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Final Copy 289 Ga. 201

S11A0374. DAVIS v. PARRIS et al.

BENHAM, Justice. In January 1980, husband and wife Grady and Fronice Price executed a will which was expressly identified as being "joint and mutual." Grady and Fronice had two children (appellant Deana and appellee Diane), and Grady had two other children (David and appellee Darrell) from a prior marriage. In the 1980 will, Grady and Fronice bequeathed all of their property to each other as the survivor in fee simple. At the death of the survivor, the residue of the estate was to be divided equally among the four children. The relevant language in the will is as follows: We, E. GRADY AND FRONICE PRICE, of said State and County, being of sound and disposing minds and memories, hereby make, publish and declare this our joint and mutual Last Will and Testament, hereby revoking any and all others by us heretofore made, as follows: ITEM III We will, bequeath all of our property, both real and personal, of whatever kind and whereever situated, to the survivor, to be his or hers, as the case may be, in fee simple forever, to do with as he or she sees fit. ITEM IV In the event that our deaths should occur simultaneously, or at the death of the survivor, it is our will and desire that any residue of our Estate be divided equally among our children, DARRELL

PRICE, DAVID PRICE, DIANE PRICE, and DEANA PRICE, share and share alike. Grady Price died in July 2005 and Fronice probated the 1980 will in Gwinnett County. Pursuant to the 1980 will, Fronice became the executor and she conveyed Grady's estate to herself. In November 2005, Fronice executed another will which would, at Fronice's death, leave 20% of the estate to appellant Deana Davis and the residue to the children of Deana and Diane. Nothing would be left to David, appellee Darrell, or Darrell's child. Appellant Deana then obtained Fronice's power of attorney and conveyed all of her mother's real estate to her two children and to appellee Diane's child. When Fronice died in 2008, Deana offered the 2005 will for probate in Gwinnett County. Diane filed a caveat and also sought to petition the 1980 will as the last will and testament of Fronice.1 Deana filed a motion for judgment on the pleadings and appellees Diane and Darrell cross-filed a motion for partial summary judgment. The trial court held a hearing on both motions. In denying Deana's motion and granting appellees' partial motion for summary judgment, the trial court determined that the 1980 will was joint and mutual according to the law that existed prior to the adoption of the 1998 probate code and, as such, could not be revoked by Fronice's 2005 will. As a remedy, the trial court ordered that the 1980 will be specifically enforced by equity.

1

The caveat and petition are stayed pending this appeal. 2

1. Appellant alleges the trial court erred when it determined that the 1998 probate code did not apply to the case. When construing the devises in a will, the law at the time of the testator's death is the law to be applied. OCGA

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