Revocation, Revival, and Republication
Under the New Title 53
Probate Court of Bibb County
In the last two issues of The Docket, I have presented an overview of the major changes under the newly re-written and revised Titled 53 of the Georgia Code and on the determination of which law (Old Code - New Code) will apply. Much of what I have written before is of primary interest and concern only to those who regularly practice probate and estate planning law, though most practitioners should have at least a basic familiarity with probate and estate law, which often impacts other areas of practice. In this issue, I want to emphasize certain provisions of new Title 53 concerning revocation, revival and republication, since there are important changes in these matters with which all practitioners who regularly advise clients on the probate and estate implications resulting from other legal proceedings should become familiar.
Most of you will be familiar with and will recall that, under the old law, a marriage, divorce, or the birth or adoption of a child subsequent to the date of a published will not made in contemplation of such events would revoke the will by operation of law.
Under the new law, §53-4-48 provides that "(e)xcept as otherwise provided in Code Section 53-4-49", marriage or the birth or adoption of a child or children subsequent to the making of a will not in contemplation of such event shall result in revocation of the will. This carries forward, as to marriage or birth or adoption of children, the earlier statutory scheme. However, the Section goes further to clarify two things: (1) a posthumous child, born within ten months of the testator's death, is a child for purposes of the revocation provisions; and (2) a provision for a class of children of the testator shall be presumed made in contemplation of the birth or adoption of additional members of the class, unless a contrary intent is shown, and the mere identification in the will of children already born or adopted shall not defeat the presumption.
The Comment to the Section explains that a gift by the testator "to my sons" will include an additional son later born but will not include a daughter (not a member of the class) later born. Obviously, a gift "to my children" will be presumed to include later born or adopted children of either sex, unless the will shows a contrary intent. The Section also is in accord with the new definition in Section 53-2-1 that "(c)hildren of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth." Therefore, if a decedent's wife is pregnant at the time of his death, the birth of that then-expected child (if within ten months) will result in revocation of a will not made in contemplation of the birth or adoption of additional children.
The more significant change under the new law, and one with which most practitioners should become familiar, is set forth in Section 53-4-49, which provides new rules with reference to divorce, annulment and remarriage. Under this Section, the divorce or annulment of the marriage of the decedent does NOT revoke a will not made in contemplation. Instead, all provisions of the will shall take effect as though the spouse had predeceased the testator without lineal descendants who are not also descendants of the testator. Further, if the same parties remarry and the testator has not revoked or amended the will made prior to the divorce or annulment, the will remains effective, and the provisions for the spouse are revived. Note, of course, that a will may be made incontemplation of divorce or annulment, presumably specifically stated, in which event the provisions will be carried out as stated in the will.
For example, assume a husband and wife divorce after he has made a will not in contemplation of the divorce in which he makes the "usual" provisions giving everything to his wife if she survives and, if she does not survive, to his children. Under the new law, the will is not revoked by the divorce, but the wife is considered to have predeceased the testator, and his children will inherit the estate. The Section makes it clear that the provisions of the anti-lapse statute (Section 53-4-64) shall not apply with respect to descendants of the wife who are not also descendants of the husband, so that any children of the wife who are not also children of the husband (such as by a prior marriage) do not succeed to her right of inheritance. Further, if the testator and that former wife remarry, and his will has not otherwise been revoked, the will is not revoked by that remarriage, and the bequest to the wife is re-instated. Of course, if the husband had also revoked the prior will or had made another will, these provisions would not apply. And, if, after the divorce, the husband marries another but later divorces her and remarries his former wife, the prior will would be revoked by the intervening marriage, and these provisions will not revive the prior will without republication.
Caution should be exercised in advising clients with regard to the issue of divorce. If a testator was divorced prior to January 1, 1998 (the effective date of the new law), a will then existing and not in contemplation of the divorce was revoked by operation of law simultaneously with the granting of the divorce. Section 53-4-49 of the new law makes no specific provision reviving wills revoked by the earlier law, and I find no implication of revival in the new Code. In fact, §53-1-1 (setting the effective date of the new law as January 1, 1998 but providing, however, "that no vested rights of title, year's support, succession or inheritance shall be impaired") would seem to indicate otherwise, since the revocation of the will by operation of law gave rise immediately to certain rights of inheritance. And, since the earlier will stood revoked by operation of law, the provisions of Section 53-4-64 should not be relied upon to revive a pre-divorce will by the remarriage of the prior spouses after January 1, 1998.
I do see at least one possible issue within these subjects which will require clarification. Query: Would the posthumous birth of a child, born within the ten month period but which dies 48 hours after birth, cause the revocation by operation of law of a will of the now-deceased testator not made in contemplation of the future birth or adoption of children? Section 53-4-48, which specifically includes "a posthumous child born within ten months of the testator's death," contains no language concerning the length of the life of the child. Section 53-2-1, which determines the right of inheritance of posthumous children by satisfaction of three requirements (conception during the life of the decedent, birth within ten months of death of the decedent, AND survival by the child for at least 120 hours after birth), begins with the phrase, "(f) purposes of this Code section:" (emphasis added). Therefore, it seems arguable, as the statute is now written, that such a birth will revoke the will even though the child dies before attaining the status of a child with vested rights of inheritance. I shall bring this matter to the attention of the legislative committee of the Georgia Council of Probate Judges, which is already submitting proposed corrections and clarifications to the 1997 Session of the legislature.
On a closing note, please let me remind all of you that all procedural aspects of the new law apply to any case filed after January 1, 1998. More specifically, all proceedings now filed must be filed using the current versions of any Georgia Probate Court Standard Forms.
As always, I extend my genuine thanks and my appreciation to the members of the Macon Bar Association.