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

• Publication year: 1996

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

A survey of developments in any area of law requires a look backward and a look forward—a look backward at what the appellate courts have done with controversies that developed under existing statutes and decisions, and a look forward at what those courts will probably do with comparable controversies that develop under recently enacted statutes. Thus, in this survey of fiduciary law developments during the past year, we begin with reported cases that appear to be instructive. Classifying these cases under one heading or another is difficult, but an effort will be made to do so in the chronological sequence in which the issues typically appear.

I. Recent Decisions—Wills and Administration

A. Preliminary Matters Affecting the Right to Succeed to Property

Year's Support and Creditors' Rights. The nature of the claim to succeed to realty after the owner's death was the issue in Martin v. Jones.¹ There, after the husband's death, his wife contracted to personally pay the $3,514 burial expenses, but then failed to do so. Instead, she filed for year's support and did not name the mortuary as an interested party. The court awarded the wife all of the husband's realty as a year's support. Thereafter, the holder of the mortuary's claim sued her for the burial expenses and obtained a default judgment, which was duly recorded in the general execution docket. She then conveyed the realty to A, who later conveyed it to B. When the sheriff levied execution on the realty and advertised it for sale to satisfy the judgment, the wife and her transferees, A and B, sued to enjoin the sale, arguing that the realty was not subject to levy and sale because it was year's support property Affirming the denial of the injunction, the Georgia Supreme Court pointed out that the argument "misses the mark."² No claim had been filed against the estate of the husband, nor would any such claim lie because the wife did not contract on behalf of his estate.³ Her contract was her personal obligation. Since the obligation was outstanding at the time the year's support award vested title to the realty in her fee, that fee became automatically burdened with the lien of the default judgment.⁴ That judgment lien attached to all of her property, real and personal.⁵

Common Law Wife of Decedent as Administrator. Following the death of the decedent in Baynes v Baynes,⁶ his daughter and a woman claiming to be his surviving common law wife, filed separate petitions for letters of administration. The daughter challenged the validity of the alleged common law marriage and, hence, the standing of the alleged widow. After a full hearing, the probate court ruled that the alleged widow failed to prove a common law marriage because she failed to prove an essential element of all marriages, an actual contract of marriage.⁷ Seldom, if ever, is there direct proof of an actual contract for a common law marriage; thus, the marriage must be established by circumstantial evidence over an extended period of time.⁸ In the fifteen years the parties lived together the decedent never told his daughter, his mother, his brother, or his best friend that he was married to the alleged "spouse." His firearm license and his voter registration card showed his mother's address as his actual place of residence. Further, the alleged spouse herself did not list the decedent as her spouse on documents she filed for public housing. Because there was evidence that on some occasions the parties did not hold themselves out as husband and wife, but instead, acted inconsistently with respect to marriage, the trial court had evidence supporting its finding and therefore did not commit reversible error.⁹

It should be noted that, while the operative facts of this case existed prior to 1996, the Georgia General Assembly in that year enacted a statute providing that no common-law marriage shall be entered into in Georgia on or after January 1, 1997.¹⁰

Virtual Legitimation. In Prince v. Black,¹¹ the supreme court first recognized the doctrine of virtual or equitable legitimation, allowing a virtually legitimated child to share in the estate of the father if there was clear and convincing evidence that the child was the natural child of the father, and that the father intended for the child to share in his intestate estate "in the same manner that the child would have shared if he had been formally legitimated."¹² In 1991 the General Assembly amended the Official Code of Georgia Annotated ("O.C.G.A." or "Code") section governing inheritance by children born out of wedlock to incorporate the holding in Prince v. Black. It did this by enacting a new subsection.¹³

In Varner v. Sharp¹⁴ the court of appeals construed this new subsection. Upon the decedent's death, his brother applied for letters of administration, claiming to be the sole heir. A few weeks later Dorothy Varner also applied for these letters, claiming that she was the decedent's child born out of wedlock and that she was his sole heir. When each filed a caveat to the application of the other, the probate court found clear and convincing evidence that Dorothy was the intestate's child, but it did not find clear and convincing evidence that he intended for her to inherit the estate to the exclusion of the brother. Consequently, it concluded that she could not inherit from the estate.¹⁵

The court of appeals reversed this holding, in essence stating that it read the statutory language of the subsection, "in the same manner in which the child would have shared if legitimate," as meaning "to the same extent to which the child would have shared if legitimate" or "in the exact same proportion in which the child would have shared if legitimate."¹⁶ The probate court's reading of the statute imposed upon the daughter a greater burden of proof than is required.¹⁷ That reading would assume that a layman knows the rules of inheritance and would require that he leave clear and convincing evidence that he intended the daughter to share in the estate as provided in those rules.¹⁸ The court of appeals concluded that the phrase "in the same manner in which the child would have shared if legitimate" means nothing more than "as if she were legitimate."¹⁹ If the daughter, on remand, proves that the decedent was her father and that he intended for her to inherit from his estate, then the probate court must determine based on the rules of intestate succession the extent of the estate to which she is entitled.²⁰ The brother also contended that the probate court erred in finding that there was clear and convincing evidence that Dorothy was the decedent's daughter. The court disagreed and enumerated the many bits of evidence which were introduced to prove the virtual legitimation,²¹ making out what appears to the writer to be an even stronger case than was made in Prince v Black.²²

Contracts to Will. The 1983 divorce decree in Lattimore v. Meadows²³ obligated the husband to reaffirm his 1981 will in which he left his entire estate to his wife. When he executed a new will in 1984, he again complied with the decree. In 1991 he executed a codicil bequeathing one hundred thousand dollars to another person. When the (then) ex-husband died in 1994, his 1984 will and the 1991 codicil were admitted to probate. The (now) ex-wife sued the executor for specific performance of the contract to will. The supreme court affirmed summary judgment in favor of the ex-wife on the theory that the divorce decree operated as a contract to leave the entire estate to the ex-wife.²⁴ Accordingly, the 1991 codicil, while valid as a codicil, contravened the terms of the divorce decree and was a breach of the contract to will.²⁵

The principles of estoppel barred even the raising of the issue of a contract to will in Scoggins v. Strickland.²⁶ There, the will named as coexecutors the testator's second wife and his stepson (the son of his first wife from her previous marriage). The evidence disclosed that during his life the testator had transferred certain stock to the second wife, had changed his bank account to a joint account with her, and had named her as beneficiary of his life insurance. At his death, his will left a life estate in the marital residence to her and the residue to the stepson and the stepson's two daughters. After the second wife and the stepson qualified as coexecutors, the stepson sued the wife, alleging that the testator had breached an oral contract to leave everything to the stepson because he devised the life estate in the realty to the wife and made his bank account a joint account with her. After the jury found that a contract to will existed and that the testator had breached it, the trial court entered a judgment cancelling the wife's life estate in the residence and awarding it, along with the funds in the joint account, to the stepson.²⁷

The supreme court reversed on this issue, holding that the stepson was estopped from asserting a contract to will claim against the estate after he had qualified as coexecutor.²⁸ Trustees and other fiduciaries are estopped from asserting a title adverse to their trust.²⁹

B. Jurisdiction

Issues of a court's jurisdiction to entertain a case, or to make a particular ruling in one, are often found intertwined with issues of substantive law. Two recent cases serve as examples. In Kesler v. Watts,³⁰ the will contained an in terrorem clause which did not contain a gift over in the event of a contest.³¹ When it was offered for probate a granddaughter, who was left a portion of the estate, filed a complaint in superior court for declaratory and injunctive relief. She asked for a declaration that the in terrorem clause was invalid and that the court enjoin the probate court from entering any substantive order in the case. The appeal was from the superior court's finding that the granddaughter was not an "interested party" qualified to bring the declaratory judgment...