Presumption of Validity Applies When Witnesses to Will Do Not Remember

In In Re Estate of McClendon, 359 Ga. App. 259 (2021), decedent David McLendon’s Will was offered for probate by his widow and brother. McLendon’s children filed a caveat claiming the Will was invalid because it was not executed in accordance with the required formalities. After the Probate Court admitted the Will for probate, McLendon’s daughter appealed.

Although a valid Will must be signed or acknowledged by the testator in the presence of two witnesses, see O.C.G.A. § 53-4-20 and see Waldrep v. Goodwin, 230 Ga. 1 (1973), the evidence in McLendon was spotty and contradictory. One witness testified that he did not remember whether McLendon already had signed the will when the witness signed it almost ten years earlier. The other witness “testified that he only remembered signing the will; he did not remember whether other signatures, including McLendon’s, were on the will when he signed it. But he also testified that he did not see any signatures. McLendon’s widow and his brother identified McLendon’s signature on the will and Owens does not dispute that McLendon signed it.”

Citing Glenn v. Mann, 234 Ga. 194 (1975), the Probate Court ruled that because the witnesses did not remember the formalities of the execution and attestation of the will, the presumption of validity applied.

Under Glenn, “[w]here a witness fails to remember events surrounding the will’s execution, there is a presumption, given proof of the signatures appearing on the will, that all was done as the law requires.”

Because some evidence supported the Probate Court’s finding that the witnesses did not remember the formalities of execution and attestation, the ruling below that the presumption of validity applied was affirmed. See In re Estate of Long, 307 Ga. App. 898 (2011).