Wills, Trusts & Administration of Estates - Mary F. Radford

• Publication year: 2002

Wills, Trusts & Administration of Estatesby Mary F. Radford^*

The Georgia appellate courts and the Legislature were unusually active this year in the arena of fiduciary law. This Article examines the major cases and legislation during the period from June 1, 2001 through May 31, 2002. Both the cases and the legislation cover a wide variety of topics, ranging from wills and intestacy issues to issues surrounding the creation and administration of guardianships.

I. Recent Decisions of Note

A. Intestacy

1. Probate Court Jurisdiction over Determination of Paternity. In Rodriguez v. Nunez,¹ the court of appeals was faced once again with a question involving the inheritance rights of a child born out of wedlock.² The decedent in this case was killed in an automobile accident. He was not married when he died, and he died intestate. A priest petitioned to be appointed administrator of his estate and stated that the only heirs of the decedent were his mother and two sisters. A year later, Ms. Nunez petitioned the probate court to have the letters of administration revoked, claiming that her daughter was the child of the decedent. Then Ms. Nunez filed a "Complaint for Determination of Paternity" in the superior court and claimed that the superior court had exclusive jurisdiction over the matter under official Code of Georgia Annotated ("O.C.G.A.") section 19-7-40.³ The court of appeals held that it was the probate court that had exclusive jurisdiction over the determination of paternity when the question was raised in the context of inheritance rights.⁴

2. Construction of Terms in Statutes and Wills in Accordance with Intestacy Statute. in two cases decided during the reporting period, the Georgia appellate courts construed the words of a statute and of a will by looking to the Georgia intestacy statute.⁵ in Stewart v. Bourn,⁶ the Georgia Court of Appeals was called upon to define the term "next of kin" as used in the Georgia wrongful death statute.⁷ The decedent's closest surviving relatives in this case were her four siblings and the three children of two deceased siblings. The executor sought direction as to whether to deliver shares of the wrongful death award only to the surviving siblings or to also distribute shares to the descendants of the predeceased siblings.⁸ The court of appeals interpreted the statutory term "next of kin" by looking to the Georgia intestacy statute,⁹ and thus directed distribution of one share to each surviving sibling and one share to the descendants of each predeceased sibling.¹⁰ in Fleming v. First Union National Bank,¹¹ the Supreme Court of Georgia interpreted the terms of a testator's will using the same Georgia intestacy statute.¹² The testator's 1939 will set up a trust that included a remainder interest "to the children of the children of Nell R. Legwen, share and share alike, a child or children to take the place of his or her parent, deceased."¹³ Nell had four children. Only two of these children had children: Nell's oldest daughter had three children, and Nell's oldest son had one child. When the last surviving child of Nell died, the bank, as trustee, attempted to distribute the remainder interest in two halves; one-half would go to the three children of the daughter, and the other half would go to the child of the son. The children of the daughter claimed that the "share and share alike" language indicated that the remainder was to be distributed equally among the great-grandchildren, rather than in the per stirpes manner chosen by the bank.¹⁴ The supreme court pointed out that the presumption used in such cases is that the language of the will follows the structure of the intestacy statute,¹⁵ unless there is other language in the will that indicates a different intent on the part of the testator.¹⁶ Finding no such language in this will, and finding a pattern in the will that indicated that a per stirpes distribution was contemplated by the testator, the court held that the property would be divided in the manner suggested by the bank.¹⁷

B. Wills

1. Undue Influence. Many individuals who make wills are susceptible to some type of influence. That influence becomes "undue influence," and thus is sufficient to invalidate the will, only when the wishes of the individual who is exerting the influence are substituted for the wishes of the testator.¹⁸ Four major undue influence decisions were handed down by the Supreme Court of Georgia during the reporting period. Three of the cases examined the effect of a confidential relationship on an undue influence claim.¹⁹ The fourth, Cook v. Huff,²⁰ involved the unusual finding that a long-term spouse had exerted undue influence on her husband.²¹

The couple in Cook had been married for fifty-three years. After a stroke, which necessitated a six-month stay in the hospital, the husband came home, executed a new will, and died within a few months. He named his wife as executor and also as the beneficiary of a substantial portion of his estate. The testator had four children from his marriage to her and three children from a former marriage. Those three children caveated the will on the ground of undue influence, and the jury returned a verdict in their favor.²² The supreme court affirmed.²³ The widow claimed that the trial court had erred in refusing to grant her motions for directed verdict, judgment j.n.o.v., and for a new trial.²⁴ The supreme court applied the "any evidence" standard to see if there was support for the jury verdict.²⁵ The court found that the evidence showed that the testator was elderly and impaired by the stroke and medication (thus making him more susceptible to being influenced), that the widow had attempted to alienate him from other family members, that she had actively encouraged him to make the new will, had made the arrangements for him to meet with the drafting attorney, and had been present when the will was executed.²⁶ The court concluded that the evidence was sufficient to authorize the submission of the question to the jury and to support the jury's verdict.²⁷

Justice Sears wrote a dissenting opinion in which she was joined by Justices Fletcher and Hunstein.²⁸ Justice Sears emphasized the testimony that showed the testator to have been "a very strong-willed, independent, and sometimes overbearing individual."²⁹ She noted that the stroke and the anti-depressant medication the testator was taking did not (according to the testimony of his personal physician) impair his mental acuity.³⁰ Justice Sears also pointed out that both of the witnesses to the will had known the testator for a long time (one for forty years), and that they had found him to be clearly of sound mind when he executed the will.³¹ The attorney who drafted the will (and also had known the testator for many years) testified as to the testator's soundness of mind.³² Justice Sears stressed the high standards that must be applied when depriving a testator of the right to make his will.³³ She noted that there were several past cases in which the court had recognized that spouses have a strong influence on each other and can use that influence to persuade the other spouse to grant him or her favorable treatment under a will.³⁴ Justice Sears stated that she felt the majority had erred by failing to view the case in the context of the spousal relationship.³⁵ She quoted the 1849 case of Potts v. House³⁶ for this proposition:

If a wife [by her virtues] has gained such an ascendancy over her husband, and so rivaled his affections that her good pleasure is a law to him, such an influence can never be a reason for impeaching a will made in her favor, even to the exclusion of the residue of his family. Nor would it be safe to set aside a will, on the ground of [undue] influence . . . [or] advantage taken of the testator by his wife, although

it should be proved that she possessed a powerful influence over his mind and conduct in the general concerns of life.³⁷ @@@

The three cases that examined the effect of a confidential relationship³⁸ on an undue influence claim are Harper v. Harper,³⁹ White v. Regions Bank,⁴⁰ and Jones v. Sperau.⁴¹ The opinions in these cases seemed to ignore the fact that past Georgia cases have used a different standard when examining a confidential relationship in the context of a will contest than when deciding the effect of a confidential relationship on a gift, deed, or contract. Georgia statutory law provides that "[a] gift by a person who is just over the age of majority or who is particularly susceptible to be unduly influenced by his parent, guardian, trustee, attorney, or other person standing in a similar confidential relationship to one of such persons" is to be closely scrutinized and can be voided "[u]pon the slightest evidence of persuasion or influence."⁴² Georgia case law indicates that, for purposes of voiding contracts or canceling deeds, a presumption of undue influence arises if the parties had a confidential relationship, and the party granting the benefit was of weak mentality while the party receiving the benefit occupied a dominant position.⁴³ In other words, the mere showing of the existence of the confidential relationship in these contexts seems to give rise to a presumption of undue influence. On the other hand, in the context of will contests, the courts have demanded more than a mere showing of the existence of the confidential relationship before allowing the presumption of undue influence to arise. In Bryan v. Norton,⁴⁴ the supreme court stated that the presumption of undue influence arises only if the beneficiary occupied a confidential relationship with the testator and actively participated in the execution of the will.⁴⁵ In Andrews v. Rentz,⁴⁶ the supreme court, applying the rule in Bryan, pointed out that the presumption of undue influence did not arise because, in that case, although the caveator had presented evidence of a confidential relationship, there was no showing that the...