2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 6 - Construction of Will; Testamentary Gifts
§ 53-4-58. Failure to Provide for Living Child Believed Dead

If at the time of execution of the will the testator fails to provide in the will for a living child of the testator solely because the testator believes the child to be dead, the child is entitled to receive a share in the estate as follows:

1. If the testator had no other child living at the time the will was executed, an omitted child receives a share equal in value to that which the child would have received had the testator died intestate but only to the extent that any provision in the will to or for the benefit of the surviving parent of the omitted child is not thereby reduced; or
2. If the will contains testamentary gifts to one or more other children of the testator, an omitted child is entitled to receive the share of the estate that the child would have received had the testator included all omitted children with the children to whom testamentary gifts were made under the will and had given an equal share to each child. To the extent feasible, the interest granted an omitted child must be of the same character, whether legal or equitable, present or future, as that left to the testator's other children under the will. In satisfying the share for the omitted child, the shares of the other children shall abate ratably, preserving to the maximum extent possible the testamentary plan adopted by the testator.

(Code 1981, §53-4-58, enacted by Ga. L. 1996, p. 504, § 10.)

- For article discussing the pretermitted heir, see 10 Ga. L. Rev. 447 (1976). For article advocating repeal of this Code section, or amendment to eliminate relief for all mistakes but belief in the existence of an heir, see 11 Ga. L. Rev. 297 (1977). For note, "Wills - Mistake of Fact as to the Existence or Conduct of an Heir," see 1 Ga. St. B.J. 543 (1965).

This section replaces former OCGA Sec. 53-2-8 and is modeled after Uniform Probate Code Sec. 2-302. See Code Sec. 53-4-48 for the result when a child is born or adopted by the testator after the will is executed.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-210, and former O.C.G.A. § 53-2-8, are included in the annotations for this Code section.

- There is a difference between a "mistake" arising from mere ignorance and one which results from an error of judgment after investigation or from negligent or willful failure to make a proper investigation by means of which the truth could be readily and surely ascertained. It is to such a mistake as that first indicated that the statute applied; it could not have been intended to operate in instances of the latter character. Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1962) (decided under former Code 1933, § 113-210); Herrin v. Herrin, 224 Ga. 579, 163 S.E.2d 713 (1968); Yancey v. Hall, 265 Ga. 466, 458 S.E.2d 121 (1995) (decided under former Code 1933, § 113-210); Joseph v. Grisham, 267 Ga. 677, 482 S.E.2d 251 (1997);(decided under former O.C.G.A. § 53-2-8);(decided under former O.C.G.A. § 53-2-8).

Will can be set aside for mistake of fact arising from ignorance, but not from an error in judgment after an investigation or after willful failure to investigate. Hammett v. Reynolds, 243 Ga. 669, 256 S.E.2d 354 (1979) (decided under former Code 1933, § 113-210).

- Mere fact that a testator bequeathed to the testator's daughter a note in the testator's possession, executed by her to the testator, which had been paid, did not show such a mistake of fact as to the conduct of an heir at law as is contemplated by law, so as to justify a finding that the testator should be deemed to have died intestate as to such heir at law. Watkins v. Jones, 184 Ga. 831, 193 S.E. 889 (1937) (decided under former Code 1933, § 113-210).

When caveator insists that the trial court erred in directing a verdict for propounder because the evidence shows that the will was executed under a mistake of fact as to the conduct of caveator, the heir at law of testator, viz: that caveator was continuing to assert a right to one-half of the property whereas caveator was not continuing to assert such a right, caveator's evidence shows no more than an erroneous deduction or conclusion by testator that because caveator once asserted a right to one-half of the property, caveator was continuing to do so. This is not ignorance of the basic facts. It is at most an error of judgment resulting from a failure to make an investigation of the matter, which does not constitute a mistake of fact. Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1962) (decided under former Code 1933, § 113-210).

Caveat to a will filed by the testator's wife on the ground that the testator mistakenly believed the wife had signed an enforceable antenuptial agreement did not allege a mistake of fact, but a mistake of judgment; the testator knew as a fact that she signed the agreement; whether the testator believed it was enforceable was a matter of judgment. Kaplan v. Kaplan, 266 Ga. 612, 469 S.E.2d 198 (1996) (decided under former O.C.G.A. § 53-2-8).

Purported mistake of the testator relating to her belief that she owned certain property which was claimed to be owned by son was not a mistake of fact as to the existence or conduct of an heir. Shore v. Malloy, 267 Ga. 44, 472 S.E.2d 303 (1996) (decided under former O.C.G.A. § 53-2-8).

- When court submitted to the jury the issue of whether the will was executed by the testator under a mistake of fact as to the conduct of the caveatrices, and properly instructed the jury that if the jury found the will to have been so executed it would be inoperative as to such heir or heirs, it was error to instruct the jury that, if the jury found the will to have been so executed, the jury should return a verdict finding against the will as a whole. Moreland v. Word, 209 Ga. 463, 74 S.E.2d 82 (1953) (decided under former Code 1933, § 113-210).

Law does not require that a father provide for the support of his children after his death; public policy, of course, favors the support of minor children by the father's estate after death. Russell v. Fulton Nat'l Bank, 247 Ga. 556, 276 S.E.2d 641, overruled on other grounds, Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981) (decided under former O.C.G.A. § 53-2-8).

- Law does not say, because a man is narrowminded, prejudiced, unforgiving, or even mean in his relations to some of his children, that he is incompetent to make a will, and the testimony of witnesses that he is incapable or incompetent because of such an attitude toward a child cannot make an issue for the jury to pass upon. Watkins v. Jones, 184 Ga. 831, 193 S.E. 889 (1937) (decided under former Code 1933, § 113-210).

Despite testator's erroneous belief that the testator's son had stolen money, caveator could still not recover, as the only mistake affecting a will is the testator's erroneous belief that a child is dead. Harper v. Harper, 274 Ga. 542, 554 S.E.2d 454 (2001).

Cited in Scott v. Wimberly, 188 Ga. 148, 3 S.E.2d 71 (1939); Davis v. Aultman, 199 Ga. 129, 33 S.E.2d 317 (1945); Lee v. Boyer, 217 Ga. 27, 120 S.E.2d 757 (1961); Clavin v. Clavin, 238 Ga. 421, 233 S.E.2d 151 (1977); Russell v. Fulton Nat'l Bank, 248 Ga. 421, 283 S.E.2d 879 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 399 et seq.

8B Am. Jur. Pleading and Practice Forms, Descent and Distribution, § 1.

- 95 C.J.S., Wills, § 344.

- Mistake as to one's interest in land under law of descent as subject of relief, 39 A.L.R. 194.

Pretermitted heir statutes: what constitutes sufficient testamentary reference to, or evidence of contemplation of, heir to render statute inapplicable, 83 A.L.R.4th 779.