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Jury Question Remained Where Testator and Witnesses Initialed Each Page But Original Attestation Page was Missing

In Wilbur v. Floyd, 353 Ga. App. 864 (2020), Jeffrey Wilbur, on behalf of himself and as the executor of Gwen Wilbur’s estate, appealed summary judgment in favor of his sister, Patricia Floyd. Wilbur argued the trial court (1) erred in concluding that (a) the mother’s will was not valid because the attestation page was missing, and (b) he could not offer a copy of the missing attestation page to establish the will’s validity; and (2) failed to grant summary judgment in his favor on Patricia’s claims that the mother lacked testamentary capacity to execute the will and that the will was the product of undue influence. The decision below was vacated because a question of fact remained.

Gwen Wilbur executed a will naming Jeffrey and Patricia, her two surviving children, as beneficiaries.  In December 2014, after a disagreement with Patricia, the mother revoked that will and executed a new one naming only Jeffrey as a beneficiary and omitting Patricia entirely. The attorney who prepared the will (“the drafting attorney”) and his secretary witnessed the mother execute the December 2014 will. The mother died in February 2015, and Jeffrey filed a petition to probate the will in solemn form. The will submitted to the probate court with this petition was signed by the mother and had the mother’s initials on each page, but was missing an attestation page in which the witnesses confirmed that they had witnessed the mother sign the will. Although the attestation page was missing, the witnesses had initialed each page of the will next to the mother’s initials.

Patricia filed a caveat because (1) there was no attestation page, (2) she argued her mother lacked testamentary capacity and (3) that Wilbur unduly influence her mother.

After Patricia filed her caveat, the drafting attorney prepared an affidavit explaining that he and his secretary witnessed Gewn Wilbur sign the Will, that there was an attestation page, that he thought the attestation page was filed with the Will, and attached a copy of the Will with attestation page to his affidavit. The secretary testified similarly. Nonetheless, the probate court dismissed the petition after finding the Will failed to satisfy necessary formalities.

On appeal to the Superior Court, the court granted Patricia’s motion for summary judgment, finding Jeffrey could use a photocopy of the Will because the Will was not lost in its entirety. Patricia’s other objections to the Will were not addressed.

On appeal to the Court of Appeals, Jeffrey argued that he properly amended the petition to probate the will to include the attestation page, satisfying the necessary formalities and establishing its validity; therefore, the trial court erred in granting Patricia’s motion for summary judgment and denying his corresponding motion.

The sole question in a proceeding to probate a will in solemn form is whether the paper propounded is, or is not, the last will and testament of the deceased. The result turns on three issues: (1) whether the document was properly executed; (2) whether the testator had the mental capacity to execute a will; and (3) whether the document was the result of undue influence, fraud, duress, or mistake.

The Court found that issues relating to attestation are generally questions for a jury. Our focus is on the testator’s intent: “It is not the writing that makes the will legal and binding, but the testamentary intent crystallized and expressed in the writing.” Thus, “[i]n the construction of all wills, the court shall seek diligently for the intention of the testator and shall give effect to such intention as far as it may be consistent with the rules of law.”

No particular form of attestation is required and a Will may be attested by making a mark. “Thus, under the plain language of the statute, the initials appearing on each page with the testator’s signature could be sufficient to validate the will..”

The Court held the interrogatory submitted with the petition to probate, the testimony from the witnesses, and the presence of the witnesses’ initials on each page along with the testator’s signature create a factual question regarding whether the execution of the will complied with the necessary formalities. These factual questions preclude summary judgment.

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