O.C.G.A. § 53-4-42 (2019)

Annotations

COMMENT This section carries forward the provisions of former OCGA Sec. 53-2-72. This section changes the former law by deleting the phrase in former OCGA Sec.

53-2-72(b) that would allow an express revocation to become effective ‘‘independently of the validity or ultimate fate of the will or other instrument containing the revocation.’’ (This change is in accord with the provisions of Code Sec. 53-4-45, which explain the result that occurs when an instrument that contains an express revocation is itself later revoked.) As is indicated by Code Sec. 53-1-2, the term ‘‘will’’ includes the term ‘‘codicil’’. See Code Sec. 53-4-47 for the effect of an implied revocation. JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION EXPRESS REVOCATION IMPLIED REVOCATION General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-402, are included in the annotations for this Code section. Cited in Payne v. Payne, 213 Ga. 613, 100 S.E.2d 450 (1957); Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973). Express Revocation Express revocation. - 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, § 113-402). No revocation. - 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). Implied Revocation Implied revocation. - When the testator makes a different disposition of certain personal property bequeathed by the later will, this constitutes a revocation of the item as to this property in the former will. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-402). If the testator gave a ring to the testator’s son by will, the testator could revoke the bequest either by conveying the ring and giving the ring to another prior to the testator’s death, so that the ring did not remain a part of the testator’s estate when the testator died, or the testator could revoke this bequest in the will, or revoke the entire will. Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954) (decided under former Code 1933, § 113-402). Probate court properly denied admission to probate for a 1991 will due to an implied revocation by the 2001 will, pursuant to O.C.G.A. § 53-4-42(c), as the testator’s act of replacing specific bequests in the first will with $100 bequest in the later will, and then changing the testator’s wishes regarding a residuary clause, from all to the testator’s then wife if she survived to a division into three in the later will, impliedly revoked the first will

Implied Revocation (Cont’d) by the later will. Mitchell v. Mitchell, 279 Ga. 282, 612 S.E.2d 274 (2005). Lapsed will is not tantamount to revoked will. - Subsequent will does not amount to a revocation of a former will

by implication if the sole legatee of the subsequent will dies before the testator and the will therefore lapses before the death of the testator and fails. Miller v. Marchman, 214 Ga. 355, 104 S.E.2d 888 (1958) (decided under former Code 1933, § 113-402).

RESEARCH REFERENCES Am. Jur. 2d. - 79 Am. Jur. 2d, Wills, §§ 471, 474, 479, 487. C.J.S. - 95 C.J.S., Wills, § 398 et seq. ALR. - Necessity that later will refer to earlier will in order to effect a revocation under statutes providing that a will may be revoked by a subsequent will declaring the revocation, 28 A.L.R. 691. Necessity that physical destruction or mutilation of will be done in testator’s presence in order to effect revocation, 100 A.L.R. 1520. Possibility of avoiding or limiting effect of clause in later will purporting to revoke all former wills, 125 A.L.R. 936. Admissibility of declarations by testator on issue of revocation of will, 172 A.L.R. 354.

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. Implied revocation of will by later will or codicil, 59 A.L.R.2d 11. Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143. Revocation of will by nontestamentary writing, 22 A.L.R.3d 1346. 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.