(Code 1981, §53-4-22, enacted by Ga. L. 1996, p. 504, § 10.)
Cross references.- Competency of witnesses generally, § 24-6-601 et seq.
Editor's notes.- The general provisions concerning the competency of witnesses, referred to in the Comment, are now found at O.C.G.A. § 24-6-601.
Law reviews.- For article, "Execution, Revocation and Revalidation of Wills: A Critique of Existing Statutory Formalities," see 11 Ga. L. Rev. 297 (1977).
COMMENTSubsection (a) carries over the concept of competency of witnesses from former OCGA Sec. 53-2-45, adding that the witness to a will must be age 14 or over. (Case law indicates that an individual who is age 14 or over is presumed competent to witness a will.) The competency of witnesses is defined in OCGA Sec. 24-9-1 and Article 1 of Title 9 of the Code. Subsection (b) carries forward the concept of former OCGA Sec. 53-2-44 that the witness must be competent only at the time of attestation, not necessarily at the time of probate.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-305, and former O.C.G.A. § 53-2-42 are included in the annotations for this Code section.
Statute requires that a testator have knowledge of the contents of the will at the time of execution, not that the testator recall the contents at some subsequent time. If the latter were required no validly executed will would be secure against failure of memory or mental aberration which so often result as time goes by. White v. Irwin, 220 Ga. 836, 142 S.E.2d 255 (1965).
Failure to have will read back insufficient as proof of lack of knowledge.
- When a will was written as directed by the testator, and the evidence shows that the testator wishes were carefully and thoroughly discussed in the process and expressed in the will, the fact that the will was not read back to the testator after the will was written, in the absence of any other evidence that the testator did not know the contents of the will, is ineffective as showing a lack of knowledge on the part of the testator. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-305).
"Clear and convincing evidence" not required.
- Former O.C.G.A. § 53-2-42 contained no "clear and convincing evidence" standard of proof of the testator's knowledge of the will's contents. Lowe v. Young, 260 Ga. 890, 400 S.E.2d 619 (1991) (decided under former O.C.G.A. § 53-2-42).
Scrivener's testimony.
- When there was evidence that the will was read to the testator - who was mentally alert, coherent, able to speak and respond to questions - and that the testator verbally assented to the will, the fact that this was the scrivener's testimony did not vitiate the evidence, but merely went to the evidence's credibility, which was a jury issue. Lowe v. Young, 260 Ga. 890, 400 S.E.2d 619 (1991) (decided under former O.C.G.A. § 53-2-42).
Cited in Pitman v. Oliver, 184 Ga. 840, 193 S.E. 884 (1937); Davis v. Aultman, 199 Ga. 129, 33 S.E.2d 317 (1945); Bodeker v. Purdy, 209 Ga. 648, 74 S.E.2d 856 (1953); Howington v. Howington, 242 Ga. 767, 251 S.E.2d 514 (1979).
RESEARCH REFERENCES
Am. Jur. 2d.
- 79 Am. Jur. 2d, Wills, §§ 169, 269, 370. 80 Am. Jur. 2d, Wills, §§ 840 et seq., 885. 81 Am. Jur. 2d, Witnesses, § 637.
C.J.S.- 95 C.J.S., Wills, §§ 171, 223, 260 et seq., 582 et seq., 629.
ALR.
- Knowledge derived from family correspondence as qualifying one to testify as to genuineness of handwriting, 7 A.L.R. 261.
Competency of husband or wife of beneficiary as attesting witness to will, 25 A.L.R. 308.
Manner of signing as affecting sufficiency of signature of testator, 31 A.L.R. 682; 42 A.L.R. 954; 114 A.L.R. 1110.
Presumption as to due execution of will from attestation, with or without attestation clause, 76 A.L.R. 617.
Sufficiency, as to form, of signature to holographic will, 75 A.L.R.2d 895.
Sufficiency of testator's acknowledgment of signature from his conduct and the surrounding circumstances, 7 A.L.R.3d 317.
Wills: testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 A.L.R.3d 889.
Wills: necessity that attesting witness realize instrument was intended as will, 71 A.L.R.3d 877.