McBride v. Jones
| Decision Date | 12 January 1998 |
| Docket Number | No. S97A1972,S97A1972 |
| Citation | 268 Ga. 869,494 S.E.2d 319 |
| Parties | , 98 FCDR 238 McBRIDE v. JONES. |
| Court | Georgia Supreme Court |
Charles W. Bell, Charles W. Bell & Associates, Savannah, for Henry McBride.
Robert R. Cook, Simons, Booth, Cook & Cardillo, P.C., Savannah, for Stella C. Jones.
Ms. Doney McBride died on April 30, 1996, at the age of 92. Stella C. Jones, a niece to the deceased and a beneficiary under her will, offered for probate in solemn form a duplicate, conformed copy of a last will and testament purportedly signed by Ms. McBride on March 11, 1982. The petitioner asserted that although the original will could not be located, it had not been destroyed or revoked during the lifetime of the testatrix. Henry McBride, administrator of Doney McBride's estate, filed a caveat to the probate. 1 After a bench trial, the probate court granted the petition. Caveator filed a direct appeal to this Court as permitted under OCGA § 15-9-123. The sole issue is whether the probate court properly allowed a duplicate copy of the will to be admitted to record and probated in solemn form.
The evidence established that the 1982 will had been executed with all formalities in the office of Delano Maurice, the attorney who prepared the instrument. Maurice testified at the probate hearing that the testatrix signed the will in his presence and in the presence of his secretary, who served as a second witness; both witnesses attested and subscribed to the will in the presence of the testatrix; and the testatrix appeared to be of sound mind. Maurice testified further that he delivered the original will to the testatrix and conformed a duplicate of the original as his file copy; 2 that copy remained in his possession until after the death of the testatrix; and it was that copy which was offered for probate. Although efforts had been made to locate the second subscribing witnesses, she could not be produced for the hearing in probate court.
Jones testified that she cared for the testatrix from 1980 until her death in 1996, providing transportation and assisting her with her business affairs; that she accompanied the testatrix to attorney Maurice's office on March 11, 1982; and that the testatrix was in possession of the original will when they left the office together. Upon returning home, the testatrix declared to Jones that she wished her estate to be distributed as directed under the terms of the will, and Jones read the instrument to familiarize herself with its contents. Jones testified further that she saw the testatrix secure the original will away in her home, but that the original could not be located after her death. According to Jones, the testatrix always maintained that her estate was to be distributed as provided under the terms of the 1982 will, and she never stated that she had changed her testamentary plan or had destroyed or revoked the will.
1. If a will is lost during the lifetime of the testatrix, or subsequent to her death, "a copy of the will, clearly proved to be such by the subscribing witnesses and other evidence, may be admitted to probate and record in lieu of the original." OCGA § 53-3-6(a). Although the second attesting witness could not be located, the propounder clearly met her burden of proof through the testimony of attorney Maurice that the duplicate was a true copy of the original.
2. When a copy of a will is offered for probate, there exists a presumption that the will was revoked by the testatrix, and the...
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IN THE MATTER OF BARNES
...to require the caveator to rebut the presumption that was in his favor. 165 N.C. at 640, 81 S.E. at 1025. See also McBride v. Jones, 268 Ga. 869, 494 S.E.2d 319, 321 (1998) (where propounder produced a copy of the will, propounder was required to rebut presumption of invalidity before the "......
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Westmoreland v. Tallent, S01A0337.
...Harvey v. Sullivan, 272 Ga. 392(2), 529 S.E.2d 889 (2000) (evidence established that witnesses were inaccessible); McBride v. Jones, 268 Ga. 869(1), 494 S.E.2d 319 (1998) (due execution may be proved even if all witnesses are shown to be Tallent's failure to fulfill the testamentary formali......
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Murchison v. Smith, S98A0588.
...may be rebutted by circumstantial as well as direct evidence, including declarations of the testatrix. [Cit.]" McBride v. Jones, 268 Ga. 869, 870(2), 494 S.E.2d 319 (1998). The issue of revocation is dependent upon evidence of the testatrix's mental capacity in March 1995, the time of alleg......
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Candies v. Hulsey
...242 (2000). In making that determination, we must construe the evidence most favorably for the Caveator. See McBride v. Jones, 268 Ga. 869, 870(2), 494 S.E.2d 319 (1998). A will is the legal expression of a person's wishes as to the disposition of his or her property after death. Kirksey v.......