76.500 Wills; Probate; Burden of Proof

76.500 Wills; Probate; Burden of Proof Upon the trial of an issue arising upon the propounding of a will and a caveat to it, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case by showing the fact of the will and that at the time of the execution of the will, the testator had sufficient mental capacity to make it and, in making it, acted freely and voluntarily. Then the burden of proof shifts to the caveator. Oxford v. Oxford, 136 Ga. 589(2) (1911) Brazil v. Roberts, 198 Ga. 477, 478 (1944) Bianchini v. Wilson, 220 Ga. 816(1) (1965) (Note: Heard v. Estate of Lovett, 273 Ga. 111 (2000) ruled that such a burden-shifting charge is erroneous. It relied heavily on Mobley v. Lyon, 134 Ga. 125 (1910). The four cases were used to prepare the following instruction.) (There are two choices for this charge.) In a proceeding to probate a will, the propounder of the will to which a caveat (objection) has been filed has the burden to prima facie prove that the will was executed with the requisite formalities freely and voluntarily by a testator who was at the time of sound mind and disposing mind and memory. Because he/she offers the will for probate, the propounder assumes the nonshifting burden of proving by a preponderance of the evidence that these issues are the necessary elements of propounder's case. This burden of proof does not shift to the caveator to prove affirmatively that any of these necessary elements do not exist. Rather, the caveator is required only to come forward with evidence to rebut the propounder's prima facie case on these necessary elements. So, if the propounder makes out a prima facie case, that would authorize the jury to find in his/her favor, if nothing further appeared. But if the caveator introduces evidence tending to disprove the prima facie case made by the propounder, then the jury should consider all the evidence introduced both by the propounder and the caveator (and all the surrounding circumstances) in finally determining if the propounder has satisfactorily carried his/her burden of proof. (Or, the following.) In a proceeding to probate a will, the propounder of the will to which a caveat (objection) has been filed has the burden to prima facie prove that the will was executed with the requisite formalities freely and voluntarily by a testator who was at the time of sound mind and disposing mind and memory. Because he/she offers the will for probate, the propounder assumes the nonshifting burden of proving by a preponderance of the evidence that these issues are the necessary elements of propounder's case. So, if the propounder makes out a prima facie case, that would authorize the jury to find in his/her favor, if nothing further appeared. But if the caveator introduces evidence tending to rebut and disprove the prima facie case made by the propounder, then the jury should consider all the evidence introduced by both the propounder and the caveator in finally determining if the propounder has satisfactorily carried his/her burden of proof. Mobley v. Lyon, 134 Ga. 125 (1910) Bianchini v. Wilson, 220 Ga. 816(1) (1965) Wells v. Jackson, 265 Ga. 181 (1995) Heard v. Estate of Lovett, 273 Ga. 111 (2000) (Note: Burden of proof is different if the caveator has an affirmative defense. Heard v. Estate of Lovett, 273 Ga. 111 (2000); Jones v. Cannady, 78 Ga. App. 453, 461(4) (1949) caveator has burden of persuasion as to affirmative defense.)