Opinion
S01A0337.
DECIDED: JUNE 11, 2001.
This is an appeal from the judgment entered on a jury verdict in a will contest regarding the estate of Irene Lackey Lane. For the reasons which follow, we affirm.
The testatrix who died in February 1997 executed a will in 1960 leaving her estate to several beneficiaries, including her niece, Martha Westmoreland. The testatrix executed another will in 1992 renaming Westmoreland and including as a new beneficiary Westmoreland's daughter, Kim Tallent. The 1960 will was probated and Westmoreland, the only surviving beneficiary of the 1960 will, was granted letters of administration. Thereafter, Tallent sought to have those letters revoked and the probate order vacated, and proffered in probate an unexecuted copy of the 1992 will. After a bench trial, the probate court issued an order vacating the earlier orders relating to the 1960 will and declaring the 1992 will valid. Westmoreland appealed to the superior court and following a trial, a jury determined that the 1992 will was valid and not revoked, and the superior court entered judgment accordingly. Westmoreland appeals from the denial of her motion for new trial.
The evidence established that the testatrix's long-time attorney prepared the 1992 instrument in accordance with her wishes. The will made some specific bequests to family members and divided the remainder of the estate between Westmoreland and Tallent. The attorney testified that he had previously made a will for the testatrix's husband and that six months after he probated the husband's will the testatrix approached him about making her will. He testified that he, a secretary and a secretary-notary public witnessed the testatrix's execution of the instrument. He further testified that the copy of the instrument introduced into evidence was the same as the executed original. Although the testatrix took the original of the 1992 will with her when she left the attorney's office, the attorney explained that it was his standard office procedure to have the testator sign the original will and for him to put a copy of the unexecuted will in a file designated for that client. The secretary-notary public testified that she notarized the will after she witnessed the testatrix, the attorney and another secretary sign the document. The testatrix became incapacitated beginning in 1994 and the attorney who was appointed her guardian ad litem testified to the similarities in the desires the testatrix expressed to him and the provisions contained in the copy of the 1992 will offered for probate.
1. If a will is lost or destroyed during the lifetime of the testatrix or subsequent to her death, a copy of the will may be admitted to probate in lieu of the original if the copy of the will is clearly proved to be such. Former OCGA 53-3-6 (a) (effective until January 1, 1998); McBride v. Jones, 268 Ga. 869 (1) ( 494 S.E.2d 319) (1998) (applying pre-revised probate code). There was ample evidence to support the jury's findings that the copy of the will offered for probate was in fact the will and testament executed by Irene Lacky Lane in 1992.
2. Appellant contends that there was not clear and convincing evidence to overcome the presumption that the missing 1992 will was revoked. Whether the presumption of revocation is overcome is "determined by the trier of fact, and in reviewing the verdict, `the evidence must be accepted which is most favorable to the party in whose favor the verdict was rendered.' [Cit.] The presumption of revocation may be rebutted by circumstantial as well as direct evidence, including declarations of the testatrix. [Cit.]" McBride, supra, 268 Ga. at (2).
Unlike the pre-revised statute, OCGA 53-4-46 of the revised probate code governing probate in an instance where the original will is unavailable provides that the presumption of intent to revoke can now be overcome by a preponderance of the evidence rather than by the former standard of clear and convincing evidence.
The evidence construed in favor of the verdict established that Tallent had a close familial relationship with the testatrix, that she had already acquired from the testatrix property titled in the testatrix's name, and that the disposition made under the 1992 will reflected the wishes of the testatrix as to the distribution of her estate. The attorney who drafted the 1992 will testified he continued to have contact with the testatrix until shortly before her death, and she never mentioned changing or revoking the 1992 will he had prepared for her. Before her death, the testatrix confirmed with her guardian her intentions as to the devise of her property. Accordingly, reviewing the evidence in the light most favorable to the party in whose favor the verdict was rendered, the jury was authorized to conclude that the statutory presumption of revocation was rebutted. Smith v. Srinivasa, 269 Ga. 736 (2) ( 506 S.E.2d 111) (1998).
Judgment affirmed. All the Justices concur.