Auito v. Auito
288 Ga. 443
Ga.2011Background
- Bito Auito died on March 31, 2007, leaving a will naming Elois Ann Auito executrix.
- Executrix propounded the will with a self-proving affidavit attached; Victor Auito cavated on lack of proper execution, but abandoned other grounds.
- Probate court held the self-proving affidavit legally sufficient, finding substantial similarity to OCGA § 53-4-24(b) form and compliance with Glenn v. MARTA.
- The court concluded the propounder proved a prima facie case and the caveator failed to rebut it by a preponderance of the evidence.
- The central legal question concerns whether the self-proving affidavit was properly executed when the witnesses’ names were not included in the notary’s certificate.
- Georgia law provides that a will may be self-proved by an affidavit before a notary, and the notary’s certificate must attest the oath and signatures, though names of witnesses may not be essential.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of self-proving affidavit without witness names in certificate | Auito argued failure to name witnesses invalidates the affidavit. | Auito contends the lack of witness names violates formality. | Not invalid; substantial compliance suffices; names not essential. |
Key Cases Cited
- Roberson v. Ocwen Fed. Bank, 250 Ga.App. 350(2) (2001) (establishes three essential elements of an affidavit)
- Glenn v. MARTA, 158 Ga.App. 98, 279 S.E.2d 481 (1981) (form requirements for self-proving affidavits)
- Duncan v. Moore, 275 Ga. 656(1), 571 S.E.2d 771 (2002) (self-proving affidavit creates rebuttable presumption)