Georgia Supreme Court Blog

February 4, 2010

Revision or Revocation? 5-2 Decision Validates Ink Changes to Will

Filed under: George Carley, Hugh Thompson, wills — bce30064 @ 2:00 am

In a 5-to-2 decision released February 1, 2009, the Georgia Supreme Court upheld a Gwinnett County court’s finding that the will left by Marion Peterson was legally valid, despite changes she made in pen.

Peterson, who died in 2008, wrote her will in 1976. As required by state law, two witnesses attested to the will’s legitimacy. In the document, Peterson left her estate in the form of a trust to her longtime companion, Vasta Lucas, whom she also named as executor or manager of the estate. Upon Lucas’s death, any remaining assets were to be distributed to four beneficiaries, including her brother and sister, Arvin Peterson and Carolyn Basner.

At some point after the will’s execution, Peterson struck through with an ink pen the names of all successor beneficiaries. She also struck through language naming Richard Harrell as successor executor and trustee once Lucas died. Instead, she wrote that Julie Peterson was to be the will’s executor. No one witnessed or attested to the strikethroughs.

After Peterson’s death, Lucas filed a petition in probate court asking the court to authorize the will as valid. But Peterson’s siblings filed a “caveat,” contesting the will as invalid and arguing that Peterson had revoked the will by virtue of the strikethroughs.

Georgia law states: “The intent to revoke [a will] shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.”

The trial court ruled against the siblings and admitted the will to probate. Lucas has since died, and the court appointed Harrell as executor and trustee of the estate.

In an opinion written by Justice Hugh Thompson (data), the high court affirmed the lower court’s ruling, finding no error in the conclusion that Peterson “did not intend to revoke her entire will.” The will was found in good condition on Peterson’s desk, with the proper signatures, and she had initialed her changes. “As found by the trial court, this evidence clearly indicates testator’s intent to cancel only certain provisions of the will, not an intent to revoke the will in it its entirety as required for revocation” under the law.

But in dissent, Presiding Justice Carley (data) wrote that “the cancellation of a material portion of the will raises the presumption, which has not been rebutted, that Testatrix intended to revoke the entire will. … Because there was an actual cancellation of the names of all successor beneficiaries, the next question presented is whether that cancellation is ‘material’ within the meaning of the statute.” Justice Carley concluded the cancellation was material “because it directly affected the distribution of all property in the estate.” The trial court’s ruling should be reversed, according to the dissent, which was joined by Chief Justice Carol Hunstein (data).

More Information:
Georgia Supreme Court Database: PETERSON V. HARRELL (S09A1857): Full Text and Visual Summary

Summary by the Georgia Supreme Court Public Information Office
Attorney for Appellant (Peterson): Tom Pye
Attorney for Appellee (Harrell): Michael Goode

Legal Resources:
Georgia Estate Planning and Probate Information: From the Center for Legal Solutions

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