Can You Admit a Copy Of a Will To Probate In Georgia?

Yes, if the original of the will cannot be located, a copy of the will can be admitted to probate under Georgia law.

Section 43-4-46 of the Georgia Code states:

  1. A presumption of intent to revoke arises if the original of a testator’s will cannot be found to probate.
  2. 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.

Therefore, a copy of a will can be offered for probate in Georgia, but, it must be proved that the copy is a true copy of the original will and that the presumption of intent to revoke is rebutted.

How Do You Prove That a Copy Of a Will Is a True Copy Under Georgia Law?

In order to probate an alleged copy of a lost or destroyed will, it is necessary to prove, among other things, that the copy is in substance and intent the same as the original. Woodruff v. Woodruff, 182 Ga. 895, 187 S.E. 391 (1936) (decided under former Code 1933, § 113-611).  To prove the copy of the will, the evidence can be the same as if one was trying to admit an original will to probate – have the subscribing witnesses testify to its validity and genuineness.  Evidence is not limited to the subscribing witnesses, however.   In Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-611), the Georgia court stated:

Proof of the execution of a will in case of probate in solemn form and proof of the execution of a will in a case to establish and probate a copy where the will is missing may be made in precisely the same manner and by the same character of evidence; and in both evidence other than the testimony of the subscribing witnesses, after the available witnesses have been produced at the hearing, is admissible for the purpose of proving the execution of the will, and in each this may be done despite the testimony of the witnesses against the will. Statutory provision that the copy of a missing will be “clearly proved to be such by the subscribing witnesses and other evidence” does not limit proof of the execution of a will to the testimony of the subscribing witnesses. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-611).

How Do You Rebut the Presumption of Intent to Revoke?

In every case when a person seeks to admit a copy of a will to probate in Georgia in lieu of the original, the propounder is confronted with the presumption that the will was revoked by the testator.  Read How Do You Revoke a Will In Georgia?

The presumption of revocation can be rebutted in a number of ways:

  • Proof that the will was lost or destroyed after the death of the testator;
  • The will was destroyed by someone other than the testator;
  • While the will was still in existence the testator had lost the testator’s testamentary capacity to annul the will, and such mental incapacity continued up until the time of the testator’s death.

The rebuttal of the presumption of revocation of a will when only a copy is found can be made by circumstantial as well as by direct evidence.

It is much easier to admit an original will to probate than a copy of a will under Georgia law.  Many testators leave the original of their will with their Georgia probate attorney to decrease the risk of the will being lost.

General Probate Issues