Duncan v. Moore, S02A0949.

Decision Date28 October 2002
Docket NumberNo. S02A0949.,S02A0949.
Citation275 Ga. 656,571 S.E.2d 771
PartiesDUNCAN et al. v. MOORE et al.
CourtGeorgia Supreme Court


Joseph E. Willard, Jr., Rossville, for appellants.

Lindsay H. Bennett, Jr., Rossville, for appellees.

BENHAM, Justice.

On November 9, 1998, testatrix Elva Tatum executed a will in which she left her home, its contents, and its 27-acre site to appellees Mattie and Oval Moore, neither of whom was related to the testatrix. Ms. Tatum died May 27, 1999, at the age of 82, without a spouse or children. The Moores filed a petition to probate the will and appellants, several nieces and nephews of the testatrix, filed a caveat. The probate judge sustained the caveat after finding the Moores had exercised undue influence over the testatrix to the extent that the will offered for probate was not the product of the testatrix's free and voluntary act. Appellees appealed the probate court's decision to the Superior Court of Dade County, which held a jury trial on the issue in April 2001. The jury returned a verdict in favor of the propounders of the will, and the trial court entered a judgment in accordance with the verdict. The relatives then filed this appeal.

1. Appellants contend the trial court committed reversible error by admitting the will into evidence before the testimony of the witnesses to the will and before it was established that the will was executed with the proper formalities. Attached to the will offered for probate was a self-proving affidavit and certificate executed by the testatrix, the two witnesses to the will, and a notary public. See OCGA § 53-4-24. 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. Westmoreland v. Tallent, 274 Ga. 172(1), 549 S.E.2d 113 (2001); Singelman v. Singelmann, 273 Ga. 894(1), 548 S.E.2d 343 (2001); Radford, Redfearn Wills and Administration in Georgia (6 th ed. 2000) § 5-8, pp. 96-97. In light of the presence of the self-proving affidavit, the will could be admitted to probate (and into evidence) without the testimony of the subscribing witnesses or other proof that the formalities of execution were met. Id. See also OCGA § 53-4-24(c), which states that "[a] self-proved will or codicil may be admitted to probate without the testimony of any subscribing witness...."

2. After the will and self-proving affidavit were admitted into evidence, the attorney who drafted the will and served as the notary public and the two subscribing witnesses testified about the circumstances surrounding the signing and attestation of the testatrix's will. Neither the attorney nor either witness had an independent recollection of this particular will, and the caveators objected to their testimony concerning the attorney's history of asking the two witnesses, employees of an insurance agency near the attorney's office, to serve as witnesses, and the attorney's procedure once the witnesses and testator met. On appeal, caveators contend the admission of the evidence was prejudicial and manifestly unjust because there was no proof that the testatrix's will was signed by her and executed with the required formalities. However, the testimony of the witnesses to the will on this point was unnecessary because, as noted in Division 1, the self-proving affidavit attached to the will created a presumption, subject to rebuttal, that the requirements of signature and attestation were met. Westmoreland v. Tallent, supra, 274 Ga. at 174, 549 S.E.2d 113. The caveators were entitled to rebut the presumption and they attempted to do so by cross-examining the drafting attorney and the attesting witnesses. Since the testimony complained of was, in effect, cumulative of the self-proving affidavit and caused no harm, we cannot say the trial court committed reversible error in admitting it.

3. Appellants next contend the evidence was insufficient to support the jury verdict because the Moores were in a confidential relationship with the testatrix and the presumption of undue influence that accompanies that relationship was not overcome by the Moores.

" Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another...." OCGA § 23-2-58. While some confidential relationships are created by law and...

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9 cases
  • Educap, Inc. v. Haggard
    • United States
    • Georgia Court of Appeals
    • June 13, 2017
    ...and punctuation omitted). A confidential relationship may be based in fact, as well as in contract or in law. See Duncan v. Moore , 275 Ga. 656, 658 (3), 571 S.E.2d 771 (2002). However, as a confidential relationship "may be found whenever one party is justified in reposing confidence in an......
  • Multi-Media Holdings v. PIEDMONT CENTER 15
    • United States
    • Georgia Court of Appeals
    • June 11, 2003
    ...must take the evidence in the light most favorable to the verdict and affirm if there is any evidence to support it. Duncan v. Moore, 275 Ga. 656, 658, 571 S.E.2d 771 (2002). The jurors are the sole and exclusive judges of the weight and credit given the evidence, and this Court must constr......
  • Reeves v. Webb
    • United States
    • Georgia Supreme Court
    • June 29, 2015
    ...of the subscribing witnesses or other proof for the purpose of showing that the formalities of execution were met. Duncan v. Moore, 275 Ga. 656, 657(1), 571 S.E.2d 771 (2002). Certainly, it is the burden of the propounder of a will to establish a prima facie case, which includes showing the......
  • Johnson v. State
    • United States
    • Georgia Supreme Court
    • October 28, 2002
  • Request a trial to view additional results
1 books & journal articles
  • Wills, Trusts, Guardianships, and Fiduciary Administration - Mary F. Radford
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 55-1, September 2003
    • Invalid date
    ...to the person with whose interest he has become associated. O.C.G.A. Sec. 23-2-59 (1982). 45. See Radford, supra note 44, at 588-93. 46. 275 Ga. 656, 571 S.E.2d 771 (2002). 47. 276 Ga. 636, 580 S.E.2d 201 (2003). 48. Duncan, 275 Ga. at 656, 571 S.E.2d at 771; Ashford, 276 Ga. at 636, 580 S.......

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