Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-109 and 113-301, and former O.C.G.A. § 53-2-40 are included in the annotations for this Code section.

Purpose.

- Substantive origin of the statute of frauds, as well as that of the former section, was the need to establish rules for the execution of wills which precluded as well as possible the occurrence of fraud in the disposition of estates, often the result of a life's labor. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Law provides no special formalities about the witnesses to a will; it is sufficient if the witnesses attest and subscribe the will in the presence of the testator; the law implies the request in the consummation of the act, and no special request by the testator is necessary. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Attestation of a will by the subscribing witnesses, signed by the witnesses in the presence of the testator and with the testator's knowledge may be treated as the equivalent of a request by the testator that these persons subscribe their names as witnesses to the paper, and especially when such testator is shown to have been seeking witnesses for the purpose of having the witnesses attest the testator's will. Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975) (decided under former Code 1933, § 113-301).

Designation-of-beneficiary document insufficient to operate as will.

- Although the designation-of-beneficiary document for purposes of decedent's teachers' retirement system benefits executed by the decedent in 1965 did contain the signature of a notary public, as well as the signature of the decedent's employer, there was no showing that these persons signed the document in the presence of the decedent as attesting witnesses and therefore the document could not operate as a will. Kirksey v. Teachers' Retirement Sys., 250 Ga. 884, 302 S.E.2d 101 (1983) (decided under former O.C.G.A. § 53-2-40).

Discussion of history of former provisions.

- See Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Cited in Rea v. Pursley, 170 Ga. 488, 154 S.E. 325 (1930); Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932); Bloodworth v. McCook, 193 Ga. 53, 17 S.E.2d 73 (1941); Denmark v. Rushing, 208 Ga. 557, 67 S.E.2d 766 (1951); Graham v. Stansell, 218 Ga. 832, 131 S.E.2d 103 (1963); Crews v. Cook, 220 Ga. 479, 139 S.E.2d 490 (1964); Lee v. Green, 222 Ga. 141, 149 S.E.2d 86 (1966); Black v. Poole, 230 Ga. 129, 196 S.E.2d 20 (1973); Lamb v. Bryan, 236 Ga. 237, 223 S.E.2d 122 (1976); Johnson v. Shook, 156 Ga. App. 878, 275 S.E.2d 815 (1981).

Attestation clause.

- Paper testamentary in its nature does not require for its due execution an attesting clause declaring it a will, and reciting its execution according to the terms of the statute, pointing out how wills shall be executed. If it be subscribed by the testator, in the presence of the witnesses, and be attested and subscribed by the witnesses in the testator's presence, it is sufficient. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Acknowledgment may be inferred.

- Acknowledgment by testator need not be explicit, but may be inferred from conduct. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-40).

Testator may sign using any name or signature intended to authenticate an instrument as testator's will. Mitchell v. Mitchell, 245 Ga. 291, 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Testator's mark sufficient to show intent to authenticate will.

- Trial court did not err in granting a propounder's motion for summary judgment on the issue of whether a testator's will was properly executed because pursuant to O.C.G.A. § 53-4-20(a), the testator's mark was sufficient to show that she intended to authenticate the instrument as her will, and her intent to authenticate the will could not be questioned simply because she needed physical assistance to mark the instrument; the testator was unable to place her signature on the will, so one of the witnesses assisted her by moving her hand to the signature line, and it was her intent that the mark would serve as her signature. Strong v. Holden, 287 Ga. 482, 697 S.E.2d 189 (2010).

"Express direction" required by statute may be by express conduct as well as by express words. Mitchell v. Mitchell, 245 Ga. 291, 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Testator's hand resting upon the pen while it was being manipulated to produce the testator's signature constitutes the testator's "express direction" within the meaning of law. Mitchell v. Mitchell, 245 Ga. 291, 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Attorney's assistance in helping testator sign will.

- When there was evidence that the attorney who prepared the will enabled the testator, who because of the testator's physical condition could not write, to make the testator's mark by placing the testator's hand upon the pen as the mark was made, this was sufficient to authorize the jury to find that the testator signed the will. Crutchfield v. McCallie, 188 Ga. 833, 5 S.E.2d 33 (1939) (decided under former Code 1933, § 113-301).

Particular acts of authentication.

- Statute does not of itself make that which is attested by a witness the signature of the testator. Like the statute of frauds upon which it was modeled, it does not set forth any particular acts of authentication by the testator to be attested by the witnesses. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Testator to sign in presence of witnesses.

- To constitute a legal execution of an instrument purporting to be a will, it is absolutely necessary that the attesting witnesses either actually see the testator sign the instrument, or that the testator acknowledge the testator's signature thereto either expressly or impliedly. Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1962) (decided under former Code 1933, § 113-301); Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975);(decided under former Code 1933, § 113-301).

As with questions of the authenticity of the testator's signature, of the testamentary capacity of the testator, and of the undue influence upon the testator of others in making the testator's will, the signing, or acknowledgment of the testator's signature, by the testator in the presence of attesting witnesses is a matter of proof. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Attestation of a will requires that the testator must either sign in the presence of the witness or acknowledge the testator's signature to the witness. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-40).

Testator must be able to see witnesses sign a will.

- Line-of-vision test of former O.C.G.A. § 53-4-20, under which a testator must be able to see the witnesses sign the testator's will from the place where the testator is situated without changing the testator's place if the testator so desires is part of O.C.G.A. § 53-4-20 as revised in 1998; revised statutory language must be construed to be consistent with existing law unless a contrary intent is clear from the language of the revised statute, and because no contrary intent appears in § 53-4-20, which mirrors the language of the previous version, the formalities of the former Georgia Probate Code for the execution of a will are maintained. McCormick v. Jeffers, 281 Ga. 264, 637 S.E.2d 666 (2006).

Will not signed in the presence of the testator.

- Will of a testator was improperly admitted to probate under the line-of-vision test of O.C.G.A. § 53-4-20(b) because the witnesses signed the will at a dining room table where the testator could not see them without changing position from the bedroom chair where the testator had signed the will; because the evidence unequivocally established that the testator could not have seen the witnesses sign the will if the testator desired to do so, any presumption of proper execution arising from the will's attestation clause was rebutted by clear proof that the will was not properly executed in that the witnesses did not sign the will in the testator's presence. McCormick v. Jeffers, 281 Ga. 264, 637 S.E.2d 666 (2006).

Signature of witnesses in each others' presence.

- It is not necessary that the subscribing witnesses sign in the presence of each other; it is sufficient if each signs in the presence of the testator. Whitfield v. Pitts, 205 Ga. 259, 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Testator and witnesses in adjoining rooms.

- If the situation and circumstances of the testator and the attesting witnesses to a will at the time of the will's attestation are such that the testator, in the testator's actual position, might have seen the act of attestation, the requirement of the law that the witnesses shall sign in the testator's presence is sufficiently met. Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975) (decided under former Code 1933, § 113-301).

Subscribing witnesses can attest a will, even though the witnesses and the testator are in adjoining rooms in the same house, if the testator in the testator's actual location might have seen the attestation. Newton v. Palmour, 245 Ga. 603, 266 S.E.2d 208 (1980) (decided under former Code 1933, § 113-301).

Signatures not required to be on same page.

- Provisions of the code regarding signing and attestation of a will do not require that the signatures of the testator and of the witnesses be on the same page and such a requirement is not imposed by case law. In re Estate of Brannon, 264 Ga. 84, 441 S.E.2d 248 (1994) (decided under former O.C.G.A. § 53-2-40).

When all of the signature pages are physically connected as part of the will, the fact that a testator's signature and the signatures of witnesses do not appear on the same page does not in itself invalidate the execution of the will. In re Estate of Brannon, 264 Ga. 84, 441 S.E.2d 248 (1994) (decided under former Code 1933, § 113-301).

Priority of signatures.

- Rules of construction as laid down in Duffie v. Corridon, 40 Ga. 122 (1869), Brooks v. Woodson, 87 Ga. 379, 13 S.E. 712 (1890) and those cases following, that witnesses attest a testator's signature and that a will is rendered invalid if a witness signs before the testator no matter whether the signatures are affixed in the same continuous transaction, are rationalizations opposing the effectuation of testamentary desires while offering no preventative for fraud. They will no longer be followed because there can be no fraud when all parties sit at the same table and affix their signatures in the presence of each other regardless of who signs first. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Even though witnesses attest to the will as declared by the testator and no priority of signature of testator and witnesses should be assigned in the execution of a will, the requirement that the testator must sign or acknowledge the testator's signature in the presence of the witnesses is not eliminated. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Attestation clause raises presumption of legality of will.

- Proper attestation clause to a duly signed and attested will raises a presumption that the will was legally executed; however, this presumption is rebuttable by clear proof to the contrary. Newton v. Palmour, 245 Ga. 603, 266 S.E.2d 208 (1980) (decided under former Code 1933, § 113-301).

Guardian ad litem as competent witness.

- Guardian ad litem is a competent witness to the will of the guardian's ward. Bagwell v. Estate of Gibson, 258 Ga. 785, 374 S.E.2d 732 (1989) (decided under former O.C.G.A. § 53-2-40).

Attestation sufficient to avoid summary judgment against probate.

- Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to will caveators in a will propounder's action seeking to probate a decedent's will, since the decedent had sufficiently signed the will on the signature line of the self-proving clause, pursuant to former O.C.G.A. § 53-2-40.1, and there existed two competent witness signatures which were sufficient for attestation purposes; accordingly, the statutory requirements for proper execution of a will under former O.C.G.A. § 53-2-40 appeared to have been met and a jury issue was raised as to whether, in fact, the requirements were met. Miles v. Bryant, 277 Ga. 362, 589 S.E.2d 86 (2003) (decided under former O.C.G.A. § 53-2-40).

Witness also signing as notary.

- It was error to grant summary judgment to a caveator in a will contest in which the first of three witnesses signed both as a witness and as a notary. Even if the first witness did not intend to act as a witness, if the first witness and a second witness signed the will in the decedent's presence, then O.C.G.A. § 53-4-20(b), requiring two witnesses, was satisfied even if a third witness signed outside the decedent's presence; furthermore, although O.C.G.A. § 45-17-8(c)(1) disqualified a witness from also acting as a notary, the first witness's disqualification as a notary was immaterial because the will was not a self-proving one requiring a notary. Land v. Burkhalter, 283 Ga. 54, 656 S.E.2d 834 (2008).

Requirements of statute met.

- Will met the requirements of O.C.G.A. § 53-4-20(b) because the will was executed by the testator and signed by two subscribing witnesses, the one surviving witness testified as to the will's due execution, and the caveators presented no evidence challenging the validity of the signatures or the testator's capacity. Peterson v. Harrell, 286 Ga. 546, 690 S.E.2d 151 (2010).

Codicil not properly executed.

- Trial court erred in finding that a codicil to a testator's will was valid because the propounders failed to prove due execution of the codicil when the testator failed to sign or acknowledge the testator's signature on the first codicil in the presence of at least, and possibly both, subscribing witnesses pursuant to O.C.G.A. § 53-4-20(b); the testimony of one of the subscribing witnesses was unequivocal that the testator did not sign the first codicil in the witness's presence and did not acknowledge the testator's signature. Parker v. Melican, 286 Ga. 185, 684 S.E.2d 654 (2009).

Propounder of will must prima facie prove factum of will.

- When the court charged the substance of the provisions of the statute for the attestation of wills, it was not error, without request, to fail to charge the jury the exact language of the statute. Middleton v. Waters, 205 Ga. 847, 55 S.E.2d 359 (1949) (decided under former Code 1933, § 113-301).

In a proceeding to probate a will the burden is upon the propounder to prima facie prove the factum of the will, that is, that the will was executed with requisite formalities; that the testator executed the will freely and voluntarily, and was at the time of sound and disposing mind and memory. This burden carried, the onus of proving the will is not valid for one of the reasons alleged in the caveat shifts to the caveator. Bianchini v. Wilson, 220 Ga. 816, 141 S.E.2d 889 (1965) (decided under former Code 1933, § 113-301).

The propounder of a will carries the burden of proving a prima facie case by presenting the subscribing competent witnesses who testified that the testator signed the will in their presence, after the will had been read, and that the testator possessed the mentality to know what the testator was doing. Waters v. Arrendale, 223 Ga. 617, 157 S.E.2d 289 (1967) (decided under former Code 1933, § 113-301).

Burden of proof.

- Trial court did not err in finding that a codicil to a testator's will was invalid because the court properly charged the jury that the caveators had no burden to prove the grounds of their caveats to the propounders' petition to probate codicils; because testamentary capacity and voluntary execution were necessary elements of the propounders' case, the burden of persuasion remained on the propounders to prove their assertions by a preponderance of the evidence, and in the absence of an asserted affirmative defense, the caveators had no duty to affirmatively prove anything but were required only to come forward with evidence to rebut the propounders' prima facie case as to essential elements. Parker v. Melican, 286 Ga. 185, 684 S.E.2d 654 (2009).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-301, are included in the annotations for this Code section.

Witnesses for holographic wills.

- There is no exception to the requirement of two witnesses in favor of holographic wills. 1967 Op. Att'y Gen. No. 67-62 (rendered under former Code 1933, § 113-301).

Any writing expressing the intention of the testator and duly executed may be a will provided the writing is intended by such instrument to convey no interest until after death. 1967 Op. Att'y Gen. No. 67-302 (rendered under former Code 1933, § 113-301).

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 170 et seq., 197 et seq., 216, 240, 245 et seq., 298, 302, 303, 306.

C.J.S.

- 95 C.J.S., Wills, §§ 1, 194, 195, 214, 217 et seq., 253 et seq.

ALR.

- Imputation to attesting witness of notice of contents of instrument, 4 A.L.R. 716.

Knowledge derived from family correspondence as qualifying one to testify as to genuineness of handwriting, 7 A.L.R. 261.

Effect of purported subscribing witness's denial or forgetfulness of signature by mark, 17 A.L.R. 1267.

Will as exclusive means of exercising power conferred by will to dispose of property, 20 A.L.R. 388.

Testator's name in body of instrument as sufficient signature where statute does not require will to be signed at end, 29 A.L.R. 891.

Manner of signing as affecting sufficiency of signature of testator, 31 A.L.R. 682; 42 A.L.R. 954; 114 A.L.R. 1110.

Duty of attesting witness with respect to testator's capacity, 35 A.L.R. 79.

Letter as a will or codicil, 54 A.L.R. 917; 40 A.L.R.2d 698.

Effect of testator's attempted physical alteration of will after execution, 62 A.L.R. 1367; 24 A.L.R.2d 514.

Admissibility of evidence other than testimony of subscribing witnesses to prove due execution of will, or testamentary capacity, 63 A.L.R. 1195.

Effect of illegibility of signature of testator or witness to will, 64 A.L.R. 208.

Presumption as to due execution of will from attestation, with or without attestation clause, 76 A.L.R. 617.

Codicil as affecting application of statutory provision to will, or previous codicil not otherwise subject, or as obviating objections to lack of testamentary capacity, undue influence, or defective execution otherwise fatal to will, 87 A.L.R. 836.

Necessity that attesting witnesses to will subscribe in presence of each other, 99 A.L.R. 554.

Probate of will or proceedings subsequent thereto as affecting right to probate later codicil or will, and rights and remedies of parties thereunder, 107 A.L.R. 249; 157 A.L.R. 1351.

Validity, construction, and application of codicil or other testamentary instrument authorizing certain person to change will or to make disposition of testator's property contrary to provisions of will, 108 A.L.R. 1098.

Retrospective application of statute concerning execution of wills, 111 A.L.R. 910.

Acknowledgment of signature by testator or witness to will as satisfying statutory requirement that testator or witness sign in the presence of each other, 115 A.L.R. 689.

Testamentary character of memorandum or other informal writing not testamentary on its face regarding ownership or disposition of specific personal property, 117 A.L.R. 1327.

Relative weight of testimony of attesting witnesses in support of mental competency of testator, 123 A.L.R. 88.

Changes by one other than testator after execution of holographic will as affecting its character as such, 124 A.L.R. 633.

Necessity of, and what amounts to, request on part of testator to the witnesses to attest or subscribe will, 125 A.L.R. 414.

Necessity that attesting witness to will not signed by testator in his presence shall have seen latter's signature on paper, 127 A.L.R. 384.

Codicil as effective to prevent lapse of legacy or devise in consequence of death of legatee or devisee after execution of will and before execution of codicil, 146 A.L.R. 1366.

Incorporation of extrinsic writings in will by reference, 173 A.L.R. 568.

Place of signature of holographic wills, 19 A.L.R.2d 926.

Codicil as validating will or codicil which was invalid or inoperative at time of its purported execution, 21 A.L.R.2d 821.

Codicil as reviving revoked will or codicil, 33 A.L.R.2d 922.

Interlineations and changes appearing on face of will, 34 A.L.R.2d 619.

Failure of attesting witness to write or state place of residence as affecting will, 55 A.L.R.2d 1053.

Codicil as reviving adeemed or satisfied bequest or devise, 58 A.L.R.2d 1072.

Competency of named executor as subscribing witness to will, 74 A.L.R.2d 283.

What constitutes the presence of the testator in the witnessing of his will, 75 A.L.R.2d 318.

Validity of will as affected by fact that witnesses signed before testator, 91 A.L.R.2d 737.

Statute of frauds: will or instrument in form of will as sufficient memorandum of contract to devise or bequeath, 94 A.L.R.2d 921.

Civil liability of witness falsely attesting signature to document, 96 A.L.R.2d 1346.

Validity of a will signed by testator with the assistance of another, 98 A.L.R.2d 824.

Validity of will signed by testator's mark, stamp, or symbol, or partial or abbreviated signature, 98 A.L.R.2d 837.

Sufficiency of testator's acknowledgment of signature from his conduct and the surrounding circumstances, 7 A.L.R.3d 317.

Revocation of will as affecting codicil and vice versa, 7 A.L.R.3d 1143.

What amounts to "last sickness" or the like within requirement that nuncupative will be made during last sickness, 8 A.L.R.3d 952.

Necessity of laying foundation for opinion of attesting witness as to mental condition of testator, 17 A.L.R.3d 503.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered, 17 A.L.R.3d 603.

Wills: place of signature of attesting witness, 17 A.L.R.3d 705.

Effect upon testamentary nature of document of expression therein of intention to make more formal will, further disposition of property, or the like, 46 A.L.R.3d 938.

Enforcement of preference expressed by decedent as to disposition of his body after death, 54 A.L.R.3d 1037.

Wills: separate gifts to same person in same or substantially same amounts made in separate wills or codicils, as cumulative or substitutionary, 65 A.L.R.3d 1325.

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R.5th 965.