Many people are unaware that, in order for a will to be valid, it must have been signed by the testator in the presence of two witnesses. However, even more people are unaware that the witnesses must also sign the will in the presence of the testator. According to O.C.G.A. § 53-4-20(b), a “will shall be attested and subscribed in the presence of the testator by two or more competent witnesses.” Generally, should evidence be provided that a testator did not personally see the witnesses sign his or her will, the probate court must refuse to probate the will. However, there is a precedent called the “line-of-vision” test. This test allows that the testator doesn’t actually have to watch the witnesses sign the will so long as the testator could have watched the witnesses sign if desired without moving or changing his or her position.
One example of a case in which the line-of-vision test was utilized is Chester et al. v. Smith. In this case, the deceased, Sara Elizabeth Campbell, signed her will in a car in the parking lot of bank before a bank employee. The bank employee then took the will inside the bank and asked two bank tellers to sign the will as witnesses. The bank tellers signed the will inside the bank while Campbell sat in the car. The structure of the bank prevented Campbell from seeing the witnesses sign her will. Therefore, the will was not properly executed, and the probate court rejected the will for probate.
Another case that provides an example of the application of the line-of-vision test is McCormick v. Jeffers et al. In this case, the testator, Jean McCormick, signed her will in a chair in her bedroom. The two witnesses watched her sign, then took the will out to the dining room table to sign. McCormick could not see the dining room table from where she was seated in her bedroom, as the table was fifteen feet away from the bedroom door. Therefore, the will failed the line-of-vision test, was improperly executed, and the court deemed it to be invalid.
If you would like to discuss a will you believe may be invalid or creating a will of your own, please email me or call my Atlanta estate planning and probate law firm at (404) 445-7771.
