Offering a Lost Will for Probate

In Georgia, the original Will must be offered for probate if it is available. If the original Will is lost, Section 53-4-46 creates a presumption that the Will was revoked due to its destruction, but that presumption may be overcome by a preponderance of the evidence. Section 53-4-46(b) provides:

A copy of a will may be offered for probate in accordance with Chapter 5 of this title in lieu of the original will if the original cannot be found to probate, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke set forth in subsection (a) of this Code section is rebutted by a preponderance of the evidence.

Even if no objection is filed, “when offering a copy of a will to be probated, the propounder must prove that it is a true copy and rebut the presumption of intent to revoke that automatically arises pursuant to OCGA § 53-4-46(a).” See Tudor v. Bradford, 289 Ga. 28 (2011). In contested cases, the trier of fact (meaning the jury when a jury trial is available) decides whether the presumption of revokation was overcome. As stated in Johnson v. Fitzgerald, 294 Ga. 160 (2013),

Whether the presumption of revocation is overcome is determined by the trier of fact, and in reviewing the judgment, the evidence must be accepted which is most favorable to the party in whose favor the judgment was rendered. The presumption of revocation may be rebutted by circumstantial as well as direct evidence, including declarations of the testator.

In uncontested cases, offering a copy of a lost Will is usually easier. Below is a form of Affidavit found on the Colquitt County Probate Court’s website:

Below is a more formal document found on the Houston County Probate Court website for offering a lost Will: