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    The Lawletter Blog

    Noel King

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    FAMILY LAW: Tax Savings as Marital Property

    Posted by Noel King on Thu, Aug 25, 2011 @ 10:08 AM

    The Lawletter Vol 35 No 12, August 26, 2011

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    Topics: legal research, family law, Brett turner, The Lawletter Vol 35 No 12, joint filing as tax savings, division of marital property

    WILLS: Integrated Documents as a Valid Will

    Posted by Noel King on Thu, Aug 25, 2011 @ 09:08 AM

    The Lawletter Vol 35 No 12, August 26, 2011

    Jim Witt—Senior Attorney, National Legal Research Group

    Although a will, whether witnessed or executed as a holographic will without the formality of witnesses, is characterized as a formal legal document, there is a good deal of flexibility as to the form and appearance of the instrument itself.  This point was brought home by the Supreme Court of Georgia in the case of Swain v. Lee, 700 S.E.2d 541 (Ga. 2010), in which Lydia Swain, the goddaughter of the decedent, Elouise Harley Collins, filed a petition to probate two documents as Collins's will.  The decedent's cousin and temporary administrator of the estate, Bobby Eugene Lee, contested the probate of the writings on the ground that as a matter of law, they did not create a valid will.  The probate court found that the writings lacked the requisites of a will or codicil under Georgia law and that the decedent had died intestate.  On the proponent's initial appeal, the superior court granted the contestant's motion for judgment on the pleadings.

    In reversing the judgment of the superior court, the Supreme Court of Georgia determined that the record supported the possibility that the writings offered as a will did constitute the decedent's valid will.  The first writing cited by the court was an unwitnessed letter dated June 10, 1999, in which the decedent, Collins, stated that the proponent, Swain, was to have "'everything that's in my name.'"  Id. at 542.  On April 12, 2005, Collins filled in a blank on a form "Last Will and Testament," naming Swain as the executrix of her estate.  Although Collins signed this form before three witnesses, the remaining pages on the will form were left blank, with no disposition of any property being referenced on the form.

    In her petition to probate, Swain stated:

    "Attached to the last Will and Testament of [Collins], dated April 12, 2005,  is a memorandum of instruction written by Collins dated June 10, 1999, which is to accompany and be an exhibit to the Last Will and Testament."

    Id. at 542-43 (court's emphasis).

    Swain also argued to the probate court that Collins had kept both the 1999 letter and the 2005 will form together in one envelope and that Collins had taken both of these documents from this envelope and presented them to the witnesses who signed the will form at that time.

    The court observed that although the unwitnessed 1999 letter written by Collins and the partially executed 2005 will form, by themselves, could not create valid wills, see Ga. Code Ann. §§ 53‑4‑20(b) (will must be attested and subscribed in presence of two witnesses), 53‑4‑3 (will must convey an interest accruing at death), and that although the 2005 document did not expressly refer to the 1999 letter so as to revive or republish the 1999 letter as a valid will, this did not end the court's inquiry.  The court quoted from Georgia Code section 53-4-3, "Test to determine whether instrument is 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."

    700 S.E.2d at 543 (court's emphasis).

    The court further stated:

    In this regard, a will need not "be written on one continuous sheet of paper, [nor need the separate papers that constitute a will] necessarily be tied and fastened together with tape and a waxen or other seal."  Jones v. Habersham, 63 Ga. 146, 157 (1879).  Indeed, "there is no known rule as to any precise manner in which [the will] papers shall be bound or attached together, or requiring a will to be written all on one sheet."  Id.

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    Topics: legal research, wills, The Lawletter Vol 35 No 12, Supreme Court of Georgia, integrated documents, testamentary intent, valid will, Jim Witt

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