Wills, Trusts, Guardianships, and Fiduciary Administration - Mary F. Radford
| Publication year | 2011 |
Wills, Trusts, Guardianships, and Fiduciary Administration
by Mary F. Radford*
This Article describes selected cases and significant legislation from the period of June 1, 2010 through May 31, 2011 that pertain to Georgia fiduciary law and estate planning.1
I. Georgia Cases
A. What Constitutes a Will
The question in Swain v. Lee2 was whether the documents at issue could possibly constitute a valid will.3 The testator, Ms. Collins, wrote a letter in 1999 "in which she stated . . . that Swain was to have 'everything that's in my name.'"4 The letter was not witnessed. In 2005, Collins took a blank will form and wrote in language that named Swain as the executor of her estate. She wrote nothing else on this form. Collins signed the form, and it was witnessed by three witnesses. Collins kept both of these documents together in an envelope and
* Marjorie Fine Knowles Professor of Law, Georgia State University College of Law. Newcomb College of Tulane University (B.A., 1974); Emory University (J.D., 1981). Reporter, Probate Code Revision Committee, Guardianship Code Revision Committee, Trust Code Revision Committee of the Fiduciary Section of the State Bar of Georgia. President, American College of Trust and Estate Counsel. Author, Mary F. Radford, Guardianships and Conservatorships in Georgia (2005); Mary F. Radford, Redfearn:
Wills and Administration in Georgia (7th ed. 2008); Mary F. Radford et al., The Law of Trusts and Trustees §§ 975-1030 (2006 & Supp. 2007). The Author wishes to thank Clarissa Bryan for her research assistance.
1. For an 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, 62 Mercer L. Rev. 365 (2010).
2. 287 Ga. 825, 700 S.E.2d 541 (2010).
3. Id. at 825-26, 700 S.E.2d at 542.
4. Id. at 826, 700 S.E.2d at 542.
showed both documents to the witnesses when she signed the form.5 When Collins died, Swain attempted to probate the two documents as Collins's will. The temporary administrator of her estate filed a caveat. The Probate Court of Glynn County, Georgia, found that the documents did not constitute a valid will, so Swain appealed to the Superior Court of Glynn County, Georgia. The administrator filed a motion for judgment on the pleadings, which was granted.6 The Georgia Supreme Court reversed the order and remanded the case for trial, holding that an issue of fact existed as to whether the documents could be read together to create a valid will.7 The supreme court emphasized that the intention of the maker, gathered from the whole instrument and the surrounding circumstances, is determinative.8 The court noted that there is no required form for a will; nor must a will be written on one continuous sheet of paper or on sheets that are attached together.9 The court pointed out that Swain argued the letter and the will form were presented to the witnesses as an integrated document.10 This alone created an issue of fact as to the validity of the will.11
B. Proper Execution of a Will
In Auito v. Auito,12 the testator's will included a self-proving affidavit that complied substantially with the statutory form.13 In the body of the affidavit, the lines that were meant to contain the witnesses' names were blank. However, the witnesses did sign the affidavit on the appropriate signature lines. The caveator's only ground for attack ofthe will was that the self-proving affidavit was improper.14 The supreme court agreed with the probate court that the self-proving affidavit was adequate.15 The court noted that the three essential elements of a complete affidavit were met: "(a) a written oath . . .; (b) the signature of
5. Id. at 826, 700 S.E.2d at 542-43.
6. Id. at 825-26, 700 S.E.2d at 542.
7. Id. at 827-28, 700 S.E.2d at 543.
8. Id. at 827, 700 S.E.2d at 543; see also O.C.G.A. § 53-4-3 (2011).
9. Swain, 287 Ga. at 827, 700 S.E.2d at 543 (quoting Jones v. Habersham, 63 Ga. 146,
147 (1879)).
10. Id. at 826, 700 S.E.2d at 542-43.
11. Id. at 827, 700 S.E.2d at 543.
12. 288 Ga. 443, 704 S.E.2d 789 (2011).
13. Id. at 443, 704 S.E.2d at 789-90. This form appears at O.C.G.A. § 53-4-24(b) (2011). A will that is self-proved may be probated without the testimony of the witnesses. O.C.G.A. § 53-4-24(a) (2011). See also Mary F. Radford, Wills and Administration in Georgia § 5:8 (7th ed. 2008).
14. Auito, 288 Ga. at 444, 704 S.E.2d at 790.
15. Id. at 444, 704 S.E.2d at 790-91.
the affiant; and (c) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer."16 The court held that identification by name of the witnesses in the body of the affidavit is not essential.17
C. Testamentary Capacity, Undue Influence, Ademption
The most recent opinion in Melican v. Parker (Melican III)18 marks the third time the Georgia Supreme Court has issued an opinion relating to the final disposition of the estate of Mr. Harvey Strother. The 2008 case (Melican I)19 dealt primarily with standing to caveat the will.20 The 2009 case (Melican II)21 addressed and found invalid the first and third codicils of Strother's will.22 In Melican III, the court upheld the second codicil.23
In the ten years prior to his death the testator Harvey Strother, a married man, executed three codicils to his will that favored his lover, Anne Melican, and her son.24 These three codicils left a significant amount of money and property to Melican and her son. The first codicil left Melican a $7900 monthly payment for life. The second codicil gave her a Florida condominium, provided the testator still owned it at his death. The third codicil-executed within weeks of Strother's death-directed the payoff of a mortgage on a Cape Cod home shared by Melican and Strother and gave Melican's son the Florida property on which his business was located.25
The record establishes that "[t]he will named Sydney Parker as executor and as trustee of a testamentary trust created for [the] Testator's wife."26 Acting in both capacities, Parker filed caveats to the codicils, in which he was joined by a grandson of the testator. The caveators claimed lack of testamentary capacity and undue influence.27 In Melican I, the Georgia Supreme Court granted an interlocutory review of both the probate court's denial of the propounders' motion to
16. Id. at 443, 704 S.E.2d at 790 (quoting Roberson v. Ocwen Fed. Bank, 250 Ga. App. 350, 352, 553 S.E.2d 162, 165 (2001)).
17. Id. at 444, 704 S.E.2d at 790.
18. 289 Ga. 420, 711 S.E.2d 628 (2011).
19. Melican v. Parker, 283 Ga. 253, 657 S.E.2d 234 (2008).
20. Id. at 254-57, 657 S.E.2d at 236-38.
21. Parker v. Melican, 286 Ga. 185, 684 S.E.2d 654 (2009).
22. Id. at 185, 684 S.E.2d at 656.
23. See Melican III, 289 Ga. 421, 711 S.E.2d at 629-30.
24. Melican I, 283 Ga. at 253, 657 S.E.2d at 235.
25. Melican II, 286 Ga. at 185, 684 S.E.2d at 656.
26. Melican I, 283 Ga. at 253, 657 S.E.2d at 235.
27. Id. at 253, 657 S.E.2d at 235-36.
have the caveat dismissed and the denial of the motion for summary judgment.28
First, the supreme court examined whether Parker, in his capacities as executor and testamentary trustee, had standing to file a caveat.29 The supreme court noted that there has been a "healthy trend" to expand the category of interested persons who have standing to caveat a will.30 The court examined decisions from other jurisdictions.31 The court did not resolve whether Parker as executor had standing to file a caveat, but it did conclude that Parker, as testamentary trustee, had a substantial interest in the estate.32
The court distinguished this case from those in which a later codicil may affect the trustee by shifting control of the corpus or the payment of the fees from the trustee to someone else.33 In such a case, the trustee would not have standing.34 However, in the instant case the codicil changed the beneficiaries of the estate and caused an adverse effect on what the beneficiary of the trust would receive.35 Thus, the court held that the probate court correctly denied the motion to dismiss the caveat for lack of standing.36
Second, on the question oftestamentary capacity, the caveators offered evidence of the testator's extensive alcohol abuse and dependency. The testator usually drank up to one and a half gallons of wine per day, causing his blood alcohol level to be near 0.40 grams.37 The caveators showed that he had been heavily intoxicated on the day after he signed the second codicil and earlier in the month when he signed the third codicil.38 Other evidence showed that in the last months of his life, the testator suffered memory loss and was unable to make business decisions.39
The supreme court held that the denial of the motion for summary judgment was improper as to the testator's testamentary capacity because there remained a genuine issue of material fact when the
28. Id. at 253, 657 S.E.2d at 236.
29. Id. at 254-55, 657 S.E.2d at 236-37.
30. Id. at 254, 657 S.E.2d at 236 (quoting State v. Haddock, 140 So. 2d 631, 636 (Fla.
Dist. Ct. App. 1962), rev'd on other grounds, 149 So. 2d 552 (Fla. 1963)).
31. See id. at 255, 657 S.E.2d at 236.
32. Id. at 255, 657 S.E.2d at 236-37.
33. Id. at 256, 657 S.E.2d at 237.
34. Id.
35. Id.
36. Id. at 257, 657 S.E.2d at 238.
37. Id.
38. Id. at 257-58, 657 S.E.2d at 238.
39. Id. at 258, 657 S.E.2d at 238-39.
evidence was construed most favorably for the caveators.40 The court also determined that the denial of the propounders' motion for summary judgment on the undue influence issue was proper.41 The evidence showed that the seventy-nine-year-old testator was dependent on alcohol and suffered from numerous physical ailments.42 When he signed the second and third codicils, he was "in an incapacitated state, vulnerable, and easily manipulated."43 When he stayed in Florida, he was entirely dependent upon Melican.44 Melican took the testator to her own attorney, and she and her...
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