L.M. v. Shelby County Dept. of Human Resources - Alabama appeals court rejects faxed appeal

Posted: February 26th, 2008 by Gaslowitz Frankel LLC

In this Alabama case1, a juvenile court had terminated the parental rights of a mother. The mother filed a post-judgment motion, but it was denied. The mother then attempted to appeal the denial, sending her notice of appeal by fax to the clerk of the juvenile court. The mother was informed by telephone that her appeal would have to be mailed to the clerk, but she took no further action. The Alabama Court of Civil Appeals ruled that the mother had not filed a valid notice of appeal. Though she had sent the fax within the 14 days allowed for an appeal, court rules do not authorize a filing by fax. The court recognized that the mother was pro se (representing herself), but noted that the rules governing the operation of the Alabama courts are no different for pro se litigants than they are for persons represented by attorneys.

1 2008 WL 400375 (Ala. Civ. App. 2008)

Related News   Civil Appeals

Melican v. Parker - Who may file a caveat; capacity to make a will

Posted: February 18th, 2008 by Gaslowitz Frankel LLC

During the last decade of his life, a man having an extramarital affair executed codicils (amendments) to his will on three occasions to provide for his paramour and her son. After the man died, these beneficiaries petitioned to probate his will. The executor named in the will, who was also trustee of a trust created in the will to provide for the man’s wife, filed a caveat (objection) asserting that the codicils were invalid based on the man’s lack of capacity. When the Supreme Court heard the appeal, it ruled 1 that the executor/trustee had “standing” to file the caveat. In Georgia, only a person who has some interest in the will or estate has the right to file a caveat. Here, the court determined that since the codicils changed the disposition of the man’s property, and thus changed the property to be included in the trust, the trustee had interest enough in the proceedings to file the caveat. The court also found that testimony regarding the excessive drinking habits and severe intoxication of the man in the period before and after he executed the codicils was sufficient to establish his incapacity, even though those who witnessed the execution of his will did not describe him as appearing intoxicated on those dates.

1 2008 WL 350941 (Ga. 2008)

Related News   Beneficiary, Caveat, Civil Appeals, Codicil, Executor, Trust Disputes, Will and Estate Disputes

Land v. Burkhalter - Witnesses to a will

Posted: February 4th, 2008 by Gaslowitz Frankel LLC

In Land v. Burkhalter 1, three persons attempted to witness a will. One of them, a notary, signed on a line that was reserved for witnesses and also signed as a notary. The notary signed in the presence of the testator (the person who made the will); the second witness also signed in the testator’s presence; the third witness, however, signed the will in another room. Georgia law requires that a will be attested by two witnesses in the presence of the testator. The notary was disqualified from signing as both a notary and a witness, but since the will did not need to be notarized, the notary’s signature was valid as a witness signature, and the Supreme Court held that the will was executed properly.

1 2008 WL 215217 (Ga. 2008)

Related News   Civil Appeals, Testator, Will Disputes, Will and Estate Disputes