How Do You Revoke a Will In Georgia?

A testator can revoke a will under Georgia law at any time prior to the testator’s death.  GA Code § 53-4-40.  A testator can revoke a Georgia will in the following ways:

  1. Executing a subsequent will;
  2. Executing a subsequent written instrument;
  3. Destruction or obliteration.

 

The rules governing revocation of a will under Georgia law are found in Article 5 of the Georgia Code.

Revocation Of a Georgia Will Can Be Express Or Implied

Georgia law recognizes both express and implied revocation of a will.  GA Code § 53-4-42.

An express revocation of a will occurs when the testator by writing or action expressly annuls a will.  An express revocation takes effect instantly.

An implied revocation results from the execution of a later will that is inconsistent with the prior will and does not by its terms expressly revoke the prior will.  An implied revocation becomes effective only when the later will becomes effective.  If the later will fails to become effective for any reason, the implied revocation of the prior will is not completed.

Revoke a Georgia Will By a Later Will Or Writing

The most common way to revoke a will under Georgia law is by execution a subsequent will.  GA Code § 53-4-43.  The later will must comply with all of the formalities required to execute a valid will under Georgia law.

Most wills contain language expressly revoking all prior wills.  If not, then the execution of a later will is considered an implied revocation, that will only be completed when the later will is deemed effective.

A testator can also revoke a will by a subsequent writing – a document that is not a will – which expressly states that it revokes the prior will.  A written instrument revoking a prior will must be executed, subscribed, and attested with the same formalities as required for a valid will in Georgia.  Therefore, it must be signed by the testator and attested and subscribed by two competent witnesses in the presence of the testator.  GA Code § 53-4-43.

Revoke a Georgia Will By Destruction or Obliteration

A testator can also revoke a will under Georgia law by any destruction or obliteration of the will done by the testator with the intent to revoke or by another at the testator’s direction.  The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.  GA Code § 53-4-44.

Destruction or obliteration of a will is often done by shredding, burning, tearing, or writing “cancelled” over every page of the will.

A Georgia Testator Must Have an Intent To Revoke The Will

In all cases of revocation of a will, Georgia law requires that the testator have the intent to revoke the will.  GA Code § 53-4-41.

A presumption of intent to revoke arises if the original of a testator’s will cannot be found.  GA Code § 53-4-46.

Can a Will That Has Been Revoked Be Revived Under Georgia Law?

Yes, there are several circumstances where a will that has been revoked, either by another will or written instrument, or by destruction, can be revived under Georgia law.  GA Code § 53-4-45.

If a will or written instrument that expressly revoked a previous will in its entirety is revoked by a later will or written instrument, the previous will is revived if it appears from the terms of the later will or other written instrument that the testator intended for the previous will to take effect.  If not, the prior will remains revoked.

If a will or written instrument that expressly revoked a previous will in its entirety is revoked by an act (destruction or obliteration) the previous will is revived if it appears from the circumstances of the revocation of the will or other written instrument or from the testator’s contemporaneous or subsequent declarations that the testator intended the previous will to take effect.  If not, the prior will remains revoked.

The intent to revive the prior will must exist in order for the prior will to take effect.  For all of the circumstances where a will that has been revoked can be revived under Georgia law, see GA Code § 53-4-45.

If you want to revoke your will under Georgia law, the best way to make sure that the revocation is done correctly is to consult with a Georgia probate lawyer.

General Probate Issues