Smith v. Wyatt - Presumption of the probate court’s correctness in the absence of a hearing transcript
Posted: March 25th, 2009 by Gaslowitz Frankel LLC
The decedent’s sister filed a caveat (objection to a will) alleging that the decedent lacked testamentary capacity and had been unduly influenced by the person named as executor in the decedent’s will. The caveat also claimed that the person named as sole heir in the will was neither the natural nor adopted child of the decedent, thereby making the caveator (person challenging the will) the decedent’s sole heir-at-law. After a hearing that was not transcribed, the probate court issued an order dismissing the caveat because the caveator failed to prove that the child was not the decedent’s heir-at-law, and thus, the caveator lacked standing (the right to make a legal claim) to challenge the will. Upon appeal, the Supreme Court held that in the absence of a hearing transcript, there was a presumption that the probate court’s determination was correct.
282 Ga. 902 (2008)
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Morrison v. Morrison - Undue influence and revocation
Posted: March 25th, 2009 by Gaslowitz Frankel LLC
A son, the named executor of his father’s will, filed the will for probate. Two other sons filed a caveat (objection) raising claims of undue influence and revocation. The caveators’ undue influence claim was based on the role the executor played in selecting the attorney who drafted his father’s 1998 will and his alleged participation in preparing the will. The trial court excluded much of the evidence the caveators attempted to present, including evidence of the testator’s conduct years later, since it was not probative of whether the will was a product of undue influence when it was executed. Further, the trial court denied a request to charge the jury that there was a presumption of undue influence, because the caveators introduced no evidence showing either that the testator was weak and hence susceptible to undue influence, or that the executor occupied a dominant position with regard to his father. On appeal, the Supreme Court upheld the trial court’s rulings on the admissibility of evidence and jury instructions.
The caveators’ claim of revocation (an invalidation of the will by the person who executed the will) was based on documents showing that the father planned to execute a new will. The father had marked up a copy of his will, making changes and noting specific bequests, and had sent a letter to the executor requesting that the new bequests be given effect if he died before his new will was executed. The Supreme Court held that Georgia law permits a presumption that a will was revoked only if the original will or a material portion of the original will is destroyed or obliterated. Thus, the testator’s markings on a copy did not raise the presumption of revocation.
282 Ga. 866 (2008)
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Deering v. Keever - Amending a caveat
Posted: March 23rd, 2009 by Gaslowitz Frankel LLC
A petition to probate a will listed a woman and her brother as the decedent’s heirs, though they were not named as beneficiaries in his will. Acting pro se (without an attorney), the woman filed a caveat (objection) to the petition, asserting that the will failed to identify her or other heirs as being disinherited. The caveat was filed on the last day of the ten-day period in which such objections can be filed. The following day, she filed an amendment to the caveat, claiming that the will was invalid due to undue influence and the testator’s lack of capacity. The propounder (person who filed the petition for probate) objected to the amended caveat, contending that because the first claim was not an allowable reason for objection, there was no valid caveat to be amended after the expiration of the objection period.
On appeal, the Supreme Court ruled that a caveat is amendable at all times and in every respect, even when it is the amendment that sustains the validity of the caveat. Additionally, the court ruled that amendments relate back to the original filing date of the caveat, so that an amendment filed outside the ten-day objection period is deemed to be filed as of the original date of the caveat.
282 Ga. 161 (2007)
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Booker v. Booker - Right to appeal probate court decision
Posted: March 23rd, 2009 by Gaslowitz Frankel LLC
After a man died intestate (without a will), his widow petitioned the probate court for year’s support. The probate court granted her petition. The decedent’s mother appealed to the superior court, but the court dismissed her appeal, finding that she had no standing (right to pursue the claim in court). The Court of Appeals affirmed that decision. Only a party to an action—a plaintiff or defendant—may appeal a decision in the probate court. Since the mother was not a party to the year’s support petition, she had no right to appeal the award.
286 Ga. App. 6 (2007)
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Baker v. Merrill Lynch Trust Co. - Charitable bequest and the “cy pres” doctrine
Posted: March 23rd, 2009 by Gaslowitz Frankel LLC
A testator (person who executes a will) left the bulk of her estate to a trust. Under the terms of the trust, some assets were to be distributed to named heirs with most of the remainder of her estate to go to a foundation. However, the testator died before she actually established the foundation. Merrill Lynch, as trustee, filed a petition asking the trial court to apply the “cy pres” doctrine, which provides that if a charitable bequest or gift cannot be effected in the exact manner provided by the testator or donor, the court can exercise its power to fulfill the intention of the testator as closely as possible. The issue here was whether the testator actually had a charitable intent. The trial court ruled that since the language of the trust did not include the word charity or any mention of a charitable purpose, the assets should go to the heirs.
The Court of Appeals, however, noted that the term “foundation” was ambiguous, because it may be a charitable or non-charitable entity, and thus the trial court should have considered evidence outside the language of the trust to determine the testator’s intent. The matter was sent back to the trial court for reconsideration.
286 Ga. App. 767 (2007)
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Anderson v. Westmorland - Year’s support award
Posted: March 19th, 2009 by Gaslowitz Frankel LLC
A widow filed a petition for year’s support, and the daughter of the decedent filed an objection. The probate court granted the award and the superior court affirmed the award, but the Court of Appeals held that the widow was not entitled to year’s support. The year’s support must be reasonably related to the amount needed by a surviving spouse for a period of twelve months to maintain the standard of living enjoyed prior to the death. It is a transitional allowance. In considering the amount to be awarded, the court must consider the income available to the surviving spouse from other sources. In this case, the widow testified that she “splurged” by taking trips and remodeling her home after the death. It appeared that her standard of living improved and she had independent resources to afford those improvements. The court held that when the surviving spouse’s income exceeds the expenses shown for the year after the death, the petition for year’s support must be denied.
286 Ga. App. 561 (2007)
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Montgomery v. Montgomery - Right to a trial by jury in appeal of year’s support award
Posted: March 19th, 2009 by Gaslowitz Frankel LLC
Following her husband’s death, a widow petitioned the court for year’s support, and she was awarded a half interest in the marital home and a car. The husband’s son appealed to the superior court, which reduced the award to the car, personal property, and $14,000. The superior court also denied the widow’s demand for a jury trial, contending that her demand was made more than 30 days after the filing of the appeal and therefore was late under the applicable statute. The widow appealed that ruling.
The Georgia Court of Appeals found that since the statute in question, O.C.G.A. § 5-3-30, referred specifically to appeals from magistrate courts, it did not govern appeals from probate courts. The longstanding rule remains that appeals to the superior court from the probate court are to be tried by a jury unless the party bringing the appeal waives the right to a jury.
287 Ga. App. 77 (2007)
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Mosley v. Warnock - Judgment notwithstanding the verdict and grant of a new trial in a testamentary capacity matter
Posted: March 18th, 2009 by Gaslowitz Frankel LLC
Co-executors offered the 2004 will of their sister for probate. A granddaughter filed a caveat (objection to the will) contending that the testator (the person who executed the will) lacked capacity to make a valid will because she was physically and mentally slow and sometimes confused during the last months of her life. A medical expert testified that, based on the testator’s medical records, she suffered from some degree of dementia on the date the will was executed. A jury found that the testator lacked testamentary capacity. The trial court then granted a judgment notwithstanding the verdict (a judgment for one party even though a jury verdict has been rendered for the opposing party), and the court conditionally granted a new trial based on its determination that the jury’s verdict was contrary to the weight of the evidence.
On appeal, the Supreme Court ruled that since there was some evidence to support the jury’s verdict, the trial court erred in granting the motion for a judgment notwithstanding the verdict. However, since there was also evidence of the testator’s capacity from the testimony of the drafting attorney and several witnesses, the trial court’s decision to grant a new trial was not an abuse of its discretion.
282 Ga. 488 (2007)
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Dorsey v. Kennedy - Relevant time for evidence of undue influence and lack of capacity
Posted: March 18th, 2009 by Gaslowitz Frankel LLC
A man died in 2006 after a long battle with dementia. A woman attempted to probate a will the man purportedly executed on July 29, 1999. The man’s son and stepson filed caveats (objections to the will). A jury found that the will was invalid because it was the product of the woman’s undue influence and because the man lacked the mental capacity to execute a will on that date.
On appeal, the Supreme Court upheld the verdict. The woman argued that the probate court erred in admitting evidence of undue influence and lack of testamentary capacity outside of the four-months immediately preceding and following the man’s execution of the will. The court held that in Georgia there is no set four-month window for the admissibility of such evidence. Courts in Georgia have long adhered to the rule that evidence relating to undue influence or capacity to make a will is admissible if it relates to a “reasonable period of time” before and after the execution of the will. In this case, there was evidence of the woman’s two-year exploitation of the man prior to his execution of the will. The probate court was correct to let the jury hear the full story rather than isolated snippets of undue influence and mental impairment.
284 Ga. 464 (2008)
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Barber v. Holmes - Undue influence
Posted: March 13th, 2009 by Gaslowitz Frankel LLC
A woman left the bulk of her estate to her youngest daughter, the product of her second marriage. The woman’s four older children from her first marriage filed a caveat (objection to the will), contending that the will was invalid due to undue influence. They presented evidence that their mother’s second husband had dominated her to the point of complete submission thirty to forty years ago, during their childhoods. One of the older children testified to a conversation with his mother, on her deathbed approximately two years after the will was executed, in which she said that her second husband and youngest daughter had harassed her into disinheriting everyone except that daughter, and that she had been forced to make a will against her wishes.
On appeal, the Supreme Court ruled that undue influence must be shown at or near the time of execution of the will. Testimony of undue influence many years before and statements made two years later are insufficient to show that undue influence was actually exercised at the time the woman executed her will.
282 Ga. 768 (2007)
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