Westmoreland v. Tallent, S01A0337.
| Decision Date | 05 July 2001 |
| Docket Number | No. S01A0337.,S01A0337. |
| Citation | 549 S.E.2d 113,274 Ga. 172 |
| Court | Georgia Supreme Court |
| Parties | WESTMORELAND v. TALLENT. |
OPINION TEXT STARTS HERE
Fox, Chandler, Homans, Hicks & McKinnon, Robert L. Chandler, Gainesville, for appellants.
Charles B. Brown, Helen, Raymond T. McCormack, Gainesville, for appellee.
This is an appeal from the judgment entered on a jury verdict in a will contest regarding the estate of Irene Lackey Lane. For the reasons which follow, we affirm.
The testatrix who died in February 1997 executed a will in 1960 leaving her estate to several beneficiaries, including her niece, Martha Westmoreland. The testatrix executed another will in 1992 renaming Westmoreland and including as a new beneficiary Westmoreland's daughter, Kim Tallent. The 1960 will was probated and Westmoreland, the only surviving beneficiary of the 1960 will, was granted letters of administration. Thereafter, Tallent sought to have those letters revoked and the probate order vacated, and proffered in probate an unexecuted copy of the 1992 will. After a bench trial, the probate court issued an order vacating the earlier orders relating to the 1960 will and declaring the 1992 will valid. Westmoreland appealed to the superior court and following a trial, a jury determined that the 1992 will was valid and not revoked, and the superior court entered judgment accordingly. Westmoreland appeals from the denial of her motion for new trial.
The evidence adduced at trial established that the testatrix's long-time attorney prepared the 1992 instrument in accordance with her wishes. The will made some specific bequests to family members and divided the remainder of the estate between Westmoreland and Tallent. The attorney testified that he had previously made a will for the testatrix's husband and that six months after he probated the husband's will the testatrix approached him about making her will. He testified that he, a secretary and a secretary-notary public witnessed the testatrix's execution of the instrument. He further testified that the copy of the instrument introduced into evidence was the same as the executed original. Although the testatrix took the original of the 1992 will with her when she left the attorney's office, the attorney explained that it was his standard office procedure to have the testator sign the original will and for him to put a copy of the unexecuted will in a file designated for that client. The secretary-notary public testified that she notarized the document after she witnessed the testatrix, the attorney and another secretary sign the will and a self-proving affidavit. There was no evidence offered as to the whereabouts of the second subscribing witness or whether any efforts had been made to locate her. The testatrix became incapacitated beginning in 1994 and the attorney who was appointed her guardian ad litem testified to the similarities in the desires the testatrix expressed to him and the provisions contained in the copy of the 1992 will offered for probate.
1. Westmoreland contends that the will should not have been admitted to probate, arguing that testimony from all of the witnesses was required to prove due execution of the will, or proof that the witness was unavailable. Former OCGA § 53-3-6(a) (effective until January 1, 1998) addresses lost wills and provides that if a will is lost during the testator's lifetime, destroyed without the consent of the testator during his lifetime, or lost or destroyed subsequent to the death of a testator, 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. Id. This statute addresses problems that arise when there is only a copy of the original will and "provides the procedure to be followed where the original will is lost but a copy is available." Horton v. Burch, 267 Ga. 1, 2, 471 S.E.2d 879 (1996). Westmoreland contends that the language "proved to be such by the subscribing witnesses" in former OCGA § 53-3-6(a) required Tallent to produce the second subscribing witness at trial or prove that the witness was unavailable, neither which she accomplished. Numerous Georgia cases interpreting the pre-revised probate code on the probate of lost or destroyed wills have held that when a copy of a lost or destroyed will is presented for probate, testamentary formalities apply requiring that its legal execution be proved by all of the subscribing witnesses in life and within the jurisdiction of the court as in proceedings for probate of a will in solemn form. 1 See, e.g., Fletcher v. Gillespie, 201 Ga. 377(5), 40 S.E.2d 45 (1946) (); Looney v. Looney, 199 Ga. 415, 34 S.E.2d 520 (1945); Mosely v. Carr, 70 Ga. 333 (1883); Kitchens v. Kitchens, 39 Ga. 168 (1869). Cf. Harvey v. Sullivan, 272 Ga. 392(2), 529 S.E.2d 889 (2000) (); McBride v. Jones, 268 Ga. 869(1), 494 S.E.2d 319 (1998) ().
Tallent's failure to fulfill the testamentary formalities required by former OCGA § 53-3-6 does not demand reversal, however, as the testatrix executed a self-proving affidavit pursuant to former OCGA § 53-2-40.1. That statute authorized an alternate method for proving the will without the subscribing witnesses.2
[A] will that is self-proved may be probated without the testimony of the witnesses, and the affidavit [signed by the testator in the presence of a notary public] creates a presumption, subject to rebuttal, that the requirements of execution and attestation were met.
[Footnote omitted.] Mary F....
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