Wills, Trusts, Guardianships, and Fiduciary Administration - Mary F. Radford

• Jurisdiction: United States,Federal,Georgia
• Citation: Vol. 62 No. 1
• Publication year: 2010
• topic: Wills, Trusts and Estates

Wills, Trusts, Guardianships, and Fiduciary Administration

by Mary F. Radford*

This Article describes selected cases and significant legislation from the period of June 1, 2009 through May 31, 2010 that pertain to Georgia fiduciary law and estate planning.¹

I. Georgia Cases

A. Children Born Out of Wedlock

The Official Code of Georgia Annotated (O.C.G.A.) contains a statute that deals extensively with the rights of a child who is born out of wedlock to inherit from the child's putative father.² Under this statute, one way in which a child may prove that the decedent was the child's father is by establishing a 97% probability of paternity through genetic testing.³ These test results raise a rebuttable presumption of paternity,

* Catherine C. Henson Professor of Law, Georgia State University College of Law. Visiting Professor of Law, Phoenix School of Law; University of Georgia; Emory University; University of Tennesee. Newcomb College of Tulane University (B.A., 1974); Emory University (J.D., 1981). Reporter, Georgia Probate Code Revision Committee (1992-1996); Georgia Guardianship Code Revision Committee (1997-2004); Georgia Trust Code Revision Committee of the Fiduciary Section of the State Bar of Georgia. President-Elect, American College of Trust and Estate Counsel. Author, Mary F. Radford, Guardianships and

Conservatorships in Georgia (2005); Mary Radford, Redfearn: Wills and Administration in Georgia (7th ed. 2008). The author wishes to thank Deana Spencer for her research assistance.

1. For analysis of Georgia fiduciary law and estate planning during the prior survey period, see Mary F. Radford, Wills, Trusts, Guardianships, and Fiduciary Administration, Annual Survey of Georgia Law, 61 Mercer L. Rev. 385 (2009).

2. See O.C.G.A. § 53-2-3 (1997). For an in-depth discussion of the inheritance rights of children born out of wedlock, see Mary F. Radford, Redfearn: Wills & Administration in Georgia § 9.5 (7th ed. 2008).

3. O.C.G.A. § 53-2-3(2)(B)(ii). The statute indicates that "[p]arentage-determination genetic testing . . . include[s] but [is] not. . . limited to[] red cell antigen, human leucocyte

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which can only be rebutted by clear and convincing evidence by those who claim there is no parent-child relationship.⁴

The question addressed in In re Estate of Warren⁵ was whether genetic testing could be performed by using genetic material of the father's relatives or only by using the father's own genetic material.⁶ In that case, Doris Mattison sought to prove that she was the biological child of William Warren and was therefore an heir to his estate. Mattison produced evidence from testing performed on DNA samples of herself, her biological mother, and the undisputed son of William Warren. The samples established a 99.65% probability that she and Warren's son were half-siblings, and because there was absolutely no evidence of any relationship between her mother and Warren's son, the samples also established a 99.65% probability that William Warren was her father. Warren's son argued that the DNA samples had to be direct comparisons of the DNA of the putative father and the child, rather than of the child and parties related to the putative father.⁷ The trial court found, and the court of appeals affirmed, that the statute contains no such requirement.⁸ Thus, the DNA testing created the rebuttable presumption required by the statute.⁹ This holding is a welcomed one because it clarifies that a child who is trying to prove paternity need not produce genetic material of the putative father. Importantly, the acquisition of such material from a decedent may be impossible if the decedent was cremated, or it may necessitate the exhumation of the decedent's body.¹⁰

The rights of children born out of wedlock to take under the parent's will are somewhat more murky because such rights are more focused on the testator's intent than on statutory law. In Hood v. Todd,¹¹ the Georgia Supreme Court examined a will in which the testator left his estate to his children, whom he defined "as 'only the lawful blood

antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes." Id.

4. O.C.G.A. § 53-2-3(2)(B)(ii)-(C).

5. 300 Ga. App. 408, 685 S.E.2d 411 (2009).

6. Id. at 410-11, 685 S.E.2d at 413.

7. Id. at 409-11, 685 S.E.2d at 412-13.

8. Id. at 410-11, 685 S.E.2d at 413.

9. Id. at 411, 685 S.E.2d at 413.

10. As noted by the court, O.C.G.A. § 53-2-27 (1997 & Supp. 2009) allows the court in limited circumstances to order the disinterment of the remains of a decedent in order to acquire genetic material, see In re Estate of Warren, 300 Ga. App. at 411, 685 S.E.2d at 413, but this process is certainly not one that a court would order lightly, particularly if there are other means of proving paternity.

11. 287 Ga. 164, 695 S.E.2d 31 (2010).

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descendants in the first degree of the parent designated.'"¹² The supreme court determined that it was the testator's intent to exclude from this class his biological child who had been born out of wedlock.¹³

B. Will Revocation

The O.C.G.A. allows a testator to revoke his or her will at any time prior to death.¹⁴ One of the ways in which revocation may be accomplished is by any destruction or obliteration ofthe will that is performed with the intent to revoke the will.¹⁵ If the will is not completely destroyed or obliterated, the intent to revoke the will is presumed if a material portion¹⁶ of the will is destroyed or obliterated.¹⁷ Unlike some states,¹⁸ Georgia does not allow a will to be revoked in part by a revoking act.¹⁹ Thus, if a material portion of the will is destroyed or obliterated, the presumption arises that the testator intended to revoke the entire will.²⁰ For the will to be admitted to probate, the propounder of the will must overcome this presumption by a preponderance of the evidence.²¹

The Georgia Supreme Court's recent decision in Peterson v. Harrell²² causes some confusion about the correct way to analyze whether the revocation of a material portion of the will revokes the will in its entirety. The testator, Marion E. Peterson, was survived by her two siblings (her closest relatives) and her long-time companion, Vasta Lucas. The testator's will established a trust, the benefits of which would accrue to Lucas during her life and at her death to four remainder beneficiaries, two of whom were Peterson's siblings. When the will was offered for probate, it exhibited some markings that raised the question of whether the will had been revoked. The testator had used ink to strike through the names of all the remainder beneficiaries as well as

12. Id. at 165, 695 S.E.2d at 32.

13. Id. at 166, 695 S.E.2d at 33.

14. O.C.G.A. § 53-4-40 (1997).

15. O.C.G.A. § 53-4-44 (1997 & Supp. 2009). See Radford, supra note 2, at § 5.15 for a discussion of revocation by destruction or obliteration.

16. The question of whether the portion that was destroyed is "material" is a question

of law. Lovell v. Anderson, 272 Ga. 675, 676, 533 S.E.2d 64, 65-66 (2000).

17. O.C.G.A. § 53-4-44.

18. See, e.g., Unif. Probate Code § 2-507(a)(2) (1990) (permitting a testator to revoke a will "or any part thereof . . . by performing a revocatory act" such as destroying, canceling, tearing, or obliterating the will).

19. Price v. Hill, 184 Ga. 191, 195, 190 S.E.2d 575, 578 (1937); see Hartz v. Sobel, 136

Ga. 565, 576-79, 71 S.E. 995, 1001-02 (1911).

20. Howard v. Cotton, 223 Ga. 118, 122, 153 S.E.2d 557, 560 (1937).

21. Id.

22. 286 Ga. 546, 690 S.E.2d 151 (2010).

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the language naming her successor executor.²³ She had written at the end of the will, "My executrix is Julie Peterson."²⁴ None of these obliterations had been witnessed, but it was undisputed that they had been made by the testator.²⁵ The trial court held, and the supreme court agreed, that the testator clearly had not intended to revoke the will in its entirety but rather had only intended to revoke it in part.²⁶ The supreme court concluded that because the testator had intended only to revoke the will in part (and the caveators had offered no proofof a different intent), the will remained completely intact and was properly admitted to probate.²⁷

Justices Hunstein and Carley dissented in this case.²⁸ They took the position that the obliteration of the names of the successor beneficiaries was indeed an obliteration of a material portion of the will.²⁹ According to the dissenters, this obliteration of a material portion of the will had raised the presumption of the intent to revoke the will in its entirety.³⁰ The dissenters noted that it was then the burden of the propounders of the will to rebut the presumption, but the propounders had offered no rebuttal evidence.³¹ Thus, the presumption would prevail, the requisite intent would be deemed to have been present, and the will would be revoked in its entirety.³²

This case presented the trial court with a very difficult dilemma: the court clearly knew that the testator's primary intent was to benefit her companion during her companion's life, but it faced statutory law that would completely annihilate her intent. Had the trial court found that the will was revoked in its entirety, the companion would have received nothing, and the two siblings would have taken the entire estate by intestacy. The trial court's opinion would have carried out the testator's intent but for one unanticipated twist of fate: Vasta Lucas, the companion, died during the pendency of the appeal.³³ Lucas's interest

23. Id. at 546, 690 S.E.2d at 152.

24. Id. at 546-47, 690 S.E.2d at 152.

25. Id. at 546-47 & n.1, 690 S.E.2d at 152 & n.1.

26. Id. at 547, 690 S.E.2d at 153. Evidence relied upon by the supreme court included the fact that the caveators had no independent knowledge of nor had ever had any discussions with the testator about her intent to revoke the will; the will was found among the testator's...