The question of when subscribing witnesses are necessary to admit a will to probate can sometimes be a tricky one.  So tricky that it may even trip up a probate court.  The issues mainly seem to arise when dealing with shifting burdens when a will is challenged.

In a recent Georgia case, Reeves v. Webb (consolidated with Groenenboom v. Webb), there was a petition to probate the decedent’s will in solemn form, and an objection and caveat were filed on the grounds that there was a breach of fiduciary duty to the decedent, fraud,undue influence, and lack of testamentary capacity.  The probate court dismissed the petition by finding that the propounder did not make out a prima facie case to admit the will to probate because the propounder failed to produce the subscribing witnesses and hadn’t shown they were unavailable.

You may be saying to yourself, “then there must not have been a self-proving affidavit.”  You’d be wrong.  There was a self-proving affidavit in the appropriate form and that is why the Georgia Supreme Court reversed and remanded.  While it was long the law in Georgia that you needed subscribing witnesses in court in order to prove the will for admission to probate in solemn form, that requirement changed more than 40 years ago.  Moreover, Georgia statutes expressly provide for self-proved wills and codicils through affidavits of the testator and attesting witnesses made before a notary public.

In Georgia, a proper self-proving affidavit creates a presumption of a prima facie case to admit a will to probate; that is, the requirements of execution are presumed without live testimony or affidavits of witnesses.  The burden then shifts to the caveator to rebut that presumption.  Of course, the validity or sufficiency of the self-proving affidavit can be challenged, which if successful, may then end up requiring the testimony of the subscribing witnesses.