Law reviews

— For article, ‘‘The Time Gap in Wills: Problems Under Georgia’s Lapse Statutes,’’ see 6 Ga. L. Rev. 268 (1972). For article discussing effect of homicide on succession by the slayer, and devolution of his share, see 10 Ga. L. Rev. 447 (1976). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010). For article, ‘‘Killers Shouldn’t In- 53-1-5 herit from their Victims - Or Should They?,’’ see 48 Ga. L. Rev. 145 (2013). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014). For note, ‘‘Not Just For Kids: Why Georgia’s Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults,’’ see 43 Ga. L. Rev. 867 (2009). For note, ‘‘Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court’s Interpretation of the Slayer Statute in Levenson?,’’ see 45 Ga. L. Rev. 877 (2011). COMMENT This section modifies former OCGA Sec. 53-4-6. This section expands the forfeiture provisions to apply not only to the killer’s right to take a property interest from the decedent but also to serve as a fiduciary of the decedent’s estate or any trust created by the decedent. The rule applies only to prevent a killer from receiving benefits from the slain person or serving as a fiduciary and does not affect the distribution of the killer’s estate. (See OCGA Sec. 33-25-13, which contains a similar rule relating to the receipt of benefits from a life insurance policy.) This section applies to situations in which the ‘‘killing’’ is such as would constitute murder, felony murder, or voluntary manslaughter, as described in OCGA Secs. 16-5-1 and 16-5-2. The section does not apply to homicide by vehicle, as defined in OCGA Sec. 40-6-393. The nature of the killing may be established either by a criminal conviction or a guilty plea or, in a civil proceeding, by clear and convincing evidence. Subsection (b) carries forward the rule of former OCGA Sec. 53-4-6 that the share of the individual who engages in the felonious and intentional killing is distributed as if the killer predeceased the decedent. Additionally, the appointment of personal representatives or trustees will proceed as if the killer had predeceased the decedent. Subsection (c) clarifies that the descendants of the killer are not precluded from taking from the slain person’s estate or serving as personal representative or trustee. However, if the descendants are taking by intestacy in place of the killer, the descendants may not take a greater share of the decedent’s estate than the share to which the killer would have been entitled. This subsection prevents unfairness in those circumstances in which the treatment of an individual as having predeceased the decedent would result in a diminution of the shares that other individuals would have received had that individual not been treated as having predeceased the decedent. The following example illustrates the application of this rule: Assume that a decedent who dies intestate is survived by a brother who has three children and by the one child of a predeceased sister. Under Code Sec. 53-2-1, the sister’s child takes one-half of the estate and the brother takes one-half of the estate. But if the brother (as well as the sister) had predeceased the decedent, the same statute directs that the four nieces and nephews of the decedent would share the estate equally. Consequently, the sister’s child’s share would be diminished to one-fourth. The last sentence of subsection (b) avoids that result by providing that, if the brother is treated as having predeceased the decedent because he killed the decedent, the brother’s children (who are taking in place of the brother) will only take the one-half interest that the brother would have taken. 199 53-1-5 WILLS, TRUSTS, AND ESTATES 53-1-5 Subsection (c) also reflects the rule that Code Sec. 53-4-64 (the anti-lapse statute) does not apply in cases in which a beneficiary is treated as having predeceased the testator due to the fact that the beneficiary killed the testator unless the individuals who would take as substitute beneficiaries for their ‘‘predeceased’’ parent are also descendants of the testator.