Carter v. First United Methodist Church of Albany
246 Ga. 352, 271 S.E.2d 493 (1980)
Tipton executed a legally
valid will. 15 years later she wrote an unsigned, unwitnessed letter
establishing a different distribution of property, then died.
The letter and the original
will were found together after Tipton's death. The original will had
parts crossed out with a pencil.
There was testimony that she
had contacted her attorney with the intent of revising her will, and
perhaps the marks on the original will were proposed changes, not
intended to invalidate the will (at least not until the new one was
prepared).
Several of the potential heirs
contested the will to see which, if any, will was valid.
United Methodist argued that
the original will was still valid.
Carter argued that the
original will had been revoked
because it had been defaced.
The Trial Court found for
United Methodist. Carter appealed.
During the trial, both sides
argued that the burden of proof was on the other party.
The Georgia Supreme Court
affirmed.
Under Georgia State law,
when a will has been defaced or obliterated, there is a presumption that
the testator intended it to be revoked, and the burden falls on those who want the
will to stand why it should still be considered valid.
The Georgia Supreme Court
found that the act of revoking an
old will and writing a new one were parts of the same act. Therefore, if
Tipton intended to invalidate the old will by subsequent instrument, it
is not invalidated until the new will is executed.
"The cancellation and
the making of a new will were parts of one scheme, and the revocation of
the old will was so related to the making of the new as to be dependant
upon it."
This is called the doctrine
of conditional revocation, aka the doctrine
of dependent relative revocation.
The Court found that the
letter fails as a will, so if the old will is declared invalid, then
Tipton's property would have to pass through intestate succession. The Court believed that Tipton would
probably rather have her property pass through the old will than intestacy.
