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

• Publication year: 2004

Wills, Trusts, Guardianships, and Fiduciary Administrationby Mary F. Radford*

This Article examines the major cases decided and legislation enacted from June 1, 2003 through May 31, 2004. The cases and statutes discussed cover the substantive law relating to decedents' estates, trusts, and guardianships, and to the fiduciaries who administer these entities.

I. Cases of Note

A. Year's Support

Year's support is the financial protection that Georgia law offers to the surviving spouse and minor children of a decedent.¹ In recent cases² the Georgia Court of Appeals has strictly construed the statutory requirement that the year's support award be only that "amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent."³ The court repeated this approach in two cases during the reporting period: Allgood v. Allgood⁴ and Holland v. Holland.⁵ Both cases involved jury awards of year's support to the decedent's surviving spouse.⁶ In both cases the court examined the income and expenses of each couple in the year before the decedent's death, the income and expenses of the spouse in the year after death, and the other resources available to the spouse.⁷ In both cases the court of appeals determined that the amount awarded by the jury was excessive because the surviving spouse had not proved a need for the full amount that was awarded when weighed against the statutory standard.⁸

B. Intestacy—Children of an Intestate Decedent

When an individual dies intestate and is survived by one or more children, Georgia law provides that those children will be heirs of the decedent's estate.⁹ Georgia courts are often faced with determining who constitutes a "child" of a decedent for inheritance purposes.¹⁰ The two cases discussed in this section deal with statutes and equitable doctrines that are sometimes invoked to establish an individual s status as a child, and thus an heir, of a decedent. in 2003, after a hiatus of over six years, the Georgia Supreme Court again faced the issue of "virtual" or "equitable" adoption. The doctrine of virtual adoption is an equitable doctrine by which a court deems an adoption to have taken place for inheritance purposes, although the formalities of the adoption did not occur.¹¹ In the 1994 case, O'Neal v. Wilkes,¹² the Georgia Supreme Court held that it would not recognize a virtual adoption unless a valid contract to adopt existed between the adoptive parent(s) and those individuals who were authorized to contract for the child s adoption.¹³

The case of Hulsey v. Carter,¹⁴ decided in 2003, was no exception. The claimant, Tommie Jean Hulsey, was the stepdaughter of Carson. Tommie s biological parents were divorced, and Tommie and her sister lived with their stepfather, Carson, from the time he married their mother until they were adults. Carson did not formally adopt the children. They kept their biological father s last name, and Tommie listed her biological father as her father on formal legal documents. Tommie had some contact with her biological father before his death and maintained contact with his extended family. When Carson died intestate, Tommie claimed to be Carson s daughter and heir by application of the doctrine of virtual adoption.¹⁵

At trial the court granted summary judgment against Tommie, and the Georgia Supreme Court affirmed.¹⁶ The supreme court stated that for a virtual adoption to be recognized, a contract to adopt must have existed between Tommie s biological parents and her stepfather.¹⁷ The court concluded there was no evidence ofsuch an agreement.¹⁸ Tommie attempted to establish the existence of an adoption agreement with evidence that her mother claimed that upon her marriage to Carson, he became Tommie's father, and that Carson had told relatives that he planned to adopt the two children.¹⁹ The court stated that Tommie's mother could have made such a contract without their father's consent only if Tommie's father had abandoned the children or acquiesced in their adoption.²⁰ However, the court stated that neither of these circumstances had occurred and noted that there was no evidence that Tommie's father had acquiesced to the adoption.²¹

Virtual legitimation is another equitable doctrine by which a court recognizes an individual as the child (and consequently an heir) of a decedent even if the parent-child relationship has not been formally established.²² Historically, a child born out of wedlock was the heir of the child's mother only, unless the father formally legitimated the child.²³ The doctrine of virtual legitimation developed as the courts encountered situations in which it was clear that a child was the biological child of the deceased father, although the parent-child relationship was not formally recognized.²⁴ The Official Code of Georgia Annotated ("O.C.G.A.") was eventually expanded to delineate a number ofcircumstances in which a nonmarital child could inherit from the father even if paternity was not formally established.²⁵ Included among these circumstances are cases in which there is "clear and convincing evidence that the child is the child of the father."²⁶

In Moore v. Mack,²⁷ the child was born before the expansion of the O.C.G.A., and thus, the child s claim to his putative father s estate was based on the doctrine of virtual legitimation.²⁸ Rather than resorting to the equitable doctrine, the court of appeals applied the statute that was in effect at the time of the father's death, stating that the statute had codified the doctrine of virtual legitimation as it had been developed by the Georgia courts.²⁹ However, the court did not interpret this statute correctly. The pertinent section of the statute provided as follows:

A child born out of wedlock may not inherit from or through [the child's] father or any paternal kin by reason of the paternal kinship unless, during the lifetime of the father³⁰ and after the conception of the child: . . .

(E) There is clear and convincing evidence that the child is the child of the father and that the father intended for the child to share in the father's intestate estate in the same manner in which the child would have shared if legitimate.³¹

The court of appeals said that the son could not inherit from this father because his "efforts to procure an order establishing paternity were not made during the father's life."³² In other words the court inferred from the statute that the son had to establish his legitimacy during his father's life.³³ This reading of the statute was erroneous because in articulating the doctrine of virtual legitimation, the court cited a case in which the paternity was not established during the father's life.³⁴ The case cited was Prince v. Black,³⁵ in which the child had lived with his father and the father had treated him as his son, but no formal adjudication of paternity occurred during the father's lifetime.³⁶

C. Wills

1. Execution and Attestation. Section 53-4-20 of the O.C.G.A.³⁷ contains the following execution and attestation requirements for wills: (1) the will must be in writing; (2) the will must be signed by the testator; (3) the testator must either sign the will or acknowledge his or her signature in the presence of two or more witnesses; and (4) the witnesses must sign the will in the testator s presence, but not necessarily in the presence of each other.³⁸ Georgia law also provides a procedure whereby a will can be made "self-proved."³⁹ A self-proved will is presumed to be validly executed and may be admitted to probate without the testimony of the subscribing witnesses.⁴⁰ To make a will self-proved, the testator and the two subscribing witnesses must sign an affidavit that certifies that the will was properly executed and attest-ed.⁴¹ The affidavit is signed before a notary public, who then signs the affidavit and affixes an official seal.⁴² The will may be made self-proved at the time of the original execution and attestation, or at any time thereafter during the lifetime of the testator and the witnesses.⁴³

In Miles v. Bryant,⁴⁴ the execution and attestation requirements described above were honored, at best, in the breach. The probate court granted summary judgment in favor ofBryant, who argued that the will was not properly attested.⁴⁵ However, the Georgia Supreme Court reversed the summary judgment order, stating that a genuine issue of material fact existed on whether the will was properly attested.⁴⁶ The will, which consisted of six typed pages, was signed by the testator after the last paragraph. The attestation clause followed the testator s signature and was signed by two witnesses, one of whom was Cooper, a long-time friend ofthe testator. The self-proving clause was on the same page and followed the witnesses signatures. The clause was signed by Cooper, by an individual other than the one who had signed as a witness to the will, and by a notary public. Testimony at trial showed that

Cooper had visited the testator in her hospital room and saw the testator and the notary public signing some papers. Cooper realized that the papers were the testator's will. The testator told Cooper that she and the notary had already signed the will, and she showed Cooper where to sign. Cooper signed in the presence ofthe testator and the notary. The notary, who often notarized wills at that hospital, recalled seeing the testator sign the self-proving clause. The notary, however, did not witness the other signators. Apparently, Cooper later procured the signatures of two other people who had never even met the testator. One signature appeared after the attestation clause, and the other appeared in the self-proving affidavit.⁴⁷

The supreme court, after reciting the elements ofproper execution and attestation ofa will, stated that a jury must decide whether the will was properly executed and attested.⁴⁸ The court determined that Georgia law does not require the testator to sign in a particular...