(Code 1981, §53-4-46, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 16.)
Law reviews.- For article advocating repeal or amendment of this Code section, see 11 Ga. L. Rev. 297 (1977). For article, "Wills, Trusts, and Administration of Estates," see 53 Mercer L. Rev. 499 (2001).
COMMENTThis Code section replaces former OCGA Sec. 53-3-6.
JUDICIAL DECISIONSANALYSIS
General Provisions
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2396, former Civil Code 1895, § 3289, former Civil Code 1910, § 3863, former Code 1933, § 136-611, and former O.C.G.A. § 53-3-6 are included in the annotations for this Code section.
Construction.
- To the extent Lyons v. Bloodworth, 199 Ga. 44 (1945) involves a burden of proof other than preponderance of the evidence to overcome the presumption of revocation, it has been superseded by the Georgia General Assembly's 1996 enactment of O.C.G.A. § 54-4-46(b), specifying preponderance of the evidence as the burden of proof. Johnson v. Fitzgerald, 294 Ga. 160, 751 S.E.2d 313 (2013).
Finding that presumption rebutted upheld in absence of transcript from probate court.
- State's highest court accepted a probate court's findings that a child's evidence that the parent's will had been revoked lacked credibility, that the presumption of revocation had been rebutted, and that the proffered copy was a true copy as the child did not provide the state's highest court with a transcript of the probate court hearing. Tanksley v. Parker, 278 Ga. 877, 608 S.E.2d 596 (2005).
Cited in Batton v. Watson, 13 Ga. 63, 58 Am. Dec. 504 (1853); Ponce v. Underwood, 53 Ga. 601 (1876); Hartz v. Sobel, 136 Ga. 565, 71 S.E. 995, 38 L.R.A. (n.s.) 797, 1912D Ann. Cas. 165 (1911); Smith v. Smith, 151 Ga. 150, 106 S.E. 95 (1921); Bond v. Reid, 152 Ga. 481, 110 S.E. 281 (1922); Walden v. Mahnks, 178 Ga. 825, 174 S.E. 538 (1934); Callaway v. Callaway, 192 Ga. 25, 14 S.E.2d 473 (1941); Lyons v. Bloodworth, 199 Ga. 44, 33 S.E.2d 314 (1945); Baker v. Henderson, 208 Ga. 698, 69 S.E.2d 278 (1952); Woo v. Markwalter, 210 Ga. 156, 78 S.E.2d 473 (1953); Dockery v. Findley, 216 Ga. 807, 120 S.E.2d 608 (1961); Payne v. Payne, 229 Ga. 822, 194 S.E.2d 458 (1972); Helms v. Robertson, 236 Ga. 297, 223 S.E.2d 636 (1976); Melton v. Shaw, 237 Ga. 250, 227 S.E.2d 326 (1976); Hanners v. Sistrunk, 245 Ga. 293, 264 S.E.2d 224 (1980); McBride v. Jones, 268 Ga. 869, 494 S.E.2d 319 (1998); Murchison v. Smith, 270 Ga. 169, 508 S.E.2d 641 (1998).
Probate of Copy of Will
1. In General
Will lost before testator's death.
- Plain meaning of former Code 1933, § 53-3-6 was that when a will was lost before the death of the testator, a copy may not be probated. Woods v. Giedd, 257 Ga. 152, 356 S.E.2d 211 (1987) (decided under former O.C.G.A. § 53-3-6).
Issue of fact as to when will lost.
- Genuine issue of fact as to whether a will was in a safe-deposit box at the time the box was opened, and thus could have been lost after the testator's death, precluded summary judgment against the propounders of an unsigned copy of the will. Woods v. Giedd, 257 Ga. 152, 356 S.E.2d 211 (1987) (decided under former O.C.G.A. § 53-3-6).
Section exhaustive.
- There is no law for probating a copy of a will, except when the will has been lost or destroyed after the death of the testator, or without the testator's consent, under this statute. Godwin v. Godwin, 129 Ga. 67, 58 S.E. 652 (1907) (decided under former Civil Code 1895, § 3289).
Carbon copy of will may be probated as original will.
- When the document sought to be probated was a carbon copy, but it was executed with the same formality as the original will at the same time, and its provisions were identical with those of the original will, and the propounder seeks to probate it as an original will, and not as the copy of a lost or destroyed will, it should properly be admitted to probate, unless it was revoked by the testator during the testator's lifetime. King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959) (decided under former Code 1933, § 113-611).
Proof Required
Standard of proof.
- "Preponderance of the evidence" is the correct standard applied to overcome the presumption of revocation when an original will cannot be produced. Warner v. Reynolds, 273 Ga. 802, 546 S.E.2d 520 (2001).
Proof required to probate copy of destroyed or lost will.
- In order to probate an alleged copy of a lost or destroyed will, it is necessary to prove, among other things, that the copy is in substance and intent the same as the original. Woodruff v. Woodruff, 182 Ga. 895, 187 S.E. 391 (1936) (decided under former Code 1933, § 113-611).
When cross-propounders contended that certain items of the will as originally executed by the testator had been deleted, changed, and destroyed, and sought to set up, establish, and probate what the cross-propounders contended to be a true copy of these items of the will as originally executed by the testator, the burden rested upon the cross-propounders of proving that the copy was in substance and intent the same as the original, and it was error for the court to fail to so instruct the jury. Nassau v. Sheffield, 211 Ga. 66, 84 S.E.2d 4 (1954) (decided under former Code 1933, § 113-611).
If a will was duly executed, and when propounded for probate it appears that certain provisions thereof have been changed, altered, or destroyed by a third person without the knowledge or consent of the testator, and it can be shown by the will itself, or by extrinsic evidence, what such stricken or destroyed provisions were, they can be restored, and the will as originally executed admitted to probate. Nassau v. Sheffield, 211 Ga. 66, 84 S.E.2d 4 (1954) (decided under former Code 1933, § 113-611).
Proof of execution not limited to testimony of subscribing witnesses.
- Provision of former Code 1933, § 113-611, as to clear proof "by the subscribing witnesses and other evidence" no more limits proof of the execution of a will to the testimony of the subscribing witnesses than did former Code 1933, § 113-602, relating to probate in solemn form. Since former Code 1933, § 113-611 as to probate of a copy follows the procedure for probating an original will, except that it adds the clear-proof rule, there was no error in giving in charge the basic rule of former Code 1933, § 113-601. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).
Self-proving affidavit.
- Proof of the execution of a will in case of probate in solemn form and proof of the execution of a will in a case to establish and probate a copy where the will is missing may be made in precisely the same manner and by the same character of evidence; and in both evidence other than the testimony of the subscribing witnesses, after the available witnesses have been produced at the hearing, is admissible for the purpose of proving the execution of the will, and in each this may be done despite the testimony of the witnesses against the will. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-611).
Statutory provision that the copy of a missing will be "clearly proved to be such by the subscribing witnesses and other evidence" does not limit proof of the execution of a will to the testimony of the subscribing witnesses. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-611).
In a will contest case where the testator's niece contested a will including her own daughter as a beneficiary, the later lost or destroyed will could be validated under former O.C.G.A. § 53-3-6(a) by uncontroverted evidence from the notary public who notarized the affidavit regarding the execution by the testator of a self-proving affidavit. Westmoreland v. Tallent, 274 Ga. 172, 549 S.E.2d 113 (2001) (decided under former O.C.G.A. § 53-3-6).
Proof provided to admit copy.
- Probate court properly admitted a copy of a will for probate because the propounding executor had rebutted the presumption of revocation under O.C.G.A. § 53-4-46 with evidence of a trust agreement that was named in the will and by evidence of prior wills, which showed a consistent testamentary scheme. Johnson v. Fitzgerald, 294 Ga. 160, 751 S.E.2d 313 (2013).
Presumption of Revocation
1. In General
Presumption of revocation generally.
- In every case when it is sought to have admitted to probate and record a copy of a lost or destroyed will in lieu of the original, the propounder is confronted with the presumption that the will was revoked by the testator. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).
In a will contest the cross-propounders, in seeking to probate a copy of a material portion of a will, the original of which portion the cross-propounders asserted had been destroyed, had the burden of overcoming the presumption that the destruction had been done by the testator personally with the intention to revoke, and the trial judge erred in failing to instruct the jury that the burden rested on the cross-propounders to prove that the copy offered by the cross-propounders was in substance and intent the same as the original. Sheffield v. Sheffield, 215 Ga. 546, 111 S.E.2d 218 (1959) (decided under former Code 1933, § 113-611).
When a will was lost, the presumption arose that the will was revoked, the trial court erred as a matter of law when the court held that there must first be evidence of the condition of the will before the presumption is raised. Horton v. Burch, 267 Ga. 1, 471 S.E.2d 879 (1996) (decided under former O.C.G.A. § 53-3-6).
Revocation of prior will found.
- Trial court properly determined that a decedent's 1998 will was revoked as the executor, who filed the will for probate, failed to rebut the presumption of revocation since the original was never found and evidence was presented that the decedent altered and made changes to the 1998 will based on consulting an attorney to make a new one and having two copies showing alterations and changes indicated on the copies. Mincey v. Deckle, 283 Ga. 579, 662 S.E.2d 126 (2008).
Requirements not satisfied for intent to revoke.
- It was error for the superior court to direct a verdict in favor of a propounder because under O.C.G.A. § 53-4-46, the propounder was required to prove that the propounder's mother did not deliberately discard or destroy the original of the will with the purpose of revoking the will, but the propounder did not satisfy the propounder's statutory duty, and the propounder should have filed a petition to probate a copy of a will in lieu of a lost original, which would have notified the probate court of the appropriate standards and burdens of proof; the plain language of O.C.G.A. § 53-4-46(b) clearly requires that the presumption of intent to revoke be rebutted in order for a copy of a will to be probated, and Georgia law does not allow a propounder to probate a will without fulfilling the pertinent evidentiary requirements, even when no caveat has been filed. Tudor v. Bradford, 289 Ga. 28, 709 S.E.2d 235 (2011).
2. Rebuttal
Statute is awkwardly expressed, but, properly construed, the words "in every such case" refer to every case wherein it is sought to have admitted to probate and record a copy of a lost or destroyed will in lieu of an original; and therefore, when it is sought to prove and establish a will not to be found at the death of the testator, the propounder is confronted with the presumption that the will was revoked by the testator, and that presumption must be rebutted by proof. Harris v. Camp, 138 Ga. 752, 76 S.E. 40 (1912) ??? (decided under former Civil Code 1910, § 3863).
Method of rebutting presumption of revocation.
- On the trial of an application for the probate of a copy of an alleged lost will, the declaration of an heir of the decedent, to the effect that an original will had existed and that the heir had destroyed the will, is not, unless the declarant be a party to the proceeding, admissible in evidence in favor of the propounders. Under such circumstances, the declaration is mere hearsay and is not sufficient to rebut the presumption of revocation. Scott v. Maddox, 113 Ga. 795, 39 S.E. 500, 84 Am. St. R. 263 (1901) (decided under former Civil Code 1895, § 3289).
While the statute is awkwardly expressed, the rule is that a universal presumption of revocation may be rebutted in a number of ways: first, by proof that the will was lost or destroyed subsequently to the death of the testator; or, second, the presumption of revocation may be overcome by showing that the will was destroyed prior to death, provided however it will be also shown, for example, that the testator did not have possession of the instrument after the instrument's execution, or that while the will was still in existence the testator had lost the testator's testamentary capacity to annul the will, and that such mental incapacity continued up to the time of the testator's death. Saliba v. Saliba, 201 Ga. 577, 40 S.E.2d 511 (1946) (decided under former Code 1933, § 113-611).
Presumption of revocation may be rebutted, among other ways, by proof that a will was lost or destroyed prior to the death of the testator without the testator's consent, and that, when evidence to such effect is submitted, the question whether the presumption has been overcome is for determination by the jury, in view of all of the evidence and circumstances in the case, and the credibility attributed by the jury to the witnesses. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).
Declarations of the testator are admissible in evidence either to support or to rebut the presumption of revocation, although made at any time between the making of the will and the death of the testator, and although the declarations are not shown to have accompanied any particular act of revocation or attempted revocation; their admissibility not depending upon res gestae. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611); Jackson v. Lamb, 121 Ga. App. 44, 172 S.E.2d 449 (1970);(decided under former Code 1933, § 113-611).
Presumption of revocation may be rebutted by circumstantial evidence as well as by direct evidence, and the facts and circumstances surrounding the making of a will were relevant for the purpose of showing that the testator had made a will that would inure to the benefit of the propounder, infant child of the testator's deceased brother; and also as showing circumstances tending to illustrate the probability or improbability of later revoking such will. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).
Rebuttal of the presumption of revocation of a will when only a copy is found could be made by circumstantial as well as by direct evidence, and when the direct evidence traces a will into the custody of the testator and there stops, it seems that the propounder can only assert that whatever may have happened to the will after the will's delivery to the testator, the testator did not revoke the will, and then submit circumstantial evidence, including declarations of the testator, if any, in support of such assertion. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).
Existence of sufficient rebuttal is question for jury.
- Contents of the will must be proved and the presumption of revocation by the testator, which is raised by the latter clause of this statute be rebutted by such evidence as clearly satisfies the conscience of the jury, but this may be done by the subscribing witnesses, or any other competent testimony. Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 453 (1869) (decided under former Code 1868, § 2396) Mosely v. Carr, 70 Ga. 333 (1883) See also Burge v. Hamilton, 72 Ga. 568 (1884) (decided under former Code 1882, § 2431); Gillis v. Gillis, 96 Ga. 1, 23 S.E. 107, 51 Am. St. R. 121, 30 L.R.A. 143 (1895); Harris v. Camp, 138 Ga. 752, 76 S.E. 40 (1912) (decided under Code 1882, § 2431);(decided under former Civil Code 1895, § 3289);(decided under former Civil Code 1910, § 3863).
Superior court erred in instructing the jury in a suit to probate a copy of a will, that, if the jury believes the alleged testator did not intentionally destroy the testator's will, then the form of their verdict would be, "We, the jury, find in favor of the will;" the error being that the case could not be concluded in favor of the propounder by a mere finding that the testator did not intentionally revoke the testator's will, but, over and beyond that, it would be necessary to find that the propounder had clearly proved the alleged copy "to be such." Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).
Judge may instruct the jury to the effect that the presumption in favor of revocation may be rebutted by showing that the will was not destroyed by the testator, or that if the testator did destroy the will, the testator did not thereby intend to revoke the will; provided only that such an instruction, like others, must be supported by sufficient evidence. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744 (1947) (decided under former Code 1933, § 113-611).
Whether or not the presumption is rebutted by the evidence offered by the propounder is for the determination of the jury. Williams v. Swint, 239 Ga. 66, 235 S.E.2d 489 (1977) (decided under former Code 1933, § 113-611).
When evidence is submitted by a proponent of a will in an attempt to overcome a presumption of revocation, the question whether the presumption has been overcome is for determination by the jury in view of all the evidence and circumstances in the case, and the credibility attributed by the jury to the witnesses. Williams v. Swint, 239 Ga. 66, 235 S.E.2d 489 (1977) (decided under former Code 1933, § 113-611).
Question of whether the propounders carried the burden of overcoming the presumption that the original will was revoked was for the jury, and in reviewing the jury verdict, the evidence must be accepted which is most favorable to the party in whose favor the verdict was rendered. Hill v. Cochran, 258 Ga. 473, 371 S.E.2d 94 (1988) (decided under former O.C.G.A. § 53-3-6).
Presumption not rebutted.
- Testator's fiance failed to rebut the presumption that the testator destroyed and intended to revoke the testator's original will created by O.C.G.A. § 53-4-46(a) although the testator's relationship with the testator's daughter was strained because the testator had control of the will, the lock box in which the will was kept had been broken into, and the testator had expressed dissatisfaction with the testator's fiance. Britt v. Sands, 294 Ga. 426, 754 S.E.2d 58 (2014).
Trial court did not err by failing to apply the doctrine of dependent relative revocation to revive the decedent's 1988 will because based on the attorney's trial testimony, the trial court properly found that the markings on the original 1988 will that the decedent brought to a June 2004 meeting with the attorney were so extensive that it could not be determined, even by an experienced lawyer, what the decedent intended to remove and what, if anything, was intended to remain. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, §§ 635, 645, 650, 659, 677, 730. 79 Am. Jur. 2d, Wills, §§ 21, 516, 571, 575.
C.J.S.- 95 C.J.S., Wills, §§ 412, 461 et seq., 593, 721.
ALR.
- Proof of contents in establishment of lost will, 126 A.L.R. 1139.
Destruction or cancellation of one copy of will executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.
What constitutes fraud within statute relating to proof of will "fraudulently" destroyed during testator's lifetime, 23 A.L.R.2d 382.
What constitutes "estate" of nonresident decedent within statute providing for local ancillary administration where decedent died leaving an estate in jurisdiction, 34 A.L.R.2d 1270.
Proof of due execution of lost will, 41 A.L.R.2d 393.
Fact that instrument is designated or otherwise identified as a copy affecting its status as will, 81 A.L.R.2d 1112.
Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration, or cancellation, 28 A.L.R.3d 994.
Probate of copy of lost will as precluding later contest of will under doctrine of res judicata, 55 A.L.R.3d 755.
Testator's failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will, 61 A.L.R.3d 958.
Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.
Sufficiency of evidence of nonrevocation of lost will where codicil survives, 84 A.L.R.4th 531.