O.C.G.A.
O.C.G.A.

O.C.G.A. § 53-4-68 (2019)

Conditions that are impossible, illegal, or against public policy; conditions in terrorem

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) Conditions in a will that are impossible, illegal, or against public policy shall be void. (b) A condition in terrorem shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem is violated, in which event the direction in the will shall be carried out, except as otherwise provided in subsection (c) of this Code section. (c) A condition in terrorem shall not be enforceable against an interested person for:

(1) Bringing an action for interpretation or enforcement of a will; (2) Bringing an action for an accounting, for removal, or for other relief against a personal representative; or (3) Entering into a settlement agreement.

History

Code 1981, § 53-4-68, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-15/HB 865. The 2020 amendment, effective January 1, 2021, added ‘‘, except as otherwise provided in subsection (c) of this Code section’’ at the end of subsection (b); and added subsection (c).

Annotations

Law reviews. - For article surveying

developments in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003).

COMMENT This section carries over former OCGA Sec. 53-2-107 and broadens the second paragraph of that section by allowing a condition in terrorem to take effect not merely in the event there is a limitation over to some other named person (as provided in the former statute) but rather in any case in which the will contains directions as to how the property is to be distributed if the condition in terrorem is violated. JUDICIAL DECISIONS Condition valid. - Condition in an in terrorem clause that provided for forfeiture of a legacy if a beneficiary contested the will was not void under O.C.G.A. § 53-4-68(b) as a disposition of the property was provided for if the condition was violated; because an action seeking removal of the executor did not challenge the validity of the will, appellant beneficiary would not violate the in terrorem clause. Sinclair v. Sinclair, 284 Ga. 500, 670 S.E.2d 59 (2008).

Applicability. - Decedent’s bequest to decedent’s widow was not subject to any condition but was an outright gift, and therefore O.C.G.A. § 53-4-68(a), which voided conditions that were against public policy, did not apply to divest the bequest to the widow, although the widow was found to have committed undue influence in the decedent’s pre-decease conveyance of property to herself and her son. Pate v. Wilson, 286 Ga. 133, 686 S.E.2d 88 (2009).

RESEARCH REFERENCES ALR. - Effect of testamentary gift to child conditioned upon specified arrange-

ments for parental control, 11 A.L.R.4th 940.

Notes of Decisions
Cited in 8 cases (2 in the last 5 years), 2005–2022 · leading case: Cox v. Fowler, 614 S.E.2d 59 (Ga. 2005).
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Cox v. Fowler, 614 S.E.2d 59 (Ga. 2005). · cites it 52× “Therefore, as noted in the comment to OCGA § 53-4-68, the legal effect of that code section is to broaden the scope of the previous law by allowing a condition in terrorem to take effect not merely in the event there is a limitation over to some other named person (as provided…”
Jenifer Duncan v. Olga Rawls, 812 S.E.2d 647 (Ga. Ct. App. 2018). · cites it 26× “See OCGA § OCGA § 53-4-68 (b). 7 Accordingly, the trial court correctly found that the clause at issue passed the test found in OCGA § 53-12-22 (b).”
Slosberg v. Giller, 876 S.E.2d 228 (Ga. 2022). · cites it 28× “The Court of Appeals then pointed out that the statute addressing in terrorem clauses in wills expressly contains a public- policy exception, see OCGA § 53-4-68 (a) (“Conditions in a will that are impossible, illegal, or against public policy shall be void.”
Sinclair v. Sinclair, 670 S.E.2d 59 (Ga. 2008). · cites it 4× “” OCGA § 53-4-68 (b). The trial court correctly held that the in terrorem clause in Testatrix’s will “specifically devises the forfeited share pursuant to the holdings of Cox v.”
Pate v. Wilson, 686 S.E.2d 88 (Ga. 2009). · cites it 8× “Neither OCGA § 53-4-68 nor the public policy underlying Sauls v.”
Caswell v. Caswell, 675 S.E.2d 19 (Ga. 2009). · cites it 2× “1 See OCGA § 53-4-68 (b). 2 The defendants in that action are the appellees to this appeal.”
Cynthia S. Barry v. Thomas A. Barry, III (Ga. Ct. App. 2020). · cites it 6× “On appeal, Cynthia argues the trial court erred, and continues to insist that she seeks nothing more than “an accounting of the [Trust].”
Suzanne Giller v. Robert Slosberg (Ga. Ct. App. 2021). · cites it 4× “A review of OCGA § 53-12-22, which addresses in terrorem clauses in trusts, and OCGA § 53-4-68, which addresses in terrorem clauses in wills, indicates that Duncan, supra, was correctly decided.”
— 53-4-68(a) — 1 case
Pate v. Wilson, 686 S.E.2d 88 (Ga. 2009). “Neither OCGA § 53-4-68 nor the public policy underlying Sauls v.”
— 53-4-68(b) — 1 case
Cox v. Fowler, 614 S.E.2d 59 (Ga. 2005). “Therefore, as noted in the comment to OCGA § 53-4-68, the legal effect of that code section is to broaden the scope of the previous law by allowing a condition in terrorem to take effect not merely in the event there is a limitation over to some other named person (as provided…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.