This is an appeal by propounder Michael Singelman from the probate court’s refusal to grant a new trial or to set aside its order denying Singelman’s petition to probate the purported last will аnd testament of his father, Oliver Pierce Singelmann. For the reasons which follow, we reverse and remand.
On May 5, 1999, Singelman filed a Petition to Probate Will in Solemn Form for a will executed by his father on September 13,1997; thе father died on October 17, 1998. The will bore the signature of two witnesses and contained a notarized affidavit by the testator and the witnesses that the will was executed freely and voluntarily and that the testator was at least 18 years old, of sound mind, and under no constraint or undue influence. Also, attached to the will was an affidavit by a licensed clinical social worker, stating that she had evaluated the decedеnt on the day before he signed the will and was of the opinion that the decedent was oriented to time and place, capable of understanding the nature and extent of his assets, and clear аs to the meaning and contents of the will he was executing. On May 10, 1999, the witnesses’ executed interrogatories were filed with the probate court. The interrogatories affirmed the signatures of the witnesses and thе testator, the witnessing of the execution of the will, that the will was executed voluntarily, and that at the time of execution, the testator appeared to be of sound mind.
Caveats were filed by three оf the decedent’s other children. The caveators alleged that Singelman subjected their father to undue influence through verbal and physical abuse and that their father lacked the capaсity to execute the will; one of the caveators also objected that the witnessing of the will by one of the witnesses was “suspect.”
Following a hearing, on February 1, 2000 the probate court entered а final order denying Singelman’s petition to probate the will.
1
In so doing, the court found that the purported self-proving will would give propounder Singelman a life estate in all of his father’s assets, and after Singelmann’s death, the assets would distribute equally to the decedent’s four other children.
2
However, it cited the fact that the only witness testifying for propounder Singelman was Singelman himself. Belying on OCGA § 53-5-21 and
Miller v. Miller,
The court further concluded that propounder Singelman also failed to prove that the testator had the capacity to makе a will, but that the evidence was insufficient to support a finding of invalidity of the will because of undue influence. The court denied probate stating that it did so “for failure to produce the required witnesses and fоr failure to establish the validity of the [w]ill by a preponderance of the evidence.” Subsequently, the court denied Singelman’s motion for new trial or to set aside the order denying probate, expressly аffirming its determination that the presence of the subscribing witnesses to the will was required. But the court’s determination was in error.
1. The propounder of a will has the burden of establishing a prima facie case, whiсh includes showing the fact of the will, that at the time of its execution the testator apparently had sufficient mental capacity to make it, and in making it, the testator acted freely and voluntarily.
Skelton v. Skelton,
The court characterized the will offered by Singelman as self-proving.
3
See OCGA § 53-4-24;
Hickox v. Wilson,
Assuming that the will in this case was not self-proved, propounder Singelman still set forth a prima faсie case; he provided the witnesses’ interrogatories, which affirmed the voluntary execution of the will by the testator and that he appeared to be of sound mind. Although the probate court concluded that the will was not sufficiently proved as validly executed, it does not cite any factual basis for this conclusion other than that the witnesses were not physically in court and Singelman failed to demonstrate that they were unavailable. There is no finding whatsoever that the caveators produced evidence to rebut the propounder’s prima facie showing that the will was validly executed. 7
The probate court’s conclusion about the sufficiency of the propounder’s showing that the testator had the capacity to make a will is equally problematic. First, it is unclear whether the cоurt is concluding that the prima facie case in regard to capacity has been successfully rebutted or whether the caveat on the basis of lack of capacity has been provеn. If the conclusion goes to the merits of the caveat, it was the caveators’, and not the propounder’s, burden to affirmatively prove the testator’s lack of capacity. See
Skelton v. Skelton,
supra at 632 (2);
Cornelius v. Crosby,
Accordingly, the denial of the propounder’s motion for new hearing or to set aside is reversed, and the case is remаnded to the probate court for consideration consistent with this opinion.
2. Our decision in Division 1 makes it unnecessary to address Singelman’s remaining contention of error regarding the probate court’s rеfusal to allow certain witnesses at the hearing on his motion for new trial or to set aside.
Judgment reversed and case remanded.
Notes
One of the caveators did not appear at the hearing in the matter, and the court dismissed his caveat.
The court found that decedent’s assets included his home valued at approximately $90,000 and stock accounts valued at approximately $110,000.
OCGA § 53-4-24 (b) sets forth the affidavit and certificate prerequisites for a self-proved will or codicil.
OCGA § 53-5-21 (a) provides:
A will may be proved in solemn form after due notice, upon the testimony of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the tеstator as provided in Code Section 53-5-23. The testimony of only one witness shall be required to prove the will in solemn form if no caveat is filed. If a will is self-proved, compliance with signature requirements and оther requirements of execution is presumed subject to rebuttal without the necessity of the testimony of any witness upon filing the will and affidavit annexed or attached thereto.
OCGA § 53-5-23 (a) provides:
In all proceedings for the рrobate of a will in common form or solemn form, witnesses to the will may be examined in person or by written interrogatories which shall be answered in writing and under oath before a notary public or by depositiоns or other discovery procedures under the same circumstances as other civil cases.
OCGA § 53-5-23 (c) provides:
The provisions of this Code section shall not be construed as repealing any other statutory provision prescribing a method or procedure for the taking of testimony by interrogatories or depositions, but supplementary of such other provisions and cumulative to such other provisions . . . [t]he taking or procuring of testimony in the manner prescribed by this Code section shall be sufficient for all purposes of the probate proceedings.
The transcript of the hearing on the motion for new trial or to set aside reveals that the hearing on the validity of the will was not reported. Consequently, as counsel pointed out to the probate court, the only evidentiary showing regarding the validity of the will is to be found within the court’s order denying probate.