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2018 Georgia Code 53-5-23 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 53-5-23 Case Law from Google Scholar Amendments to OCGA 53-5-23

TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 5. Probate, 53-5-1 through 53-5-71.

ARTICLE 4 WITNESSES; SETTLEMENT AGREEMENT; EXPENSES

53-5-23. Methods of examining witnesses; photocopy of will.

  1. In all proceedings for the probate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oath before a notary public or by depositions or other discovery procedures under the same circumstances as other civil cases. The probate court shall have the power to compel the attendance of witnesses in the same manner as the superior court.
  2. Where witnesses are to be examined as authorized by this Code section, a photocopy of the will may be exhibited to the witnesses in lieu of the original will. The testimony of a witness to whom a photocopy of a will has been exhibited shall be given the same weight as though the original will had been exhibited to the witness.
  3. The provisions of this Code section shall not be construed as repealing any other statutory provision prescribing a method or procedure for the taking of testimony by interrogatories or depositions, but as supplementary of such other provisions and cumulative to such other provisions and as providing additional means or methods of taking the testimony of subscribing witnesses to a will in proceedings for the probate of the will. The taking or procuring of testimony in the manner prescribed by this Code section shall be sufficient for all purposes of the probate proceedings, notwithstanding any other statute.

(Code 1981, §53-5-23, enacted by Ga. L. 1996, p. 504, § 10.)

Cross references.

- Interrogatories generally, § 9-11-33.

COMMENT

This section carries over provisions of former OCGA Secs. 53-3-20 and 53-3-21. Former OCGA Sec. 53-2-15, which provided for the affidavits of attesting witnesses who resided outside the county, is repealed as the provisions of the new Code section are sufficiently broad to encompass a variety of acceptable methods of examination of witnesses. See Code Section 53-11-7 for an explanation of the term "notary public," which appears in the first sentence of this section.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3861, are included in the annotations for this Code section.

Admission of self-proved will.

- Under O.C.G.A. § 53-4-24(c), when a will is self-proved, the will "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).

Subscribing witnesses could testify by written interrogatories.

- Child's claim that a probate court erred by allowing the subscribing witnesses to testify by written interrogatories was rejected as even in the case of a will that was not self-proved, witnesses to the will could be examined by written interrogatories. Tanksley v. Parker, 278 Ga. 877, 608 S.E.2d 596 (2005).

Directed verdict for the caveators of a will was improper, although the witnesses to the will had died, given prior testimony from one witness by interrogatory and deposition that the decedent, who was blind, had signed the will voluntarily and knew it was the decedent's will; under O.C.G.A. § 53-5-23(a), this evidence presented a jury question. Ammons v. Clouds, 295 Ga. 225, 758 S.E.2d 282 (2014).

Failure to caption petition.

- It was error for the superior court to direct a verdict in favor of a propounder because pursuant to current Ga. Unif. Prob. Ct. R. 5.3.3 the propounder was required to provide a caption on the propounder's petition to probate a will purported to be the last will and testament of the propounder's mother that set out the exact nature of the pleading or the type of petition, which was to probate a copy of a will in lieu of a lost original; however, not only did the propounder fail to caption the propounder's petition properly, the propounder also failed to make any interlineations or provide the requisite additional information in the petition as required by Georgia Probate Court Standard Form 5 to use that form to probate a copy of the mother's will. Tudor v. Bradford, 289 Ga. 28, 709 S.E.2d 235 (2011).

Propounder who offered a will for probate.

- It was error for the superior court to direct a verdict in favor of a propounder because under O.C.G.A. § 53-4-46, the propounder was required to prove that the propounder's mother did not deliberately discard or destroy the original of the will with the purpose of revoking the will, but the propounder did not satisfy the propounder's statutory duty, and the propounder should have filed a petition to probate a copy of a will in lieu of a lost original, which would have notified the probate court of the appropriate standards and burdens of proof; the plain language of O.C.G.A. § 53-4-46(b) clearly requires that the presumption of intent to revoke be rebutted in order for a copy of a will to be probated, and Georgia law does not allow a propounder to probate a will without fulfilling the pertinent evidentiary requirements, even when no caveat has been filed. Tudor v. Bradford, 289 Ga. 28, 709 S.E.2d 235 (2011).

Cited in Wells v. Thompson, 140 Ga. 119, 78 S.E. 823, 47 L.R.A. (n.s.) 722, 1914C Ann. Cas. 898 (1913); McFarland v. McFarland, 143 Ga. 598, 85 S.E. 758 (1915); Reeves v. Webb, 297 Ga. 405, 774 S.E.2d 641 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 21. 80 Am. Jur. 2d, Wills, §§ 829, 880, 881.

C.J.S.

- 95 C.J.S., Wills, §§ 461 et seq., 593, 595, 661 et seq., 668 et seq.

ALR.

- Admissibility in evidence of enlarged photographs or photostatic copies, 72 A.L.R.2d 308.

Cases Citing O.C.G.A. § 53-5-23

Total Results: 7  |  Sort by: Relevance  |  Newest First

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Tanksley v. Parker, 608 S.E.2d 596 (Ga. 2005).

Cited 11 times | Published | Supreme Court of Georgia | Jan 24, 2005 | 278 Ga. 877, 2005 Fulton County D. Rep. 208

...802, 802, 546 S.E.2d 520 (2001). [3] Fowler v. Cox, 264 Ga.App. 880, 882, 592 S.E.2d 510 (2003) (citing OCGA § 9-11-52(a)). [4] Edmondson v. Edmondson, 240 Ga. 611, 612, 241 S.E.2d 830 (1978). [5] 273 Ga. 894, 548 S.E.2d 343 (2001). [6] Id. at 896, 548 S.E.2d 343 (citing OCGA § 53-5-23).
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Singelman v. Singelmann, 548 S.E.2d 343 (Ga. 2001).

Cited 11 times | Published | Supreme Court of Georgia | Jun 11, 2001 | 273 Ga. 894, 2001 Fulton County D. Rep. 1852

...case, subject to rebuttal. OCGA § 53-5-21(a) [4] . Even in the case of a will that is not *346 self-proved, witnesses to the will may be examined in person, by written interrogatories, or by other discovery procedures, as in other civil cases. OCGA § 53-5-23(a). [5] The taking of testimony in the manner prescribed by statute is sufficient for all purposes in the probate proceeding. OCGA § 53-5-23(c)....
...[4] OCGA § 53-5-21(a) provides: A will may be proved in solemn form after due notice, upon the testimony of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in Code Section 53-5-23....
...If a will is self-proved, compliance with signature requirements and other requirements of execution is presumed subject to rebuttal without the necessity of the testimony of any witness upon filing the will and affidavit annexed or attached thereto. [5] OCGA § 53-5-23(a) provides: In all proceedings for the probate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oath before a notary public or by depositions or other discovery procedures under the same circumstances as other civil cases. [6] OCGA § 53-5-23(c) provides: The provisions of this code section shall not be construed as repealing any other statutory provision prescribing a method or procedure for the taking of testimony by interrogatories or depositions, but supplementary of such other provisions and cumulative to such other provisions ......
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Reeves v. Webb, 297 Ga. 405 (Ga. 2015).

Cited 5 times | Published | Supreme Court of Georgia | Jun 29, 2015 | 774 S.E.2d 641

... Singelman v. Singelmann, at 896 (1). Indeed, [e]ven in the case of a will that is not self-proved, witnesses to the will may be examined in person, by written interrogatories, or by other discovery procedures, as in other civil cases. OCGA § 53-5-23(a). The taking of testimony in the manner prescribed by statute is sufficient for all purposes in the probate proceeding. OCGA § 53-5-23(c).8 witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in Code Section 53-5-23....
...If a will is self-proved, compliance with signature requirements and other requirements of execution is presumed subject to rebuttal without the necessity of the testimony of any witness upon filing the will and affidavit annexed or attached thereto. 8 OCGA § 53-5-23 states: (a) In all proceedings for the probate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oath before...
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Peterson v. Harrell, 690 S.E.2d 151 (Ga. 2010).

Cited 5 times | Published | Supreme Court of Georgia | Feb 1, 2010 | 286 Ga. 546, 2010 Fulton County D. Rep. 241

...The will was witnessed by two subscribing witnesses, only one of whom was living at the time of trial. Having been provided a copy of testator's will, the surviving witness testified to its due execution by deposition testimony presented at trial and via written interrogatories filed with the court. See OCGA § 53-5-23 (methods of examining witnesses to a will)....
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Ammons Et Al. v. Clouds Et Al., 295 Ga. 225 (Ga. 2014).

Cited 3 times | Published | Supreme Court of Georgia | May 5, 2014 | 758 S.E.2d 282, 2014 Fulton County D. Rep. 1261

...6 solemn form after due notice, upon the testimony of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in [OCGA §] 53-5-23.”6 See also Singelmann v. of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in Code Section 53-5-23....
...assent thereto, and if there are no other proceedings pending in this state with respect to the probate of another purported will of the decedent, the will may be probated and letters thereupon may issue without further delay. 6 OCGA § 53-5-23 reads: (a) In all proceedings for the probate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oat...
...7 Singelmann, 273 Ga. 894, 896 (1) (548 SE2d 343) (2001). Although the witnesses to the propounded will were deceased at the time of trial, they were both in life earlier in the proceedings. Under OCGA § 53-5-23 (a), a witness to a will may testify by written interrogatories or deposition....
...probate proceedings, notwithstanding any other statute. 8 that deposition were read at trial.7 This Court has held that the testimony of a single witness to a will’s execution by the methods provided for in OCGA § 53-5-23 can authorize the finder of fact to conclude that the will was properly executed....
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Tudor v. Bradford, 709 S.E.2d 235 (Ga. 2011).

Cited 1 times | Published | Supreme Court of Georgia | Mar 25, 2011 | 289 Ga. 28, 2011 Fulton County D. Rep. 931

...For example, one of the requirements for proving a will in solemn form is to provide proof that the will is in fact the last will and testament of the decedent in the form of testimony of the witnesses to the will or written interrogatories answered by the witnesses under oath before a notary public. OCGA §§ 53-5-21 (a), 53-5-23(a)....

Reeves v. Webb (Ga. 2015).

Published | Supreme Court of Georgia | Jun 29, 2015 | 289 Ga. 28, 2011 Fulton County D. Rep. 931

...ovides: A will may be proved in solemn form after due notice, upon the testimony of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in Code Section 53-5-23....
... Singelman v. Singelmann, at 896 (1). Indeed, [e]ven in the case of a will that is not self-proved, witnesses to the will may be examined in person, by written interrogatories, or by other discovery procedures, as in other civil cases. OCGA § 53-5-23 (a). The taking of testimony in the manner prescribed by statute is sufficient for all purposes in the probate proceeding. OCGA § 53-5-23 (c).8 Id. Accordingly, the judgments of the probate court are reversed and the case is remanded to that court for proceedings consistent with this opinion. subject to rebuttal without the necessity of the testimony of any witness upon filing the will and affidavit annexed or attached thereto. 8 OCGA § 53-5-23 states: (a) In all proceedings for the probate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oa...