FINAL COPY
294 Ga. 426

                      S13A1886. BRITT v. SANDS et al.


      NAHMIAS, Justice.

      In this probate case, the testator’s daughter challenges the propounder’s

petition to probate a copy of the testator’s will. The Probate Court of Gwinnett

County found that the propounder was unable to overcome the presumption that

the testator intended to revoke the will created when the original will cannot be

located. See OCGA § 53-4-46. Because there is evidence supporting the

probate court’s finding, we affirm the denial of the petition to probate.

      1.     Edward Major died on April 18, 2012. On May 9, 2012, appellant

Beverly Britt, his fiancée, filed a petition to probate a copy of the will that Major

made on January 26, 2007. Britt and her sister each had a copy of the will, but

the original could not be located. Appellee Michelle Sands, Major’s daughter

and only heir at law, filed a caveat, alleging among other things that Major had

destroyed the original will to prevent it from being probated.

      “A presumption of intent to revoke arises if the original of a testator’s will

cannot be found to probate.” OCGA § 53-4-46 (a). However,
       [a] copy of a will may be offered for probate . . . in lieu of the
       original will if the original cannot be found to probate, provided
       that the copy is proved by a preponderance of the evidence to be a
       true copy of the original will and that the presumption of intent to
       revoke . . . is rebutted by a preponderance of the evidence.

OCGA § 53-4-46 (b).

       On March 28, 2013, the probate court held an evidentiary hearing to

determine if the propounder of the will copy could overcome the presumption

of revocation. Testimony showed that Major drafted his January 2007 will —

the only will he is known to have made — without a lawyer but with the help

of Britt, and he and two witnesses then signed the will at a bank. The will

provided for Britt to inherit Major’s lake house, his deferred compensation

benefits, and his Jeep, and for Sands to inherit his retirement benefits, his

Mitsubishi Eclipse, his interest in his house, and “miscellaneous items.” The

will also made specific bequests for his granddaughter, Amber Lacy, his sister,

and his cousin.1

       None of the witnesses at the hearing had seen the original will since the

day it was signed. According to Britt, Major said that he was going to put the

       1
         Amber Lacy is listed in the will as Amber Nix. These three beneficiaries were listed on
our docket as appellees because they appeared in the probate court, but they did not appeal the
probate court’s order or enter an appearance in this Court.

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will in one of his lockboxes and later said that someone had broken into both

lockboxes and that “he didn’t know what happened to the will. He felt like

whoever was staying at his house had destroyed it, had taken it.” Sands testified

that someone did break into one of Major’s lockboxes, but when she went

through the contents of the box with him after the break-in, she did not see a will

and the only thing he told her was missing was a coin collection. Sands also

indicated that Major himself broke into the other lockbox because he did not

have the key to open it.

      Several witnesses testified that Major had said that he wanted to leave

property — his lake house in particular — to Britt and that Major’s relationship

with Sands was strained. Major’s caretaker also testified, however, that while

Major still loved Britt, shortly before his death he said that she had “lost that

loving feeling for him,” and Britt testified that although she had accepted

Major’s marriage proposal, she repeatedly refused to go through with the

wedding.

      At the conclusion of the hearing, the court made oral findings, noting first

the lack of clear evidence as to what happened to the original will: “I didn’t hear

a whole lot of evidence about the original will and where it was. It was alleged

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to be in a lockbox, or it might be two lockboxes. Maybe one was broken into.

Maybe one wasn’t broken into.” The court observed that while several

witnesses testified that they did not think Major would leave anything to his

daughter, Sands was listed in the will four times. That inconsistency led the

court to question if the will represented Major’s testamentary intent or if he had

“put on a show for some people and then, in private, [decided to] change his

mind and not tell anybody about it.” The court also noted that witnesses

testified that Major was a “smart man,” and while he followed formal

procedures to revoke his power of attorney, he did not use an attorney in

drafting the will. The court concluded that “there’s a good solid question out

there of what his intent was.”

      On April 4, 2013, the probate court issued an order formally denying the

petition to probate, explaining that “it is the finding of this Court that the

propounder was not able to overcome the presumption that the testator’s Will

was revoked where the original cannot be located, and it is the finding of this

Court that Edward L. Major died intestate.” Britt then filed a timely appeal to




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this Court.2

       2.      The absence of Major’s original will created an evidentiary

presumption that he did not want that will to be probated — that he intended to

revoke the will. See OCGA § 53-4-46 (a). In propounding a copy of the will,

Britt had the burden of rebutting that presumption “‘by showing, by a

preponderance of the evidence, both that [Major] did not intend to revoke the

will and that [the] proffered copy is a true copy.’” Thomas v. Sands, 284 Ga.

529, 530 (668 SE2d 731) (2008) (citation omitted); OCGA § 53-4-46 (b).

“Whether the presumption of revocation is overcome is determined by the trier

of fact, and in reviewing the [judgment], the evidence must be accepted which

is most favorable to the party in whose favor the [judgment] was rendered.”

Thomas, 284 Ga. at 530 (citations and punctuation omitted). Moreover, “[t]his

Court will not set aside the probate court’s factual findings unless they are

clearly erroneous, meaning that they will be upheld if there is any evidence to

sustain them.” Parker v. Kelley, 290 Ga. 454, 455 (721 SE2d 828) (2012).


       2
         OCGA §§ 15-9-120 (2) and 15-9-123 provide the right to appeal directly to the appropriate
appellate court, rather than to the superior court, decisions from a probate court in a county with a
population exceeding 90,000, like Gwinnett County. This appeal came to our Court rather than the
Court of Appeals because the case involves the validity of a will. See Ga. Const. of 1983, Art. VI,
Sec. VI, Par. III (3).

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      The evidence presented by the parties in this case was conflicting, both as

to the disposition of the original will and as to Major’s testamentary objectives.

Britt offered testimony that the original will was stolen from one of Major’s

lockboxes, that he had a strained relationship with Sands, and that he wanted her

and others besides Sands to inherit his property. But Sands offered evidence

that Major was careful in his legal affairs, that the original will was not stolen

as Britt claimed, that his relationship with Britt also had its problems, and that

the propounded will left Sands considerable property, showing that her

relationship with her father was not broken. The probate court, which had the

opportunity to observe all the witnesses and to evaluate their demeanor and

credibility, could have decided this case either way; the court found that the

evidence offered by Britt was insufficient to overcome the presumption of

revocation. We cannot say that this finding was clearly erroneous, as there was

evidence in the record to support it, particularly when that evidence is viewed,

as it must be on appeal, in the light most favorable to the party that prevailed

below. See Thomas, 284 Ga. at 530; Parker, 290 Ga. at 455. The judgment of

the probate court is therefore affirmed.

      Judgment affirmed. All the Justices concur.

                                        6
                          Decided January 21, 2014.

             Wills. Gwinnett Probate Court. Before Judge Ballar.

             Chandler, Britt, Jay & Beck, Gregory D. Jay, for appellant.

             J. Kevin Tharpe, John E. Tomlinson, Donald S. Horace, for

appellees.




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