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

• Publication year: 2001

Wills, Trusts & Administration of

Estatesby

Mary F. Radford^*

This Article summarizes the major cases and legislative enactments relating to Georgia fiduciary law during the period from June 1, 2000 through May 31, 2001.¹ Fiduciary law encompasses a wide variety of topics. This Article discusses cases and statutes that deal with decedents' estates, trusts, guardianships, life insurance, powers of attorney, and joint bank accounts.² Because many of the cases contain discussions of two or more of these topics, the categorizations used to organize this Article are somewhat artificial. Where feasible, cross references have been added to aid the reader in coordinating all of the current cases that discuss a particular issue.

I. Recent Decisions of Note

A. Will Caveats

1. Burden of Proof, Standard of Proof, and Admissibility of Evidence. In order to become operative as an instrument that passes title to a testator's property, a testator's will must be probated.³ The purpose of probate is to prove that the instrument offered is in fact the testator's last will and testament. When a will is presented for probate, certain interested persons have the opportunity to contest or "caveat" the will.⁴ When a caveat is filed, questions often arise regarding admissibility of evidence, the burden of proof, and the standard of proof.

The first two of these issues were addressed by the Supreme Court of Georgia in Heard v. Lovett.⁵ The will in this case was denied probate on the ground that the testator's purported signature was a forgery. The probate judge who tried the issue did not require the caveator to disprove the genuineness of the signature, but required the caveator to offer evidence to rebut the prima facie case of the propounder of the will.⁶ The supreme court affirmed this approach, noting that the propounder had, among other burdens, the burden of persuasion that the signature was genuine.⁷ The court briefly addressed the difference between the overall "non-shifting burden of persuasion" of the validity of the will, which remains at all times with the propounder, and a shifting burden of proof on certain issues (e.g., a defendant carrying the burden of proving an affirmative defense).⁸ However, the supreme court still reversed the probate court's denial of probate, because it found the probate court improperly excluded evidence of the decedent's declarations.⁹ The evidence offered consisted of testimony by beneficiaries of the purported will, who stated the decedent told them the provisions in the will represented his wishes. The probate court found the testimony to be inadmissible hearsay. Thus, the probate court did not admit the evidence, because it found no other indicia that the testimony was reliable.¹⁰ The supreme court acknowledged the evidence did not fall under one of the specific statutory exceptions to the exclusion of hearsay listed in section 24-3-2 of the Official Code of Georgia Annotated ("O.C.G.A.").¹¹ However, the court stated this list was "not exhaustive."¹² The court noted that the admission of parol evidence on the issue of probate is given "greater latitude" than the admission of parol evidence in a will construction case.¹³ The court pointed out the proffered testimony could have corroborated the testimony of the witnesses to the will (who had testified that the signature was not forged) and thus was relevant to whether the propounder had carried his burden of persuasion.¹⁴ The court also noted the trustworthiness of the evidence was established by the fact it was reported by more than one witness.¹⁵

In Dyer v. Souther,¹⁶ the supreme court discussed jury instructions relating to the standard of proof that applies when a will is challenged.¹⁷ The trial court had charged the jury as follows:

To satisfy the burden of proof by preponderance of the evidence, the scales must tilt or incline to one way or one side, not all the way, but

there must be a definite tilt. In other words, it doesn't bounce back and forth. That's even. But if it's a definite tilt, then that's it.¹⁸

These words found in the second Dyer opinion were taken from the 1991 edition of Suggested Pattern Jury Instructions: Civil Cases.¹⁹ Justice Fletcher noted the use of the phrase "definite tilt" was "problematic because it could be construed as referring to the weight of the evidence, rather than its direction, and requiring a substantial tilt towards one side."²⁰ He said the supreme court "disapproved" of the phrase and recommended it be deleted from the suggested instructions.²¹ However, the court also found that this was not reversible error in the instant case because the charge as a whole adequately explained the burden.²² The court further noted that the evidence of undue influence (on which it had earlier refused to uphold a directed verdict) was "extremely weak."²³

2. Lack of Testamentary Capacity and Undue Influence. Lack of testamentary capacity and undue influence are common grounds for the caveat of a will. These grounds are often raised concurrently under the theory that a weakened and vulnerable testator may lack both sufficient capacity to make a will and be subject to coercive influence from some outside force.²⁴

The caveat in Sullivan v. Sullivan²⁵ was based on allegations of both lack of capacity and undue influence. The testator married his wife Sarah one year prior to his death, but after he was diagnosed with cancer. As his death became more imminent, the testator was confined to his bed and under the influence of strong pain-killing drugs. A short time before he died, his attorney went to his house with two drafts of wills the attorney had prepared. Each draft had slightly different dispositive schemes. The attorney asked to meet with the testator alone, but she found him confused about obvious facts (e.g., the identity of his current wife) and vacillating among various dispositions of his property. Some of his articulated requests did not match the devises spelled out in the documents. The attorney spoke to Sarah about the problems she detected. Sarah went into the bedroom and returned minutes later with the testator in a wheelchair. She announced that regardless of whether the will would be contested, it had to be signed that day stating it was "now or never."²⁶ The attorney again expressed her concerns, but the testator then executed a document as his will. The will was not read to him prior to the execution and he had not read the drafts. The attorney memorialized the events in a "Memo to File in Anticipation of Litigation."²⁷ Later the same day, after the attorney left, Sarah had the testator sign three more documents, including one that amended their prenuptial agreement to allow her to receive seventy-five percent of his individual retirement account.²⁸ When the will was offered for probate, the jury found the testator lacked testamentary capacity and the will was the product of undue influence by Sarah.²⁹ The supreme court found sufficient evidence to sustain the jury's verdict.³⁰ On the issue of testamentary capacity, Sarah argued that the attorney found the testator to be competent. The supreme court pointed out that the attorney admitted the testator's capacity fell into a "gray area," and the attorney made her assessment quickly on the basis of what she observed that day.³¹ The court also noted that the attorney was not the final arbiter of whether the testator had testamentary capacity.³² Sarah argued that the jury charge should have stated that a lack of testamentary capacity can be shown only by a "total absence of mind."³³ The supreme court found the trial judge's charge, which reiterated the statutory standard of having a "decided and rational desire"³⁴ as well as a reference to the former probate code requirement that the desire not be "the ravings of a madman ... or the childish whims of imbecility,"³⁵ was proper.³⁶ The supreme court also found sufficient evidence to submit the undue influence claim to the jury.³⁷ Sarah emphasized that the trial judge told counsel he would not find undue influence if he were the finder of fact. As the supreme court pointed out, however, the trial judge properly recognized that he was not the finder of fact and his only responsibility was to determine whether the evidence justified allowing the jury to consider the issue.³⁸

The caveat in Pope v. Fields³⁹ was also based on allegations of a lack of testamentary capacity and undue influence. Of particular importance in Pope was the finding that the testator could still have the requisite capacity even though a guardian had been appointed for her.⁴⁰ Pope, who was Mrs. New's brother, moved into her home and took over her financial affairs following her surgery. Later, Pope's daughter's family also moved in with them. Pope called an attorney and had him prepare a revocable living trust, a durable power of attorney, a health care power of attorney, and a quit-claim deed. An insurance agent brought the documents to Mrs. New's house, and she signed them. However, no one explained to Mrs. New that she had transferred all of her property to the "Royce O. Pope Revocable Trust," and Mrs. New did not discover anything was amiss until she called her banks to ask why she did not have any money.⁴¹

Mrs. New hired an attorney to sue Pope, but she then decided to drop the matter.⁴² Pope and his daughter physically and verbally abused Mrs. New; the daughter took her to a personal care home, dumped her clothes in the yard, and said "she's never coming back to my house."⁴³ Mrs. New immediately asked Joyce Fields to act as her guardian, and Ms. Fields was appointed as Mrs. New's emergency guardian.⁴⁴ As guardian, she filed an action against Pope on Mrs. New's behalf.⁴⁵

When Mrs. New died two years later, Ms. Fields submitted for probate a will that Mrs. New had executed after Ms. Fields had been appointed her guardian. The will left Mrs. New's entire estate to Ms. Fields and her husband. The will was offered for...