CopyCited 19 times | Published | Supreme Court of Georgia | Oct 27, 2008 | 284 Ga. 500, 2008 Fulton County D. Rep. 3349
...be dismissed. 2. "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 *61 event the direction in the will shall be carried out." OCGA §
53-4-68(b)....
..."Because in terrorem clauses result in forfeitures, they must be strictly construed. [Cits.]" Preuss v. Stokes-Preuss,
275 Ga. 437, 438,
569 S.E.2d 857 (2002). Moreover, conditions in terrorem "that are impossible, illegal, or against public policy shall be void." OCGA §
53-4-68(a)....
CopyCited 18 times | Published | Supreme Court of Georgia | Jun 6, 2005 | 279 Ga. 501, 2005 Fulton County D. Rep. 1766
...Hester,
217 Ga. 59, 61-62,
121 S.E.2d 111 (1961). Under current law, however, the clause is not deemed void unless the testator failed to provide "a direction in the will as to the disposition of the property if the condition in terrorem is violated...." OCGA §
53-4-68(b)....
...In matters of statutory construction, "we look diligently for the General Assembly's intention, bearing in mind relevant old laws, evils sought to be addressed and remedies interposed. [Cit.]" TermNet Merchant Services v. Phillips,
277 Ga. 342, 344(1),
588 S.E.2d 745 (2003). 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 in the former...
...Turner's will made provision for either an individual or the residuary estate to take the property which was forfeited by a beneficiary who, contrary to his testamentary intent, contested the instrument. If he did, then the law mandates that his "direction in the will shall be carried out." OCGA §
53-4-68(b)....
...Fowler contested his will, the forfeited share would pass to her through the residuary clause. If, on the other hand, Ms. Fowler was the contesting beneficiary, then his direction was that her forfeited share pass to the non-contesting beneficiaries of the residuary estate. Thus, in compliance with the requirements of OCGA §
53-4-68(b), Mr....
...Turner's obvious intent in the event that Ms. Fowler contested the will was that she forfeit and that her share pass to the residuary estate for distribution to the non-contesting beneficiaries. That is a "direction" which fully complies with the requirements of OCGA §
53-4-68(b)....
...Thus, giving effect to the in terrorem clause does not result in the anomalous circumstance whereby Ms. Fowler recovers under the residuary clause such property as she otherwise forfeited by contesting the instrument. Under a proper construction of OCGA §
53-4-68(b), the in terrorem clause in Mr....
...Fowler, pass through the residuary clause and that any contesting beneficiary, including Ms. Fowler, lose the right to take under that clause. Because the clause provides for an alternative disposition of forfeited property in the event of a challenge, Mr. Turner's "direction in the will shall be carried out." OCGA §
53-4-68(b)....
...All the Justices concur, except FLETCHER, C. J., and BENHAM, J., who dissent. FLETCHER, Chief Justice, dissenting. The in terrorem clause in Turner's will does not give direction as to the disposition of property if Fowler violates the clause, and *62 is therefore void under OCGA §
53-4-68(b)....
...ing, but if she is not then living, then to her then living descendants, per stirpes, provided that JANICE ELOISE FOWLER and her descendants are not contesting beneficiaries. (Emphasis supplied.) To sustain an in terrorem clause against attack, OCGA §
53-4-68(b) requires "a direction in the will as to the disposition of the property if the condition in terrorem is violated." As this Court recently stated, "[b]ecause in terrorem clauses result in forfeitures, they must be strictly construed." [1] There is direction that satisfies OCGA §
53-4-68(b) if Cox is the contesting beneficiary....
...It states: "The reason that I have given a greater share of my estate to JANICE ELOISE FOWLER than to FRANCIE EVELYN COX is that I have a close relationship with JANICE ELOISE FOWLER, but FRANCIE EVELYN COX and I have been estranged since my divorce from her mother." *63 The majority opinion holds that OCGA §
53-4-68(b), which requires only a "direction" as to the disposition of property, broadens former OCGA § 53-2-107 (and before it OCGA § 113-280), which required "a limitation over to some other person." Pretermitting that the new statute is broader, [4] it still requires a specific direction for the distribution of forfeited property. The more expansive language of OCGA §
53-4-68(b) is better read to clarify, for example, that the term "person" in former OCGA § 53-2-107 included more than natural persons....
...f, for example, the will provided a gift over to charity." [5] For these reasons, the majority is incorrect that an alternative bequest to the residuary, when the residuary is then directed back to the forfeiting party, is sufficient to satisfy OCGA §
53-4-68(b), and therefore the in terrorem clause in Turner's will is void....
CopyCited 3 times | Published | Supreme Court of Georgia | Oct 5, 2009 | 286 Ga. 133, 2009 Fulton County D. Rep. 3541
...Rather, Pate's share under the Will must suffer the same diminution in value as all other shares after the estate is reduced by the payment of fees as a cost of administration. See OCGA §
53-7-6(4) (power of personal representative to provide counsel for estate). Neither OCGA §
53-4-68 nor the public policy underlying Sauls v. Estate of Avant,
143 Ga.App. 469,
238 S.E.2d 564 (1977) alters this result. OCGA §
53-4-68(a) provides: "Conditions in a will that are impossible, illegal, or against public policy shall be void." Decedent's bequest to Pate is not subject to any condition at all....
