dissenting.
The in terrorem clause in Turner’s will does not give direction as to the disposition of property if Fowler violates the clause, and is therefore void under OCGA § 53-4-68 (b). For this reason, I dissent.
Although the majority opinion sets forth the in terrorem clause in full, I reprint it here for the discussion that follows:
Should any beneficiaries hereunder contest or initiate legal proceedings to contest the validity of this Will or any provision herein or to prevent any provision herein from being carried out in accordance with its terms (whether or not in good faith and with probable cause), then all the benefits provided in this Will for such contesting beneficiary, and any of such beneficiary’s descendants, are revoked and annulled. Such benefits, if not a part of the residue, shall go over to and become a part of the residue of my estate. If such contesting beneficiary is a beneficiary under any Item of this Will that disposes of the residue of my estate, such contesting beneficiary, and his or her descendants, shall cease to be a member of the class of beneficiaries to whom distributions are required or permitted to be máde under such Item and, upon final division and distribution of the property passing under such Item, the share to which such contesting beneficiary and his or her descendants would otherwise have been entitled shall go over and be distributed to my daughter, JANICE ELOISE FOWLER, if then living, but if she is not then living, then to her then living descendants, per stirpes, provided that JANICE ELOISE FOWLER and her descendants are not contesting beneficiaries.
(Emphasis supplied.)
To sustain an in terrorem clause against attack, OCGA§ 53-4-68 (b) requires “a direction in the will as to the disposition of the property if the condition in terrorem is violated.” As this Court recently stated, “[b]ecause in terrorem clauses result in forfeitures, they must be *505strictly construed.”1
There is direction that satisfies OCGA § 53-4-68 (b) if Cox is the contesting beneficiary. The portion of the clause italicized above clearly provides that if Cox is the contesting beneficiary, her portion of the estate is directed to Fowler or Fowler’s descendants.
There is no reciprocal provision, however, if Fowler is the contesting beneficiary. The most that can be said is that the clause’s second sentence directs Fowler’s portion of the estate to the residuary. But the residuary goes to both Fowler and Cox under another provision of the will, and thus Fowler’s forfeited property is directed to Fowler. It is because of situations like this that we noted in Broach v. Hester the “well established [rule] that even an alternative bequest to the residuary will not suffice”2 to save an in terrorem clause. Instead, there must be a specific direction for the disposition of the forfeited property, and in this case, despite the majority opinion’s strained reading, there is not in the event of a will contest by Fowler.
Turner’s reason for not including such a direction is apparent from other provisions of the will. Item 4 of the will provides that Turner’s tangible personal property was to be distributed according to a written instrument, unless no such instrument existed, in which case it was to be distributed to Fowler. Item 5 of the will, the residuary clause, distributed 75% of Turner’s remaining property to Fowler and 25% to Cox.3 Item 5 also explains why Turner chose to leave Fowler the bulk of his property. It states: “The reason that I have given a greater share of my estate to JANICE ELOISE FOWLER than to FRANCIE EVELYN COX is that I have a close relationship with JANICE ELOISE FOWLER, but FRANCIE EVELYN COX and I have been estranged since my divorce from her mother.”
The majority opinion holds that OCGA § 53-4-68 (b), which requires only a “direction” as to the disposition of property, broadens former OCGA § 53-2-107 (and before it Ga. Code Ann. § 113-820), which required “a limitation over to some other person.” Preterm it-ting that the new statute is broader,4 it still requires a specific *506direction for the distribution of forfeited property. The more expansive language of OCGA § 53-4-68 (b) is better read to clarify, for example, that the term “person” in former OCGA § 53-2-107 included more than natural persons. As one commentator states, the new provision “clarifies that an in terrorem clause would be enforceable if, for example, the will provided a gift over to charity.”5
Decided June 6, 2005 Reconsideration denied June 30, 2005. Dyer & Rusbridge, Samuel J. Rusbridge, Caldwell & Watson, Floyd E. Propst III, for appellant. Adam R. Gaslowitz, for appellee.For these reasons, the majority is incorrect that an alternative bequest to the residuary, when the residuary is then directed back to the forfeiting party, is sufficient to satisfy OCGA § 53-4-68 (b), and therefore the in terrorem clause in Turner’s will is void.
I am authorized to state that Justice Benham joins in this dissent.
Preuss v. Stokes-Preuss, 275 Ga. 437, 437 (569 SE2d 857) (2002), citing Linkous v. Nat. Bank of Ga., 247 Ga. 274 (274 SE2d 469) (1981).
217 Ga. at 62. Compare Lanier v. Lanier, 218 Ga. 137, 145 (126 SE2d 776) (1962) (upholding in terrorem clause which provided that if a beneficiary violated the clause, such beneficiary’s bequest “ ‘shall be revoked and rescinded and the share of such beneficiary shall go pro rata to the remaining beneficiaries’ ”).
As the result of previous litigation resulting in a court-ordered settlement of Turner’s estate, Cox has already been granted 49% of the estate despite the will’s bequest of only 25%. See Fowler v. Cox, 264 Ga. App. at 880.
See Mary F. Radford & F. Skip Sugarman, Georgia’s New Probate Code, 13 Ga. St. U. L. Rev. 605, 702 (1997).
Sarajane Love, Redfeam Wills and Administration in Georgia, § 182 (5th ed. 1996 Supp.).