How Wills Are Proven Valid

In the opinion in Mason v. Phillips, decided January 23, 2012, the Georgia Supreme Court addressed an issue in a dispute between parties regarding the validity of a will discovered sixteen years after the death of the will's author.  Mason v. Phillips, Case No. S11A1951 (Slip Op., Ga., Jan. 23, 2012).   The will was even older.  The testator had made the will in 1974.   Given the age of the will and the delay in advancing it for probate, the witnesses to the will were no longer available.  Ultimately, the testator failed to prove the will was valid.  The dispute regarding the will at issue in  Mason v. Phillips, supra., was determined by old versions of the Georgia Probate Code.

In modern practice, estate attorneys will use an instrument called a self proving affidavit in which the witnesses to the will swear they saw the execution of the will at the same time that they signed as witnesses to the will itself.  Where a self proving affidavit does not exist, then the witnesses to the will may have to appear in court to prove that the will is valid.  The person offering a will for probate must prove the genuine nature of the testator's signature by a preponderance of the evidence using other means if the subscribing witnesses cannot be located and a self proving affidavit does not exist.  Mason v. Phillips, supra.  Because wills are often executed years before they are offered for probate, it is very important to make sure that a will is properly executed with a self proving affidavit.