Who Can Make a Will in Georgia
(a) Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action.
(b) An individual who has been convicted of a crime shall not be deprived of the power to make a will.
2006 Georgia Code 53-4-10
What is Testamentary Capacity
(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.
(b) An incapacity to contract may coexist with the capacity to make a will.
(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which the testator is affected.
(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.
Freedom of Volition in Making a Will
A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator´s freedom of volition, such as fraudulent practices upon the testator´s fears, affections, or sympathies; misrepresentation; duress; or undue influence whereby the will of another is substituted for the wishes of the testator.
Execution and Attestation of a Will
(a) A will shall be in writing and shall be signed by the testator or by some other individual in the testator´s presence and at the testator´s express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator´s will.
(b) A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness´s presence and at that witness´s direction.
The Testator’s Knowledge of the Contents of a Will is Necessary
Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator´s signature or acknowledgment of that signature is presumed to show such knowledge.
Who Can Witness a Will
(a) Any individual who is competent to be a witness and age 14 or over may witness a will.
(b) If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will.
Rules Regarding Testamentary Gifts to a Witness or a Witness’s Spouse
(a) If a subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will.
(b) An individual may be a witness to a will by which a testamentary gift is given to that individual´s spouse, the fact going only to the credibility of the witness.
Wills: Self-Proving Affidavits
(a) At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.
(b) The affidavit shall be evidenced by a certificate, affixed with the official seal of the notary public, that is attached or annexed to the will or codicil, in form and content substantially as follows:
STATE OF GEORGIA
COUNTY of ___________
Before me, the undersigned authority, on this day personally appeared __________________________, ___________________________, and ___________________________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said individuals being by me duly sworn, ___________________________, testator, declared to me and to the witnesses in my presence that said instrument is the last will and testament or a codicil to the last will and testament of the testator and that the testator had willingly made and executed it as a free act and deed for the purposes expressed therein. The witnesses, each on oath, stated to me in the presence and hearing of the testator that the testator had declared to them that the instrument is the testator´s last will and testament or a codicil to the testator´s last will and testament and that the testator executed the instrument as such and wished each of them to sign it as a witness; and under oath each witness stated further that the witness had signed the same as witness in the presence of the testator and at the testator´s request; that the testator was 14 years of age or over and of sound mind; and that each of the witnesses was then at least 14 years of age.
Sworn to and subscribed before me by _______________________, testator, and sworn to and subscribed before me by ____________________ and _________________________, witnesses, this ______ day of ______________, ____.
(c) A self-proved will or codicil may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently from a will or codicil that is not self-proved. In particular, without limiting the generality of the foregoing sentence, a self-proved will or codicil may be contested, revoked, or amended in exactly the same fashion as a will or codicil that is not self-proved.