Wills, Trusts, Guardianships, and Fiduciary Administration
| Publication year | 2015 |
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, 2014 through May 31, 2015 pertaining to Georgia fiduciary law and estate planning.1
A. Children as Heirs of a Decedent
In two cases during the survey period, Georgia appellate courts discussed who constitutes a "child" and thus an heir of a decedent who dies without a valid will (intestate). Both of these cases involved unusual fact situations.
In the first of these cases, In re Estate of Hawkins,2 the Georgia Court of Appeals examined the interaction between a relatively new set of Georgia statutes relating to the "voluntary legitimation" of a child born out of wedlock,3 and section 53-2-3 of the Official Code of Georgia
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(O.C.G.A.), which is the Georgia Probate Code statute4 that describes when a child who is born out of wedlock may inherit from his biological father.5 When the decedent in this case, James Hawkins, died without a will, his girlfriend petitioned to have her son declared as his sole heir.6 Both Hawkins and his girlfriend knew that Hawkins was not the biological father of the child. However, the day after the child was born, Hawkins accompanied his girlfriend to the State Vital Records Office and completed a form that stated Hawkins was the child's father and requested that Hawkins be listed as the father on the child's birth certificate. A worker at the records office signed the paternity acknowledgement form as a witness. The same worker's name also appeared on the child's birth certificate, which named Hawkins and his girlfriend as the parents. Hawkins held out the child as his own and named the child as a dependent for his Social Security and Veterans Administration benefits. Hawkins never adopted the child and died five years after the child was born.7
The girlfriend claimed the child's status as Hawkins' heir under O.C.G.A. § 53-2-3(2)(A).8 O.C.G.A. § 53-2-3(2)(A)(iii) allows a child born out of wedlock to inherit from the father if "[t]he father has executed a sworn statement signed by him attesting to the parent-child relationship."9 O.C.G.A. § 53-2-3(2)(A)(iv) allows a child to inherit from the father if "[t]he father has signed the birth certificate of the child."10 The probate court refused to recognize the child as Hawkins' heir and the court of appeals affirmed.11 The court of appeals pointed out that "there were no court proceedings begun before Hawkins' death either to legitimate [the child] or otherwise to establish paternity;"12 that Hawkins did not sign the child's birth certificate prior to his death (although the court acknowledged that Georgia birth certificates generally are not signed); and that the records office worker who
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witnessed the acknowledgment was not a notary public or other official who had the authority to administer any oath to Hawkins that would make the paternity acknowledgment a "sworn statement."13
Judge Michael Boggs filed a special concurrence in which he discussed at length the voluntary legitimation process that O.C.G.A. §§ 19-7-21.1, -22(g), and -46.1 authorizes.14 Judge Boggs described the process as "unquestionably inequitable and susceptible to fraud, in irreconcilable conflict with the body of Georgia law on legitimation and adoption, and potentially violative of the constitutional protections guaranteed to biological fathers and their children."15 Judge Boggs began by pointing out that prior to the enactment of these statutes, a superior court alone had the authority to grant a petition to legitimate a child and to deny the legitimation if it was not in the child's best interest.16 Judge Boggs lauded the "objective scrutiny" that this judicial process guaranteed.17 Judge Boggs then described how the new laws established a non-judicial method by which the mother of a child and an individual purporting to be the child's father could make a voluntary acknowledgement of paternity.18 This legislation prompted the promulgation of the form Hawkins and his girlfriend signed.19 Judge Boggs explained that this voluntary acknowledgement, without any judicial oversight, could result in significant harm to both the true biological father and the child.20
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The second of these cases discussed the equitable doctrine of "virtual adoption."21 Virtual adoption is a declaration the court issues after a decedent has died that allows a child whom the decedent agreed to adopt to be treated, for inheritance purposes, as if the child had been legally adopted.22
In Sanders v. Riley,23 the Georgia Supreme Court determined the inheritance rights of a woman who was raised believing that her mother's husband was her biological father, only to find out at age fourteen that her true biological father was a man with whom her mother had been having an affair during her marriage.24 The evidence showed that the mother, her husband, and the true biological father agreed that the husband would treat the child as his own child, even though he knew she was not his biological daughter. The mother and her husband were estranged but the husband helped support the child, the child used his surname, and the husband held the child out as his own, including on her wedding invitations.25
The Georgia Supreme Court examined Georgia's long history of recognizing virtual adoptions and concluded that the probate court erred when it granted summary judgment against the daughter.26 The supreme court found that there was some evidence to show the required contract to adopt and that the husband had partially performed that contract.27 In addition, the supreme court addressed the fact that the child did have some contact with her biological father after she learned about his existence even though this contact did not, according to the child, amount to a father-child relationship.28 The supreme court found "no authority for the proposition that once the child's status has changed in the course of a virtual adoption—where a contract to adopt has been partially performed—the child can then become 'unadopted' simply by developing a relationship later in life with a natural parent."29 The supreme court concluded, "Just as children, once legally adopted, do not become unadopted by forming a relationship later in life with their biological parents—something that is occurring with increasing
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frequency—children, once virtually adopted, do not become unadopted by developing a relationship later on with their biological parents."30
B. Standing to Offer a Will for Probate
In Ray v. Stevens,31 the Georgia Supreme Court explored the question of who has standing to offer a will for probate.32 Under O.C.G.A. § 53-5-2,33 the right to offer a will for probate belongs to the executor.34 However, if the executor fails to do so, "any interested person may offer the will for probate."35 In this case, the executor chose not to offer the will for probate. Shane Stevens, the decedent's brother, then attempted to do so. He claimed to be an "interested person" because he was a creditor of the decedent.36 The supreme court held, however, that the brother failed to prove that he was an interested person.37 The court looked to past cases in which heirs of the decedent as well as beneficiaries under the will or a former will, purchasers from or judgment creditors of an heir, and administrators appointed before the will was discovered were deemed interested persons for the purpose of probating or caveating (challenging) a will.38 The court pointed out that the brother did not fall into any of these categories.39 The court also noted that, as a creditor of the estate, it was immaterial to the brother whether the will was probated because a creditor can receive payment from an administrator (who is appointed if there is not a will) as well as from an executor.40
Unwittingly, perhaps, this holding of the supreme court may divest general creditors of an opportunity to force an estate to be opened in order to address claims when a named executor refuses to offer the will for probate. The court seemed to indicate that a creditor would be able to collect the debt even if an administrator, rather than an executor, was
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appointed. But, at least in cases in which the general creditor knows of the existence of a will, the creditor cannot file a petition for the appointment of an administrator because an administrator can only be appointed if there is no valid will.41
C. Construction of the Terms of a Will
Courts are sometimes called upon to discern a testator's intent when the words of the will are ambiguous. In Thompson v. Blackwell,42 the question that arose was whether the testator intended to convey a fee simple interest or only a life estate in the property that he devised to his wife.43 One item in the testator's will stated, "I give, devise and bequeath to my wife, Hattie F. King, all my property, both real and personal, wherever located and whenever acquired, either before or after the making of this my Will, hers in Fee Simple."44 The next item stated that "[u]pon the death of my said wife," all of his interest in the property would be devised to his son and his son's children.45
After looking at the language of the will and examining prior case law, the Georgia Supreme Court held it was the testator's clear intention to convey only a life estate in the property to his wife, with the remainder to be given to his son and grandchildren.46 The court's reasoning was that all items in the will must be read together and their meaning based on the entire document, not individual items.47 The court also cited the rule of construction that states that "where property is devised in language sufficient to pass a fee-simple estate, the devise should not be held to convey a lesser estate unless it is clear from a...
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