2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 5 - Revocation and Republication
§ 53-4-44. Destruction or Obliteration of Will or Material Portion Thereof

An express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent to revoke or by another at the testator's direction. The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.

(Code 1981, §53-4-44, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 15.)

- For article surveying developments in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For article, "Wills, Trusts, and Administration of Estates," see 53 Mercer L. Rev. 499 (2001). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010).

This section carries forward the provisions of former OCGA Sec. 53-2-74, with the exception of the last sentence (dealing with the presumption when an immaterial portion of the will is revoked), which is repealed as unnecessarily repetitious. The new Code section also deletes the reference to duplicates of wills.

ANALYSIS

• General Consideration
• Pleading and Practice

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3919, former Code 1933, § 113-404, and former O.C.G.A. § 53-2-74 are included in the annotations for this Code section.

- An intention to revoke a will and actual destruction of the will are both necessary to effect a revocation which provides for express revocation by any destruction or obliteration of the will. Payne v. Payne, 213 Ga. 613, 100 S.E.2d 450 (1957) (decided under former Code 1933, § 113-404).

Destroying of a will without intention to revoke the will would not revoke the will, neither would the intention to destroy a will without actually doing so revoke the will; there must be both. Payne v. Payne, 213 Ga. 613, 100 S.E.2d 450 (1957) (decided under former Code 1933, § 113-404).

Reason that the intention of the testator in making marks or in writing a new instrument is material is that joint operation of act and intention is necessary to revoke a will. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

Question of whether or not canceled provision is "material" is one of law. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

Drawing of pencil lines through provisions of a will is a sufficient "canceling." Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

How far the cancellation or obliteration must extend before presumption of revocation will arise is not settled. Ellis v. O'Neal, 175 Ga. 652, 165 S.E. 751 (1932) (decided under former Civil Code 1910, § 3919).

- Obliteration of the names of two of the four beneficiaries, whom the testator designated were to take "equally, share and share alike, per stirpes," was material because the obliteration directly affected the distribution of all property in the estate. This finding of a material obliteration gave rise to a rebuttable presumption under O.C.G.A. § 53-4-44 that the testator intended to revoke the entire will. Lovell v. Anderson, 272 Ga. 675, 533 S.E.2d 64 (2000).

Markings on a will described as smudges or a water stain, and that did not obscure names thereon, were not sufficient evidence of actual cancellation or obliteration to prove revocation. Wells v. Jackson, 265 Ga. 181, 453 S.E.2d 690 (1995) (decided under former O.C.G.A. § 53-2-74).

- Because a vehicle may be particularly personal to the vehicle's owner, it may be a repository for a testator's effects; thus, a caveator satisfied the requisite burden for purposes of summary judgment through the presumption of revocatory intent found in O.C.G.A. § 53-4-44 and the common law presumption that the testator made the obliterations to the will when the will was found in the testator's pick-up truck along with other personal items. Lovell v. Anderson, 272 Ga. 675, 533 S.E.2d 64 (2000).

- Probate court did not err in granting summary judgment on the issue of revocation as there was no evidence the will was destroyed or revoked by another document. Milbourne v. Milbourne, 301 Ga. 111, 799 S.E.2d 785 (2017).

Cited in Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973); Richards v. Tolbert, 232 Ga. 678, 208 S.E.2d 486 (1974); Havird v. Schlachter, 266 Ga. 718, 470 S.E.2d 657 (1996); Horton v. Burch, 267 Ga. 1, 471 S.E.2d 879 (1996); Lovell v. Anderson, 272 Ga. 675, 533 S.E.2d 64 (2000).

Pleading and Practice

1. Presumption of Revocation

- When an instrument found among a decedent's papers was offered for probate as decedent's will, and appeared to have been canceled or obliterated by marks drawn diagonally across certain material items thereof, the obliteration of which affected the testamentary scheme, a presumption arose that such cancellations or obliterations were made by the deceased, and that the deceased intended the markings to operate as a total revocation of the will. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Code 1933, § 113-404); King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959);(decided under former Code 1933, § 113-404).

When a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended. Langan v. Cheshire, 208 Ga. 107, 65 S.E.2d 415 (1951) (decided under former Code 1933, § 113-404).

- Statements made in the handwriting of the deceased on the margin of a will opposite items obliterated or canceled, designating a contrary disposition of the property covered by such items, would tend to support the presumption of law that the material obliterations or cancellations were made by the testator for the purpose of revoking the will. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Civil Code 1910, § 3919).

When a testator who has executed a will in duplicate cancels or destroys one of the duplicates, the presumption is that the testator meant thereby to revoke the will. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

Statute plainly indicates that, when there has been a multiple execution of a will, the destruction of one of the executed copies by the maker of the will with intention to revoke the will has the effect of revoking all of the copies, and the same presumption of intention to revoke arises from the destruction of one of the duplicates as would arise if the destroyed copy were the only one. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

When the will when found among the papers of the testator was torn in four pieces, with the signature torn from the will, and missing, this certainly shows the will's cancellation in a material portion, the signature of a will being essential to the will's validity. This evidence of the condition of the original will, which was in the custody of the testator until the testator's death, and found among the testator's papers shortly after the testator's death, raised a presumption that the cancellation was done by the testator and that the testator intended to revoke the will. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

In a will contest the cross-propounders, in seeking to probate a copy of a material portion of a will, the original of which portion they asserted had been destroyed, had the burden of overcoming the presumption that the destruction had been done by the testator personally with the intention to revoke, and the trial judge erred in failing to instruct the jury that the burden rested on the cross-propounders to prove that the copy offered by them was in substance and intent the same as the original. Sheffield v. Sheffield, 215 Ga. 546, 111 S.E.2d 218 (1959) (decided under former Code 1933, § 113-404).

- When the paper is found among the testator's effects, there is also a presumption that the testator made the cancellations or obliterations. Ellis v. O'Neal, 175 Ga. 652, 165 S.E. 751 (1932) (decided under former Civil Code 1910, § 3919); Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980);(decided under former Code 1933, § 113-404).

When there is no direct or circumstantial evidence that alterations in a will were made after the execution of the will, it must be presumed that the alterations were made by the testator, if the will was in the testator's custody until the time of the testator's death. Jordan v. Hayes, 225 Ga. 697, 171 S.E.2d 496 (1969) (decided under former Code 1933, § 113-404).

Burden is on the caveators to show that alterations in a will were not made prior to the execution of the will. Jordan v. Hayes, 225 Ga. 697, 171 S.E.2d 496 (1969) (decided under former Code 1933, § 113-404).

When there is no contention that alterations in an instrument were not made by the maker of the instrument, and there is no evidence that the alterations were made subsequently to the instrument's signing, the presumption of law is that the alterations were made prior to the signing. Jordan v. Hayes, 225 Ga. 697, 171 S.E.2d 496 (1969) (decided under former Code 1933, § 113-404).

2. Proof Required to Rebut Presumption

Proof required to rebut presumption of revocation generally.

- When there was no dispute as to the cancellation of material parts of the will and as to written declarations by the testator declaring the testator's will ineffective and no evidence to indicate that the testator intended to revoke only the canceled items, the statutory presumption as to a revocation of the entire will was not rebutted. Singleton v. Shewmake, 184 Ga. 785, 193 S.E. 232 (1917) (decided under former Civil Code 1910, § 3919).

Presumption of revocation may be rebutted, among other ways, by proof that a will was lost or destroyed prior to the death of the testator without the testator's consent, and that, when evidence to such effect is submitted, the question whether the presumption has been overcome is for determination by the jury, in view of all of the evidence and circumstances in the case, and the credibility attributed by the jury to the witnesses. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-404).

Judge may instruct the jury to the effect that the presumption in favor of revocation may be rebutted by showing that the will was not destroyed by the testator, or that if the testator did destroy the will, the testator did not thereby intend to revoke the will; provided only that such an instruction, like others, must be supported by sufficient evidence. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-404).

Presumption must be rebutted by evidence showing the obliterations and cancellations were not done with the intent to revoke the whole will. Howard v. Cotton, 223 Ga. 118, 153 S.E.2d 557 (1967) (decided under former Code 1933, § 113-404).

Declarations of testator are admissible in evidence to support or to rebut a presumption of revocation. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

When the revocation of a will must be presumed because of the will's destruction in a material part, declarations of the testator are admissible to support or rebut the presumption that the destruction was the act of the testator with the intention to revoke. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-404).

- In a suit asserting undue influence and seeking revocation of a testator's will, the trial court did not err in granting summary judgment to the defendant on the issue of revocation during the presentation of the plaintiff's case-in-chief because, under the change set forth in O.C.G.A. § 53-4-44 from O.C.G.A. § 53-2-74, the obliteration involved in the case, not being made on the original will, did not raise the presumption of revocation. Since the presumption was essential to the plaintiff's claim of revocation, the trial court did not err in granting summary judgment to the defendant on that claim. Morrison v. Morrison, 282 Ga. 866, 655 S.E.2d 571 (2008).

- Testator only indicated a desire to cancel certain portions of the testator's will, but the testator did not indicate an intent to revoke the will; the testator struck through the names of all successor beneficiaries of a trust estate as well as language nominating a certain person as a successor trustee, the testator initialed these struck through parts, and the testator named a certain person as the testator's successor beneficiary, but the testator made no other changes to the will. Peterson v. Harrell, 286 Ga. 546, 690 S.E.2d 151 (2010).

3. Burden of Proof

Statute places burden of proof on propounder to rebut presumption of revocation.

- When alterations appear on the face of a will, and other alterations on portions of the will which have previously been incorporated in a codicil, the alterations are material as regards the codicil, since the alterations concern the very purpose and subject matter of the codicil, but if the alterations and obliterations not incorporated by, and later to, the codicil were not intended as a revocation of the codicil, the burden was on the propounders to show that fact. Langan v. Cheshire, 208 Ga. 107, 65 S.E.2d 415 (1951) (decided under former Code 1933, § 113-404).

Burden is placed upon the propounder to rebut the presumption with evidence showing no intention to revoke. Howard v. Cotton, 223 Ga. 118, 153 S.E.2d 557 (1967) (decided under former Code 1933, § 113-404).

As a general rule, the burden is on a person attacking a paper offered for probate as a will to sustain the grounds of the propounder's attack. But by express provision, when a will has been canceled or obliterated in a material part, a presumption of revocation arises, and the burden is on the propounder to show that no revocation was intended. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

4. Doctrine of Dependent Relative Revocation

Doctrine of dependent relative revocation.

- Doctrine of dependent relative revocation (conditional revocation) is a doctrine of presumed intention, and has grown up as a result of an effort which courts always make to arrive at the real intention of the testator. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

- Evidence that old will, with pencil lines drawn through property disposition provisions, was found among testator's personal papers folded together with later writing making a somewhat different disposition of the testator's property was some evidence tending to establish that the cancellation and the making of a new will were parts of one scheme, and the revocation of the old will was so related to the making of the new as to be dependent upon it; this evidence was sufficient to rebut the statutory presumption of revocation and to give rise to a presumption in favor of the propounder under the doctrine of dependent relative revocation or conditional revocation, thus shifting the burden of proof to the caveator to prove, in essence, that decedent would have preferred intestacy. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

- No mere presumption that the testator would have preferred canceled will instead of intestacy will be allowed to defeat testator's intention when it has been made to appear. Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

For articulation of the doctrine of dependent relative revocation (conditional revocation), see Carter v. First United Methodist Church, 246 Ga. 352, 271 S.E.2d 493 (1980) (decided under former Code 1933, § 113-404).

- Trial court did not err by failing to apply the doctrine of dependent relative revocation to revive the decedent's 1988 will because based on the attorney's trial testimony, the trial court properly found that the markings on the original 1988 will that the decedent brought to a June 2004 meeting with the attorney were so extensive that it could not be determined, even by an experienced lawyer, what decedent intended to remove and what, if anything, was intended to remain. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 507 et seq., 522, 572.

- 95 C.J.S., Wills, §§ 390, 410, 411, 412.

- Effect of testator's attempted physical alteration of will after execution, 62 A.L.R. 1367; 24 A.L.R.2d 514.

Revocation by ratification or adoption of physical destruction or mutilation of will without testator's knowledge or consent in first instance, 99 A.L.R. 524.

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

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

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.

Testator's failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will, 61 A.L.R.3d 958.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.