Wills, Trusts, Guardianships, and Fiduciary Administration
| Publication year | 2017 |
Wills, Trusts, Guardianships, and Fiduciary Administration
Mary F. Radford
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This Article describes selected cases and significant legislation from June 1, 2016 to May 31, 2017 that pertain to Georgia fiduciary law and estate planning.1
A. Year's Support and Marital Agreements
In Georgia, the surviving spouse of an individual who dies with or without a will is entitled to petition the probate court for an award of property from the decedent's estate in the form of "year's support."2 However, the spouses, either before or during their marriage, can enter into a contract in which one or both agrees to waive the right to year's
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support.3 In order for such a contract to be valid, it must be shown that the spouse who purportedly waived the right had full knowledge of the right to claim year's support.4 In re Estate of Boyd5 involved an unusual fact situation, when the husband died within hours of filing his petition to divorce his wife. During the course of their marriage, the spouses briefly separated, then reconciled and entered into a post-nuptial agreement.6 The agreement provided that if either spouse filed for divorce, the spouses would only receive certain specified property and each would "release the other from any further claims that each of them may have against the other."7 When the husband died and the surviving wife filed for year's support, the deceased husband's son objected on the ground that the wife had waived her right in the post-nuptial agreement. Camden County Superior Court granted summary judgment for the son.8 The Georgia Court of Appeals reversed, stating that whether the wife knowingly waived her right to year's support was a question of fact and there was no evidence in the record the wife had been aware of her right to claim year's support.9 This case serves as a reminder of the importance of documenting the fact that both parties to a marital agreement are fully aware of the rights they are waiving, such as the right to claim year's support if the parties are still married when one of them dies.10
B. Undue Influence and Will Revocation
In Milbourne v. Milbourne,11 the Georgia Supreme Court affirmed the Gwinnett County Probate Court's refusal to grant summary judgment on the issue of whether the will was the product of undue influence, as well as the probate court's grant of summary judgment on a will revocation issue.12 The testator, Edison Jamal Milbourne (Edison), suffered a traumatic brain injury in 1999. He was originally cared for at home by his wife, but was later moved to rehabilitation facilities. Ten years after his injury (and one month after his worker's compensation claim of
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$726,000 was finalized), his sister, Vashti, was appointed his guardian.13 An attorney was appointed to serve as his conservator.14 Vashti decided to move Edison out of the facility, and asked the conservator to pay approximately $300,000 so she could buy a three or four-bedroom home for them (in which her daughter and husband would also live), $27,000 to furnish the home, and money to buy a Cadillac Escalade (even though Edison could not drive). Vashti also asked to be paid $30,000 in advance for her services as caregiver.15
The probate court appointed a guardian ad litem (GAL) to investigate the demands.16 The GAL tried to explain to Vashti that Edison's projected life span (about twenty-six years) did not dictate lavish expenditures. The GAL reported Vashti repeatedly told Edison that people were going to put him in "one of those homes" and (in the GAL's opinion) Vashti induced and fed his fear of being in a nursing home. Vashti also told the GAL, "everybody else had gotten paid and it was her turn to get paid."17 The GAL also opined that Vashti hindered Edison's relationship with his daughter, Janay, with whom he wanted to reestablish ties. When Janay called, Vashti would not let her speak to him. Further, Vashti called the police when Janay visited her father on his birthday. The GAL considered trying to have Vashti removed as Edison's guardian, but did not because Edison was "emotionally dependent" on Vashti.18
Soon after Vashti was appointed as his guardian, Edison decided he wanted to create a will. Vashti testified that the conservator refused to have a will created. However, the conservator testified a draft was in fact created, but he was told by Vashti that she had found another lawyer. Vashti drove Edison to see this other lawyer between two and five times. She filled out the information sheet at the beginning of the first visit.
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According to the lawyer's testimony, Vashti remained present during at least one of the meetings and met separately with the lawyer at other times. Vashti paid the lawyer's bills. Edison signed a will in January 2013 (the January will) that devised his property to Vashti with the exception of $50,000 bequests to both Janay and Vashti's daughter, Tiffany. In that will, Janay would take Edison's estate if Vashti predeceased him. Later that year, Edison signed a new will (the October will) that devised all of his property to Vashti, with Tiffany to take should Vashti predecease him.19
After Edison died, a jury found the October will was the product of undue influence and also was improperly executed. Following this trial, Tiffany sought to have the January will admitted to probate. Janay filed a caveat claiming undue influence, lack of testamentary capacity, fraud, and the fact that the will had been revoked. The probate court granted summary judgment to Tiffany on all grounds except the ground of undue influence. Tiffany appealed that ruling and Janay appealed the summary judgment on the revocation issue.20
On appeal, the supreme court addressed both the undue influence issue and the revocation issue.21 The court began its discussion of the undue influence with the statement "the question of undue influence is generally for the factfinder."22 The court noted that a rebuttable presumption of undue influence arises when a beneficiary is (1) in a confidential relationship with the testator; (2) is not a natural object of the testator's bounty; and (3) participates actively in the planning, preparation, or execution of the will.23 The court then pointed out that while these factors may have been met in this case, the court need not engage in a burden-shifting analysis because a jury could have found undue influence even had the rebuttable presumption not been raised.24 The court also pointed out Janay presented a wide variety of evidence that could have caused a jury to conclude that undue influence had, in
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fact, occurred.25 The court, without opining on the truthfulness of the evidence, stated that the evidence did create a genuine dispute of material fact.26 The court noted the evidence raised more than a "mere suspicion" of undue influence.27
As to the issue of whether the January will had been revoked, the court examined Janay's contention that Edison told Vashti he no longer wanted the January will and that Vashti, as his guardian, was therefore obliged to destroy the will.28 A will may be revoked by "any destruction or obliteration of the will done by the testator with an intent to revoke."29 The court pointed out, however, that Edison's statement he did not want the will, in itself, was not a sufficient revocatory act as required by law.30 The court also noted the appointment of a guardian for a testator does not provide an exception to the physical act requirement, nor is the appointment determinative of testamentary capacity.31 Finally, the court stated that the conservator, rather than the guardian, is the appropriate person to act on a ward's estate planning matters, and the guardian cannot do so independently of the conservator.32
C. Construction of Wills
Anderson v. Anderson33 involves the dispute over the estate of Edwin B. "Burt" Anderson Jr. between Burt's three children from his first marriage (Charles, Arthur, and Kimberly Anderson), and Burt's second wife and widow, Donna Anderson. Burt's estate contained a substantial amount of real property, including land that his father, Edwin, bequeathed to him in 1962. Item Six of Edwin's will provided, in pertinent part: "I give, bequeath and devise to my son . . . the land . . . [description follows]. This land [is] to go to the surviving heir or heirs of [Burt] at his death."34 In 1998, Burt executed a power of attorney naming Charles as his agent and giving him, among other things, the power to
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administer Burt's property holdings. In 2010, Burt's wife died and Burt subsequently married Donna. On June 20, 2013, six days before Burt's death, Charles used his power of attorney to convey a substantial amount of Burt's real property to himself and his siblings.35 This was not the same property that had been devised to Burt under his father's will.36 After Burt's death, Donna filed an action to (1) set aside the 2013 conveyances and (2) construe Edwin's will as devising the 1962 land to Burt in fee simple, thus, placing the land in Burt's estate and preventing it from passing directly to his children. The Warren County Superior Court granted Donna's motion for summary judgment on the 2013 conveyances. The trial court construed the will as leaving the land devised to Burt in Item Six as a life estate with a remainder to Burt's children at his death. Burt's children appealed the decision relating to the June conveyances to the Georgia Supreme Court, and Donna filed a cross-appeal on the issue of the 1962 land.37
Donna claimed that Charles had no legal right to execute the 2013 deeds conveying the property to himself and his siblings and therefore breached his fiduciary duty to his father.38 On appeal, Burt's children claimed the trial court erred when it concluded as a matter of law that Charles breached his fiduciary duty to his father. The...
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