Davis v. Parris, 289 Ga. 201

In 1980 Grady and Fronice Price executed a joint and mutual will, providing that the survivor would take all property in fee simple, with residue to be divided equally among their four children after the survivor's death.
Grady died in 2005; Fronice probated the 1980 will and, as executor, conveyed Grady's estate to herself.
In 2005 Fronice executed a new will leaving 20% to Deana and the residue to Deana and Diane's children, with nothing for Darrell or his child.
Deana obtained Fronice's power of attorney and conveyed Fronice's real estate to her and to Diane's child.
Fronice died in 2008; Deana probated the 2005 will and Diane caveated, seeking to probate the 1980 will as Fronice's last will.
The trial court held the 1980 will was joint and mutual under pre-1998 law and that a contract not to revoke existed, ordering specific enforcement; appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the 1998 probate code apply?	Deana argues code applies to contracts entered after 1998.	Diane/Darrell contend contract law as of 1980 governs, not 1998 code.	No; prior law applied to pre-1998 contracts.
Was the 1980 will mutual such that a contract not to revoke existed?	Will shows mutuality and survivor benefits; contract exists.	Mutuality unclear; no express contract required by earlier law.	Yes; the 1980 will was mutual and created an enforceable contract not to revoke.
Was the 1980 fee simple conveyance to Fronice a marital trust?	Conveyance resembled a marital trust enabling survivor's flexibility.	Not a marital trust; described as an effortless substitute.	No; not a marital trust; the court's analogy was without merit.
Did Fronice's 2005 will evidence a contract not to revoke the 1980 will?	Question of contract remains; could affect enforcement.	No ruling on whether 2005 will created a contract.	Not decided on appeal; issue not resolved.
Is specific performance proper given the contract not to revoke?	Remedy should operate to enforce the contract.	Unclear or insufficiently definite contract.	Yes; specific performance appropriate given clear, definite terms.

Webb v. Smith, 220 Ga. 809 (1965) (joint will treated as mutual when reciprocal consideration exists)
Johnson v. Harper, 246 Ga. 124 (1980) (express mutuality supports irrevocable contract to not revoke)
C & S Nat. Bank v. Leaptrot, 225 Ga. 783 (1969) (contract-like effect of mutual wills; irrevocability if contract exists)
Hodges v. Callaway, 279 Ga. 789 (2005) (pre-1998 statute required express expression of mutuality)
Simmons v. Davis, 240 Ga. 282 (1977) (reliance on Simmons assumed mutuality without explicit statutory context)
Magnetic Resonance Plus, Inc. v. Imaging Systems Intl., 273 Ga. 525 (2001) (tolls to determine applicable law for pre/post-code contracts)
Bandy v. Henderson, 284 Ga. 692 (2008) (interpretation of former OCGA § 53-2-51(b) on mutual wills)
Lampkin v. Edwards, 222 Ga. 289 (1966) (mutual wills may be separate or joint; revocation affects all)
Simmons v. Davis, 240 Ga. 282 (1977) (citation appears again; mutuality in earlier context)