A Strong Offense
A Stronger Defense
When a legislature goes through the trouble of giving you a statutory form, as the Georgia General Assembly has done with self-proving affidavits under O.C.G.A. § 53-4-24, why would you omit items from the statutory form? In Martina v. Elrod, a will contest case, the caveators invalidated a self-proving affidavit because the self-proving affidavit was not in substantial compliance with the statutory requirements. So, what was missing?
First, a brief refresher on “self-proved” wills. A self-proved will is one that may be admitted for probate without the testimony of the attesting witnesses. A self-proved will is rebuttably presumed to have been executed with the requisite testamentary formalities. To be self-proved, the will must have annexed to it an affidavit sworn by the testator and attesting witnesses before a notary public averring that the will was properly executed. This affidavit must have a form and substance substantially similar to the statutory form.
The self-proving affidavit here was missing three substantive elements:
(1) an affirmation by the notary public that those signing the affidavit were “known to [the notary] to be the testator and the witnesses”;
(2) an affirmation by the notary public that the witnesses were signing at the testator’s request; and
(3) an affirmation by the notary public that the witnesses were each at least 14 years of age at the time.
Because the affidavit lacked these three items, the Georgia Supreme Court ruled that this affidavit was not in substantial compliance with the statute and, therefore, did not constitute a valid self-proving affidavit.
So, again, if a legislature gives you a statutory template, why would you omit items from it?