Bito Auito died March 31, 2007, leaving a will which named as executrix the decedent’s widow, appellee Elois Ann Auito. Executrix Auito propounded the will with an attached self-proving affidavit, and appellant Victor Auito, the son of the decedent by a previous marriage, filed a caveat. At the hearing on the caveat, caveator challenged only the lack of proper execution of the self-proving affidavit and expressly abandoned all other grounds of his caveat. The probate court found the self-proving affidavit to be legally sufficient because it was substantially similar in form to the example set out in OCGA § 53-4-24 (b) and met the requirements of an affidavit as set out in
Glenn v. MARTA,
“A complete affidavit must satisfy three essential elements: (a) a written oath embodying the facts as sworn to by the affiant; (b) the signature of the affiant; and (c) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer.”
Roberson v. Ocwen Fed. Bank,
In the case at bar, each of the witnesses signed Bito Auito’s will on a blank line designated for a witness and signed the attached self-proving affidavit, which was in form and in content substantially the same as the statutory example, on a blank line designated for a witness under the statement of facts concerning the execution of the will to which the witnesses swore. The notary’s certificate appeared below the witnesses’ signature lines and stated that the statement of facts had been sworn and subscribed before the notary by the testator, identified as Bito Auito, and “witnesses” on November 26, 2005. Caveator maintains the failure to put the names of the witnesses in the notary’s certificate makes the self-proving affidavit improperly executed and invalid.
The failure to include the names of the witnesses in the notary’s certificate does not invalidate the self-proving affidavit because the affidavit substantially complies in form and content with the statutory example found in OCGA § 53-4-24 (b), identification by name of the affiants in the notary’s certificate is not an essential element of an affidavit, and the affidavit as executed contains the three essential elements of an affidavit. By signing and sealing the certificate, the notary attested that the “witnesses” swore and subscribed to the statement of facts before the notary, and the unnamed witnesses to whom the notary’s certificate refers are easily identifiable, having signed the lines designated “witness” appearing below the statement of facts and just above the notary’s certificate. The probate court did not err when it concluded the propounder established a prima facie case that caveator failed to rebut by a preponderance of the evidence.
Judgment affirmed.
Notes
The statutory form for the notary’s certificate found in OCGA § 53-4-24 (b) is as follows:
Sworn to and subscribed before me by--testator, and sworn and subscribed before me by-and--, witnesses, this_day of_,__
(SEAL)
(Signed)-
(Official Capacity of Officer)
