In re Estate of McLendon

• Decision Date: 30 March 2021
• Docket Number: A21A0325
• Citation: 857 S.E.2d 268,359 Ga.App. 259
• Court: Georgia Court of Appeals
• Parties: IN RE ESTATE OF MCLENDON.

359 Ga.App. 259

857 S.E.2d 268

IN RE ESTATE OF MCLENDON.

A21A0325

Court of Appeals of Georgia.

March 30, 2021

Tiku & Associates, William Abang Tiku, Marietta, for Appellant.

Neville & Cunat, John Richard Neville, Cumming, for Appellee.

McFadden, Chief Judge.

April Owens appeals from a probate court order granting a petition to probate the will of her father, David McLendon. Owens argues that the evidence regarding McLendon's signing of the will overcame the presumption that the will is valid. But some evidence supports the probate court's ruling that the presumption of validity applies. So we affirm.

After McLendon died in 2018, his brother and his widow filed petitions to probate his 2010 will. Owens and her brothers (who are not parties to the appeal) filed a caveat. The probate court conducted a hearing at which Owens and her brothers argued that the will was invalid because it had not been executed in accordance with testamentary formalities since McLendon neither signed the will nor acknowledged his signature on the will in the presence of the two witnesses to the will. See Waldrep v. Goodwin , 230 Ga. 1, 6 (2), 195 S.E.2d 432 (1973) (for a will to be valid, the "testator must sign or acknowledge his signature in the presence of the witnesses"); OCGA § 53-4-20.

Those two witnesses testified at the hearing. One of them testified that he did not remember whether McLendon already had signed the will when the witness signed it almost ten years earlier. But he also testified that McLendon had not signed the will when the witness signed. In any event, the witness did not see McLendon sign. The other witness testified that he only remembered signing the will; he did not remember whether other signatures, including McLendon's, were on the will when he signed it. But he also testified that he did not see any signatures. McLendon's widow and his brother identified McLendon's signature on the will, and Owens does not dispute that McLendon signed it.

The probate court entered a final order admitting the will to probate. Citing Glenn v. Mann , 234 Ga. 194, 198 (1), 214 S.E.2d 911 (1975), the probate court ruled that because the witnesses did not remember the formalities of the execution and attestation of the will, the presumption of validity applied. Under Glenn , "[w]here a witness fails to remember events surrounding the will's execution, there is a presumption, given proof of the signatures appearing on the will, that all was done as the law requires." Id. at 198 (1), 214 S.E.2d 911.

On appeal, Owens reiterates her argument that the will is invalid because McLendon did not sign it in the presence of the witnesses or acknowledge his signature to them. She adds that the probate court erred by applying the presumption of validity because, unlike the witness in Glenn who "had no recollection of anything transpiring in connection with the will's execution," Glenn , 234 Ga. at 198 (1), 214 S.E.2d 911, the witnesses to McLendon's will did remember some of the circumstances in...