Auito v. Auito., S10A1775.

Decision Date10 January 2011
Docket NumberNo. S10A1775.,S10A1775.
Citation704 S.E.2d 789,288 Ga. 443
CourtGeorgia Supreme Court


G. Phillip Beggs, Moore, Ingram, Johnson & Steele, Marietta, for appellant.Douglas A. Hill, Marietta, for appellee.BENHAM, Justice.

Bito Auito died March 31, 2007, leaving a will which named as executrix the decedent's widow, appellee Elois Ann Auito. Executrix Auito propounded the will with an attached self-proving affidavit, and appellant Victor Auito, the son of the decedent by a previous marriage, filed a caveat. At the hearing on the caveat, caveator challenged only the lack of proper execution of the self-proving affidavit and expressly abandoned all other grounds of his caveat. The probate court found the self-proving affidavit to be legally sufficient because it was substantially similar in form to the example set out in OCGA § 53–4–24(b) and met the requirements of an affidavit as set out in Glenn v. MARTA, 158 Ga.App. 98, 279 S.E.2d 481 (1981). Concluding that the propounder had established a prima facie case and met her burden of proof and that caveator had failed to rebut the prima facie case by a preponderance of the evidence, the probate court granted the petition to probate the will. Caveator then filed this appeal.

“A complete affidavit must satisfy three essential elements: (a) a written oath embodying the facts as sworn to by the affiant; (b) the signature of the affiant; and (c) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer.” Roberson v. Ocwen Fed. Bank, 250 Ga.App. 350(2), 553 S.E.2d 162 (2001), citing Glenn v. MARTA, supra, 158 Ga.App. at 99, 279 S.E.2d 481. OCGA § 53–4–24(a) provides that a will “may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public.” “The self-proving affidavit, which is a sworn statement that the will has been duly executed, creates a rebuttable presumption that the requirements of signature and attestation were met without the need for live testimony or affidavits from the will's witnesses.” Duncan v. Moore, 275 Ga. 656(1), 571 S.E.2d 771 (2002). The affidavit and the notary's certificate are the only prerequisites of a self-proved will (OCGA § 53–4–24(a)), and OCGA § 53–4–24(b) provides the form with which the affidavit and certificate substantially should comply. The statutory form provides the facts to which the affiant testator and affiant witnesses must swear; a line to which the affiant testator and affiant witnesses are to affix their signatures; and the notary's certificate, which serves as the attestation of an officer authorized to administer the oath that the affidavit was...

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4 cases
  • Rogers v. City of Selma, CIVIL ACTION NO. 14-586-CG-M
    • United States
    • U.S. District Court — Southern District of Alabama
    • April 8, 2016
    ...oath that the affidavit was actually sworn by the affiant before the officer.” 3 Am. Jur. 2d Affidavits § 8 ; see alsoAuito v. Auito, 288 Ga. 443, 704 S.E.2d 789, 790 (2011) (laying out the three elements of an affidavit). Of particular importance is the third element. Under Alabama law, a ......
  • Mayor & Aldermen of Savannah v. Batson–Cook Co.
    • United States
    • Georgia Supreme Court
    • May 29, 2012
    ...authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer.' [Cit.].” Auito v. Auito, 288 Ga. 443, 704 S.E.2d 789 (2011). The affidavits also met the criteria of USCR 25.2, as they contained definite and specific foundational facts of the trial......
  • Alvelo v. the State.
    • United States
    • Georgia Supreme Court
    • January 10, 2011
  • Martina v. Elrod
    • United States
    • Georgia Supreme Court
    • September 9, 2013
    ...§ 53–4–24(c). Such a will is rebuttably presumed to have been executed with the requisite testamentary formalities. Auito v. Auito, 288 Ga. 443, 443, 704 S.E.2d 789 (2011). To be self-proved, a will must have annexed to it an affidavit, sworn by the testator and attesting witnesses before a......
1 books & journal articles
  • Wills, Trusts, Guardianships, and Fiduciary Administration - Mary F. Radford
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 63-1, September 2011
    • Invalid date 543 (quoting Jones v. Habersham, 63 Ga. 146, 147 (1879)). 10. Id. at 826, 700 S.E.2d at 542-43. 11. Id. at 827, 700 S.E.2d at 543. 12. 288 Ga. 443, 704 S.E.2d 789 (2011). 13. Id. at 443, 704 S.E.2d at 789-90. This form appears at O.C.G.A. § 53-4-24(b) (2011). A will that is self-proved m......

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