Wills, Trusts, Guardianships, and Fiduciary Administration
| Publication year | 2020 |
Wills, Trusts, Guardianships, and Fiduciary Administration
Mary F. Radford
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This Article describes selected cases and significant legislation from the period of June 1, 2018 through May 31, 2019 that pertain to Georgia fiduciary law and estate planning.1
A. Setting Aside Probate
In In re Estate of Jones,2 the Georgia Court of Appeals interpreted the interplay between provisions of the Georgia Probate Code3 and the Georgia Civil Practice Act4 so as to allow individuals who have not been notified of a petition to probate a will in solemn form the ability to petition later to have the probate set aside.5 The 2013 will of Robert Ellsworth Jones, Jr. was admitted to probate in solemn form. Swygert, who was Mr. Jones' stepson, filed a petition to set aside the probate of
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the 2013 will along with a petition to probate an earlier will instead.6 Swygert claimed that Mr. Jones had lacked testamentary capacity and had been unduly influenced to make the 2013 will, of which Swygert was not a beneficiary. The probate court denied Swygert's attempt to set aside the 2013 will and have the earlier will admitted to probate.7 The two sets of statutes that the probate court applied were O.C.G.A. §§ 53-5-50 and 53-5-51 (which appear in the Georgia Probate Code) and O.C.G.A. § 9-11-60 (which appears in the Georgia Civil Practice Act).8 O.C.G.A. § 53-5-50(a)9 provides in part: "The probate court shall have original jurisdiction over any action to vacate, set aside, or amend its order admitting a will to probate which alleges: (1) That another will is entitled to be admitted to probate."10 O.C.G.A. § 53-5-50(b)11 requires that any such action be accompanied by a petition to probate the other will in solemn form.12 O.C.G.A. § 53-5-51 sets forth the procedure (service, notice, etc.) for such actions.13 O.C.G.A. § 9-11-60(d)14 provides:
(d) Motion to set aside. A motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.15
The probate court stated that the reason it denied Swygert's motion was that he had not set out any of the grounds for a set-aside that are listed in O.C.G.A. § 9-11-60(d) and that no separate basis exists for
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obtaining relief under O.C.G.A. § 53-5-50.16 The court of appeals disagreed with the probate court.17 The court of appeals observed that the "'[p]rovisions of [the Civil Practice Act, such as OCGA § 9-11-60] apply . . . unless there are special rules of practice or procedure which are conflicting and have been expressly prescribed by law.'"18 The court of appeals then declared that the "proceedings for the probate of a will are special proceedings."19 The court of appeals stated that the plain language of the Probate Code provisions (O.C.G.A. §§ 53-5-50 and 53-5-51) set forth a procedure for setting aside the probate of a will that is broader than the procedure set forth in the Civil Practice Act and that the "constraints" of the "more restrictive" O.C.G.A. § 9-11-60 thus do not apply in a procedure to set aside the probate of a will.20 The court of appeals also concluded that Swygert was not precluded from filing his set-aside petition because, as he was neither an heir nor a beneficiary nor a person who was otherwise required to be notified of the petition to probate the will, he had not received notice of the petition to probate.21 For this conclusion, the court of appeals cited O.C.G.A. § 53-5-20,22 which states that a probate in solemn form is conclusive "upon all parties notified and upon all beneficiaries under the will who are represented by the executor."23 The court of appeals reversed the probate court's ruling on the set-aside petition and remanded that case to the probate court for the court "to consider the petition's merits."24 A petition for reconsideration was denied by the court of appeals on July 13, 2018, and the Georgia Supreme Court denied the petition for certiorari on April 29, 2019.25
The ruling in this case creates a troubling anomaly in Georgia probate law. Under the Georgia Probate Code, the only persons who are required to receive notice when a petition to probate a will in solemn form26 is filed are the heirs of the testator and, if there is another will
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that is purported to be the will of the testator and for which probate proceedings have begun in this state, the beneficiaries and propounders of that will.27 The notice gives these persons the opportunity to raise challenges to the probate. If they do not take the opportunity to raise challenges, then the will is admitted to probate in solemn form and is conclusive immediately.28 The ruling in the Jones case would effectively allow anyone else (other than the parties who were required to be notified) to move to have the probate set aside in favor of another purported will of the testator for a period of at least five years after the personal representative under the probated will was appointed.29 This leaves personal representatives under wills that are probated in solemn form in the unwieldy position of being unable to administer the estate with certainty until the period for filing motions to set aside has run. Hopefully, next year's report in the Recent Developments issue of the Mercer Law Review will include a description of legislation that has been enacted to remedy this situation.
B. Exoneration
Exoneration is a common law doctrine that provides that, unless the will states otherwise, when a person is devised a specific testamentary gift of real property by will and there is a lien or encumbrance on the property that is the subject of that gift, the encumbrance will be paid with proceeds from the estate and the devisee of the specific gift will receive the property free and clear of any encumbrances.30 As noted in 2009 by the Georgia Supreme Court, that doctrine has been abrogated in England and by the majority of U.S. states as well as by the Uniform Probate Code.31 In its 2019 decision in Woods v. Stonecipher,32 the
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Georgia Court of Appeals indicated that Georgia is one of the few states that still adheres to this doctrine.33 However, as will be discussed herein, there is a slight twist to the application of the doctrine when the property in question is acquired not by will or intestacy but through the death of a joint tenant in a joint tenancy with right of survivorship.
In 2010, Charlotte Blalock, whose health was declining, asked her granddaughter, Amber Stonecipher, to move into her home and care for her. Blalock had raised Stonecipher from a young age, and the two had a mother-daughter relationship. Stonecipher agreed and became Blalock's caregiver, performing such services as accompanying her to medical appointments and doing her housework. Later that year, Blalock told Stonecipher that she wanted to update her will. Stonecipher hired an attorney, and on November 30, 2010, Blalock signed a new will that named Stonecipher as the executor and residuary legatee of her estate as well as the devisee of Blalock's residence.34
Despite the fact that her will devised her residence to Stonecipher, it later became evident that Blalock and her daughter (Stonecipher's aunt), Nancy Woods, already shared a joint tenancy with right of survivorship in that same residence.35
If property is held by two or more individuals as joint tenants with right of survivorship, upon the death of one owner, that owner's right in the property is extinguished and the property belongs to the surviving joint tenant or tenants, regardless of any attempt by the deceased owner to devise the property by will and regardless of the intestacy laws that apply to the deceased owner's estate.36
Thus, after Blalock died, Woods automatically became the owner of Blalock's residence due to the joint tenancy with right of survivorship.37 Although the common law doctrine of exoneration applies to property that passes through a will, the doctrine is not necessarily applicable if property that is held as joint tenants with right of survivorship is encumbered.38 Instead, "'a surviving joint tenant does not qualify for exoneration of a mortgage on joint tenancy property unless there is
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language in the decedent's will clearly expressing an intention that the mortgage debt be paid.'"39
When Stonecipher filed a petition to probate the will, Woods filed a caveat claiming that the 2010 will was invalid because (1) Blalock lacked testamentary capacity and (2) the will was signed under duress or undue influence. She also argued that Blalock's estate was liable for the outstanding mortgage on Blalock's residence, because during Blalock's life, Blalock alone, not Woods, had been liable for the mortgage.40 On appeal from probate court rulings, the superior court41 upheld the 2010 will and did not require Blalock's estate to pay the debt on the residence. Woods appealed.42 The Georgia Court of Appeals, for reasons set forth in detail in the case (but not described in this Article), did not overrule the superior court's findings on the validity of the will.43
On the exoneration issue, on the other hand, the court of appeals reversed the superior court's ruling that Blalock's estate was not responsible for paying the outstanding mortgage on Blalock's residence.44 The court cited the common law doctrine of exoneration but emphasized that the surviving tenant of a joint tenancy with right of survivorship may only seek for the estate to satisfy...
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