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In the instant case, we acknowledge that respondent’s
earlier filings contain statements which would seem to negate any
intent to rely on a revocation theory. Nonetheless, we also note
that it is at least questionable whether there exists the type of
potential for prejudice that should preclude its consideration.
The above-described rule focuses primarily on an inability to
present evidence. Here, however, both parties are apparently
willing to accept that there is no evidence which could be
produced to establish specifics regarding the creation, content,
and disappearance of the alleged instrument. They rather are
primarily arguing about the legal consequences of this absence.
Given these rather unusual circumstances and because, as
explained below, we agree with the estate’s interpretation of the
substantive Georgia law, we find it unnecessary, and decline, to
rest our disposition of this issue on procedural grounds alone.
The interpretation of wills, with respect to determining the
legal rights and interests created thereunder, is governed by
State law. See Helvering v. Stuart, 317 U.S. 154, 161-162
(1942); Morgan v. Commissioner, 309 U.S. 78, 80-81 (1940). The
parties here do not dispute that the relevant body of law is that
of the State of Georgia, and we so proceed.
Ga. Code Ann. section 53-2-72 (1997) reads as follows:
53-2-72. Distinction between express and implied
revocation.
(a) A revocation may be either express or implied.
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