In Re: David L. McLendon

• Court: Court of Appeals of Georgia
• Decided: March 30, 2021
• Docket: A21A0325
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

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March 30, 2021

In the Court of Appeals of Georgia A21A0325. IN RE ESTATE OF McLENDON.

MCFADDEN, Chief Judge.

April Owens appeals from a probate court order granting a petition to probate

the will of her father, David McLendon. Owens argues that the evidence regarding

McLendon’s signing of the will overcame the presumption that the will is valid. But

some evidence supports the probate court’s ruling that the presumption of validity

applies. So we affirm.

After McLendon died in 2018, his brother and his widow filed petitions to

probate his 2010 will. Owens and her brothers (who are not parties to the appeal) filed

a caveat. The probate court conducted a hearing at which Owens and her brothers

argued that the will was invalid because it had not been executed in accordance with

testamentary formalities since McLendon neither signed the will nor acknowledged his signature on the will in the presence of the two witnesses to the will. See Waldrep

v. Goodwin, 230 Ga. 1, 6 (2) (195 SE2d 432) (1973) (for a will to be valid, the

“testator must sign or acknowledge his signature in the presence of the witnesses”);

OCGA § 53-4-20.

Those two witnesses testified at the hearing. One of them testified that he did

not remember whether McLendon already had signed the will when the witness

signed it almost ten years earlier. But he also testified that McLendon had not signed

the will when the witness signed. In any event, the witness did not see McLendon

sign. The other witness testified that he only remembered signing the will; he did not

remember whether other signatures, including McLendon’s, were on the will when

he signed it. But he also testified that he did not see any signatures. McLendon’s

widow and his brother identified McLendon’s signature on the will and Owens does

not dispute that McLendon signed it.

The probate court entered a final order admitting the will to probate. Citing

Glenn v. Mann, 234 Ga. 194, 198 (1) (214 SE2d 911) (1975), the probate court ruled

that because the witnesses did not remember the formalities of the execution and

attestation of the will, the presumption of validity applied. Under Glenn, “[w]here a

witness fails to remember events surrounding the will’s execution, there is a

2 presumption, given proof of the signatures appearing on the will, that all was done

as the law requires.” Glenn, 234 Ga. at 198 (1).

On appeal, Owens reiterates her argument that the will is invalid because

McLendon did not sign it in the presence of the witnesses or acknowledge his

signature to them. She adds that the probate court erred by applying the presumption

of validity because, unlike the witness in Glenn who “had no recollection of anything

transpiring in connection with the will’s execution,” Glenn, 234 Ga. at 198 (1), the

witnesses to McLendon’s will did remember some of the circumstances in connection

with the will’s execution and affirmatively testified that McLendon did not sign the

will in their presence.

But the witnesses gave contradictory testimony. Although they each testified

that there were no signatures on the will when they each signed (which cannot be true

for both of them), one of the witnesses also testified that he did not remember

whether McLendon already had signed the will when the witness signed it and the

other witness also testified that he did not remember whether other signatures,

including McLendon’s, were on the will when he signed it.

The probate court properly resolved the credibility issues arising from the

contradictions in the witnesses’ testimony:

3 On appellate review, we will not set aside the probate court’s factual findings unless they are clearly erroneous, deferring to the court’s opportunity to judge the credibility of the witnesses. The clearly erroneous test is the same as the “any evidence” rule. Thus, where the probate court’s findings of fact are supported by any evidence, they will be upheld on appeal

In re Estate of Long, 307 Ga. App. 896, 898 (2) (706 SE2d 704) (2011). Some

evidence supports the probate court’s finding that the witnesses did not remember the

formalities of execution and attestation. So we must uphold the probate court’s

finding and its conclusion that the witnesses’ testimony does not overcome the

presumption of validity.

Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.

Phipps concur.