O.C.G.A. § 44-5-86 (2019)
Gifts by person subject to undue influence; avoidance
A gift by a person who is just over the age of majority or who is particularly susceptible to be unduly influenced by his parent, guardian, trustee, attorney, or other person standing in a similar confidential relationship to one of such persons shall be closely scrutinized. Upon the slightest evidence of persuasion or influence, such gift shall be declared void at the instance of the donor or his legal representative and at any time within five years after the making of such gift.
History
(Orig. Code 1863, § 2624; Code 1868, § 2624; Code 1873, § 2666; Code 1882, § 2666; Civil Code 1895, § 3572; Civil Code 1910, § 4152; Code 1933, § 48-107; Ga. L. 1982, p. 3, § 44.)
Annotations
Law reviews. - For article, ‘‘Georgia’s Law of Undue Influence in Gift-Making,’’ see 5 Ga. St. B.J. 12 (2000). For annual
survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).
JUDICIAL DECISIONS Purpose. - It is for the common security of mankind that gifts procured by agents, and purchases made by the agents, from their principal, should be scrutinized with a close and vigilant suspicion. Harrison v.
Harrison, 214 Ga. 393, 105 S.E.2d 214 (1958). Presumption of undue influence. - Georgia law raises a presumption of undue influence when the beneficiary stands in a confi-
dential or fiduciary relationship with the donor, the donor is of weak mentality, and the beneficiary occupies a dominant position. Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991). To prove undue influence it is not sufficient to show merely that a person receiving substantial benefits occupied a confidential relationship to a donor and had an opportunity to exert undue influence. Rather, it must also be shown that the person receiving the gift occupied a dominant position over the donor, so that the donor’s free will was destroyed and the donor in making the gift did something that the donor would not otherwise have done. Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991). Deed made in favor of guardian. - This statute does not apply to the case of a deed or will in favor of a guardian made by a person some years after arriving at majority; but even if it did apply, such a deed would be good if made with a full knowledge of the facts, and without any misrepresentation or suppression of material facts by the guardian. Ralston v. Turpin, 129 U.S. 663, 9 S. Ct. 420, 32 L. Ed. 747 (1889) (see O.C.G.A. § 44-5-86). Deeds of gift by a married woman conveying her separate estate to her husband will be scrutinized with great jealousy. Ball v. Moore, 181 Ga. 146, 182 S.E. 28 (1935). Limitation of action when transfer is from wife to husband. - Limitation expressed in this statute is not applicable if a wife, under the influence of her husband, transferred stock to him and he in turn transferred it to
a bank. Hill v. Fourth Nat’l Bank, 156 Ga. 704, 120 S.E. 1 (1923) (see O.C.G.A. § 44-5-86). If a deed by a wife to her husband was really intended as a gift, the statute of limitations will apply; but if the deed was executed merely as part of a general scheme and device, inaugurated by the husband’s creditor, to pledge the property to the creditor for the husband’s debt, the deed to the husband would be a mere form, and not a gift, within the meaning of the statute. Barron v. First Nat’l Bank & Trust Co., 182 Ga. 796, 186 S.E. 847 (1936) (see O.C.G.A. § 44-5-86). Section applied in gift from wife to husband. - See Cain v. Ligon, 71 Ga. 692, 51 Am. R. 281 (1883); Sasser v. Sasser, 73 Ga. 275 (1884). Burden of proof not met. - Plaintiffs failed to meet plaintiff ’s burden of proof with regard to either the husband/father’s alleged mental incompetence, or the wife’s alleged exercise of fraud and/or undue influence over him at the time of the transactions in question. Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991). Cited in Simmons Hdwe. Co. v. Timmons, 180 Ga. 531, 179 S.E. 726 (1935); Davis v. Liberty Co., 183 Ga. 286, 188 S.E. 344 (1936); Hadaway v. Hadaway, 192 Ga. 265, 14 S.E.2d 874 (1941); Armour v. Lunsford, 192 Ga. 598, 15 S.E.2d 886 (1941); Jones v. Hogans, 197 Ga. 404, 29 S.E.2d 568 (1944); Vinson v. Citizens & S. Nat’l Bank, 208 Ga. 813, 69 S.E.2d 866 (1952); Johnson v. Hutchinson, 217 Ga. 489, 123 S.E.2d 551 (1962).
RESEARCH REFERENCES Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 5, 12, 39. C.J.S. - 38 C.J.S., Gifts, § 91. ALR. - Undue influence by third person in which immediate beneficiary did not participate, 96 ALR 613. Undue influence in nontestamentary gift to clergyman, spiritual adviser, or church, 14 ALR2d 649. Undue influence in nontestamentary gift from client to attorney, 24 ALR2d 1288.
Undue influence in nontestamentary gift from patient to physician, nurse, or other medical practitioner, 70 ALR2d 591. Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 ALR3d 608. Validity of inter vivos gift by ward to guardian or conservator, 70 ALR4th 499.