Summary of Carter v. First United Methodist Church of Albany, 246 Ga. 352 (1980)

Facts: The deceased, Ms. Tipton, left an instrument, dated 1963, that was typed and signed, purporting to be her will.  That will was found among her personal property after her death in 1979, folded together with a handwritten instrument dated 1978.  The subsequent instrument was captioned as a will, but was unsigned and w/o witnesses, with different property disposition.  There were pencil lines drawn diagonally through the property disposition provisions of the 1963 will and the name of the executor.

Issue: Whether the canceled provisions of the 1963 instrument were material portions of the will and if so, evidence was sufficient to presume the testatrix did not intend for her 1963 will to be revoked unless her new dispositions became effective in law?

Holding:

Procedure: The Caveator, Carter appeals from trail ct judgment in favor of Propounder 1^st United and admitted the will to probate.  Affirmed.

Rule: By statute, where a will has been canceled or obliterated in a material part, a presumption of revocation arises.  Where the paper is found among the testator’s effects a presumption is that the testator made the cancellations or obliteration.

Rationale: The parties stipulated to the fact that the two writings were found after her death among her personal effects.  Evidence was offered below by her attorney indicating that she had attempted to change or make a new will.

DRR– The mere fact that the testatrix intended to make a new will, or made one which failed of effect, will not alone prevent a cancellation/obliteration from operating as a revocation.  If it is clear that the cancellation and the making of the new will were parts of the same scheme, AND the revocation of the old will was sos related to the making of the new will as to be dependent on it, then IF the new will was not made or if made invalid, THE OLD WILL, though canceled, should be given effect.

Once evidence is sufficient to find that the testator intended to make or did make a new will, which was inoperative, that may shed light on his intention to revoke the old one, but it can never revive a will once completely revoked.  The reason that the intention of the testator in making the marks on the will and writing a new will is material b/c joint operation and intention are necessary to revoke a will.  Here the evidence was sufficient to rebut the presumption of revocation: the acts of cancellation and making a new will were one scheme, and the act of revocation of the old will was related to the making of the new so that it was dependent on it.