Wills, Trusts, and Administration of Estates - James C. Rehberg

• Publication year: 1995

Wills, Trusts and Administration of Estatesby James C. Rehberg^*

The most recent survey period included considerably more judicial than legislative activity affecting fiduciary law, perhaps attesting to the relative stability of fiduciary law. Notwithstanding this relative stability, the issues raised in the cases ranged all the way from those of venue and jurisdiction to a case about the construction of a will probated in a now long closed estate.

While there was little substantive legislation in the area of fiduciary law, there were a few such statutes. One of these expanded upon the guardian and ward relationship, and another authorized the use of the "Financial Power of Attorney." These legislative developments will be discussed in the last section of this Article.

I. Recent Decisions—Wills and Administration

A. Preliminary Issues

Jurisdiction and Venue. While issues of jurisdiction and venue do not often arise, we start this discussion with two recent cases which illustrate their fundamental importance. In In re Estate of Adam son,¹ the duly qualified executor of the estate of a decedent demanded that the surviving wife turn over to him two vehicles that were being held by the wife but were titled in the name of the decedent. When she refused, claiming an ownership interest in the vehicles, the probate court found her in contempt of court. The court of appeals, however, reversed this finding, holding that the probate court in Georgia lacks jurisdiction to try title.² It is given jurisdiction only over "property belonging to" a decedent's estate.³ The executor's contention that he was claiming only the right to possession of the vehicles begged the question. The probate court's total lack of jurisdiction over the vehicles thus rendered the award to the executor a void judgment, the violation of which would not be contemptuous.⁴

While the county of residence of a testator at his death gives probate jurisdiction to the probate court of that county,⁵ removal to another county is specifically authorized under certain circumstances.⁶ Rentz v. Blanton⁷ necessitated construction of that removal statute.⁸ In Rentz the decedent's will was admitted to probate in Wayne County, her place of residence, and her son was duly qualified as executor. A few months later he petitioned the Probate Court of Wayne County for removal of the proceeding to the Probate Court of Appling County, the county of his residence. The court of appeals reversed the probate court's denial of the transfer. The problem was solely one of construction of the cited code section.⁹ The heirs' resistance to the removal could have been based upon the fact that the section starts with the statement that removal "may" be done by the filing of certain documents in the probate court of the county to which removal is sought. Whether or not the heirs made the possible argument that the word "may" suggests that removal is discretionary, their express argument was that such removal would allow the executor to avoid the rulings of the original court.¹⁰ The court of appeals disposed of this argument by noting that in the case of such a removal the court to which the case was transferred would have "the record from the transferring court and would have the authority to reissue any orders which remained pending at the time of transfer."¹¹

Georgia's Slayer Statutes. Slayer statutes are premised on the notion that killers should not be allowed to profit as a direct result of their crimes. Georgia's slayer statute¹² promotes this public policy by providing that property which would have gone to the slayer will go, instead, to such other heirs of the victim as would be entitled thereto under the rules of descent and distribution "or by will, deed or other conveyance" executed by the victim.¹³ Bradley v. Bradley¹⁴ applied this statute to an unusual factual situation. There the testator was survived by his two sons as his only lineal descendants. His will, which was apparently well thought out, left his son James only a hundred dollars because James had previously received an advance on his inheritance in a certain land deal. The balance of the estate was left to his other son Benjamin, with the provision that if Benjamin was not alive at the time of the testator's death and had no issue, his share would go to four named alternative beneficiaries.¹⁵

Later the testator was wrongfully killed by his son, Benjamin. Neither James nor Benjamin contended that Benjamin should be able to take under the will. James's argument, though, was that because Benjamin killed their father, the slayer statute must be applied to Benjamin's share of the estate, removing that share from the operation of the will and, instead, passing it through the laws of intestacy to him. The court of appeals, however, gave the slayer statute full operation; i.e., Benjamin and his heirs (he had no issue) were barred from taking by the very terms of the statute.¹⁶ James could not take because the will limited his claim to the hundred dollar legacy and therefore, the balance of the estate passed to the four alternative beneficiaries.¹⁷

Georgia's insurance code also has a slayer statute comparable to the one just discussed.¹⁸ It denies any benefits under a life insurance policy to one who kills the insured and who is named as a beneficiary in the policy.¹⁹ In Stephens v. Adkins²⁰ the insured named as equal beneficiaries of his policy his son and his daughter. The son was later convicted of the voluntary manslaughter of his father. In a declaratory judgment action brought by the daughter, individually and as administratrix, the son offered an affidavit in defense that the killing was an accident or in the alternative, was in self-defense. The court of appeals affirmed the grant of a summary judgment that the son was not entitled to any portion of the insurance proceeds.²¹ The son's conclusory statements in the affidavit did not affect the judgment that the son was guilty of the voluntary manslaughter. He remained convicted of the crime which, under the terms of the slayer statute applicable to insurance, precludes a slayer from taking as beneficiary under a life insurance policy on the victim.²²

Year's Support. While the year's support claim of the surviving spouse is given precedence over any other claim against a decedent's estate,²³ an exception exists in favor of a "perfected security interest" in property covered by Georgia's Uniform Commercial Code.²⁴ Auto Alignment Services v. Bray²⁵ necessitated a reconciliation of these two sections. In that case, after the husband's death, his wife was awarded year's support in assets which included nine hundred shares of stock then in the possession of the defendant corporation, allegedly as security for a loan made by the corporation to the decedent. After the wife's subsequent death her executors brought a trover action for the stock. The defendant corporation claimed that it had a perfected security interest in the stock which gave it priority.²⁶

The trial court held that the defendant's failure to assert its claim in the year's support action amounted to a waiver of its lien.²⁷ Furthermore, even if defendant had a perfected security interest, by not asserting it until the time of the trover action amounted to an impermissible collateral attack upon the year's support judgment.²⁸ The court of appeals affirmed the judgment on the following, quite different reasoning: the pledge of stock as collateral does not change ownership, it creates only a lien. Since the wife became owner of the stock by virtue of the year's support award, the only remaining question was whether the defendant's lien was extinguished by that award. It would not have been extinguished if the defendant had acquired a perfected security interest prior to the decedent's death. Here, though, the defendant failed to show such an interest. In order to perfect a security interest in corporate stock, the stock certificate must be delivered to the secured party, accompanied by a stock pledge agreement.²⁹ While in this case a security agreement was alluded to in the defendant's corporate records, which were a part of the record on appeal, the agreement itself was not.

Hence, there was no evidence that a perfected security interest existed.³⁰

B. Proof of Heirship

The problems faced by one born out of wedlock who attempts to prove a right to inherit property from his father have always been burdensome, if not impossible ones. Three recent cases attest to this statement: Pinkard v. Morris,³¹ In Re Estate of Burton,³² and Welch v. Welch.³³

In Pinkard v. Morris³⁴ the plaintiff was born five months after her mother married Hight, who was not plaintiff's father but, instead, was one whom her mother later married, she said, "to give a name to her daughter."³⁵ Eighteen months later the mother, then only sixteen years of age, filed for a divorce from Hight, alleging in her petition that there had been one child "born as the issue of this marriage."³⁶ In her deposition the sixteen year old mother stated that she did not recall ever reading the petition, which she said she signed at the request of her attorney. The divorce decree provided for custody, visitation rights, and support for "the parties' minor child" (the plaintiff).³⁷ Hight never paid any support for plaintiff. The mother stated that she never attempted to enforce the decree because she did not believe that Hight owed them anything, and her only interest was in the divorce decree.³⁸

Here a decedent appeared on the scene. One Morris died intestate in 1992 and the plaintiff filed a claim that she was Morris's daughter and therefore entitled to share as an heir. The trial court entered summary judgment for the estate of Morris, holding that plaintiff's claim was barred under the doctrine of collateral estoppel because the prior divorce decree in favor of plaintiff's mother established that Hight, not the decedent Morris, was her natural father...