2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 1 - General Provisions
§ 53-4-1. Power of Testator

Universal Citation: GA Code § 53-4-1 (2020)

A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator's spouse and descendants.

(Code 1981, §53-4-1, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For article discussing the pretermitted heir, see 10 Ga. L. Rev. 447 (1976). For note, "Preventing Spousal Disinheritance in Georgia," see 19 Ga. L. Rev. 427 (1984).

COMMENT

This section carries over portions of former OCGA Sec. 53-2-9. The second sentence of former OCGA Sec. 53-2-9(b), which required close scrutiny of a will that excluded the testator's spouse or children, is not carried forward because the laws relating to undue influence, fraud, and testamentary capacity cover such situations and because the Georgia courts have held that that sentence could be evaded by leaving a spouse or child some nominal sum, such as $1.00. The exclusion of the second sentence is not meant to signal a change in the law or policy of the state.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3832, former Code 1933, § 113-106, and former O.C.G.A. § 53-2-9 are included in the annotations for this Code section.

Close scrutiny when wife or child excluded.

- Under the general rules of evidence, every presumption is in favor of the probate of a will after it is shown that the testator was of sound mind and disposing memory at the time the will was executed; but under the statutory provisions, if it appears that the testator has excluded his wife, and that he has no child, there is but little, if any, presumption in favor of the propounder; for the will is to be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion, or fraud, or any undue influence or unfair dealing, probate should be refused. Rules as to the nature of proof and the quantum of evidence necessary for a caveator to produce and present to the court and jury, in ordinary cases of probate of wills, can have no application in the face of the declaration that probate of a will of the class referred to should be refused upon the slightest evidence of any of the ingredients of operative causes set forth in law. The law does not define the term "slightest evidence," but it is the superlative degree of the adjective "slight," and therefore must mean very slight. Deans v. Deans, 171 Ga. 644, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832); Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298 (1949);(decided under former Code 1933, § 113-106).

When one bequeaths one's entire estate to strangers to the exclusion of one's spouse and children, upon the slightest evidence of the aberration of intellect, or collusion or fraud, or any undue influence or unfair dealing, probate should be refused. Crawford v. Crawford, 218 Ga. 369, 128 S.E.2d 53 (1962) (decided under former Code 1933, § 113-106).

Evidence of aberration of intellect would, when coupled with the fact that the testator bequeathed the testator's entire estate to a stranger to the exclusion of an afflicted child as well as the testator's other children, make a question for the jury to weigh the testimony and determine whether or not the testator had the mental capacity to make a will at the time of the will's execution. English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965) (decided under former Code 1933, § 113-106).

Application of pre-1998 probate code.

- Trial court did not err when the court applied the law in place before the 1998 probate code was adopted to determine whether a husband and wife had a contract not to revoke their joint and mutual will because the issue was not the propriety of the devises in the will but whether the husband and wife had a contract not to revoke the will; the 1998 probate code only applies to contracts entered into on or after January 1, 1998, so it would not apply to any contract allegedly made in 1980. Davis v. Parris, 289 Ga. 201, 710 S.E.2d 757 (2011).

Statute expressly authorizes a testator to give one's entire estate to strangers, to the exclusion of one's spouse and children. Marshall v. Trust Co., 231 Ga. 415, 202 S.E.2d 94 (1973) (decided under former Code 1933, § 113-106).

Word "strangers" in legal contemplation has a meaning distinctly different from the meaning in common usage or parlance. For instance, one who is not a party to a contract is generally referred to as a stranger to the contract. The word is often used in a legal sense to convey the meaning converse to "privy" or "privity." Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

"Strangers" may include anyone other than wife or child.

- When a father, who has no wife, by will leaves one's entire estate to persons other than one's child, one is leaving it to "strangers" within the meaning of the law. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

Statute expressly authorizes a testator to give one's entire estate to strangers, who might be one's concubines, to the exclusion of one's spouse and children. Hood v. First Nat'l Bank, 219 Ga. 283, 133 S.E.2d 19 (1963) (decided under former Code 1933, § 113-106).

Common-law spouse of a testator is not a stranger within the meaning of the law, and the "slightest evidence of aberration of intellect" test of the law does not apply. Yuzamas v. Yuzamas, 241 Ga. 577, 247 S.E.2d 73 (1978) (decided under former Code 1933, § 113-106).

Protection for wives and children.

- Statute which formed a distinct class to protect - the wife and children of a testator - there is no reference or provision for the husband, and therefore no law upon which the husband could caveat his wife's will, except those provided for any other heirs. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

Provisions of statute are applicable to a wife and child or children; a child or children where there is no wife; and to a wife alone where there is neither child nor children. Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-106).

Application only if party excluded in will.

- Statute should be applied only if party is altogether excluded in the will. Johnson v. Sullivan, 247 Ga. 663, 278 S.E.2d 640 (1981) (decided under former Code 1933, § 113-106).

When testator's wife is altogether excluded by the terms of the will, the provisions of this statute apply. Gornto v. Gornto, 217 Ga. 136, 121 S.E.2d 139 (1961) (decided under former Code 1933, § 113-106).

Exclusion of wife prerequisite to statute's application.

- Provisions of this statute are applicable only when the wife, there being no child or children, is altogether excluded in the will of her husband. Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434 (1955) (decided under former Code 1933, § 113-106).

Small bequest to wife.

- Statute is not applicable when the testator having no children and approximately two years after separating from his wife, executed a will which provided for a $1.00 bequest to his wife. Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434 (1955) (decided under former Code 1933, § 113-106).

Child excluded.

- When one who has been altogether excluded in a will establishes the fact that one is a child of the testator, the trial judge must give in charge to the jury the rule of this statute. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

Provisions of this statute have no application where testator made a nominal bequest to his daughter, since daughter was not altogether excluded in the will. Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961) (decided under former Code 1933, § 113-106).

Jury must determine whether circumstances require grant or refusal of probate. Under the provisions of this statute, it is for the jury to determine whether there are any circumstances, even very slight, which make it the duty of the jury to refuse probate of a will. Deans v. Deans, 171 Ga. 664, 156 S.E. 691 (1931) (decided under former Civil Code 1910, § 3832).

What one might think of the moral duty of a testator to provide for his wife and children cannot properly affect a construction of this statute. Hood v. First Nat'l Bank, 219 Ga. 283, 133 S.E.2d 19 (1963) (decided under former Code 1933, § 113-106).

Evidence of mental state on execution date controlling.

- Evidence that testator had suffered aberration of intellect on dates other than the date of execution of the will did not bar probate when the evidence did not indicate such aberration on the date of execution and there was no evidence of a continuously disabling mental disorder. Dean v. Morsman, 254 Ga. 169, 327 S.E.2d 212 (1985) (decided under former O.C.G.A. § 53-2-9).

Evidence of undue influence on execution date controlling.

- Evidence that indicated sole beneficiary's great influence over testator in different areas of the testator's life did not bar probate where, on the date of execution of the will, testator appeared to be acting on testator's own volition and not pursuant to beneficiary's undue influence. Dean v. Morsman, 254 Ga. 169, 327 S.E.2d 212 (1985) (decided under former O.C.G.A. § 53-2-9).

No evidence of undue influence.

- Testator's exclusion of her children in a will leaving her property to a grandchild could not be refused probate because there was not even the slightest evidence of undue influence. Joseph v. Grisham, 267 Ga. 677, 482 S.E.2d 251 (1997) (decided under former O.C.G.A. § 53-2-9).

Invalidation of will on ground of unreasonableness.

- Fact that testator made dispositions of property in the testator's will that favored the propounder and other people, and did not favor the caveator, did not show that the will could be invalidated on the ground of unreasonableness, as the testator was free under the law to bequeath the majority of the testator's estate to other relatives rather than the caveator, who was the testator's estranged wife. Ashford v. Van Horne, 276 Ga. 636, 580 S.E.2d 201 (2003).

Intent to exclude will contestant.

- Probate court erred in finding a genuine issue of material fact regarding a will contestant's beneficiary status because although there could be a genuine issue of fact as to the contestant's status as the testator's daughter, resolution of that issue was unnecessary in determining the daughter's status under the will, which clearly and unambiguously expressed the testator's intent that only the daughters born of the testator's marriage would share as children thereunder; the plain terms of the will clearly reflected the testator's intent to exclude the contestant because the contestant was not mentioned in any portion of the will, as contrasted with the daughters, who were specifically designated as the testator's "two living children," were named co-executors, and were named as trustees of respective trusts created for each of them from the family trust, and by defining the term "children" as "lawful blood descendants," the testator demonstrated the testator's intent that the testator's child born out of wedlock not be included as a beneficiary under the will. Hood v. Todd, 287 Ga. 164, 695 S.E.2d 31 (2010).

Cited in Scott v. Wimberly, 188 Ga. 148, 3 S.E.2d 71 (1939); First Nat'l Bank v. Robinson, 209 Ga. 582, 74 S.E.2d 875 (1953); Williams v. Jones, 219 Ga. 45, 131 S.E.2d 553 (1963); Morgan v. Ivey, 222 Ga. 850, 152 S.E.2d 833 (1967); Clavin v. Clavin, 238 Ga. 421, 233 S.E.2d 151 (1977); Sauls v. Estate of Avant, 143 Ga. App. 469, 238 S.E.2d 564 (1977); Bloodworth v. Bloodworth, 240 Ga. 614, 241 S.E.2d 827 (1978); Russell v. Fulton Nat'l Bank, 248 Ga. 421, 283 S.E.2d 879 (1981); Coggin v. Fitts, 268 Ga. 112, 485 S.E.2d 495 (1997).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 58 et seq., 68, 70, 90, 93, 371, 394 et seq.

C.J.S.

- 95 C.J.S., Wills, §§ 30, 42, 172, 173, 357 et seq., 379, 380, 382.

ALR.

- Validity of provision in will vesting discretion in executor or third person as to objects of testator's bounty, 3 A.L.R. 297; 45 A.L.R. 1440.

Will as exclusive means of exercising power conferred by will to dispose of property, 20 A.L.R. 388.

Release to ancestor by heir expectant, 28 A.L.R. 427.

Applicability of doctrine of advancements to testate succession, 32 A.L.R. 730.

Intention of testator as regards child not provided for by will as affecting applicability of statutes to prevent disinheritance of children, 65 A.L.R. 472.

Right of heirs or next of kin to attack devise to corporation on ground of its incapacity to take, 69 A.L.R. 1359.

Constitutionality and construction of statute which in effect varies the quantum of evidence necessary to establish lack of testamentary capacity or undue influence according to the relationship to deceased of the persons affected, 74 A.L.R. 236.

Language of will excluding or restricting one as beneficiary, as excluding him from class to whom gift is made in another part of will, 80 A.L.R. 140.

Admissibility and weight on issue of mental capacity or undue influence in respect of will or conveyance, of instruments previously executed by the person in question, 82 A.L.R. 963.

What institutions or gifts are within statutes declaring invalid bequests for charitable, benevolent, religious, or similar purposes, if made within a specified period before testator's death, or prohibiting, or limiting the amount of, such bequests, 111 A.L.R. 525.

Standing of heir or next of kin to attack gift or conveyance made by ancestor in his lifetime as affected by will by which he is disinherited in whole or part; or to contest will as affected by the gift or conveyance or prior will by which he is similarly disinherited, 112 A.L.R. 1405.

Legal capacity of one whom testator had agreed to adopt, but whose adoption had not been effected, to contest will, 112 A.L.R. 1422.

Power and duty of probate court to set aside decree admitting forged instrument to probate as a will, 115 A.L.R. 473.

Nature of, and remedies for enforcement of, the interest which a pretermitted child takes by virtue of statute where parent leaves will, 123 A.L.R. 1073.

Validity of provision in deed or other instrument creating a cotenancy that neither tenant shall encumber or dispose of his interest without consent of the other, 124 A.L.R. 222.

Statute regarding right of surviving spouse in estate of deceased spouse as affecting contract or waiver in that regard executed before passage of the statute, 137 A.L.R. 1099.

Refund under annuity contract upon death of annuitant as part of his estate for purposes of forced heirship or statute limiting amount of disposable estate of decedent survived by spouse or child, 142 A.L.R. 609.

Illegitimate child as within contemplation of statute regarding rights of child pretermitted by will, or statute preventing disinheritance of child, 142 A.L.R. 1447.

Disinheritance provision or mere nominal bequest as affecting application of statute for benefit of pretermitted children, 152 A.L.R. 723.

Waiver, or failure to invoke protection, of statute regarding amount, or time of making, of bequest to religious, charitable, or other specified classes of institutions, 154 A.L.R. 682.

Instructions, in will contest, defining natural objects of testator's bounty, 11 A.L.R.2d 731.

Admissibility in will contest of financial condition or needs of those constituting natural objects of testator's bounty, 26 A.L.R.2d 374.

Validity, construction, and effect of provisions in life or accident policy in relation to military service, 36 A.L.R.2d 1018.

Wills: validity of condition of gift depending on divorce or separation, 14 A.L.R.3d 1219.

Wills: bequest or devise referring to services to be rendered by donee to testator during latter's lifetime as absolute or conditional gift, 22 A.L.R.3d 771.

Validity and construction of testamentary gift to political party, 41 A.L.R.3d 833.

Validity of testamentary provision making gift to person or persons meeting specified qualification and authorizing another to determine who qualifies, 74 A.L.R.3d 1073.

Effect of invalidity of provision conditioning testamentary gift upon divorce of beneficiary, on alternative provision conditioning gift upon spouse's death, 74 A.L.R.3d 1095.

Exercise by will of trustor's reserved power to revoke or modify inter vivos trust, 81 A.L.R.3d 959.

Wills: condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith, 89 A.L.R.3d 984.

Conflict of laws as to pretermission of heirs, 99 A.L.R.3d 724.

Modern status: validity and effect of mortmain statutes, 6 A.L.R.4th 603.

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.

Adopted child as subject to protection of statute regarding rights of children pretermitted by will, or statute preventing disinheritance of child, 43 A.L.R.4th 947.

What passes under term "personal property" in will, 31 A.L.R.5th 499.

Adopted child as within class named in testamentary gift, 36 A.L.R.5th 395.

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