Posted tagged ‘Official Code of Georgia § 53-4-46’

Good Will Hunting: What to do When You Cannot Find Your Late Spouse’s Original Will

June 8, 2011

 By Erica Hickey

We’ve all done it.  We put that important document in a place “we will never forget.”  It is, at that time, the most logical place to keep it.  Then, just when we need it, we cannot remember where it is. What happens when that important document is the original last will and testament of your late spouse or parent?

Under the Official Code of Georgia § 53-4-46, a presumption of intent to revoke arises if the original of a testator’s will cannot be found to probate.   However, a copy of a will may be offered for probate if the original will cannot be found.  The copy of the will must be proved by a preponderance of the evidence to be a true copy of the original, and the presumption of intent to revoke must be rebutted also by a preponderance of the evidence.

There are a number of sources of evidence that may be utilized to overcome the presumption of intent to revoke.  Evidence may be circumstantial or direct.  Statements made by the testator subsequent to the execution of the will are admissible to support or rebut the presumption of revocation.  The most important question is whether the testator had the opportunity to revoke the will after any statements offered as evidence occurred.

The proponent of the copy of the will may also show that the will was destroyed or lost after the testator died.  For example, Client’s husband passed away. Client opened their joint safety deposit box and removed her husband’s original will.  Client’s daughter witnessed this.  Client, witnessed by her friend, placed the original will in a box in her basement with other items associated with her husband’s death.  The basement floods months later destroying the box and its contents, and Client threw the box away forgetting that the original will was in the box.  The testimony of Client’s daughter and friend were both admissible to rebut the presumption of revocation.

If the will was lost or destroyed prior to the testator’s death, the proponent may show that the testator did not have possession of the will or the testator did not have the capacity to revoke the will at the time it was purportedly lost or destroyed.

Although it is not always easy to probate a copy of a will, it is much easier to probate a copy than to prove the contents of a will for which you do not have a copy.  O.C.G.A. § 24-5-4. It is important to make sure that if you keep the original of your will you at least provide the drafting attorney with an executed copy just in case you do not happen to remember that place “you will never forget.”