Land v. Burkhalter - Witnesses to a will

Posted: April 3rd, 2009 by Gaslowitz Frankel LLC



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.  A notary may not sign 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. 

283 Ga. 54 (2008) 

Related News   Probate and Estate Disputes, Will Disputes, Will and Estate Disputes

Cruver v. Mitchell - Adult guardianship and conservatorship

Posted: April 3rd, 2009 by Gaslowitz Frankel LLC

Two daughters petitioned to be appointed guardians and conservators of their elderly mother, who was suffering from end-stage Alzheimer’s disease.  The petitioners had removed their mother from the Medicaid program, fearing that the State would take possession of their mother’s real property under Medicaid’s estate recovery program.  They planned to sell some of the mother’s property to a relative to generate funds for her care, thus keeping the property in the family.  The probate court appointed the county conservator and denied the guardianship.   

The Court of Appeals upheld the determination to appoint the county conservator but reversed on the guardianship.  Georgia law establishes an order of preference for conservator appointments, and though the adult children would have preference, the probate court had discretion to disregard that preference order.  Here, there was no evidence that the Medicaid opt-out was financially wise or that the mother would have sufficient funds without Medicaid, and further, the petitioners, as heirs-apparent, had a conflict of interest in the matter.  On the matter of the guardianship, the probate court judge determined merely that the petitioners had taken care of their mother’s affairs thus far without a guardianship, so none was needed.  Under Georgia law, however, the court’s inquiry must focus on the condition and best interest of the adult, not only on whether the adult’s family to date has acted successfully on her behalf.  The Court of Appeals held that the probate court’s incorrect analysis was an abuse of discretion, and it remanded the case for further consideration of the guardianship issue. 

289 Ga. App. 145 (2008)

Related News   Guardianship Disputes, Guardianships/Conservatorships