Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-408, are included in the annotations for this Code section.

Language of statute is unambiguous.

- It clearly expresses the intention of the legislature that in every case subsequent marriage or birth of a child will revoke a will, unless the will contains a provision which is made in contemplation of such an event. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Statute applies to all wills. Friedman v. Cohen, 215 Ga. 859, 114 S.E.2d 24 (1960) (decided under former Code 1933, § 113-408).

Strict construction.

- No exception will be made to the rule of the statute. Simpson v. Dodge, 220 Ga. 705, 141 S.E.2d 532 (1965) (decided under former Code 1933, § 113-408).

Meaning of "provision for."

- It is incorrect to construe the statute to mean that "provision for" is the equivalent of "in contemplation of." Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Under the law, the only questions to be decided are: (1) whether the marriage was subsequent to the will, and (2) whether the will makes any provision for that event. Johnson v. Cromer, 234 Ga. 73, 214 S.E.2d 644 (1975) (decided under former Code 1933, § 113-408).

Discretion to extend time for responses or objections to will.

- Before a will was probated, O.C.G.A. §§ 53-11-5 and53-11-10(a) provided a probate court with discretion to extend the time for the filing of responses or objections to the will in order to preserve the interests of justice; probate court properly extended the time for the decedent's widow to object or raise a claim under O.C.G.A. § 53-4-48 and to assert the statutory right to an intestate share after the initial acknowledgment and assent to the petition to probate the will which did not name the widow as a beneficiary. English v. Ricart, 280 Ga. 215, 626 S.E.2d 475 (2006).

Cited in Allen v. First Nat'l Bank, 169 F.2d 221 (5th Cir. 1948); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949); Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951); King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959); Houston v. Pollard, 217 Ga. 184, 121 S.E.2d 629 (1961); Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962); Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Brennan v. Rushing, 225 Ga. 85, 165 S.E.2d 840 (1969); Citizens & S. Nat'l Bank v. United States, 451 F.2d 221 (5th Cir. 1971); Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973); Carr v. Kupfer, 250 Ga. 106, 296 S.E.2d 560 (1982); McPherson v. McPherson, 254 Ga. 122, 327 S.E.2d 204 (1985); Brown v. Cronic, 266 Ga. 779, 470 S.E.2d 682 (1996).

Provision shall be made in contemplation of the event.

- Will must show that the testator had in contemplation of the event, that is the testator's future marriage; and the will must contain a provision made in contemplation of such event, otherwise the will is revoked. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Provision in a testator's will that it was made "in contemplation of marriage," so that the will would not be revoked by operation of O.C.G.A. § 53-4-48(a) upon the testator's subsequent marriage did not have to identify the person the testator intended to marry. Evans v. Palmour, 274 Ga. 283, 553 S.E.2d 585 (2001).

Revocation automatic unless express provision made in contemplation of marriage.

- It is not required that a provision in the will must be of a beneficial interest in the estate of the testator, but it is sufficient if the will refers to the event and provides for the same either by making a beneficial provision or expressing the intention or desire of the testator that such future husband have no beneficial interest in her estate. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Testator may refer in his will to a woman to whom he is subsequently married, but in the absence of express reference therein to his future marriage, the will does not show that the reference to the woman was made in contemplation of such an event. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Provision in the will of a testator giving a beneficial interest in her estate to the man whom she subsequently marries, but containing no mention or reference to the event of her future marriage, does not show that the provision was made in contemplation of her marriage. The subsequent marriage of the testator automatically revokes such a will. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Provision giving a beneficial interest in the estate to a named person whom the testator subsequently marries does not show or even intimate that such provision was made in contemplation of the marriage. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

To avoid revocation of a will by a subsequent marriage, it must appear in clear and unmistakable terms that the testator contemplated the event of a future marriage and made some reference to that event. Johnson v. Cromer, 234 Ga. 73, 214 S.E.2d 644 (1975) (decided under former Code 1933, § 113-408).

Revocation is made to turn not upon any provision made for the wife but upon whether the testator, by the testator's will, has made a provision for such an event. If, by the testator's will the testator had done so, the will is not revoked; if the testator has not, it is revoked. McParland v. McParland, 233 Ga. 458, 211 S.E.2d 748 (1975) (decided under former Code 1933, § 113-408).

Illegal marriage insufficient to revoke will.

- No agreement purporting to constitute a common-law marriage, nor cohabitation of the man and woman while holding themselves out to the public as husband and wife, nor birth of children to such parties, will constitute or prove a common-law marriage between them, when the man was legally married to another woman throughout the period of such cohabitation and relationship. Consequently, a will written by the purported wife during the cohabitation was revoked by her subsequent valid marriage to the purported husband after his divorce from his first wife. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Will is not voided by a marriage ceremony when, at that time, the caveator was incapable of contracting marriage and the ceremony was absolutely void. Graves v. Carter, 207 Ga. 308, 61 S.E.2d 282 (1950) (decided under former Code 1933, § 113-408).

When the evidence was in conflict as to whether there had been a previous marriage, the trial court was authorized to find that there had not and, therefore, that the ceremonial marriage between the testator and the caveator was valid so as to cause the revocation of the testator's will. Faulk v. Faulk, 222 Ga. 522, 150 S.E.2d 818 (1966) (decided under former Code 1933, § 113-408).

General provision disinheriting all "heirs" not expressly provided for is insufficient to show that the testator contemplated a future marriage. Johnson v. Cromer, 234 Ga. 73, 214 S.E.2d 644 (1975) (decided under former Code 1933, § 113-408).

Testamentary power of appointment cannot be exercised by a revoked will. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 113-408).

Will exercising a power of appointment which was made in contemplation of marriage is not revoked by the subsequent marriage. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 113-408).

Will revoked unless provision made for after-born child.

- Fact that the testator may have lived some time after the birth of the child, and failed to make any change in the testator's will, can make no difference. The will is void immediately upon the birth of the child, and nothing the testator might do or fail to do could give the will life. The will is dead as completely as if the testator had destroyed the will by burning, or any other means known to the law. Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947) (decided under former Code 1933, § 113-408).

Son shown to have been born subsequently to the execution of a will is not entitled to recover in ejectment against a purchaser for a valid consideration who relied on the judgment of the court of ordinary (now probate court) probating the will in solemn form, and who purchased prior to any proceeding to set aside such judgment. Mitchell v. Arnall, 203 Ga. 384, 47 S.E.2d 258 (1948) (decided under former Code 1933, § 113-408).

When a proceeding is filed to probate a will which unquestionably has been revoked by the subsequent birth of a child, and no provision has been made in contemplation of that event, and the fact appears on the face of the proceedings, consent by a guardian ad litem that the will be probated is clearly beyond the scope of the guardian's authority, and on a proper application for that purpose the judgment of probate should be set aside. Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947) (decided under former Code 1933, § 113-408).

Revocation is made to turn, not upon any provision made for the child, but upon whether the testator, by the testator's will, has made a provision for such an event. If, by the testator's will the testator had done so, the will is not revoked; if the testator has not, it is revoked. McParland v. McParland, 233 Ga. 458, 211 S.E.2d 748 (1975) (decided under former Code 1933, § 113-408).

Probate court did not err in finding the testator's will was not made in contemplation of future children and was thus invalidated by the birth of children after the execution of the will because the reference in the will to "my dependents" in the context of directing the personal representative to check on the availability of survivor benefits was insufficient to show that the testator contemplated future-born children as it did not meet the essential basic requirement of showing that the event of future-born children was in the testator's mind at the time the will was executed. Hobbs v. Winfield, 302 Ga. 23, 805 S.E.2d 74 (2017).

Adoption equivalent to birth of child.

- Antecedent will, which makes no provision in contemplation of an adoption, is revoked by implication or inference of law by the testator' legal adoption of a minor child. The act of adopting a child, under the provisions of the adoption statute of 1941 (Ga. L. 1941, p. 305) as amended by the Act of 1949 (Ga. L. 1949, p. 1157), is the equivalent in law of the birth of a child. Thornton v. Anderson, 207 Ga. 714, 64 S.E.2d 186 (1951), for comment, see 3 Mercer L. Rev. 233 (1951); 14 Ga. B.J. 86 (1951) (decided under former Code 1933, § 113-408).

Provision in a will giving an unborn child a beneficial interest in the estate obviously is made in contemplation of the future birth of a child. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Virtual adoption did not result in revocation.

- Although an adult child of a testator met most of the requirements for virtual adoption in that the adult child had been raised by the testator as the testator's own, the doctrine of virtual adoption did not apply because the testator had made a will disposing of the testator's estate. Virtual adoption could not result in a revocation of the will under O.C.G.A. § 53-4-48(a) because that statute applied only to legal adoptions, and virtual adoption was a legal fiction arising after the adoptive parent's death. Johnson v. Rogers, 297 Ga. 413, 774 S.E.2d 647 (2015).

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 551, 556.

ALR.

- Illegitimacy of child as affecting revocation of will by subsequent birth of child, 18 A.L.R. 91; 38 A.L.R. 1344.

Statute as to effect of subsequent birth of a child as applicable where will provides for child, in the absence of an express exception, 30 A.L.R. 1236.

Divorce as equivalent of death for the purposes of provision in will or trust in respect of survivorship as between husband and wife, 35 A.L.R. 141.

Separation agreement as affecting right of inheritance, 35 A.L.R. 1505; 34 A.L.R.2d 1020.

Rule regarding revocation of will by marriage as affected by antenuptial agreement or settlement, 92 A.L.R. 1010.

Disinheritance provision or mere nominal bequest as affecting application of statute for benefit of pretermitted children, 152 A.L.R. 723.

Remarriage of woman after death of or divorce from former husband as revoking will executed during former marriage, 9 A.L.R.2d 510.

Adoption of child as revoking will, 24 A.L.R.2d 1085.

Admissibility of extrinsic evidence to show testator's intention as to omission of provision for child, 88 A.L.R.2d 616.

Statutory revocation of will by subsequent birth or adoption of child, 97 A.L.R.2d 1044.

Divorce or annulment as affecting will previously executed by husband or wife, 71 A.L.R.3d 1297.

Devolution of gift over upon spouse predeceasing testator where gift to spouse fails because of divorce, 74 A.L.R.3d 1108.

Marriage of testator or birth of testator's child as revoking will previously made in exercise of power of appointment, 92 A.L.R.3d 1244.

Conflict of laws as to pretermission of heirs, 99 A.L.R.3d 724.

Validity of statutes or rules providing that marriage or remarriage of woman operates as revocation of will previously executed by her, 99 A.L.R.3d 1020.

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage, 38 A.L.R.4th 117.

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.

Legal status of posthumously conceived child of decedent, 17 A.L.R.6th 593.