January 30, 2014
Authored by: Luke Lantta
Under Georgia law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke the will. But this presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy of the original and if it is established by a preponderance of the evidence that the testator did not intend to revoke the will.
Now, in Britt v. Sands, we see that same Supreme Court decide that a copy was not good enough. What was the difference?
After Edward Major died, his fiancée, Beverly Britt, filed a petition to probate a copy of Major’s will. No original could be found. Major’s daughter, and only heir at law, filed a caveat, alleging among other things that Major had destroyed the original will to prevent it from being probated. The will provided for Britt to inherit Major’s lake house, his deferred compensation benefits, and his Jeep, and for his daughter to inherit his retirement benefits, his car, his interest in his house, and his “miscellaneous items.”
The probate court held an evidentiary hearing to determine whether Britt could overcome the presumption of revocation when the original will cannot be found and determined that Britt could not overcome that presumption. Here’s some of the evidence the probate court considered:
– According to Britt, Major said that he was going to put the will in a lockbox and later said that someone had broken into his lockboxes and he didn’t know what happened to the will but he felt someone had taken it and destroyed it. On this issue, Major’s daughter offered conflicting testimony. She said that someone did break into Major’s lockboxes, but when she and Major went through them after the break-in, she didn’t see a will and Major told her the only missing item was a coin collection.
– Several witnesses testified that Major said he wanted to leave property – particularly his lake house – to Britt and that Major’s relationship with his daughter was strained.
– Major’s caretaker testified that, while Major still loved Britt, shortly before his death, Major said that Britt had “lost that loving feeling for him.”
– Britt testified that, although she accepted Major’s proposal of marriage, she repeatedly refused to go through with the wedding.
– While several witnesses testified that they did not think Major would leave anything to his daughter, she was listed in the will four times.
– Witnesses testified that Major was a “smart man,” and while he followed formal procedures to revoke his power of attorney, he did not use an attorney in drafting the will.
Based on this evidence, the probate court concluded that Britt could not overcome the presumption that Major’s will was revoked because the original could not be located. Now, compare this evidence with that in Johnson v. Fitzgerald where the presumption of revocation was overcome.
Surprisingly, the Britt opinion makes no mention of the Court’s decision just two months ago on the same issue in Johnson v. Fitzgerald. But a common thread between the two is the Court’s reluctance to second-guess the trial court that considered the evidence. In this case, the Georgia Supreme Court concluded that, while there was conflicting evidence and the probate court could have decided this case either way, it could not say that the probate court’s opinion lacked any evidence to support it and, therefore, the decision was affirmed.