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2018 Georgia Code 53-4-48 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 53-4-48 Case Law from Google Scholar Amendments to OCGA 53-4-48

TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 4. Wills, 53-4-1 through 53-4-75.

ARTICLE 5 REVOCATION AND REPUBLICATION

53-4-48. Effect of testator's marriage, or birth or adoption of child; provision in will for class of children.

  1. Except as otherwise provided in Code Section 53-4-49, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator's death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will only to the extent provided in the remainder of this Code section.
  2. A provision in a will for a class of the testator's children shall be presumed to be made in contemplation of the birth or adoption of additional members of that class, absent an indication of a contrary intent, and the mere identification in the will of children already born or adopted at the time of the execution of the will shall not defeat this presumption.
  3. If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or child shall receive the share of the estate he or she would have received if the testator had died intestate. Such share shall be paid from the net residuum remaining after all debts and expenses of administration, including taxes, have been paid. If the residuum proves to be insufficient, then testamentary gifts shall abate in the manner provided in subsection (b) of Code Section 53-4-63. Any bequest in the will in favor of the subsequent spouse or child shall be given effect and shall count toward the intestate share. If the bequest equals or exceeds the intestate share, then the subsequent spouse or child shall receive the bequest in lieu of the intestate share provided by this subsection.

(Code 1981, §53-4-48, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2002, p. 1316, § 2.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2002, "subsection (b)" was substituted for "paragraph (b)" in the third sentence in subsection (c).

Law reviews.

- For article, "The Time Gap in Wills: Problems Under Georgia's Lapse Statutes," see 6 Ga. L. Rev. 268 (1972). For article discussing the pretermitted heir, see 10 Ga. L. Rev. 447 (1976). For article criticizing former Code 1933, § 113-408 as too drastic, and suggesting revisions, see 11 Ga. L. Rev. 297 (1977). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 68 Mercer L. Rev. 321 (2016). For note, "Advantages and Disadvantages of Intestate Death for Married Persons With an Estate of $120,000 or Less," see 9 Ga. St. B.J. 102 (1972). For comment on Thornton v. Anderson, 207 Ga. 714, 64 S.E.2d 186 (1951), see 3 Mercer L. Rev. 233 (1951); 14 Ga. B.J. 86 (1951).

COMMENT

This section carries forward the portions of former OCGA Sec. 53-2-76 that relate to the marriage of the testator and the birth of a child to the testator. This section indicates that the provisions apply in the event of the birth of a posthumous child within ten months of the testator's death. This section also clarifies that the adoption of a child by the testator has the same effect as the birth of a child. If the will contemplates the marriage or birth or adoption, the event will not result in a revocation of the will. Under the presumption that a testator probably would intend to treat after-born or after-adopted children the same as children already born or adopted, the section also states that a will that provides for a class of the testator's children is deemed to be made in contemplation of the birth or adoption of additional members of that class absent an indication of an intent to the contrary. Consequently, the subsequent birth or adoption of class members will not result in the revocation of the will. For example, if a testator leaves the entire estate "to my sons" and another son is born, it is presumed that the testator wanted the will to stay in effect and merely to include the new son as a member of the class. On the other hand, if a daughter is later born to the testator (an individual, in other words, who is not a member of the class), the will would be revoked rather than stay in effect and leave the entire estate only to the testator's sons. Solely for the purposes of this Code section, the mere fact that the testator names already living children will not in and of itself defeat the notion that the gift is a gift to a class of the testator's children. See Code Sec. 53-4-58 for the result when a testator fails to provide for a child in the will because the testator believes the child to be dead.

JUDICIAL DECISIONS

General Consideration

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).

Revocation by Marriage

Will revoked by subsequent marriage is revoked in toto. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 113-408).

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).

Revocation by Birth of Child

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).

RESEARCH REFERENCES

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.

Cases Citing O.C.G.A. § 53-4-48

Total Results: 5  |  Sort by: Relevance  |  Newest First

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Evans v. Palmour, 553 S.E.2d 585 (Ga. 2001).

Cited 6 times | Published | Supreme Court of Georgia | Oct 1, 2001 | 274 Ga. 283, 2001 Fulton County D. Rep. 2942

...[8] Except for very limited purposes, none of which are at issue here, parole evidence is inadmissable to explain the provisions of a will. [9] Judgment affirmed. All the Justices concur. CARLEY, Justice, concurring. I fully concur in all of the majority opinion, including its conclusion that, pursuant to OCGA § 53-4-48(a) of the Revised Probate Code of 1998, "the `in contemplation of marriage' clause in Llop's will was effective to prevent the revocation of his will upon his subsequent marriage," even though that clause did not identify his future spouse....
...tatute in such a situation). Neither the marriage nor the divorce operated as a revocation of Llop's will under the applicable provisions of the Revised Probate Code of 1998, and the Court correctly affirms the trial court's judgment. NOTES [1] OCGA § 53-4-48(a) (1998)....
...at 74, 214 S.E.2d 644. [4] (Emphasis Supplied.) Redfearn, supra, § 5-17, p. 114. [5] (Emphasis Supplied.) Thornton v. Anderson, 207 Ga. 714, 715, 64 S.E.2d 186 (1951); quoting Ellis v. Darden, 86 Ga. 368, 12 S.E. 652 (1890). [6] (Emphasis Supplied.) OCGA § 53-4-48(a) (1998). [7] OCGA § 53-4-48(a) (1998)....
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Hobbs v. Winfield, 302 Ga. 23 (Ga. 2017).

Cited 2 times | Published | Supreme Court of Georgia | Sep 13, 2017 | 805 S.E.2d 74

...The following day, the administrator filed a caveat to the will asserting that the will made no provision for the future birth of a child to the testator and that, as a consequence of children being born, the will should be revoked pursuant to OCGA § 53-4-48 and should not be probated....
...A notice of appeal was filed in the Court of Appeals, which transferred the case to this Court.1 1. Generally speaking, the birth of a child to the testator after the making of a will “in which no provision is made in contemplation of such event shall result in a revocation of the will ’’OCGA § 53-4-48 (a).2 In such a case, by statute, the after-born child is to receive the *25share of the estate he or she would have received if the testator had died intestate. See OCGA § 53-4-48 (c)....
...of the Army Pamphlet 27-50-103, July 1981, pp. 18-19, Maj. Joel R. Alvarey et al., Legal Assistance Items, Section 1, Wills — Provisions for Survivor’s Benefits, www.loc.gov/rr/frd/military_law/pdf/07-1981.pdf. (Website last accessed August 29, 2017.) Id. OCGA § 53-4-48 (b). 274 Ga....
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Johnson v. Rogers, 297 Ga. 413 (Ga. 2015).

Cited 1 times | Published | Supreme Court of Georgia | Jun 29, 2015 | 774 S.E.2d 647

...Johnson made a will that included a number of bequests to Rogers.1 Ms. Johnson died in 2011, and Mr. Johnson then sought to probate her will. Rogers filed a caveat, asserting that she had been adopted by Ms. Johnson after the will was made, which would entitle her to an intestate share of the estate under OCGA § 53-4-48 (c).2 1 Under the terms of the will, Ms....
...Johnson, and she left a contingent, remainder interest in her real property to Rogers. Ms. Johnson left specific items of her personal property to Rogers and others. Ms. Johnson left her residuary estate to Mr. Johnson, and she gave Rogers a contingent interest in the residuary estate. 2 Under OCGA § 53-4-48 (a), the happening of certain events — the marriage of the testator, the birth of a child to the testator, or the adoption of a child by the testator — after “the making of a will in which no provision is made in contemplation of such event” results in a “revocation of the will[, but] only to the extent provided in [OCGA § 53-4-48 (c)].” OCGA § 53-4-48 (c) provides as follows: If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or child sh...
...714, 718 (64 SE2d 186) (1951), and during that time, the probate court said, questions of virtual adoption “frequently arose in the form of a caveat to a [w]ill,” in cases in which a finding of virtual adoption would “result in intestacy.” In 2002, however, OCGA § 53-4-48 was amended, and as a result of that amendment, the law no longer provides for the revocation of an antecedent will upon the subsequent adoption of a child, and it now provides only that a later-adopted child is entitled to an intestate share of the estate. See OCGA § 53-4-48 (c)....
...That proposition, however, is perfectly consistent with the rule that virtual adoption can arise only when the virtual parent dies intestate. If the caveat to the will is successful, then the requirement of intestacy has been met. Nothing suggests that the 2002 amendment of OCGA § 53-4-48 was intended to alter the law of virtual adoption in any way. The old law providing that a subsequent adoption would revoke an antecedent will was never applied to a virtual adoption, and there is no reason to think that OCGA § 53-4-48, even as amended in 2002, is meant to apply to any “adoption” other than a statutory adoption....
...] death and intestacy”). Finally, even since the 2002 amendment, this Court has continued to recognize that the intestacy of the adoptive parent is one of the elements required to prove virtual adoption. Morgan, 285 Ga. at 513 (3). Because OCGA § 53-4-48 can be at least as reasonably understood to leave the common law of virtual adoption unchanged as to depart from it, we must presume that the General Assembly meant to adhere to the requirement of intestacy. For these reasons,...
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English v. Ricart, 280 Ga. 215 (Ga. 2006).

Cited 1 times | Published | Supreme Court of Georgia | Feb 13, 2006 | 626 S.E.2d 475, 2006 Fulton County D. Rep. 450

...erred by finding that Beatrice Ricart, who married Robert English (“Decedent”) a number of years following his execution of a will which did not contemplate their marriage, had not waived her right to an intestate share of the estate under OCGA § 53-4-481 because she initially assented to the petition to probate the will in solemn form....
...Both of Decedent’s sons filed answers to the petition to probate on February 7, 2005. In his answer, Tyler contended that Ricart was not Decedent’s legal wife, that Ricart’s prior assent to probate waived any rights she may have had pursuant to OCGA § 53-4-48 to take under the will, and that William English should be removed as executor of the estate because he had refused to investigate the validity of Ricart’s marriage to Decedent....
...Tyler also requested a hearing. Through a guardian, Blake contended that William English was not properly investigating the marriage, and he requested a hearing as well.3 On March 2, 2005, Ricart filed a motion “for clarification of her status as an heir under OCGA § 53-4-48.”4 On April 11, 2005, Ricart filed a follow-up motion to which she attached a copy of her marriage *216certificate....
...Following a subsequent hearing, the trial court entered an order determining that, despite the fact that Ricart assented to the probate of the will in solemn form prior to filing any motion which could be considered an assertion of her statutory entitlement, Ricart had not waived her right to make a claim pursuant to OCGA § 53-4-48....
...Tyler contends that the trial court erred by allowing Ricart to assert her statutory right to an intestate share after her initial acknowledgment and assent to the petition to probate the will. In support of his claim that Ricart waived and renounced any of her rights under OCGA § 53-4-48, Tyler points to the fact that the petition to probate included standard language informing Ricart that any objection to the will would have to be filed within ten days of service of the petition. The nature of the probate court’s discr...
...to extend the time for the filing of responses or objections to a will in order to preserve the interests of justice. This discretion, in turn, would allow the probate court to extend Ricart’s time in which to object or raise her claim under OCGA § 53-4-48 prior to the probate of the will in order to safeguard the intent of the legislature to provide for “after-married spouses” through the partial revocation of a will by operation of law. Therefore, under the facts of this case in which the will had not yet been admitted to probate, the probate court did not err in its determination that Ricart had not waived her right to make a claim pursuant to OCGA § 53-4-48 in order to affect the intent of that statute. In support of his argument, Tyler cites numerous cases for the proposition that, once an individual has assented to the immediate probate of a will with full knowledge of its contents, he or she is estopped from later contesting the will after it has been probated....
...g that the will was not witnessed properly after probate occurred). These cases, however, simply are not applicable to the matter now before us because the will in question had not been probated at the time that Ricart asserted her rights under OCGA § 53-4-48 with the ultimate permission of the probate court.5 2....
...e for declaratory judgment. See OCGA§ 9-4-4. We do not reach the issue of whether an after-married spouse who assents to the probate of a will in solemn form retains the right, as a matter of law, to object to the will or raise a claim under OCGA § 53-4-48 after the will has been admitted to probate.

Johnson v. Rogers (Ga. 2015).

Published | Supreme Court of Georgia | Jun 29, 2015 | 626 S.E.2d 475, 2006 Fulton County D. Rep. 450

...Johnson made a will that included a number of bequests to Rogers.1 Ms. Johnson died in 2011, and Mr. Johnson then sought to probate her will. Rogers filed a caveat, asserting that she had been adopted by Ms. Johnson after the will was made, which would entitle her to an intestate share of the estate under OCGA § 53-4-48 (c).2 1 Under the terms of the will, Ms....
...Johnson, and she left a contingent, remainder interest in her real property to Rogers. Ms. Johnson left specific items of her personal property to Rogers and others. Ms. Johnson left her residuary estate to Mr. Johnson, and she gave Rogers a contingent interest in the residuary estate. 2 Under OCGA § 53-4-48 (a), the happening of certain events — the marriage of the testator, the birth of a child to the testator, or the adoption of a child by the testator — after “the making of a will in which no provision is made in contemplation of such event” results in a “revocation of the will[, but] only to the extent provided in [OCGA § 53-4-48 (c)].” OCGA § 53-4-48 (c) provides as follows: If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or...
...714, 718 (64 SE2d 186) (1951), and during that time, the probate court said, questions of virtual adoption “frequently arose in the form of a caveat to a [w]ill,” in cases in which a finding of virtual adoption would “result in intestacy.” In 2002, however, OCGA § 53-4-48 was amended, and as a result of that amendment, the law no longer provides for the revocation of an antecedent will upon the subsequent adoption of a child, and it now provides only that a later-adopted child is entitled to an intestate share of the estate. See OCGA § 53-4-48 (c)....
...That proposition, however, is perfectly consistent with the rule that virtual adoption can arise only when the virtual parent dies intestate. If the caveat to the will is successful, then the requirement of intestacy has been met. Nothing suggests that the 2002 amendment of OCGA § 53-4-48 was intended to alter the law of virtual adoption in any way. The old law providing that a subsequent adoption would revoke an antecedent will was never applied to a virtual adoption, and there is no reason to think that OCGA § 53-4-48, even as amended in 2002, is meant to apply to any “adoption” other than a statutory adoption....
...] death and intestacy”). Finally, even since the 2002 amendment, this Court has continued to recognize that the intestacy of the adoptive parent is one of the elements required to prove virtual adoption. Morgan, 285 Ga. at 513 (3). Because OCGA § 53-4-48 can be at least as reasonably understood to leave the common law of virtual adoption 9 unchanged as to depart from it, we must presume that the General Assembly meant to adhere to the requirement...