O.C.G.A.

O.C.G.A. § 53-4-24 (2019)

Self-proved will or codicil

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.

(b) The affidavit shall be evidenced by a certificate, affixed with the official seal of the notary public, that is attached or annexed to the will or codicil, in form and content substantially as follows: STATE OF GEORGIA COUNTY of Before me, the undersigned authority, on this day personally appeared , , and , known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said individuals being by me duly sworn, , testator, declared to me and to the witnesses in my presence that said instrument is the last will and testament or a codicil to the last will and testament of the testator and that the testator had willingly made and executed it as a free act and deed for the purposes expressed therein. The witnesses, each on oath, stated to me in the presence and hearing of the testator that the testator had declared to them that the instrument is the testator’s last will and testament or a codicil to the testator’s last will and testament and that the testator executed the instrument as such and wished each of them to sign it as a witness; and under oath each witness stated further that the witness had signed the same as witness in the presence of the testator and at the testator’s request; that the testator was 14 years of age or over and of sound mind; and that each of the witnesses was then at least 14 years of age. Testator Witness Witness Sworn to and subscribed before me by sworn to and subscribed before me by witnesses, this day of

, testator, and and , .

(SEAL) (Signed) (Official Capacity of Officer) (c) A self-proved will or codicil may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently from a will or codicil that is not self-proved. In particular, without limiting the generality of the foregoing sentence, a self-proved will or codicil may be contested, revoked, or amended in exactly the same fashion as a will or codicil that is not self-proved.

History

Code 1981, § 53-4-24, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1999, p. 81, § 53.

Annotations

Law reviews. - For annual survey of

law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

COMMENT This section combines and carries over former OCGA Sec. 53-2-40.1 and portions of former OCGA Sec. 53-2-5. The self-proving procedure described in this section is available for both wills and codicils. See Code Sec. 53-11-7 for an explanation of the term ‘‘notary public,’’ which is used in subsection (a). JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-2-40.1 are included in the annotations for this Code section. Location of signature. - Even though the testator did not sign the last page of the will relating to the disposition of the testator’s estate, the will was valid since the testator’s signature appeared on the next page, the self-proving affidavit. Hickox v. Wilson, 269 Ga. 180, 496 S.E.2d 711 (1998) (decided under former O.C.G.A. § 53-2-40.1). 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. § 53-2-40.1). Admission of self-proved will. - Under O.C.G.A. § 53-4-24(c), when a will is self-proved, it ‘‘may be admitted to probate without the testimony of any subscribing witness.’’ In fact, compliance with the requirements of execution are presumed without the live testimony or affidavits of witnesses; that is, under

O.C.G.A. § 53-5-21(a), the affidavit creates a presumption regarding the prima facie case, subject to rebuttal. Singelman v. Singelman, 273 Ga. 894, 548 S.E.2d 343 (2001). Self-proving affidavit attached to a testator’s will created a rebuttable presumption that the signature and attestation requirements were met and allowed the will to be admitted into evidence without the testimony of the witnesses to the will or other proof that the formalities for the will’s execution were met. Duncan v. Moore, 275 Ga. 656, 571 S.E.2d 771 (2002). In a sister’s challenge to her brother’s will, the probate court erred in finding that the will was not sufficiently proven due to the executor’s failure to produce the witnesses; the will had an attached self-proving affidavit and could be admitted without other proof that formalities of execution were met, pursuant to O.C.G.A. § 53-4-24. Reeves v. Webb, 297 Ga. 405, 774 S.E.2d 641 (2015). Ruling upholding the 2010 will was affirmed because subscribing witnesses stated in an affidavit that the testatrix was mentally competent when the will was executed, it was self-proved, and contained an affidavit complying with O.C.G.A. § 53-4-24, which created a presumption that the will was executed with the requisite testamentary formalities, including that the testatrix had sufficient mental capacity to do so, and the challenger failed to rebut that presumption. Woods v. Stonecipher, 349 Ga. App. 698, 824 S.E.2d 633 (2019). Cited in Tuttle v. Ryan, 282 Ga. 652, 653 S.E.2d 50 (2007).

ARTICLE 4 JOINT OR MUTUAL WILLS

Notes of Decisions

Cited in 13 cases, 2001–2019 · leading case: Singelman v. Singelmann, 548 S.E.2d 343 (Ga. 2001).

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Singelman v. Singelmann, 548 S.E.2d 343 (Ga. 2001). · cites it 5× “3 See OCGA § 53-4-24; Hickox v. Wilson, 269 Ga.”

Auito v. Auito, 704 S.E.2d 789 (Ga. 2011). · cites it 12× “The probate court found the self-proving affidavit to be legally sufficient because it was substantially similar in form to the example set out in OCGA § 53-4-24 (b) and met the requirements of an affidavit as set out in Glenn v.”

Duncan v. Moore, 571 S.E.2d 771 (Ga. 2002). · cites it 4× “Appellants contend the trial court committed reversible error *657 by admitting the will into evidence before the testimony of the witnesses to the will and before it was established that the will was executed with the proper formalities.”

Reeves v. Webb, 774 S.E.2d 641 (Ga. 2015). · cites it 6× “Furthermore, OCGA § 53-4-24 provides for self-proved wills and codicils, stating in subsection (a): At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the…”

Martina v. Elrod, 748 S.E.2d 412 (Ga. 2013). · cites it 12× “Having determined that the affidavit does not substantially comply with the requirements of a self-proving affidavit under OCGA § 53-4-24, we reverse the superior court’s conclusion to the contrary.”

Miles v. Bryant, 589 S.E.2d 86 (Ga. 2003). · cites it 4× “The facts of who signed where and when are not at issue in this case, only whether the document as it was executed is a valid will, which is a question of law, not fact. The majority's reversal of the well-reasoned decision of the trial court establishes a new low-water mark for…”

Meadows v. Beam, 807 S.E.2d 339 (Ga. 2017). · cites it 2× “Here, Caveators accepted that Decedent’s 2014 will and codicil were “self-proved,” as they contained affidavits complying with OCGA § 53-4-24. As a result, Caveators admitted that a presumption existed that the will and codicil were executed with the requisite testamentary…”

Westmoreland v. Tallent, 549 S.E.2d 113 (Ga. 2001). · cites it 2× “” 2 OCGA § 53-4-24 of the revised probate code carries over former OCGA § 53-2-40.”

Woods v. Stonecipher., 824 S.E.2d 633 (Ga. Ct. App. 2019). · cites it 2× “And because the 2010 will was self-proved, in that it contained an affidavit complying with OCGA § 53-4-24, "a presumption existed that the will [was] executed with the requisite testamentary formalities, including that [it was] executed by a person apparently with sufficient…”

Land v. Burkhalter, 656 S.E.2d 834 (Ga. 2008). · cites it 2× “In fact, her disqualification under OCGA § 45-17-8 (c) (1) is not material to any aspect of the execution of this will, since the services of a notary were unnecessary because this was not a self-proving will as authorized by OCGA § 53-4-24.”

Tuttle v. Ryan, 653 S.E.2d 50 (Ga. 2007). · cites it 2× “Testimony from the attorney who prepared and witnessed the self-proved will, see OCGA § 53-4-24, an associate who also witnessed Ryan’s execution of the will, and the legal secretary who was present and notarized the will supported the probate court’s finding that Ryan possessed…”

Reeves v. Webb (Ga. 2015). · cites it 4× “5 5 OCGA § 53-4-24 (b) provides: The affidavit shall be evidenced by a certificate, affixed with the official seal of the 5 In the present case, the Will had an attached executed self-proving affidavit.”

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