A recent Georgia Supreme Court case explains the shifting burdens in Georgia will contest cases.  In Parker v. Kelley, Virginia Crawford Kelley filed a petition to probate the will of Mabel Frances White in solemn form.  Phillip Harold Parker filed a caveat.

Let’s take a look at how this propounder satisfied her burden and thus shifted the burden of proof to the caveator.

At the outset, Kelley had the burden of proving that the proffered will was the last will and testament of the testatrix.  She satisfied this burden by:

  • testifying at a probate court hearing that the testatrix had a sharp mind;
  • submitting written interrogatories of the witnesses to the testatrix’s will, who stated under oath that the formalities of the will execution were complied with, that the testatrix voluntarily executed the will, and that the testatrix appeared to be of sound mind at the time of execution; and
  • submitting a prior will of the testatrix which was substantially the same as the will offered to probate.


With this evidence, the burden of proof shifted to the caveator.

The only evidence offered by the caveator in support of the incapacity claim was his own “self-serving observations” of the testatrix and a letter from the testatrix’s chaplain stating that the testatrix never spoke of any family except Kelley’s.  This was insufficient.

The only evidence offered by the caveator in support of the undue influence claim was that Kelley and her family cared for and spent a lot of time with the testatrix during the last decades of her life, creating a possibility of undue influence.  Of course, we all know that evidence that shows no more than an opportunity to influence and even a substantial benefit falls short of actually showing the exercise of undue influence.

On this basis, the Supreme Court affirmed the probate court’s order admitting the will to probate.