Methods of Examining Witnesses; Photocopy of Will

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Probate
5. Witnesses; Settlement Agreement; Expenses
6. Methods of Examining Witnesses; Photocopy of Will

1. In all proceedings for the probate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oath before a notary public or by depositions or other discovery procedures under the same circumstances as other civil cases. The probate court shall have the power to compel the attendance of witnesses in the same manner as the superior court.
2. Where witnesses are to be examined as authorized by this Code section, a photocopy of the will may be exhibited to the witnesses in lieu of the original will. The testimony of a witness to whom a photocopy of a will has been exhibited shall be given the same weight as though the original will had been exhibited to the witness.
3. The provisions of this Code section shall not be construed as repealing any other statutory provision prescribing a method or procedure for the taking of testimony by interrogatories or depositions, but as supplementary of such other provisions and cumulative to such other provisions and as providing additional means or methods of taking the testimony of subscribing witnesses to a will in proceedings for the probate of the will. The taking or procuring of testimony in the manner prescribed by this Code section shall be sufficient for all purposes of the probate proceedings, notwithstanding any other statute.

(Code 1981, §53-5-23, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Interrogatories generally, § 9-11-33.

COMMENT

This section carries over provisions of former OCGA Secs. 53-3-20 and 53-3-21. Former OCGA Sec. 53-2-15, which provided for the affidavits of attesting witnesses who resided outside the county, is repealed as the provisions of the new Code section are sufficiently broad to encompass a variety of acceptable methods of examination of witnesses. See Code Section 53-11-7 for an explanation of the term "notary public," which appears in the first sentence of this section.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3861, are included in the annotations for this Code section.

Admission of self-proved will.

- Under O.C.G.A. § 53-4-24(c), when a will is self-proved, the will "may be admitted to probate without the testimony of any subscribing witness." In fact, compliance with the requirements of execution are presumed without the live testimony or affidavits of witnesses; that is, under O.C.G.A. § 53-5-21(a), the affidavit creates a presumption regarding the prima facie case, subject to rebuttal. Singelman v. Singelman, 273 Ga. 894, 548 S.E.2d 343 (2001).

Subscribing witnesses could testify by written interrogatories.

- Child's claim that a probate court erred by allowing the subscribing witnesses to testify by written interrogatories was rejected as even in the case of a will that was not self-proved, witnesses to the will could be examined by written interrogatories. Tanksley v. Parker, 278 Ga. 877, 608 S.E.2d 596 (2005).

Directed verdict for the caveators of a will was improper, although the witnesses to the will had died, given prior testimony from one witness by interrogatory and deposition that the decedent, who was blind, had signed the will voluntarily and knew it was the decedent's will; under O.C.G.A. § 53-5-23(a), this evidence presented a jury question. Ammons v. Clouds, 295 Ga. 225, 758 S.E.2d 282 (2014).

Failure to caption petition.

- It was error for the superior court to direct a verdict in favor of a propounder because pursuant to current Ga. Unif. Prob. Ct. R. 5.3.3 the propounder was required to provide a caption on the propounder's petition to probate a will purported to be the last will and testament of the propounder's mother that set out the exact nature of the pleading or the type of petition, which was to probate a copy of a will in lieu of a lost original; however, not only did the propounder fail to caption the propounder's petition properly, the propounder also failed to make any interlineations or provide the requisite additional information in the petition as required by Georgia Probate Court Standard Form 5 to use that form to probate a copy of the mother's will. Tudor v. Bradford, 289 Ga. 28, 709 S.E.2d 235 (2011).

Propounder who offered a will for probate.

- 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).

Cited in Wells v. Thompson, 140 Ga. 119, 78 S.E. 823, 47 L.R.A. (n.s.) 722, 1914C Ann. Cas. 898 (1913); McFarland v. McFarland, 143 Ga. 598, 85 S.E. 758 (1915); Reeves v. Webb, 297 Ga. 405, 774 S.E.2d 641 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 21. 80 Am. Jur. 2d, Wills, §§ 829, 880, 881.

C.J.S.

- 95 C.J.S., Wills, §§ 461 et seq., 593, 595, 661 et seq., 668 et seq.

ALR.

- Admissibility in evidence of enlarged photographs or photostatic copies, 72 A.L.R.2d 308.

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