Wills, Trusts, Guardianships, and Fiduciary Administration

• Publication year: 2020

Wills, Trusts, Guardianships, and Fiduciary Administration

Mary F. Radford

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Wills, Trusts, Guardianships, and Fiduciary Administration

by Mary F. Radford^*

This Article describes significant cases decided by the Georgia Court of Appeals during the period of June 1, 2020, through May 31, 2019, that pertain to Georgia fiduciary law and estate planning. Due to the COVID-19 pandemic, the Georgia General Assembly suspended its 2020 session and thus no significant legislation was enacted during the reporting period.¹ This report does however discuss relevant legislation that was pending during the reporting period and describes the Governor's Order issued in April 2020 that permitted remote notarization and witnessing of estate planning documents during the pandemic.

I. Georgia Cases

A. Proof of Proper Attestation of Wills

In order to be admitted to probate in Georgia, a will must be signed by the testator and attested by two witnesses who also sign the will.² In Wilbur v. Floyd,³ the court of appeals vacated a summary judgment granted by the trial court, stating that that court had erred in finding that, as a matter of law, the will did not comply with the attestation

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requirements.⁴ The problem in this case was that the page containing the witnesses' signatures was missing.⁵

In December 2014, Gwen Wilbur executed a will naming her son, Jeffrey, as the sole beneficiary and excluding her daughter, Patricia. The attorney who drafted the will and his secretary were the attesting witnesses. After Ms. Wilbur died in February 2015, Jeffrey filed a petition to probate his mother's will. The original will that was attached to his petition contained the testator's signature and the initials of both the testator and the witnesses on each page. However, the attestation page that contained the witnesses' signatures was missing from the will.⁶

Patricia filed a caveat, arguing that the will was invalid because it did not include an attestation page and thus lacked the required formalities.⁷ The drafting attorney then submitted an amended petition, including another copy of the will and an affidavit signed by him stating that he and his secretary had witnessed the testator signing the will. Unfortunately, the copy of the will attached to the amended petition also lacked the attestation page. The drafting attorney then filed a second affidavit and attached a copy of the will that contained the attestation page.⁸ (The court of appeals noted that, apart from the missing attestation page, the original will that lacked the attestation page and the copy of the will that contained the attestation page were identical.)⁹ At the probate court hearing, the drafting attorney and his secretary both testified that they had witnessed the testator's signature, had initialed each page of the will next to the testator's initials, and had signed their names to an attestation clause. The probate court granted Patricia's motion to dismiss, stating that the will lacked the necessary formalities.¹⁰

Jeffrey appealed to the superior court and filed a motion for summary judgment, arguing that the will was valid in form and that he had included a copy of the attestation page in his amended petition. Patricia countered with a motion for summary judgment, stating that the will lacked testamentary formalities and that Jeffrey could not probate a copy

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of the will in lieu of the original because the original will was not missing in its entirety.¹¹ Similarly to the probate court, the superior court held that the will was invalid and granted Patricia's motion for summary judgment.¹² The superior court agreed with Patricia that a copy of the will could not be used to show that the testamentary formalities had been met because the original will had not been lost.¹³

Jeffrey appealed to the court of appeals, contending that the copy of the will with the attestation page satisfied the required testamentary formalities and established the will's validity.¹⁴ The court of appeals first reiterated that the "sole question" in a probate proceeding is "whether the paper propounded is, or is not, the last will and testament of the deceased."¹⁵ To make the determination, courts must consider, among other things, "whether the document was properly executed."¹⁶ The court of appeals, citing O.C.G.A. § 53-4-55,¹⁷ stated that the court's focus should be to "seek diligently" for the testator's intent and give it effect to the extent that it is consistent with the law.¹⁸ To preserve individuals' rights to determine the disposition of their property after their death, "the rules relating to execution have remained simple and issues of proper attestation have generally presented fact issues for a jury."¹⁹

The court of appeals held that the superior court erred in granting Patricia's motion for summary judgment because a question of fact remained as to whether the testamentary formalities were satisfied.²⁰ O.C.G.A. § 53-4-20(b),²¹ which establishes the requirements for proper attestation, states: "A will shall be attested and subscribed . . . by two or more competent witnesses. A witness to a will may attest by mark."²² The court of appeals noted that the statute only required that the witnesses' signatures be "affixed to the writing," indicating that an attestation clause is not required for attestation to be proper.²³ Moreover, the court

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noted that O.C.G.A. § 53-4-20(b) allows a witness to attest "by mark."²⁴ Thus, a mark is sufficient to accomplish attestation or subscription; no specific language is required. Therefore, the witnesses' initials located next to the testator's initials could themselves suffice as attestation and thus validate the will.²⁵ The court of appeals also found that O.C.G.A. § 53-5-21 ²⁶ allows a will to be proved upon the witnesses' testimony or "proof of their signatures."²⁷ Therefore, "taking or procuring of testimony . . . shall be sufficient for all purposes of the probate proceedings, notwithstanding any other statute."²⁸ The drafting attorney's affidavit, his testimony and that of his secretary, their initials on each page of the will, and the testator's signature on the will all provided evidence of a factual question regarding whether the will's execution satisfied the testamentary formalities.²⁹

The court of appeals thus concluded that, in light of the overarching principle of "the sanctity of the right to make a will," the statutory language that allows a witness to sign by mark, and the absence of any requirement that attestation be in a specific form, as well as the fact that questions of proper formalities are for juries, the superior court erred when it found that there was no question of fact as to whether the will complied with necessary formalities.³⁰ The court of appeals noted that "[t]o conclude otherwise would essentially ignore the plain language of the statute, as well as the testator's intent, and deprive her of her right to dispose of her property as she wished."³¹

B. When a House is Not a Home

It is not uncommon for a married testator to include in the will a clause that allows the surviving spouse to continue to stay in their marital home until the spouse dies or remarries or some other stated event occurs. It was the meaning of just such a devise that led to litigation in DeMott v. DeMott.³² Richard DeMott died testate in 2015, survived by his children and grandchildren from a prior marriage and his wife of less than two years, Cynthia. Richard named his brother, Douglas, executor of his estate and devised most of his property to his children and grandchildren. However, his will included a clause that would allow his surviving wife

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to stay in their marital residence. Their marital residence was one of fourteen houses located on property belonging to Gin Creek, LLC, which had been owned by the decedent and Douglas. They used the property to host events and rent houses to clients.³³ The devise read, in pertinent part, that Cynthia had the right to live in the house "for as long as she so desires provided that she resides in the home as her primary residence for at least nine months out of the year."³⁴ The will went on to say that if Cynthia "fails to live in our home as her primary residence for at least nine months out of the year," the property would pass to the LLC.³⁵

In early 2017, Douglas's counsel ordered Cynthia to move out of the house because she had only been physically present in the house for sixty days during the previous year and thus had not met the condition set forth in the will.³⁶ Cynthia refused and filed a complaint for declaratory judgment, seeking interpretation of the portion of the will relating to her ability to stay in the house. Both parties stipulated that the language of the will was unambiguous and thus the trial court need not consider parol evidence but rather could interpret the will as a matter of law.³⁷ The trial court found that the will did not require Cynthia to reside in the house physically but rather only that she intend to use it as her primary residence for the specified amount of time.³⁸ Douglas appealed, contending that the will required Cynthia to occupy the house physically for nine months out of the year.³⁹

Despite the parties' stipulation to the contrary, the court of appeals held that the will's language was ambiguous and thus remanded the case for the trial court to examine parol evidence to determine the testator's intent.⁴⁰ The court of appeals examined several sentences in the will before concluding that the will was ambiguous.⁴¹ According to the court, the sentence requiring Cynthia to "reside[] in the home as her primary residence for at least nine months out of the year" could be reasonably interpreted, based upon the legal definition of "reside," to require only that Cynthia maintain the house as her legal residence for the specified

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time.⁴² However, the following sentence supported Douglas's contention...