Last week, a court in France ruled that a text message sent shortly before a man’s death in 2016 altering his will was not enforceable. The court decided that a text message altering the terms of a legally executed will cannot be verified, and so is not considered a valid will. However, a court in Australia found the opposite to be true in 2017, in part because the deceased man used the words “my will” in the text message. These conflicting messages raise the question: what constitutes a valid will in Georgia?
A Valid Will in the State of Georgia
In Georgia, the requirements for a valid will are fairly strict. If a will does not meet all of the requirements for the valid creation and execution of a will laid out in Georgia statute, the document will be considered invalid. If a will is deemed invalid, the deceased person’s estate will become subject to the Georgia laws of intestacy, as if there had not been a will.
In Georgia, the person drafting a will is referred to as the “testator,” and he or she must meet all of the following requirements in order to execute a valid will:
1. Age. The testator must be at least 14 years old.
2. In Writing. For a will to be valid in Georgia, it must be in writing. The law does not require a specific format for a “written” document, however, an oral last request is not sufficient in Georgia. A “holographic” will is one that is handwritten. The State of Georgia does allow a handwritten will to be enforced, but only if it meets all other requirements for a valid will. A handwritten will is easier to challenge in probate court because it likely does not meet all of the requirements.
3. Signed by the Testator. The testator may sign using any mark, and if the person is physically unable to sign, it is permissible for someone to assist the testator in signing the will. However, the person signing on the testator’s behalf may not be one of the witnesses to the will, and they must sign in the presence of the testator and at the express direction of the testator.
4. Competent. A testator must be sufficiently competent (of sound mind and memory) at the time the will is executed. If someone has been deemed incompetent in an earlier court proceeding, this may preclude him or her from meeting this requirement, although that is not always the case. If the person has symptoms of Alzheimer’s or some other cognitive decline, this does not automatically preclude the person from being able to execute a valid will. In each of these cases, the probate court would look at each circumstance carefully to make a determination about competency.
5. Knowledge of Assets. A testator must know the nature and full extent of their assets for a will transferring those assets to be valid.
6. Voluntarily and of Their Free Will. There cannot be any evidence of duress or coercion when a will is being created or executed. A will made under pressure or coercion is not valid in Georgia.
7. Minimum of Two Witnesses. For a will to be valid in Georgia, it must be signed by a minimum of two witnesses. These witnesses must sign the will in the presence of the testator, and they must have seen the testator sign the will (or have seen the testator’s representative sign the will on his or her behalf). Under Georgia law, “in the presence” of the testator means within the line of sight. In other words, the witnesses must actually see the will being signed by the testator. Witnesses may not be beneficiaries of the will. If a beneficiary signs the will as a witness, he or she would have to forfeit their inheritance under the will for their act as a witness to be valid (therefore to make the will valid). However, there is one exception to this rule. A beneficiary may sign the will as a witness if the will is also signed by two other witnesses, who are not beneficiaries. Witnesses must be at least 14 years of age and competent. Another individual may not sign on the witness’s behalf, even in the presence and at the direction of the witness.
8. Self-Proving Affidavit Not Required, but Recommended. Testators may choose to attach a “self-proving affidavit” to the will that affirms that the will was properly executed. This affidavit should be signed by the testator, the witnesses, and a certified notary public in the state of Georgia. Without a self-proving affidavit, when the testator passes, one of the witnesses will need to be located, and he or she would need to sign “Interrogatories to Witness to Will,” in which the witnessattests to the validity of the will. The witness may also be required to appear in court to give testimony under oath that the will is valid. A self-proving affidavit avoids all this and can expedite the probate process.
Altering an Existing Will
Once a will has been drafted and executed in accordance to Georgia statute, it is possible to make changes and alter a will. However, these changes will need to be made in accordance with the above requirements. Simply making alterations on the face of the existing will — or sending a text message to that effect — will likely not hold up in a Georgia court.
Contact an Experienced Estate Planning and Probate Attorney
When determining the validity of a will, it is recommended to seek the advice of an experienced legal professional. At Brian M. Douglas & Associates, our estate planning and probate attorneys can provide assistance on this topic from every angle: from drafting a valid will from scratch, to updating and altering an existing will, to challenging the validity of a will in probate court. Give us a call at (770) 933-9009.