2. Execution of Ordinary Wills

Question 1

What is a Will?

Answer 1

A will is a document effective upon the testator’s death and requires no specific form.

Question 2

Does a will have to dispose of a person’s property?

Answer 2

A will is valid even if it does not dispose of property.

Question 3

What does a will include in terms of codicil and testamentary instruments?

Answer 3

A will may also include any codicil and testamentary instrument that:
1. appoints an executor
2. nominates a guardian
3. revokes or revises another will
4. limits inheritance rights

Question 4

What are the three types of wills in general?

Answer 4

There are three types of wills:
1. An attested or formal will with witnesses
2. A holographic will which is handwritten and signed by the testator but not witnessed
3. An oral will

Question 5

Are holographic wills recognized in Georgia?

Answer 5

No. Holographic wills are not recognized in Georgia.

Question 6

Can a handwritten will signed by the testator and properly witnessed be valid?

Answer 6

Yes. There is no requirement that a will be typed in Georgia.

Question 7

Are oral wills recognized in Georgia?

Answer 7

No. Oral wills are not recognized in Georgia.

Question 8

What are the five requirements to make a valid will?

Answer 8

A valid will must have:
1. Testamentary intent
2. Testamentary capacity (age and mental)
3. Written form
4. Signed by the testator or a proxy in the testator’s presence and direction in the presence of two competent witnesses.
5. Signed by two competent witnesses in the presence of the testator.

Question 9

What is the age requirement to make a will in Georgia?

Answer 9

In Georgia, a testator may make a will at or after the age of 14.

Question 10

Does a conviction of a crime deprive a person of testamentary capacity?

Answer 10

No. A conviction of a crime does not deprive a person of testamentary capacity.

Question 11

What are the two components required for a testator’s mental state?

Answer 11

The testator’s required mental state involves:
1. Testamentary intent
2. Testamentary capacity

Question 12

What is testamentary intent?

Answer 12

The testator must intend the document to act as a will.

Question 13

When is there no testamentary intent?

Answer 13

It is ineffective if the testator intended the writing to be only a joke, or to accomplish another purpose.

Question 14

How do you determine whether an instrument is a will?

Answer 14

The test is the intention of the maker as gathered from the whole document and surrounding circumstances.

Question 15

What if the intention is to convey a present interest?

Answer 15

A document intending to convey a present interest is not a will; it must convey an interest effective only at the testator’s death.

Question 16

What are the four elements required for testamentary capacity?

Answer 16

At execution, a testator must be of sound mind and simultaneously understand:
1. The document is a will
2. It distributes property after death
3. The nature and extent of the property
4. The names of and his relationship to the natural objects of his bounty

Question 17

Does the testator need to understand all the technical provisions of a will?

Answer 17

No. The testator need not understand all its technical provisions, but must generally know and approve the contents.

Question 18

Is knowledge of the contents of a will by the testator necessary to the validity of the will?

Answer 18

In Georgia, a testator must know a will’s contents for it to be valid.

The testator’s signature or acknowledgment presumes this knowledge if they can read.

Question 19

Does the testator need to know exactly how much property is involved?

Answer 19

The testator must generally know the amount and type of property, but not the exact details.

Question 20

Does eccentricity or unusual behavior render the testator mentally incapable of making a will?

Answer 20

No. Eccentricity or unusual behavior does not make a testator mentally incapable of making a will.

Question 21

Can an insane individual make a will?

Answer 21

Yes. An insane individual may make a will during a lucid interval(exhibits sufficient mental clarity to understand the nature and consequences of their actions.)

Question 22

What is monomania?

Answer 22

‘Monomania’ is a mental condition where a person is generally sane but insane about a specific subject.

Question 23

What is required to prove monomania?

Answer 23

A showing of hallucinations or insane delusions is essential to proving monomania.

Question 24

What is an insane delusion?

Answer 24

An insane delusion is an irrational belief that has no grounding in reality or fact.

Question 25

Does a person suffering from an insane delusion lack soundness of mind?

Answer 25

A person with an insane delusion may still have the mental capacity to make a gift or will.

Question 26

Is a gift or will invalid if it was the product of an insane delusion?

Answer 26

Yes. A particular gift or will is invalid if it was the product of the insane delusion.

Question 27

Does mere eccentricity constitute an insane delusion?

Answer 27

No. Mere eccentricity does not constitute an insane delusion.

Question 28

When is a will valid despite insanity or monomania?

Answer 28

A will is valid if it reflects the testator’s wishes, unbiased by insanity or monomania.

Question 29

How can a monomaniac make a will?

Answer 29

A monomaniac may make a will if the will is not connected with the monomania.

Question 30

Who is the presumption of law in favor for in making a will?

Answer 30

The law assumes a person has the capacity to make a will.

Question 31

Proof of Capacity

Unless the will is self-proved, one who propounds a will must establish a prime facie showing of testamentary capacity by:

Answer 31

offering testimony of the subscribing witnesses that the testator appeared to be of sound mind and that he acted freely and voluntarily when he executed his will.

The burden then shifts to the challenger(the caveator) to prove there’s a significant question regarding the testator’s capacity.

Question 32

Who are the three persons competent to give their opinion of the testator’s sanity?

Answer 32

The three persons are:
1. Witnesses to the will
2. The testator’s family physician
3. Experts in mental diseases

Question 33

Can others testify to give their opinion of the testator’s sanity?

Answer 33

Yes. Others may testify about the testator’s appearance, behavior, or statements to infer sanity or insanity.

Question 34

Section C: Execution Requirements;
Signed Writing and Attestation;
Testator’s Signature;

Is there a requirement that the signature be the testator’s name?

Answer 34

No. The testator’s signature can be any mark or name indicating intent to authenticate the will.

Question 35

Is there a requirement that the testator’s signature be in a specific place in the will?

Answer 35

No. The testator’s signature can be anywhere on the will, as long as it is in their handwriting.

Question 36

Is there a requirement that the testator’s signature be on the last page of the will?

Answer 36

No. The testator’s signature does not have to be at the end; it can appear in the beginning.

Question 37

Is there a requirement that the testator sign on all sheets of the will?

Answer 37

The testator need not sign each page if all pages form a single, connected document.

Question 38

Is there a requirement for a testator’s signature and a witnesses’ signature to appear on the same pages?

Answer 38

If all signature pages are physically connected, the will is valid even if signatures are on different pages.

Question 39

Are assisted signatures permitted?

Answer 39

Assisted signatures are valid if the testator intended to sign.

Question 40

How is presence determined for witnesses?

Answer 40

Presence means being in the same room or within view of the testator, not in another room.

Question 41

Is it necessary the subscribing witnesses sign in the presence of each other?

Answer 41

Witnesses do not need to sign together, only in the testator’s presence.

Question 42

Can another individual subscribe the name of a witness?

Answer 42

No. Another individual may not subscribe the name of a witness, even in the presence of or the direction of that witness.

Question 43

Does a witness need to be competent at the time of the will’s attestation?

Answer 43

Yes. A witness must be competent at the time of the will’s attestation.

Question 44

Does subsequent incompetency preclude the probate of the will?

Answer 44

No. Subsequent incompetency does not preclude the probate of the will.

Question 45

What is an Interested Witness?

Answer 45

An interested witness is a witness to a will who receives a beneficial disposition under the will.

Question 46

What is the General Rule for an Interested witness to a will?

Answer 46

A beneficial devise or legacy to a subscribing witness is void as to that witness and persons claiming under the witness.

Question 47

When is the exception of when a testamentary gift to an interested witness not void?

Answer 47

In Georgia, a gift to an interested witness is not void if there are two other witnesses who are benefited under the will.

In such cases, the signature of the interested witness is not necessary to the execution of the will; therefore, the interested witness is not a required witness.

Question 48

Does the signature of an interested witness destroy the validity of a will?

Answer 48

An interested witness’s signature does not invalidate the will, but their gift in the will is void.

Question 49

Can a testator’s spouse be an interested witness to a will?

Answer 49

A person can witness a will naming their spouse as a beneficiary, but their relationship affects their credibility.

Question 50

Can a creditor of the testator be an interested witness to a will?

Answer 50

Yes. A creditor of the testator is a competent witness and not disqualified by a charge against the estate.

Question 51

Can an executor of a will be an interested witness to a will?

Answer 51

Yes. An executor of a will is not deemed to be an interested witness.

Question 52

Probate of Will;

What is an attestation clause?

Answer 52

A proper attestation clause presumes a will was legally executed, but this can be rebutted by clear proof.

Question 53

What is a Self-Proved Will?

Answer 53

At the time of its execution, or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil can be made ‘self-proved’ by affidavits from the testator and witnesses before a notary public.

Question 54

Key benefit of self-proved will/codicil:

Answer 54

It may be admitted to probate without the testimony of the subscribing witnesses.

Question 55

Section E: Revocation

Can a testator revoke a will prior to their death?

Answer 55

Yes. A testator can revoke or change a will at any time before their death.

Question 56

Revocation by Instrument;

What is the requirement for a testator to revoke by instrument?

An instrument that revokes a will MUST BE…..

Answer 56

An instrument that revokes a will must be executed, subscribed, and attested with the same formalities as any other will or codicil.

Question 57

What are the two ways that a will can be revoked?

Answer 57

A subsequent instrument may revoke a former will by:
* Expressly stating the revocation
* Impliedly through conflicting provisions

Question 58

What is an express revocation?

Answer 58

An express revocation occurs when the testator explicitly annuls a will, effective immediately.

Question 59

What is an implied revocation?

Answer 59

implied revocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will (e.g., Will #1 all to Moe and Will #2 all to Larry).

Question 60

When do implied revocations occur?

Answer 60

An implied revocation occurs only with respect to those portions of the former will that are inconsistent with the provisions in the new will or codicil.

Question 61

When do implied revocations take effect?

Answer 61

An implied revocation is only effective if the subsequent inconsistent will takes effect.

If the new will fails, the prior will remains valid.

Question 62

Revocation Due to Changed Circumstances;

Can a will be fully or partially revoked by subsequent occurrence of certain events?

Answer 62

A will can be revoked fully or partially by the testator’s subsequent marriage or the birth/adoption of children unless the will was made with these events in mind.

Question 63

Marriage;

Can a subsequent spouse that was not included in the decedent’s will prior to the marriage receive a share in the will?

Answer 63

If a will made before a testor’s marriage doesn’t contain a provision that it should be revoked upon a subsequent marriage, the subsequent spouse gets an intestate share.

Question 64

After-Born Children;

Can a child born or adopted after the execution of a parent’s will claim their intestate share?

Answer 64

In Georgia, a child born or adopted after a parent’s will can claim an intestate share.

A will provision for a class of the testator’s children presumes inclusion of future children unless stated otherwise.

Question 65

Divorce;

What happens to the provisions in the will benefiting a former spouse upon divorce?

Answer 65

After a testator’s divorce or annulment, will provisions for the former spouse are treated as if the spouse predeceased the testator, causing the gift to the former spouse to lapse.

Question 66

Does the Georgia Anti-Lapse statute extend to stepchildren?

Answer 66

No. Georgia’s anti-lapse statute doesn’t allow a former spouse’s descendants, like stepchildren, to inherit in place of their parent.

However, if the former spouse and decedent have children in common, those children are substituted under the anti-lapse statute.

Question 67

Remarry Former Spouse;

If the testator remarries a former spouse without changing the pre-divorce will, what happens?

Answer 67

Its revoked provisions are revived, making the will effective again.

Question 68

Revocation by Physical Act;

How is a revocation affected by a physical act?

Answer 68

A revocation may be effected by any destruction or obliteration of the will done by:

1. the testator with intent to revoke
2. by another at the testator’s direction.

Question 69

Is a cancellation effective as a revocation by physical act?

Answer 69

Yes, a cancellation is effective as a revocation by physical act.

Thus, an “X” drawn across the face of the will is an effective revocation, even if it does not obliterate the writing.

Question 70

Intent;

What is the intent required to revoke a will?

Answer 70

The testator must have the same testamentary capacity that is needed to validly execute the will.

Question 71

What if the testator is intoxicated when they made a revocation?

Answer 71

If too intoxicated to recognize the document as a will, mutilation does not count as revocation.

Question 72

Who bears the Burden of proof for proving obliteration and How?

Answer 72

The caveator bears the burden of proving that an obliteration has occurred and that it is material.

Question 73

What is the presumption of when an altered will is found among the testator’s effects?

Answer 73

there is a presumption that he made the cancellations or obliterations.

Question 74

Revocation intent may be presumed from ______

Answer 74

obliterating or canceling a will’s material portion.

Question 75

Does Georgia recognize partial revocations?

Answer 75

No. Georgia does not recognize partial revocation by crossing out or drawing lines through particular clauses in the will. This is legally ineffective.

To validly amend a will, you should either:

1. Create a Codicil: This is a formal amendment to your will that must be executed with the same legal formalities as the original will, including being signed and witnessed.
2. Draft a New Will: This approach can help avoid potential confusion and ensure that your intentions are clearly documented.

Question 76

True or False: Alterations that are simply inked in after execution do not take effect.

Answer 76

Yes.

Question 77

Only the ________________________ creates a presumption of intent to revoke the entire will.

Answer 77

destruction of a material portion of the will

Question 78

Lost Wills;

Are Lost Wills considered to be a presumption of intent to revoke?

Answer 78

Yes, but this presumption may be overcome by a preponderance of the evidence.

Question 79

What happens if the presumption of revocation is overcome of a Lost Will?

Answer 79

A copy of the will may be probated in place of the original will with proper testimony of the attesting witnesses.

Question 80

Section F: Amendments, Republication, and Revival;

Revocation and Revival of Entire Will;

What is the rule of Revocation of an Entire Will?

Answer 80

In Georgia, if a will that revoked a prior will is itself revoked by a later will, the prior will remains revoked unless explicitly revived.

Question 81

A previous will is revived only if ______________________

Answer 81

the later will or circumstances indicate the testator intended to revive it.

Question 82

What is the rule for revocating a part of a will?

Answer 82

If a new will that revokes or changes an earlier will, and then later revoke this new will, the original will’s revoked parts are reinstated only if it’s clear that the testator intended this. This intention can be shown in the latest will or through actions and circumstances.

Question 83

What is the rule for revocating a will by act?

Answer 83

If a testator revokes a will that had previously revoked or amended an earlier will by act, the original will’s revoked parts are reinstated unless it’s clear from the testator’s actions or statements that they didn’t intend for those parts to be revived.

Question 84

Republication;

How can the first will be revived through publication?

Answer 84

In Georgia, republication refers to the process of re-executing or reaffirming a previously revoked or invalid will, thereby making it effective again. This can be accomplished through:

Codicil: Creating a formal amendment to the original will, which must be executed with the same legal formalities as the original document.

Re-execution: Signing the original will again in the presence of witnesses, reaffirming its validity.

Question 85

How can a revoked will be republished?

Answer 85

A revoked will can be republished by a writing signed by the testator and two witnesses, like a new will.

Question 86

Codicil

What is a Codicil?

Answer 86

A codicil is an addition or amendment to a will and must be executed with the same formalities as a will.

Absent contrary language or inconsistency, a codicil modifies, rather than replaces, the will’s provisions.

Question 87

When does a codicil republish the will?

Answer 87

A validly executed codicil republishes the will as of the date of the codicil. Thus, the republished will is interpreted according to the law in effect at republication.

Question 88

When can a valid codicil validate an invalid will?

Answer 88

A valid codicil can validate an invalid will if it clearly identifies and incorporates it or is on the same paper