Carlton A. Harbin and his wife, Mercedes A. Harbin, acquired two tracts of real property by deeds executed in January 1993 and November 1998 which gave them a joint tenancy with right of survivorship in both properties. Mr. Harbin subsequently executed a will in November 1999 which stated his intention to devise all of one tract and a portion of the other tract to his two adult children, Charles K. Harbin and Martha Ann Gensler. After Mr. Harbin died in July 2000 and Ms. Harbin asserted title to all of the property as the surviving joint tenant, Mr. Harbin’s will purporting to devise the property to the children was probated with the consent of Ms. Harbin and the children. Thereafter, the children sued Ms. Harbin seeking to reform the deeds to reflect Mr.Harbin’s intent that they receive the property devised under the will. Charles Harbin appeals from the trial court’s order granting summary judgment to Ms. Harbin on his claim for reformation of the deeds.1 For the following reasons, we affirm. 1. Contrary to Appellant’s contention, neither the terms of the will nor admission of the will to probate supports his argument that the prior executed deeds creating the joint tenancy estates were severed by a lifetime transfer or should be reformed.
Appellant does not dispute that the deeds at issue created a joint tenancy estate as to both properties with right of survivorship in Carlton and Mercedes Harbin in compliance with the statutory requirements of OCGA § 44-6-190 a. Accordingly, unless the joint tenancy estates created by the deeds were previously severed, upon Mr. Harbin’s death, Ms. Harbin as the surviving joint tenant became the sole owner of all the property, and none of the property became a part of Mr. Harbin’s estate. Barnes v. Mance , 246 Ga. 314 271 SE2d 359 1980. Section 44-6-190 a provides, however, that a joint tenancy estate or interest “may be severed as to the interest of any owner by the recording of an instrument which results in his lifetime transfer of all or a part of his interest . . .” Appellant argues that the probated will, which contained language devising him an interest in the property inconsistent with the joint tenancy estates, amounted to a transfer under this provision which severed the estates. There is no merit to this argument. A will transfers property interests only when it has been probated after the testator’s death, so it cannot qualify as an instrument making a lifetime transfer capable of severing a joint tenancy.
