Article On Georgia Fiduciary Law And Estate Planning

Mary F. Radford (Professor of Law, Georgia State University College of Law) recently published an article entitled, Wills, trusts, guardianships, and fiduciary administration, 67 Mercer L. Rev. 273-285 (2015). Provided below is an excerpt from the article:

The question in Swain v. Lee was whether the documents at issue could possibly constitute a valid will. The testator, Ms. Collins, wrote a letter in 1999 “in which she stated . . . that Swain was to have ‘everything that’s in my name.’” The letter was not witnessed. In 2005, Collins took a blank will form and wrote in language that named Swain as the executor of her estate. She wrote nothing else on this form. Collins signed the form, and it was witnessed by three witnesses. Collins kept both of these documents together in an envelope and showed both documents to the witnesses when she signed the form. When Collins died, Swain attempted to probate the two documents as Collins’s will. The temporary administrator of her estate filed a caveat. The Probate Court of Glynn County, Georgia, found that the documents did not constitute a valid will, so Swain appealed to the Superior Court of Glynn County, Georgia. The administrator filed a motion for judgment on the pleadings, which was granted. The Georgia Supreme Court reversed the order and remanded the case for trial, holding that an issue of fact existed as to whether the documents could be read together to create a valid will. The supreme court emphasized that the intention of the maker, gathered from the whole instrument and the surrounding circumstances, is determinative. The court noted that there is no required form for a will; nor must a will be written on one continuous sheet of paper or on sheets that are attached together. The court pointed out that Swain argued the letter and the will form were presented to the witnesses as an integrated document. This alone created an issue of fact as to the validity of the will.