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Mitchell v. Mitchell

The testator's 2001 will impliedly revoked his 1991 will, because the testamentary schemes of the two instruments were completely inconsistent.

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This appeal arises from an order admitting Euel Willard Mitchell’s 2001 will to probate in solemn form. The order was entered by the superior court after it conducted a de novo hearing on appeal from the probate court. The only question considered by the superior court was whether the probate court properly denied admission to probate for a 1991 will due to an implied revocation by the 2001 will pursuant to OCGA § 53-4-42 c. The parties stipulated that both wills were validly executed and waived a jury trial. We find no error and affirm.

The testator had a total of four children, two with his first wife and two with his second. At the time he executed his 1991 will, he was still married to his second wife, Brenda. That will included several specific devises of his business, and both real and personal property, to his wife and his youngest two children, Jonathan Mitchell and Kenney Mitchell. The residuary was devised to Brenda, or if she predeceased, to all four of his children in equal shares. The testator divorced Brenda in 2000, and married his third wife, Doris Annette, in 2001. Later that year he executed the 2001 will.

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