Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3918, and former Code 1933, § 113-403, are included in the annotations for this Code section.

Unattested statements in will lack formality required to revoke.

- While statements made in the handwriting of the deceased on the margin of will opposite items obliterated or canceled, designating a contrary disposition of the property covered by such items, but unattested, as well as a general unattested statement written on the cover of the will declaring that the will was to be ineffective, and indicating a different testamentary scheme, would not operate as an express revocation in writing of the will, such declarations made in the handwriting of the testator would tend to support 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, § 3918).

Probate of a former will may be defeated upon proof of the execution of a later writing by the testator, which contained a clause revoking the prior will, and of the loss or destruction of the later instrument, without proof of the rest of the contents of the lost or destroyed instrument. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

While revocation of a will cannot be established by proof of parol declarations by the testator, a clause in a later written instrument, properly executed by the testator, expressly revoking a former will is not rendered ineffective merely by the loss or destruction of the instrument which contains it, and proof of the revocation clause in a later lost or destroyed will may be made by parol. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

Will revoked by subsequent will revived only by republication.

- When a will has been expressly revoked by a subsequent will executed with the same formality and attested by the same number of witnesses as are requisite for the execution of a will, the revocation or destruction of the latter does not per se revive the former, but the former will can be revived only by republication. Driver v. Sheffield, 211 Ga. 316, 85 S.E.2d 766 (1955) (decided under former Code 1933, § 113-403).

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).

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 484, 603.

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.

Revocation of later will as reviving earlier will, 28 A.L.R. 911; 162 A.L.R. 1072.

Competency of attesting witness who is not benefited by will except as it revokes an earlier will, 64 A.L.R. 1306.

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.

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

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

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.

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.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.

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

Revocation of prior will by revocation clause in lost will or other lost instrument, 31 A.L.R.4th 306.

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.