Making a Prima Facie Case for Solemn Form Probate After Singelman v. Singelman

• Publication year: 2003
• Pages: 0002

Georgia Bar Journal Volume 8.

GSB Vol. 8, No. 4, Pg. 2. Making a Prima Facie Case for Solemn Form Probate after Singelman v. Singelman

Georgia State Bar Journal
Vol. 8, No. 4, February 2003

"Making a Prima Facie Case for Solemn Form Probate after Singelman v. Singelman"

By Stephanie B. Casteel and Letitia A. McDonald

For over 150 years, the Georgia Supreme Court consistently held that to make a prima facie case to probate a contested will in solemn form, all living witnesses to the will who are also subject to the jurisdiction of the court must be produced by the one offering the will as the valid will of the deceased testator, the propounder.1 Because a will breaks the descent of property from the testator to the testator's next of kin, the will must be proven after the death of the testator to be the identical instrument intended by the testator to be his will.2 The purpose of requiring the testimony of all living witnesses to the will was to ensure that all parties in interest - including those who attack the validity of the will at issue, the caveators - would have the privilege of cross-examination by providing for the oral examination of all witnesses

Thus, for years it was common practice in Georgia that the propounder of a will could not merely rely on the witnesses' affidavit testimony to establish a prima facie case for the admission of the will to solemn form probate but rather, the propounder had to call these witnesses at trial.3 Recently, in Singelman v. Singelman,4 however, the Georgia Supreme Court overruled this firmly established precedent by holding that a propounder of a will need not produce the witnesses at trial to make a prima facie case for admission of the will. This article reviews the history of solemn form probate in Georgia and provides practical advice to the fiduciary practitioner regarding the way in which he or she can establish a prima facie case of solemn form probate in a contested proceeding in light of the Supreme Court's holding in Singelman

CASE LAW INVOLVING SOLEMN FORM PROBATE IN GEORGIA

In Brown v. Anderson,5 the Georgia Supreme Court handed down the general rule requiring the production of witnesses to a will in a solemn form probate proceeding There, the probate court ordered the will at issue to probate upon the written oaths of the subscribing witnesses. On appeal, the Georgia Supreme Court could not determine from the record whether the witnesses were present at the trial, but held that even had the witnesses been present, the fact that they were not sworn and examined was conclusive against the probate. The Court held that to probate a will in solemn form, it is necessary that all parties in interest be cited to witness the proceedings, that the will be produced in open court, that all witnesses be there examined, and that all parties in interest have the privilege of cross-examination.

The requirement of producing live witnesses to probate a will in solemn form was reaffirmed by the Court in dicta in 1895 in Gillis v. Gillis.6 There, the propounder produced the two subscribing witnesses in life, although one of them had apparently later become incompetent. The propounder of the will did not produce a third witness who had predeceased the testator nor a fourth witness who had signed the will outside the presence of the testator and after its execution. In holding that the will had been properly probated, the Court stated that if a sufficient number of witnesses attested and subscribed properly at the time a will was executed, and the witnesses were at that time competent, the will remains valid, although death or supervening disability may render any or all of them incapable of testifying by the time the will is offered for probate. In other words, although the subscribing witnesses are indispensable parties to prove a will in solemn form, the will can be proved (or not) from other testimony or evidence, provided the attesting witnesses are among those who bear testimony or their absence is properly explained.

In Bowen v. Neal,7 a 1911 action to prove a will in solemn form, one of the two witnesses who were still living was out of town. Because this witness's residence was within the Court's jurisdiction, the Court found that he should have been produced at trial.8 The Court held that the propounders were not entitled to a verdict proving the will stating that a propounder "can only successfully carry the burden of proof and make out a prima facie case by introducing testimony of all the attesting witnesses in life and within the jurisdiction of the court."9

The Georgia Supreme Court addressed the proper way to prove a will in solemn form again in 1941 in Bloodworth v. McCook.10 In this case, the will had been attested to by four witnesses, only three of whom testified at trial. The propounder did not produce the fourth witness nor explain his failure to do so, arguing that probate was proper because only three witnesses were required to properly execute a will under state law. The Court held that all of the witnesses to a will must be produced, if they are living and within the jurisdiction of the court, and accordingly, the propounder failed to prove the will.11

By this time, Georgia case law had well established that in a contested proceeding, to make out a prima facie case to propound a will, a propounder must introduce at the hearing all subscribing witnesses, if living and accessible, or proof of their signatures, if dead or inaccessible.12 The witnesses must be introduced for examination even though some of them may have a lack of memory13 or the propounder knows that their evidence will be unfavorable to him.14

GEORGIA'S STATUTORY LAW INVOLVING SOLEMN FORM PROBATE

The propounder's requirement to produce all witnesses in life and within the jurisdiction of the court to prove a will in solemn form also has been well established by Georgia's statutory law. As early as 1861, section 2393 of the Georgia Code provided that a will is proven "by all the witnesses in existence and within the jurisdiction of the court, or by proof of their signatures and that of the testator, the witnesses being dead."15 Until 1996, the statute changed very little16 and consistently stated the requirement of producing all...