As ill luck or the passage of time would have it,  subscribing witnesses to a will may be dead or otherwise unavailable when it finally comes time to petition to probate the will.  How can you prove the will without subscribing witnesses?

In Mason v. Phillips, the Georgia Supreme Court walked through how you do it in Georgia, and found that the executor failed to prove the will.

William J. Mason filed a petition to probate the will of Frances E. Hobbs.  The proffered will was dated August 17, 1974; was not self-proved; and had three subscribing witnesses.

(Interesting aside – Hobbs’s husband never attempted to probate the will following her death in 1989.  The will offered for probate was found after her husband’s death in 2005, and it was her husband’s executor who filed the petition to probate the will in solemn form.)

Some relatives filed a caveat averring that the will was not properly executed and witnessed.  After a hearing, the probate court denied the executor’s petition to probate the will.  The probate court had found that the executor failed to satisfy his burden of proving the will under two different avenues, and the Georgia Supreme Court agreed.

First, the executor failed to produce the testimony of all subscribing witnesses.  The executor presented evidence that one was dead and one could not be located, but did not present any evidence to prove their signatures as required when witnesses are unavailable.  One of the subscribing witnesses testified, but that testimony did not prove proper execution and attestation of the will.  That witness testified that he had seen Frances Hobbs a couple of times, didn’t remember witnessing the will, and didn’t think that the signature on the will was his.

Second, the executor failed to prove through the testimony of two credible disinterested witnesses that the signature to the will was in the handwriting of Frances Hobbs.  One witness testified that she saw the signature of a medical claim form 9 years after the will was made and to the best of her recollection the signature on the will was indeed that of Frances E. Hobbs.  The second witness, however, testified that the first letter in the signature did not look like the distinctive “F” of Frances E. Hobbs that she remembered.  Based on that testimony, the probate court found that the evidence was insufficient to establish that the signature on the will was in the decedent’s handwriting.