The Legal Foundations of Making a Will
A will is the legal instrument through which a person determines the fate of their property after death. The Civil Code of Georgia lays down precise rules for wills: who is entitled to make one, in which forms a will may be executed, and who may not take part in its execution as a witness. This page explains the norms of the Civil Code on which will drafting rests — the requirements relating to the personality and capacity of the testator, the procedure for recording a will by a notary, the restrictions on witnesses, and the institution of the domestic will.
The most important principle of will-making is its personal character: under Article 1346 of the Civil Code, a will must be made by the testator in person, and making a will through a representative is not permitted. This means that neither an advocate, nor a notary, nor any family member may make a will in the testator's name. A lawyer's role in the process is confined to consultation and preparation of the draft text — the final decision and the signature on the will are exclusively the testator's personal acts, and this personal bond between the testator and the disposition is what the law protects.
Who May Make a Will
Article 1345 of the Civil Code provides that a will may be made by a person of full age and legal capacity who, at the moment of making the will, is able to reasonably judge their own actions and clearly express their will. The law thus sets interconnected requirements: the person must be of full age and capable, and, at the same time, at the concrete moment of making the will, must be able to assess their own conduct reasonably and to express a clear intention as to the content of the disposition.
The moment criterion deserves particular attention: what is decisive is the factual moment of making the will, not the person's general condition in other periods of life. If at the moment of making the will the person cannot reasonably judge their actions regarding the content of the will, the soundness of such a will becomes fragile and may become a ground for challenge in court. For this reason, before a will is drafted it is advisable to assess the future testator's condition and to choose the form that best secures the voluntary character of the disposition and its evidentiary basis.
Recording a Will by a Notary
Article 1358 of the Civil Code regulates the notarial form of a will. It is permissible for the will to be written down by a notary from the testator's words in the presence of two witnesses. Generally accepted technical means may be used in recording the will — the law here allows the use of modern technology, which simplifies the recording procedure without altering its formal safeguards.
A will written down by a notary from the testator's words must be read by the testator and signed in the presence of the notary and a witness. The reading matters because the testator personally verifies the content of the recorded text and, by signing, confirms that it is an accurate reflection of their will. The presence of the notary and a witness, in turn, secures the reliability of the procedure and serves to prove the authenticity of the will in the future.
Witnesses to a Will and the Statutory Restrictions
Article 1362 of the Civil Code establishes the circle of persons who may not be witnesses to a will. Under the law, witnesses to a will may not be:
- minors;
- the heir under the will and his relatives by descent and ascent;
- a brother;
- a spouse;
- the recipient of a legacy under the will (legatee).
This list is built on the logic that a person who benefits from the will, or who stands close to such a beneficiary, cannot be an independent witness. If a person subject to a statutory restriction participates in the execution of the will as a witness, this circumstance endangers the validity of the will; therefore the circle of witnesses must be selected with particular care before the will is made, and the restriction must be checked against the actual family and beneficiary structure surrounding the testator.
The Domestic Will
The Civil Code also contemplates a non-notarial form of will: under Article 1364, the testator may write the will with their own hand and sign it. Such a domestic will must be executed entirely by the testator's own hand — both the writing of the text and the signature — which is what distinguishes it from other forms and what carries its evidentiary weight.
The practical significance of the domestic will is that it allows the testator to express their last will without visiting a notary. At the same time, it is precisely this form that generates the most disputes in practice: the authenticity of the text, the fact of handwriting, and the testator's capacity frequently become subjects of court proceedings, so particular precision and clear formulation of the text are required when a domestic will is written.
Frequently Asked Questions
May a will be made through a representative?
No. Under Article 1346 of the Civil Code, a will must be made by the testator in person and making a will through a representative is not permitted. A lawyer may advise and prepare a draft, but only the testator personally signs the will.
Before how many witnesses is a will recorded by a notary?
Under Article 1358, the notary writes down the will from the testator's words in the presence of two witnesses; the testator then reads the recorded will and signs it in the presence of the notary and a witness.
Who may not be a witness to a will?
Under Article 1362, a witness to a will may not be a minor, the heir under the will and his relatives by descent and ascent, a brother, a spouse, or the recipient of a legacy under the will (legatee).
What is a domestic will?
A domestic will is the form provided by Article 1364: the testator may write the will with their own hand and sign it. Such a will is made without the participation of a notary, although proving its authenticity in practice is often more difficult.
How We Help on Legal.ge
Drafting a will in either statutory form — as a project prepared for recording by a notary, or as a domestic will written entirely by the testator's hand — requires strict compliance with the statutory requirements: the testator's capacity, personal participation, the permissible circle of witnesses, and the signing procedure. A breach of any of these elements creates a risk to the validity of the will and can turn the distribution of the estate into protracted litigation.
The lawyers working on Legal.ge will help you prepare the draft will, select the appropriate form, verify the circle of witnesses, and shape the documentary basis that will support the voluntary character of the will in the future. Book a consultation and plan your will so that your last will is fully protected.