Tudor v. Bradford

709 S.E.2d 235, 289 Ga. 28, 2011 Fulton County D. Rep. 931, 2011 Ga. LEXIS 269
CourtSupreme Court of Georgia
DecidedMarch 25, 2011
DocketS10A1654
StatusPublished
Cited by1 cases

This text of 709 S.E.2d 235 (Tudor v. Bradford) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tudor v. Bradford, 709 S.E.2d 235, 289 Ga. 28, 2011 Fulton County D. Rep. 931, 2011 Ga. LEXIS 269 (Ga. 2011).

Opinions

CARLEY, Presiding Justice.

On January 22, 2008, Donna Bradford petitioned the probate court of Lincoln County to probate in solemn form a will purported to be the last will and testament of her mother, Roselyn Waller Jones. On February 14, 2008, Ms. Bradford’s sister, Sharon Tudor, filed a pro se caveat, later amended, that primarily alleged undue influence and lack of testamentary capacity. After a hearing, the probate court granted the petition to probate the will in solemn form and ordered the will to be admitted to record. Ms. Tudor appealed that order to the superior court, which held a jury trial on October 13, 2009. At the beginning of trial, Ms. Tudor notified the trial judge that Ms. Bradford had filed only a copy of the will with the probate court although she was petitioning the court to probate the will in solemn form. Ms. Bradford admitted to the superior court that only a copy had been filed. Ms. Tudor then requested that the entire matter be returned to the probate court so that the proper burdens of proof and statutory presumption may be satisfied. However, the superior court determined that since Ms. Tudor did not raise this issue in her caveat filed in the probate court, it could not be raised for the first time in superior court. Thus, the superior court denied the transfer and also refused admission of any evidence relating to the fact that a copy of the will had been offered for probate and to the presumption of intent to revoke that arises therefrom. See OCGA § 53-4-46. At the conclusion of the trial, the superior court directed a verdict in favor of Ms. Bradford. Ms. Tudor filed a motion for new trial contending that the superior court erred in granting the directed verdict because it did not make the additional findings required to probate a copy of a will in lieu of a lost original. The superior court denied the motion for new trial, and Ms. Tudor now appeals.

Pursuant to OCGA § 53-4-46 (a), a presumption of intent to revoke automatically arises if a testator’s original will is lost. [29]*29Moreover, OCGA § 53-4-46 states that

[a] copy of a will may be offered for probate ... in lieu of the original will if the original cannot be found to probate, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke ... is rebutted by a preponderance of the evidence. (Emphasis supplied.)

OCGA § 53-4-46 (b). This is the only statute regarding the probate of a lost will. The plain language of this code section clearly requires that the presumption of intent to revoke be rebutted in order for a copy of a will to be probated. There is absolutely no mention in this provision that a caveat must be filed before the presumption arises or that the propounder of a copy of a will is released from her statutory duty to rebut the presumption if the issue is not raised in a caveat to the will. The statute plainly states that when offering a copy of a will to be probated, the propounder must prove that it is a true copy and rebut the presumption of intent to revoke that automatically arises pursuant to OCGA § 53-4-46 (a). See also Horton v. Burch, 267 Ga. 1, 4 (471 SE2d 879) (1996) (“OCGA § [53-4-46] allows the admission to probate of copies of wills clearly proven to be such by the evidence [and] subject in every case to the presumption . . . that the will was revoked by the testator.” (Emphasis supplied.)); Sheffield v. Sheffield, 215 Ga. 546, 548 (1) (111 SE2d 218) (1959) (“In order for [a copy of a will] to be admitted to probate, it would have to be admitted under the rules of law . . . pertaining to the admission to probate of a copy of a lost or destroyed will.”).

Moreover, established probate procedures exhibit the intent of our statutory scheme to deal with copies of a will in a different manner than when the original will is available, even before a caveat may be filed. See Westmoreland v. Tallent, 274 Ga. 172, 173 (1) (549 SE2d 113) (2001) (holding that OCGA § 53-4-46 “ ‘provides the procedure to be followed where the original will is lost but a copy is available’ ”). For example, in the present case, Ms. Bradford completed and filed Georgia Probate Court Standard Form (GPCSF) 5, which is the form approved by this Court to probate a will in solemn form. The first page of the form contains a set of instructions as to how to complete the form correctly. Instruction 2 states that

[i]t is permissible, but not mandatory, to use this form in connection with a petition to probate a copy of a will in lieu of a lost original pursuant to OCGA § 53-4-46, provided that appropriate interlineations are made, and additional infor[30]*30motion is given to overcome the presumption of revocation. (Emphasis supplied.)

This instruction clearly requires a propounder to make the appropriate insertions in the petition to inform the probate court and any other interested parties that the document filed with the court is not the original will but only a copy. Furthermore, this instruction requires a propounder to give any additional information that is needed to overcome the presumption of revocation that arises pursuant to OCGA § 53-4-46. According to the instructions clearly written on the first page of the petition, both of these requirements must be met in order for GPCSF 5 to be used to petition to probate a copy of a will in lieu of a lost original. Furthermore, as with OCGA § 53-4-46, there is no mention in this form that a propounder need follow instruction 2 only if a caveat is filed to the will. Instruction 2, by its terms, must be satisfied even before the petition may be properly filed.

Additionally, former Uniform Probate Court Rule (UPCR) 21 (B), which was in effect at the time the petition to probate was filed in the present case, states that

[f]or purposes of this rule, the term probate court procedure is to be narrowly construed; thus, for example, a petition to probate a will in solemn form, a petition to probate a will in common form, a petition to probate a copy of a will in lieu of a lost original, and a combined petition to probate a will and to appoint an administrator with the will annexed, are each considered to involve a separate procedure which is appropriate for the promulgation of a standard form. (Emphasis supplied.)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tudor v. Bradford
709 S.E.2d 235 (Supreme Court of Georgia, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
709 S.E.2d 235, 289 Ga. 28, 2011 Fulton County D. Rep. 931, 2011 Ga. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tudor-v-bradford-ga-2011.