The Lawletter Vol 35 No 12, August 26, 2011
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.
The court emphasized the point that a will with which the law is concerned is
"to be found in the mind and intention of the testatrix. The writing is but the evidence of that intention. It is to the oneness, sufficiency and completeness of the testamentary intent and scheme as expressed and evidenced by the writing, that the law looks. It is not the writing that makes the will legal and binding, but the testamentary intent crystallized and expressed in the writing. . . . [While i]t is best for convenience, of course, and controversy is less liable to arise, if the document is neatly, properly and securely fastened together before the testator and the witnesses sign it[,] it is by no means essential, and to require it would be to upset a very large percentage of wills now held to be of force in this state."
Id. (quoting Jones v. Habersham, 23 Ga. 146, 156‑57 (1879)).
The court found that Swain's petition to probate was potentially sufficient because it asserted that Collins had presented the 1999 letter and the 2005 will form "as one, integrated will for the attesting witnesses to sign." Id. Therefore, in the court's view, the documents could be read together to show the decedent's intent to bequeath all of her property to Swain and to appoint Swain as the executrix of her estate. Therefore, the court concluded, "an issue of fact has been created as to the potential validity of the will, and a judgment on the pleadings was inappropriate." Id.
The recognition of integrated documents as comprising a valid will is clearly part of the overall policy to give effect to the clearly expressed testamentary intent of a decedent, even if the form of the writing offered for probate is not ideal.