Carter v. First United Methodist Church of Albany
246 Ga. 352, 271 S.E.2d 493 (1980)

  • Tipton executed a legally valid will. 15 years later she wrote an unsigned, unwitnessed letter establishing a different distribution of property, then died.
    • The letter and the original will were found together after Tipton’s death. The original will had parts crossed out with a pencil.
    • There was testimony that she had contacted her attorney with the intent of revising her will, and perhaps the marks on the original will were proposed changes, not intended to invalidate the will (at least not until the new one was prepared).
  • Several of the potential heirs contested the will to see which, if any, will was valid.
    • United Methodist argued that the original will was still valid.
    • Carter argued that the original will had been revoked because it had been defaced.
  • The Trial Court found for United Methodist. Carter appealed.
    • During the trial, both sides argued that the burden of proof was on the other party.
  • The Georgia Supreme Court affirmed.
    • Under Georgia State law, when a will has been defaced or obliterated, there is a presumption that the testator intended it to be revoked, and the burden falls on those who want the will to stand why it should still be considered valid.
    • The Georgia Supreme Court found that the act of revoking an old will and writing a new one were parts of the same act. Therefore, if Tipton intended to invalidate the old will by subsequent instrument, it is not invalidated until the new will is executed.
      • “The cancellation and the making of a new will were parts of one scheme, and the revocation of the old will was so related to the making of the new as to be dependant upon it.”
      • This is called the doctrine of conditional revocation, aka the doctrine of dependent relative revocation.
    • The Court found that the letter fails as a will, so if the old will is declared invalid, then Tipton’s property would have to pass through intestate succession. The Court believed that Tipton would probably rather have her property pass through the old will than intestacy.
      • There is a presumption against intestacy.