Johnson v. Fitzgerald
751 S.E.2d 313, 2013 Fulton County D. Rep. 3528, 294 Ga. 160 (2013)
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Rule of Law:
The statutory presumption that a testator intended to revoke a lost will can be rebutted by a preponderance of the evidence, which may include circumstantial evidence such as the testator's subsequent declarations and actions consistent with the will's terms.
Facts:
- On November 22, 2002, Lonnie L. Michael ('the Testator') executed a will that bequeathed specific sums to Michael King Fitzgerald and the Bogart Baptist Church, with the remainder of his estate going to a trust for a charitable foundation.
- The will effectively disinherited the Testator's heirs at law, Danny Johnson, Michael D. Gwirtz, and Patricia A. Gwirtz.
- After executing the will, the Testator created a trust document in 2003 and amended it in 2006, both actions being consistent with his intent to fund the trust through his will.
- In 2004, the Testator informed the pastor of the Bogart Baptist Church that he had left money for the church's cemetery fund in his will.
- The Testator repeatedly expressed disdain for his relatives' perceived greed and stated that he did not want them to inherit his money.
- Upon the Testator's death on September 29, 2010, the original copy of his November 22, 2002 will could not be located.
Procedural Posture:
- Michael King Fitzgerald, the named executor, offered a copy of Lonnie L. Michael's will for probate in solemn form in the probate court.
- The Testator's heirs at law (Caveators) filed a caveat, arguing the will had been revoked.
- The probate court admitted the copy of the will to probate.
- Caveators appealed to the superior court for a jury trial.
- The jury found in favor of the propounded will, and the superior court entered a judgment admitting the will to probate.
- The superior court denied the Caveators' motion for a new trial.
- Caveators, as appellants, appealed the superior court's judgment to the Supreme Court of Georgia.
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Issue:
Does a preponderance of circumstantial evidence, including a testator's subsequent actions consistent with the will's terms and declarations of testamentary intent, suffice to rebut the statutory presumption that a lost original will was intentionally revoked?
Opinions:
Majority - Hines, Presiding Justice
Yes, a preponderance of circumstantial evidence is sufficient to rebut the statutory presumption that a lost will was intentionally revoked. The court found that under OCGA § 53-4-46(b), the presumption of revocation can be overcome by a preponderance of the evidence showing the testator did not intend to revoke it. The evidence presented, including the Testator's actions in creating and amending a trust that would be funded by the will, his declarations to his pastor about the bequest to the church, his expressed disdain for his heirs, and the consistency with his prior wills, was ample for a jury to find this standard was met. These post-execution actions and declarations would have been purposeless if the Testator had intended to revoke the will, and they collectively demonstrated his continuing testamentary intent.
Analysis:
This decision solidifies the use of circumstantial evidence to probate a lost will in Georgia under the standard established by OCGA § 53-4-46. It clarifies that a propounder of a lost will does not need direct evidence of what happened to the original document. Instead, a consistent pattern of conduct and declarations by the testator after the will's execution can be sufficient to overcome the strong legal presumption of revocation. This provides a clear evidentiary framework for future cases, emphasizing the testator's overall intent as demonstrated through their words and deeds over time.
