How are Self-Proving Affidavits Important to a Will? In Georgia, all wills must go through the probate process. As a part of the probate process, the executor must prove the legitimacy of the will to the probate court.
So what does “proving” a will mean? The proving a will is the process by which the executor satisfies the probate court that the purported will document really is the will of the person it said to be. Because of the inherent complexity of forms and processes of proving a will, many executors choose to use the services of an experienced probate attorney to facilitate the process.
The way the executor or probate attorney proves a will may vary. But most courts will require the witnesses (to the will) to appear in court, either personally or by sworn statement. So if a witness is required to appear in person and testify in court as the veracity of a will – and there is any trouble locating the witness, it will very likely cause problems, additional expense and delays with probate.
So how can this be avoided? Fortunately, Georgia – along with several other states, allow for the inclusion of a Self-Proving Affidavit with wills. With a self-proving affidavit, the will does not need to explicitly proved to the court. The will’s self-proving affidavit itself proves the will. A Georgia will with a self-proving affidavit will usually speed up the probate of a Georgia Last Will and Testament.
It is important to note that a self-proving affidavit can be challenged in court if it not drafted and executed properly. In addition, any Last Will and Testament can be challenged in probate court by any interested party. However, a properly executed self-proving affidavit will almost always be viewed positively when trying to prove the legitimacy and genuineness of a will.
Is a Self-Proving Affidavit Necessary for a Georgia Will to be Valid? No, you do not need to make a self-proving affidavit to make a valid will. However, while a self-proving affidavit is not required, it is not recommended that any person skip the process in such an important matter. Also, while it is our opinion that a self-proving affidavit should be included with every will, it is just as important that the self-proving affidavit be properly drafted and executed in accordance with Georgia law.
In a recent Georgia case (2013) the court ruled on the importance of strictly adhering to the law in regard to self-proving affidavits. In Georgia, the legislature provides a statutory form for self-proving affidavits. O.C.G.A. § 53-4-24
So the courts expect the required statutory Georgia form to be adhered to. To illustrate this, in 2013 the court invalidated a self-proving affidavit in Martina v. Elrod which involved the contesting of a will. In this case, the court invalidated the self-proving affidavit because it was not in substantial compliance with Georgia’s statutory requirements. In this case, the court ruled that the will’s self-proving affidavit was missing three required elements to be valid:
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 wills self-proving affidavit lacked these three required elements, 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.
What can be learned from this is the importance that all elements and requirements for a Georgia Last Will and Testament to be respected and adhered to. Whenever making a will, it is important to follow the applicable law and to obtain the advice of an attorney experienced in drafting, executing and probating Georgia Last Wills and Testaments.