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Final Copy 287 Ga. 825 S10A0757. SWAIN v. LEE. MELTON, Justice On July 23, 2007, Lydia Swain, the Goddaughter of decedent Elouise Harley Collins, filed a petition to probate certain documents that she alleged constituted Collins' Will. On August 3, 2007, Bobby Eugene Lee, Collins' cousin and temporary Administrator of her estate, filed a caveat to probate on the grounds that the documents presented by Swain did not create a valid Will as a matter of law. On that same day, Betty Scott, Alvenia Turner, and Marie McIntosh, who claimed to be additional cousins of the deceased, filed a caveat to probate, challenging the Will on essentially the same grounds as those set out by Lee.1 The probate court found that the documents presented by Swain lacked the requisites of a Will or a codicil under Georgia law, and found that Collins died intestate. Swain appealed the ruling to the Superior Court of Glynn County, and Lee filed a motion for judgment on the pleadings in the superior court. The superior court granted Lee's motion for judgment For ease of reference, all of the caveators will hereinafter collectively be referred to as "Lee."
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on the pleadings, prompting Swain to appeal. As explained more fully below, because the record reveals that Swain presented a potentially viable claim that the documents she presented for probate could be read together to create a valid will, the trial court erred in granting Lee's motion for judgment on the pleadings. Accordingly, we reverse. "A judgment on the pleadings may be granted to the appellee in an appeal from the [probate court to the superior court] where the record transmitted to the superior court shows that some essential element of the appellant's case is lacking and incapable of proof." Dukes v. Joyner, 234 Ga. 526, 527 (1) (216 SE2d 822) (1975). Here, the record that was before the superior court reveals that Collins had written an unwitnessed letter dated June 10, 1999, in which she stated, among other things, that Swain was to have "everything that's in my name." On April 12, 2005, Collins filled in a blank on a form "Last Will and Testament" naming Swain as the executrix of her estate. Although Collins signed this form before three witnesses, the remaining pages on this will form were left blank, with no disposition of any property being referenced on the form.

In her petition to probate, Swain specifically contended: "Attached to the last Will and Testament of [Collins], dated April 12, 2005, is a memorandum of instruction written by Collins dated June 10, 1999, which is to accompany and be an exhibit to the Last Will and Testament" (emphasis supplied). Furthermore, Swain specifically argued to the probate court that Collins kept both the 1999 letter and the 2005 will form together in one envelope, and that Collins took both of these documents from this envelope and presented them to the witnesses who signed the 2005 will form at the time that they signed it. Although Collins' unwitnessed 1999 letter and the partially executed 2005 will form, by themselves, could not create valid wills (see OCGA

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