O.C.G.A.
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.
When it appears that a will cannot be proved as otherwise provided by law because at the time the will is offered for probate one or more of the subscribing witnesses to the will is dead or mentally or physically incapable of testifying or otherwise inaccessible, the court may admit the will to probate in common or solemn form upon the testimony in person or by affidavit or by deposition of at least two credible disinterested witnesses that the signature to the will is that of the individual whose will it purports to be or upon other sufficient proof of such signature. This Code section shall not preclude the court, in its discretion, from requiring, in addition, the testimony in person or by deposition of any available subscribing witness or proof of such other pertinent facts and circumstances as the court may deem necessary to admit the will to probate.
History
Code 1981, § 53-5-24, enacted by Ga. L. 1996, p. 504, § 10.
Annotations
COMMENT This section carries forward the substance of former OCGA Sec. 53-3-18. JUDICIAL DECISIONS Proof of signature from lawyer and paralegal. - Although the witnesses to a will were deceased, the lawyer who prepared the will and the lawyer’s paralegal were not permitted to testify that the signature on the will was the decedent’s
because the lawyer and paralegal did not demonstrate a familiarity with the decedent’s signature. Ammons v. Clouds, 295 Ga. 225, 758 S.E.2d 282 (2014). Cited in Harvey v. Sullivan, 272 Ga. 392, 529 S.E.2d 889 (2000).
RESEARCH REFERENCES Am. Jur. 2d. - 80 Am. Jur. 2d, Wills, § 853.
C.J.S. - 95 C.J.S., Wills, §§ 616 et seq., 626, 661 et seq.
Notes of Decisions
Cited in
4
cases, 2000–2014 · leading case:
Harvey v. Sullivan, 529 S.E.2d 889 (Ga. 2000).
Harvey v. Sullivan, 529 S.E.2d 889 (Ga. 2000).
· cites it 6× “In accordance with OCGA § 53-5-24, 1 the propounder put on a series of witnesses who established their familiarity with the testatrix’s signature and testified that the signature on the will was hers.”
Ammons Et Al. v. Clouds Et Al., 758 S.E.2d 282 (Ga. 2014).
· cites it 6× “Propounders sought to invoke OCGA § 53-5-24, under which, when a witness to a will is not available to testify, the trial court may admit the will to probate “upon the testimony in person or by affidavit or by deposition of at least two credible disinterested witnesses that the…”
Parker v. Melican, 684 S.E.2d 654 (Ga. 2009).
· cites it 2× “Although propounders argue that the subscribing witnesses had forgotten the circumstances of their signing by the time of trial, thereby making them unavailable under OCGA § 53-5-24 and authorizing the jury to consider other evidence in determining the validity of the codicil,…”
Mason v. Phillips, 722 S.E.2d 49 (Ga. 2012).
· cites it 2× “When one or more subscribing witnesses are dead or otherwise unavailable, a will may be proved based on the testimony of at least “two credible disinterested witnesses that the signature to the will is in the handwriting of the person whose will it purports to be, or upon other…”
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