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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)

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