This appeal involves a dispute between siblings appellant Howell E. Stewart, Jr. and appellee Alice C. Walters. The testator Howell E. Stewart, Sr. executed his will in 1972 naming appellant executor under the will. In 1995 the testator gave appellant $50,000 that appellant applied to the purchase of lake property. The transaction was not memorialized in writing by the testator or appellant. The testator died in 2001, the will was probated, and the probate court qualified appellant as executor. Appellee brought suit against appellant individually and as executor under the will seeking a declaratory ruling that the $50,000 the testator gave to appellant amounted to an advancement against appellant’s inheritance and alleging that the money should be deducted from the portion of his inheritance. Appellant denied that the transfer was an advancement. The trial court granted summary judgment in favor of appellant on the ground that the law does not recognize an advancement that is not memorialized in a writing according to OCGA § 53-1-10 c. On appeal, the Court of Appeals held that although no written documentation of the monetary transaction existed as required by the statute, a jury question remained on the issue of whether appellant had breached his fiduciary duty as executor to acknowledge the transfer as an advancement. Walters v. Stewart , 263 Ga. App. 475, 477 588 SE2d 248 2003. We granted certiorari to determine whether the executor of an estate who is also a beneficiary of the estate and who received funds from the testator during the testator’s life is required in the exercise of the executor’s fiduciary duty to acknowledge the receipt of funds in writing.1 For the reasons that follow, we reverse. Whereas the former Code section2 dealing with advancements made to an heir or a beneficiary left the job of discerning the transferor’s intent after the transferor had died to the court, the Revised Probate Code of 1998 requires that the intent to treat a lifetime transfer as a satisfaction or an advancement must be evidenced in the language of the will or declared in writing. OCGA § 53-1-10 c clears up potential confusion by defining the circumstances in which an advancement or a satisfaction is deemed to have occurred. This Code section requires the transferor and/or transferee to declare an intent that the transfer be considered a satisfaction or advancement. Without this declaration, the transfer is not charged off against the heir’s or beneficiary’s share of the transferor’s estate. The declaration of intent must be in writing and may appear either in the will, in a writing signed by the transferor within thirty days of the transfer, or in an acknowledgment signed by the transferee at any time. footnotes omitted. Radford and Sugarman, Article: Georgia’s New Probate Code, 13 Ga. St. U. L. Rev. 605, 617 1997. Based on the language of OCGA § 53-1-10 c3 , the comment to the revised probate statute explains that only written evidence will now suffice to show that an inter-vivos transfer is intended to operate as an advancement against a testamentary gift.
It is undisputed that the inter-vivos monetary transfer from father to child in this case did not involve a writing signed by the testator within thirty days of making the transfer, a declaration of intent in the testator’s will, or any written acknowledgment by appellant. Nevertheless, the Court of Appeals concluded that summary judgment was inappropriate because appellant may have breached the duty that he owed to appellee in his fiduciary capacity as executor of their father’s will by accepting the $50,000 but failing to acknowledge that it was an advancement of his inheritance in writing. According to the Court of Appeals, appellant has “the sacred duty as executor to acknowledge the transfer as an advancement, if that was in fact his father’s intention.” Walters , supra, 236 Ga. App. at 477. We do not agree.
