Johnson v. Fitzgerald

The trial court properly admitted a copy of the testator's will to probate in solemn form, as the jury was authorized to find by a preponderance of the evidence that the propounder rebutted the presumption of revocation that arose because the original version of the will could not be found.

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Lonnie L. Michael “the Testator” died on September 29, 2010. He had executed a will on November 22, 2002. However, the original of that will could not be found. Nevertheless, Michael King Fitzgerald, who was named executor in the November 22, 2002 will, offered a copy of the will for probate in solemn form, requesting that it be admitted to probate upon proper proof. Danny Johnson, Michael D. Gwirtz, and Patricia A. Gwirtz “Caveators”, the Testator’s heirs at law, filed a caveat, asserting, inter alia, that the November 22, 2002 will had been revoked by the Testator’s subsequent destruction of it. After hearing evidence and argument, the probate court admitted the will to probate. Caveators appealed to the superior court, and the case was tried before a jury, which found in favor of the propounded will, which the trial court then admitted to probate in solemn form. After the denial of their motion for new trial, Caveators appealed to this Court. For the reasons that follow, we affirm.

1. Caveators made motions for summary judgment, directed verdict, and new trial, and contend that the denial of each was error as there was no evidence authorizing the jury to find that the propounded will was the true last will and testament of the Testator. Under the governing law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke that will. OCGA § 53-4-46 a.1 But, “that presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy,2 and if it is shown by a preponderance of the evidence that he did not intend to revoke it. OCGA § 53-4-46b.” Warner v. Reynolds, 273 Ga. 802 546 SE2d 520 2001.

Johnson v. Fitzgerald

The trial court properly admitted a copy of the testator's will to probate in solemn form, as the jury was authorized to find by a preponderance of the evidence that the propounder rebutted the presumption of revocation that arose because the original version of the will could not be found.

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