June 29, 2015
REEVES et al.
WEBB et al. GROENENBOOM
WEBB et al
Wills. Richmond Probate Court. Before Judge James.
Troy A. Lanier, for Reeves et al.
J. Larry Broyles, for Groenenboom.
Debra M. Bryan; Chuck R. Pardue; Warlick, Tritt, Stebbins & Murray, Jennifer T. Kerr, for Webb et al.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
This is a will contest in which the propounder and the beneficiaries are appealing an order of the probate court dismissing the petition to probate the will in solemn form and a subsequent order denying their motion for new trial, or in the alternative, motion to set aside judgment and enter judgment admitting the will to probate. For the reasons that follow, we reverse and remand.
Joseph Thomas Schmidt (" Schmidt" ) executed the will at issue (" Will" ) on July 20, 2010. Schmidt was a disabled Marine Corps veteran who suffered from paranoid schizophrenia with delusions since the early 1970s; he also had vision and hearing difficulties. He was treated as a disabled veteran and received disability benefits from the Veterans Administration (" VA" ) until his death on October 5, 2013. He was appointed a VA guardian and conservator in 1974. Dale L. Groenenboom (" Groenenboom" ) was appointed as successor guardian of Schmidt's person and property in 1976, and served in such capacity until Schmidt's death. In 1997, Schmidt entered into the personal care home owned and operated by Charles H. Reeves, Jr., and his wife, Jerry J. Reeves (" Reeveses" ), and he resided there the remainder of his life. The Reeveses were compensated monthly for their services. Groenenboom was selected to be Schmidt's guardian by the VA, and controlled Schmidt's funds, including his VA disability payments and his Social Security benefits, and he made the payments to the Reeveses for Schmidt's custodial care and monthly spending allowance. The Will named Groenenboom as executor and the Reeveses and Groenenboom as the beneficiaries. In the Will, [297 Ga. 406] Judith Webb (" Webb" ), Schmidt's twin sister and sole named heir at law, was expressly excluded from inheriting from Schmidt's estate.
On December 6, 2013, Groenenboom filed the petition to probate the Will in solemn form (" Petition" ) and a " Petition of Conservator for Final Settlement of Accounts and Discharge from Office and Liability" (" Settlement" ). On March 18, 2014, Webb filed a motion to deny the Petition and the accompanying Settlement, as well as an objection and caveat to them, contending that Groenenboom, as guardian and conservator, and the Reeveses as custodians, breached their fiduciary duties owed to their ward, Schmidt; that they committed fraud against Schmidt and the probate court; that Schmidt was unduly influenced by them within the meaning of OCGA § 53-4-12;  and that Schmidt lacked testamentary capacity at the time the Will was executed.
On June 9, 2014, the probate court entered a final order dismissing the Petition. It did so after finding that propounder Groenenboom did not " make out a prima facie case" to admit the Will to probate in that Groenenboom " failed to produce the subscribing witness [to the Will] for examination at the hearing despite the fact that they were neither shown to be deceased or inaccessible." The probate court further justified its dismissal on the basis
that propounder has failed in its burden to make a prima facie case showing that the will was properly executed, made freely and voluntarily, and that the testator had sufficient mental capacity to make it at the time the will was executed.
It also stated:
The court recognizes that the propounder in certain instances may make the proof initially required to establish a prima facie case by other witnesses who can testify, and upon sufficient proof the burden then falls on the caveator to [297 Ga. 407] rebut the testator's testamentary capacity. However, the propounder cannot get to that point without first introducing at the hearing all the living and accessible subscribing witnesses who were physically present during the execution [of] the will.
On June 20, 2014, Groenenboom filed a motion for reconsideration, and this motion was denied on June 24, 2014. On July 8, 2014, Groenenboom and the Reeveses filed their motion for new trial, or in the alternative, motion to set aside judgment and enter judgment admitting the Will to probate, and this motion was denied on July 11, 2014. The Reeveses (No. S15A0335) and Groenenboom (No. S15A0336) pursue the present appeals, which have been consolidated for consideration.
In dismissing the Petition, the probate court relied heavily upon Spivey v. Spivey, 202 Ga. 644 (44 S.E.2d 224) (1947), quoting from it that in order
[t]o make out a prima facie case, and to be entitled to a judgment of probate in solemn form, the propounder must introduce at the hearing all the subscribing witnesses, if living and accessible, or proof of their signatures, if dead or inaccessible.
Id. at 649 (1). This statement from Spivey was based upon former Code Ann. § 113-602, which early case law interpreted as requiring that subscribing witnesses be present in the court in order to prove the will for its admission into probate in solemn form; however, following Taylor v. Donaldson, 227 Ga. 496 (181 S.E.2d 340) (1971), the propounder of a will was " required only to prove the will in accordance with the Georgia Civil Practice Act, which does not of necessity require personal appearance." Norton v. Georgia R. R. Bank & Trust Co., 248 Ga. 847, 848 (1) (285 S.E.2d 910) (1982). Furthermore, OCGA § 53-4-24 provides for self-proved wills and codicils, stating in subsection (a):
At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved and the testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator and the attesting witnesses made before a notary public. The affidavit and certificate [297 Ga. 408] provided in subsection (b) of this Code section shall be the only prerequisites of a self-proved will or codicil.
In the present case, the Will had an attached executed self-proving affidavit. So, the Will could be admitted to probate and into evidence without the testimony of the subscribing witnesses or other proof for the purpose of showing that the formalities of execution were met. Duncan v. Moore, 275 Ga. 656, 657 (1) (571 S.E.2d 771) (2002).
Certainly, it is the burden of the propounder of a will to establish a prima facie case, which includes showing the fact of the will, the testator's apparent sufficient mental capacity to make it at the time of its execution, and that the testator acted freely and voluntarily in doing so; after this has been accomplished, the burden of proof shifts [297 Ga. 409] to the caveator. Singelman v. Singelman, 273 Ga. 894, 895 (1) (548 S.E.2d 343) (2001). Again, the Will is self-proved; therefore,
compliance with the requirements of execution are presumed without the live testimony or affidavits of witnesses; that is, the affidavit creates a presumption regarding the prima facie case, subject to rebuttal. OCGA § 53-5-21 (a).
Singelman v. Singelman, at 896 (1). Indeed,
[e]ven in the case of a will that is not self-proved, witnesses to the will may be examined in person, by written interrogatories, or by other discovery procedures, as in other civil cases. OCGA § 53-5-23 (a). The taking of testimony in the manner prescribed by statute is sufficient for all purposes in the probate proceeding. OCGA § 53-5-23 (c).
Accordingly, the judgments of the probate court are reversed and the case is remanded
to that court for proceedings consistent with this opinion.
Judgments reversed and case remanded.
All the Justices concur.