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State Law on After-born Children Leads to Revocation of a Will

State statutes play an essential role in drafting estate planning documents, especially a will.  In some states, the birth of a child after the execution of a will may result in the revocation of the will, if not carefully drafted.  A recent Georgia case, Hobbs v. Winfield, 2017 WL 4017935 (Ga. 2017), emphasizes the importance of having competent counsel take state-specific laws into consideration when drafting a will.

In 1989, Alphonzo Paul Hobbs executed a will naming his mother as the sole and his grandmother as successor beneficiary.  Several years later, Alphonzo had three children out of wedlock.  Alphonzo passed away in 2007.  When a petition to probate his will was filed, the probate court determined that the validity of the will was in question and thus, appointed guardians ad litem for his three children and appointed a County Administrator to the estate.  The probate court determined that according to Georgia law, the will made “no provision in contemplation of future children,” and therefore, found that because of the birth of Alphonzo’s children years after the execution date of the will, the will was revoked, Alphonzo was deemed to have died intestate, and the three children are his legal heirs.  The beneficiaries named in Alphonzo’s will filed an appeal, arguing that the will was made in contemplation of future children because the future-born children were part of the definition of Alphonzo’s dependents who would be entitled as a matter of law to certain survivor benefits described in the will.  The Supreme Court of Georgia disagreed and found that this general reference to Alphonzo’s dependents in his will was insufficient to show that he contemplated future-born children, and thus, Georgia law invalidated the will due to the birth of Alphonzo’s children after its execution.

Several states have enacted statutes that automatically revoke a will, in whole or in part, if the testator’s family circumstances change in certain ways after the making of the will.  These laws vary greatly from state to state. As the Hobbs case reflects, it is important to consult with your estate planning advisor to understand how state laws may affect the validity your will and the distribution of your estate.

Michelle Soto authored this post.

©2017 Greenberg Traurig, LLP. All rights reserved.

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