Hon. William J. Self, II
Judge, Probate Court of Bibb County
Please take careful note of the recent decision of the Georgia Supreme Court in Horton v Burch, 267 Ga. 1 (1996). As I read the opinion, the Court has held that there can be only one original last will and testament and that all "copies" (whether or not bearing original signatures) stand on the same footing. In other words, only the first instrument signed by the testator and the witnesses can legally constitute the original will. Signed or executed copies, conformed copies, xerographic reproductions and unexecuted copies all constitute copies, which may be admitted for probate in lieu of the original only upon proof, by clear and convincing evidence, that the original was lost or destroyed without having been revoked by the testator. The fact that the sole original is not available gives rise to the presumption of revocation under OCGA § 53-3-6.
The Supreme Court noted, in a footnote, the commentary in Redfern, Wills and Administration in Georgia (5th ed) suggesting that the practice of executing "duplicate wills" creates more problems than it solves. In making its decision in this case, the Court merely noted that what it and the trial court determined to be "the original" had red border lines (one assumes based on testimony), while the border lines on the others were black. If one follows completely the Court's rationale, the judges had to assume that the red-line-bordered document was the first one actually signed by the testator. If, in fact, a testor and the witnesses actually first signed one of the reproductions, it and not the originally produced version would constitute the testor's original will under the Court's ruling. I do not know whether reconsideration has been requested, but, as it stands, this decision may also cause more problems than it resolves in the event of will contests.
Until there is new case or statutory law, whenever a document is offered for probate which appears to be a carbon or xerographic copy or some other reproduction of an original, a prima facie case must show either that it is, in fact, the first executed document or that the original was lost or destroyed without having been revoked by the testator. In any case where a copy (now, whether executed or not) is offered for probate, the standard form petitioner must be prepared to present clear and convincing evidence to overcome the presumption of revocation, and the form final order needs to be amended to include the finding necessary to admit the copy in lieu of the original.
Of course, the case arose only after a caveat had been filed by an heir alleging that the document was not and original. Presumably, if no heir at law contests the validity and originality of a proffered document, a probate court will be authorized to admit to probate any document which does not appear on its face to be a "copy". However, I do not feel that a probate judge may simply overlook what appears to be a "duplicate original" but which has indicia of being an executed copy.
The real problem with the decision and with the practice of executing duplicate originals is that it is just as easy to direct the production by computer of multiple "copies" of a document produced in a word processor as it is to make copies of the first printing, in which case there then actually exist multiple original documents which cannot be distinguished one from another. The Court's ruling declares that only the document first properly executed, published and witnessed can constitute the testor's original will. If multiple "copies" of a computer generated will are printed and executed, unless the first-signed version is somehow marked as such, it may, indeed, become impossible in the future to distinguish the "original" as defined under this ruling. The issue may become one of possession. Perhaps the commentary in Redfern is even more pertinent and accurate, as things get "curiouser and curiouser."
[PRACTICE NOTE: Although not presently required by the Uniform Probate Court Rules, we would appreciate all attorneys noting on pleadings filed in the Probate Court of Bibb County the assigned State Bar number of the attorney signing the pleading. When we become fully computerized and operating under the SUSTAIN court management software, the easiest entry under the field of "attorney" will be the State Bar number. Our system will also include a date base of all attorneys authorized to practice in Georgia, under which the first entry field is the bar number. Your cooperation will be greatly appreciated.]