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Thomas v. Sands

The executor rebutted the statutory presumption that the decedent revoked his original will.

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In 2000, Melvin Thomas, Sr. Testator executed a will in which he left one dollar to Appellant Melvin Thomas, Jr., who was his only son, and left the remainder of his property to Lecia Sands, who was his longtime friend and was also named as executor. After Testator’s death in 2005, Ms. Sands petitioned to probate a copy of the will. Appellant filed a caveat and, after a hearing, the probate court admitted the will to probate in solemn form. Appellant appealed to the superior court. After a bench trial, the superior court ruled that Ms. Sands rebutted the statutory presumption that the original will had been revoked, and that the copy of the will could be probated. Appellant appeals from that order, challenging the sufficiency of the evidence supporting the superior court’s finding that Ms. Sands rebutted the presumption of revocation.

Under OCGA § 53-4-46 a, if an original will cannot be found, a presumption arises that the testator intended to revoke it. However, “under OCGA § 53-4-46 b, this presumption can be rebutted by showing, by a preponderance of the evidence, both that the testator did not intend to revoke the will and that the proffered copy is a true copy. Cit.” Tanksley v. Parker , 278 Ga. 877 1 608 SE2d 596 2005.

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