describe the doc sufficiently to permit its identification
Acts of Independent Significance
Event that has lifetime significance other that recited in the will,may allow for a valid transfer under the will even though not specified
Anti-Lapse Statute
If beneficiary dies during testator’s lifetime, anti-lapse distributes property to the pre-decesasing testatory’s issue instead.
Applies only to wills. Pre-deceasing beneficiary does not to be family.
Georgia applies when:
- the predeceased beneficiary is survived by issue and these issues also survive the testator; AND
- There is no contingency language proventing applying hte statute
If inapplicable, estate becomes part of the residuary estate. If no other residuary beneficiaries, goes to inestate heirs
Abatement
Gifts abate in the following order absent an expressed interest from testator:
- Debts by the terms of the will
- Residuary estate (i give all the rest, residue and remainder)
- General testementary gifts, which abate pro rata ( igve the sum of 50k)
- Demonstrative Gifts, which abate pro rata (I give 25k to paid out of proceeds of sale of home)
- Specific Legacies (devise my car)
Adepmtion by Extinction
If item is sold, or removed, then they are adempt by extinction
but if lost stolen or destory in the six months preceding testators death, may be given insurance and condemnation awards
Applies only to specific gifts
Ademption by Satisfaction
Specific demonstrative resdiucary or general bequest to a person and during lifetime, makes a transfer to the same person in the will or contemparenous writing, declares transfer is in satisfiaction, then treated as satsified
Writing must be within 30 days by testator or at anytime be recepient
Accessions
Stock Splits go the legatee under same form/substance
Cash dividends, stock dividends and income all go to the general state
Exoneration
Real and personal property specifically bequeated carries with it a rebuttable presumption that testator intended beneficiary to take it without any encumbarances
Conditional Wills
Conditions to wills must be express.
Will Contests: Lack of Testamentary Capacity
- Testator must be 14 (witness must be 14 or over)
- Common Law Test
- Did testatory understand nature of the act she was doing (evidence must be at time of execution or shortly before)
- mere old age, frailty, sickness, memory loss, eccentricity, or judgment, or drunkness or drugs not enough
- Comprehend the character and extent of her property
- natural objects of her bounty
- understand the disposition
- Did testatory understand nature of the act she was doing (evidence must be at time of execution or shortly before)
Will Contests: Insane Delusion
Otherwise sane but will is product of insance delusion. (leave to aliens)
Will Contests: Undue Influence
Affect the free will of the testator amounting to coercion or over persuasion. But for this, the testator never would have executed the will. Burden on accuser.
If someone with confidential relationships receives substantial benefit, than rebutabble presumption of undue influence
Hard to prove: usually must show opportunity, susceptibility, suspicious circumstances, unnatural dispostion
Will Contests: Fraud
intentional misrepresentation of a material fact to the testator, and but for that, the injury to heirs would not occur
Voids the whole will to create constructive trust.
No Contest Clause
If a person who takes under the will, contests the will, then they lose the bequest.
Mandatory in Gerogia as long as there is direction as to where the money goes
Courts will generally try to characterize the dispute as something other than a contest to avoid them
Appointments, ommitted spouses and children, are not contests–administration
