The Supreme Court of Georgia recently affirmed a Probate Court decision finding that the absence of an original will created an evidentiary presumption that he did not want that will to be probated — that he intended to revoke the will. In this case, the decedent’s fiancée offered a copy of a will for probate and the decedent’s daughter filed an objection on the grounds that there is a presumption that the will was revoked because the original will was missing.
In the case of Britt v. Sands, 2014 Ga. Lexis 57, the Supreme Court held that the absence of Major’s original will created an evidentiary presumption that he did not want that will to be probated — that he intended to revoke the will. See OCGA § 53-4-46 (a). In propounding a copy of the will, Britt had the burden of rebutting that presumption “ ‘by showing, by a preponderance of the evidence, both that [Major] did not intend to revoke the will and that [the] proffered copy is a true copy.’ ” Thomas v. Sands, 284 Ga. 529, 530 (668 SE2d 731) (2008) (citation omitted); OCGA § 53-4-46 (b). “Whether the presumption of revocation is overcome is determined by the trier of fact, and in reviewing the [judgment], the evidence must be accepted which is most favorable to the party in whose favor the [judgment] was rendered.” Thomas, 284 Ga. at 530 (citations and punctuation omitted). Moreover, “[t]his Court will not set aside the probate court’s factual findings unless they are clearly erroneous, meaning that they will be upheld if there is any evidence to sustain them.” Parker v. Kelley, 290 Ga. 454, 455 (721 SE2d 828) (2012).
The evidence presented by the parties in this case was conflicting, both as to the disposition of the original will and as to Major’s testamentary objectives. Britt offered testimony that the original will was stolen from one of Major’s lockboxes, that he had a strained relationship with Sands, and that he wanted her and others besides Sands to inherit his property. But Sands offered evidence that Major was careful in his legal affairs, that the original will was not stolen as Britt claimed, that his relationship with Britt also had its problems, and that the propounded will left Sands considerable property, showing that her relationship with her father was not broken. GA(1) (1) The probate court, which had the opportunity to observe all the witnesses and to evaluate their demeanor and credibility, could have decided this case either way; the court found that the evidence offered by Britt was insufficient to overcome the presumption of revocation. The Supreme Court found that the Probate Court’s evidentiary finding was not clearly erroneous and therefore affirmed the Probate Court’s decision.