                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    February 5, 2020




In the Court of Appeals of Georgia
 A19A2321. WILBUR et al. v. FLOYD.

      MARKLE, Judge.

      In this appeal, Jeffrey Wilbur, on behalf of himself and as the executor of Gwen

Wilbur’s (“the mother”) estate, seeks review of the trial court’s order granting

summary judgment to his sister, Patricia Floyd, in his petition to probate the mother’s

will. On appeal, Jeffrey contends that the trial court (1) erred in concluding that

(a) the mother’s will was not valid because the attestation page was missing, and

(b) he could not offer a copy of the missing attestation page to establish the will’s

validity; and (2) failed to grant summary judgment in his favor on Patricia’s claims

that the mother lacked testamentary capacity to execute the will and that the will was

the product of undue influence. Because we conclude that Jeffrey has raised a
question of fact regarding the validity of the will, we vacate the trial court’s order and

remand the case for further proceedings.

      On appeal from the decision of a probate court, the superior court
      conducts a de novo investigation of the probate court’s proceedings, and
      in doing so, will consider the records from the probate court, as well as
      other competent evidence which may not have been presented to the
      probate court. It is not the province of the superior court on such an
      appeal to review and affirm, but to try the issue anew and pass original
      judgments on the questions involved as if there had been no previous
      trial. We therefore review this case on appeal as we would any other
      direct appeal from superior court.


(Citation omitted.) In re Estate of Hill, 340 Ga. App. 39, 40-41 (795 SE2d 748)

(2016). As such, “[s]ummary judgment is proper when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. A trial court’s

grant of summary judgment is reviewed de novo on appeal, construing the evidence

in the light most favorable to the nonmovant.” (Citations and punctuation omitted.)

Bruce v. Georgia-Pacific, LLC, 326 Ga. App. 595 (757 SE2d 192) (2014).

      So viewed, the record shows that in March 2014, the mother executed a will

naming Jeffrey and Patricia, her two surviving children, as beneficiaries.1 In


      1
          A third child predeceased the mother.

                                            2
December 2014, after a disagreement with Patricia, the mother revoked that will and

executed a new one naming only Jeffrey as a beneficiary and omitting Patricia

entirely. The attorney who prepared the will (“the drafting attorney”) and his secretary

witnessed the mother execute the December 2014 will. The mother died in February

2015, and Jeffrey filed a petition to probate the will in solemn form. The will

submitted to the probate court with this petition was signed by the mother and had the

mother’s initials on each page, but was missing an attestation page in which the

witnesses confirmed that they had witnessed the mother sign the will. Although the

attestation page was missing, the witnesses had initialed each page of the will next

to the mother’s initials.

      Patricia filed a caveat, arguing that the will was invalid because it did not meet

all the formalities, specifically, it lacked an attestation page. She also argued that the

mother lacked the testamentary capacity to execute the will; Jeffrey procured the will

through undue influence and coercion; and the mother’s alleged signature was a

forgery.

      When Jeffrey realized that the will submitted to probate was missing the

attestation page, the drafting attorney submitted an amendment to the petition along

with an affidavit averring that he and his secretary witnessed the mother sign the will,

                                            3
and that the will attached to the affidavit was a correct copy. However, the will

attached to the affidavit also did not contain an attestation page. In a subsequent

affidavit, the drafting attorney corrected himself and stated that the will was five

pages in total, including the attestation page, that he believed all five pages were

included with the petition to probate filed in the probate court, and that he had a copy

that was stamped “filed in office on March 17, 2015.” A copy of the will with the

attestation page was attached to this affidavit.2 The attestation page contained both

the witnesses’ signatures and their initials, and it was also signed by the mother.

      At a hearing before the probate court, Patricia moved to dismiss the petition to

probate the will because the will lacked the necessary formalities; specifically it did

not have an attestation page. The drafting attorney testified that he and his secretary

witnessed the mother sign the will; they initialed every page along with the mother’s

signature; and they signed an attestation page. The attorney could not explain what

had happened to the attestation page, but confirmed that it had been a part of the

original will and was likely filed in the probate court because he had a stamped copy.




      2
        We note that the contents of the will submitted for probate and the will with
the attestation page are identical.

                                           4
He proffered a copy of the attestation page with the amended petition to probate the

will.

        The secretary testified that all five pages of the will were attached to the

petition to probate the will filed in probate court, and she confirmed that she

witnessed the mother sign the will and both she and the attorney initialed each page

along with the mother’s signature. She could not say what happened to the original

attestation page, but she explained that they had a copy of that page. After hearing all

the testimony, the probate court granted the motion to dismiss, finding that the will

failed to satisfy the necessary formalities.3

        Jeffrey appealed to the superior court and moved for summary judgment,

arguing that the will was in valid form and the amended petition to probate the will

included a copy of the missing attestation page. Patricia also moved for summary

judgment, arguing that the will lacked the testamentary formalities, and that Jeffrey

could not use a photocopy of the will in place of the original because the original will

was not lost in its entirety.

        3
        The probate court also heard extensive testimony regarding the mother’s
capacity to execute the will and whether she was coerced or subject to undue
influence. Although the parties raised these issues in both the probate court and the
superior court, neither court reached this issue, and, therefore, we do not recount that
testimony here.

                                           5
      The trial court granted Patricia’s motion, finding that Jeffrey could not use a

photocopy to establish the testamentary formalities because the original will was not

lost. The trial court did not address Patricia’s other challenges to the will. Jeffrey now

appeals.

      1. In related enumerations of error, Jeffrey argues that he properly amended the

petition to probate the will to include the attestation page, satisfying the necessary

formalities and establishing its validity; therefore, the trial court erred in granting

Patricia’s motion for summary judgment and denying his corresponding motion.

Patricia responds that there is no evidence that the will was properly witnessed

because the attestation page was missing and, therefore, the will was not valid. We

conclude that there remains a question of fact regarding the formalities, and therefore

the trial court erred in granting summary judgment to Patricia.

      The sole question in a proceeding to probate a will in solemn form is
      whether the paper propounded is, or is not, the last will and testament of
      the deceased. The result turns on three issues: (1) whether the document
      was properly executed; (2) whether the testator had the mental capacity
      to execute a will; and (3) whether the document was the result of undue
      influence, fraud, duress, or mistake.




                                            6
(Citation and punctuation omitted.) McDaniel v. McDaniel, 288 Ga. 711, 715 (2) (707

SE2d 60) (2011); see also In re Estate of Corbitt, 265 Ga. 110 (454 SE2d 129) (1995)

(“In a proceeding to probate a will in solemn form, the sole issue is devisavit vel non,

that is, whether the paper propounded is, or is not, the last will and testament of the

deceased.”) (citation omitted).

      In this case, we are concerned primarily with the first prong: whether the

document was properly executed. OCGA § 53-4-20 (b) requires that a will be

“attested and subscribed” by at least two witnesses. When faced with questions of

statutory interpretation,

      we apply the fundamental rules of statutory construction that require us
      to construe the statute according to its terms, to give words their plain
      and ordinary meaning, and to avoid a construction that makes some
      language mere surplusage. We must also seek to effectuate the intent of
      the Georgia legislature. In this regard, in construing language in any one
      part of a statute, a court should consider the entire scheme of the statute
      and attempt to gather the legislative intent from the statute as a whole.


(Citations omitted.) In re Estate of Jacqueline Gladstone, 303 Ga. 547, 549 (814

SE2d 1) (2018).

      In reviewing the arguments on appeal, we are mindful that “[t]he opportunity

to determine the disposition of one’s property at death by means of a will has long

                                           7
been a valuable right in this state. In order to preserve that right, . . . the rules relating

to execution have remained simple and issues of proper attestation have generally

presented fact issues for a jury.” (Citation omitted.) Miles v. Bryant, 277 Ga. 362, 363

(1) (589 SE2d 86) (2003). Our focus is on the testator’s intent: “It is not the writing

that makes the will legal and binding, but the testamentary intent crystallized and

expressed in the writing.” (Citation and punctuation omitted.) Glaze v. Lemaster, 279

Ga. 361, 362 (1) (613 SE2d 617) (2005). Thus, “[i]n the construction of all wills, the

court shall seek diligently for the intention of the testator and shall give effect to such

intention as far as it may be consistent with the rules of law.” OCGA § 53-4-55; see

also Hood v. Todd, 287 Ga. 164, 166 (695 SE2d 31) (2010). With these principles in

mind, we turn to Jeffrey’s arguments on appeal.

       Jeffrey first contends that summary judgment was improper because he

properly amended the probate petition to include a copy of the missing attestation

page, which showed that the execution of the will satisfied the necessary formalities.

We agree that summary judgment was improper.

       Pursuant to OCGA § 53-4-20 (b), “[a] will shall be attested and subscribed in

the presence of the testator by two or more competent witnesses. A witness to a will



                                              8
may attest by mark.”4 The statute speaks in mandatory language. Baylis v. Daryani,

294 Ga. App. 729, 730 (1) (669 SSE2d 674) (2008) (“The general rule is that ‘shall’

is recognized as a command, and is mandatory.”). Nevertheless, our Supreme Court

has cautioned that “proper attestation requires no particular form and proper

attestation is not dependent upon the existence of an attestation clause, only that the

witnesses’ signatures are affixed to the writing.” Miles, 277 Ga. at 364 (1).

Additionally, the statutory language contemplates that witnesses may attest the will

by making a mark. OCGA § 53-4-20 (b); see also Mary F. Radford, Redfearn Wills

and Administration in Georgia § 5:4 (2019).

      Here, Jeffrey alleges that the original will contained an attestation clause, and

he has submitted a copy of the attestation page in lieu of the original. The drafting

attorney and the secretary both testified that there was an attestation page when they

filed the petition to probate the will. In addition, a review of the will shows that the




      4
        “Attest” is defined as “[t]o bear witness; testify” or “[t]o affirm to be true or
genuine; to authenticate by signing as a witness.” See Black’s Law Dictionary (11th
ed. 2019). To “subscribe” means to “write or sign (one’s name) on a document . . .
[especially] at the foot as a witness.” Miles, 277 Ga. at 365 (3), n. 17.

                                           9
witnesses initialed each page next to the testator’s signature, and the copy of the

attestation page contains their signatures and the signature of the testator.5

      The statute requires that the witnesses attest and subscribe that the testator

signed the will, and they may do so by making a mark. OCGA § 53-4-20 (b). Nothing

in the statute or case law mandates specific language to constitute attestation. Miles,

277 Ga. at 364 (1). Thus, under the plain language of the statute, the initials appearing

on each page with the testator’s signature could be sufficient to validate the will.

      A review of other statutory provisions supports our conclusion that granting

summary judgment to Patricia was improper.6 OCGA § 53-5-21 (a) provides that “[a]

will may be proved in solemn form after due notice, upon the testimony of all the

witnesses in life . . . or by proof of their signatures[.]” (emphasis supplied).

Additionally, witnesses to the will “may be examined in person or by written

      5
          The will specifically contemplated the use of copies.
      6
         We note that other courts have found a will properly executed where the
witnesses initialed each page along with the testator’s signature even in the absence
of an attestation clause. See In re Mack’s Will, 250 NYS2d 177, 179-180 (21 AD2d
205) (1964); In re Mack’s Will, 39 Misc2d 889 (242 NYS2d 269) (1963). See also
Plemons v. Tarpey, 262 Ala. 209, 212 (78 So2d 385) (1955) (statute did not require
specific location for attesting witnesses’ signatures and they could sign anywhere on
the document). But see In re Estate of Stringfield, 283 SW3d 832, 837 (Ct. App.
Tenn. 2008) (will not properly executed because the statute required witnesses “sign”
the will, but the witnesses only initialed each page).

                                           10
interrogatories,” and “[t]he taking or procuring of testimony in [this] manner . . . shall

be sufficient for all purposes of the probate proceedings, notwithstanding any other

statute.” OCGA § 53-5-23 (a), (c) (emphasis supplied).

      Here, the interrogatory submitted with the petition to probate, the testimony

from the witnesses, and the presence of the witnesses’ initials on each page along

with the testator’s signature create a factual question regarding whether the execution

of the will complied with the necessary formalities. These factual questions preclude

summary judgment. Miles, 277 Ga. at 365 (3). See also Sheffield v. Sheffield, 215 Ga.

546, 548 (1), 549 (2) (111 SE2d 218) (1959) (where propounder and cross-

propounder submitted substantially differing documents they claimed to be the

testator’s will, jury had the authority to determine whether copy of will was the same

as the original); Burge v. Hamilton, 72 Ga. 568, 627-629 (1884) (discrepancy in

whether will consisted of 10 pages or 11 pages allowed jury to determine whether

there was a valid will).

      Given the sanctity of the right to make a will, the statutory language that allows

a witness to sign by mark, and the fact that our Supreme Court has directed that there

is no specific form required for attestation and that questions about the proper

formalities are for the jury, Miles, 277 Ga. at 363 (1), we conclude that the trial court

                                           11
erred in finding, as a matter of law, that the will failed to comply with the necessary

formalities. To conclude otherwise would essentially ignore the plain language of the

statute, as well as the testator’s intent, and deprive her of her right to dispose of her

property as she wished. Accordingly, we must vacate the trial court’s order and

remand the case for further proceedings.7

       2. Jeffrey also argues that the trial court erred in denying his motion for

summary judgment on Patricia’s claims of undue influence, and lack of testamentary

capacity. In light of our conclusion that summary judgment was improper because the

execution of the will is a question of fact for the jury, and the trial court did not reach

these issues, we do not reach them in the first instance here. Williamson v. Strickland

& Smith, Inc., 296 Ga. App. 1, 6 (7) (673 SE2d 858) (2009).

       Judgment vacated and case remanded. Doyle, P. J., and Coomer, J., concur.




       7
         Because there is a jury question regarding whether the will complied with the
necessary formalities regardless of the lack of an attestation page, we need not
address Jeffrey’s other argument regarding a submission of a copy of the missing
attestation page.

                                            12
