Georgia Wills: What’s Required

Georgia law defines a Will as “the legal declaration of an individual’s testamentary intention regarding that individual’s property or other matters. Will includes the will and all codicils to the will.” O.C.G.A. § 53-1-2(17). A Codicil is “an amendment to or republication of a will.” O.C.G.A. § 53-1-2(4).

No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is a will. O.C.G.A. § 53-4-3. This principle is illustrated in Swain v. Lee, 287 Ga. 825 (2010). There, a judgment on the pleadings was reversed, allowing a jury to decide whether two separate documents, neither of which were a Will, could be read together as a Will. A 1999 letter that was not witnessed (and apparently not signed) left everything to Swain. A 2005 commercially available Will form was signed and witnessed, but did not have any dispositive provisions, but named Swain as executor. Swain argued the two documents must be read together. The Court found that a jury could decide.

There must be testamentary intent. If the document conveys a present interest, it is not a Will. See Carter v. Walden, 71 S.E. 1047 (Ga. 1911); Smith v. Thomas, 199 Ga. 396 (1945).

A Georgia Will must be in writing. It must be signed by the testator “or by some other individual in the testator’s presence and at the testator’s express direction.” A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator’s will. O.C.G.A. § 53-4-20(a). This means holographic (handwritten Wills) are not valid in Georgia unless they are executed with the same formality required under O.C.G.A. § 53-4-20. Oral Wills are not valid in Georgia.

A Georgia Will must be witnessed and subscribed (signed) by two or more competent witnesses. O.C.G.A. § 53-4-20(b).

A Georgia Codicil must be executed with the same formality as a Will. O.C.G.A. § 53-4-20(c).

A signature or subscription includes the mark of an illiterate person or infirm person. O.C.G.A. § 1-3-3(19).

A Will-maker has capacity to make a Will when he or she has a decided and rational desire as to the disposition of property. O.C.G.A. § 53-4-11(a). Demential alone does not cause a Will-maker to lose capacity to make a Will.