2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 5 - Revocation and Republication
§ 53-4-40. Power of Testator

A will may be changed or revoked by the testator at any time prior to the testator's death.

(Code 1981, §53-4-40, enacted by Ga. L. 1996, p. 504, § 10.)

- For article discussing types of unintended revocation in Georgia, see 14 Ga. B.J. 281 (1952). For article analyzing the Georgia law relating to revocation and republication of wills, comparing it with the laws of other states, and suggesting some changes, see 11 Ga. L. Rev. 297 (1977). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010).

This section carries forward the first sentence of former OCGA Sec. 53-2-70. The second sentence of former OCGA Sec. 53-2-70 is repealed as unnecessary in light of the new section on joint and mutual wills contained in the preceding article.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-401, are included in the annotations for this Code section.

- Trial court erred in denying a widow's motion for summary judgment affirming an order admitting a decedent's 2001 will to probate as the 2001 will was not expressly revoked since there was no evidence of a subsequent will or other written instrument that was executed, subscribed, and attested with the same formality as a will, which contained a statement expressly revoking earlier wills; there was no implied revocation of the 2001 will since an implied revocation by a subsequent inconsistent will would take effect only when a subsequent will became operative, and then was only effective as to inconsistencies between the later testamentary instrument and an earlier testamentary instrument, so the subsequent inconsistent will had to be a written document, and there was no written subsequent inconsistent will. Harper v. Harper, 281 Ga. 25, 635 S.E.2d 711 (2006).

- If testator, three years after the execution of a will, took a pen and obliterated the pertinent and material parts thereof, canceling the will and expressing the testator's intention in this respect, then the will was no longer effective, and when testator died the will was just so much paper. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-401).

- When a paper found among a decedent's papers is offered for probate as a will, and appears to have been canceled or obliterated in a material part, a presumption arises that the cancellations or obliterations were made by the deceased, and that the deceased intended the papers to operate as a revocation. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-401).

If the will offered for probate has been revoked for any reason, it is not the will of the testator, and a judgment refusing it probate must be rendered. Payne v. Payne, 229 Ga. 822, 194 S.E.2d 458 (1972) (decided under former Code 1933, § 113-401).

Cited in Morris v. Bullock, 185 Ga. 12, 194 S.E. 201 (1937); Regents of Univ. Sys. v. Trust Co., 186 Ga. 498, 198 S.E. 345 (1938); Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955); Friedman v. Cohen, 215 Ga. 859, 114 S.E.2d 24 (1960); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Simmons v. Davis, 240 Ga. 282, 240 S.E.2d 33 (1977).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 324, 325, 469, 470, 667, 709, 710.

- 95 C.J.S., Wills, §§ 1, 386.

- Right to revoke will executed pursuant to contract, 3 A.L.R. 172.

Validity, construction, and effect of provisions of will relating to its modification or revocation, 72 A.L.R. 871.

Admissibility of declarations by testator on issue of revocation of will, 79 A.L.R. 1493; 172 A.L.R. 354.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Inequality of estates as affecting joint and mutual wills, 148 A.L.R. 756.

Conflict of laws respecting revocation of will, 9 A.L.R.2d 1412.

Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Wills: revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 A.L.R.2d 526.

Codicil as reviving revoked will or codicil, 33 A.L.R.2d 922.

Interlineations and changes appearing on face of will, 34 A.L.R.2d 619.

Spouse's right to take under other spouse's will as affected by antenuptial or postnuptial agreement or property settlement, 53 A.L.R.2d 475.

Construction and effect of statute providing that agreement made by a testator for sale or transfer of property disposed of by will previously made does not revoke or adeem such disposition, 62 A.L.R.2d 958.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Right of party to joint or mutual will, made pursuant to agreement as to disposition of property at death, to dispose of such property during life, 85 A.L.R.3d 8.

Establishment and effect, after death of one of the makers of joint, mutual, or reciprocal will, of agreement not to revoke will, 17 A.L.R.4th 167.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator - modern cases, 70 A.L.R.4th 323.