January 17th, 2013

Well, probably not in Georgia.  If someone is behind the scenes pulling the strings to “initiate” legal proceedings, then that person – who didn’t actually file a caveat him or herself – may have violated the in terrorem clause.

In the first appearance of Norman v. Gober before the Georgia Supreme Court in 2011, the Court decided that eleven-year-old William Howard Norman, the grandson of Margaret Susan Scheer, lacked standing to challenge Scheer’s will because Norman was not an heir-at-law when the caveat was filed.  Norman was a contingent residuary beneficiary under Scheer’s will.  In other words, even if Norman’s caveat was successful, he would still take nothing.  As the Georgia Supreme Court put it, Norman was not “a person who will be injured by the probate of [the] [W]ill, or who will benefit by its not being probated.”  Actually, Norman would have benefited by the probate of the will because it’s the only way he could possibly have had any chance to take a part of Scheer’s estate.

Norman’s mother, however, stood to benefit if the caveat was successful.  At the time, the Georgia Supreme Court actually stated that it appeared that the caveat was undertaken for the benefit of Norman’s mother, not him. But, why didn’t Norman’s mother, Lyncia Aynes Norman, file the caveat herself? (more…)

December 14th, 2012

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses. (more…)

December 6th, 2012

When someone dies, creditors may often come out of the woodwork.  That doesn’t mean they should be ignored.  That’s true even if you don’t think they have a good claim as a creditor and even if the estate doesn’t have any assets. (more…)

October 31st, 2012

The case of Lee v. Swain has a long history in Georgia, first going up to the Georgia Supreme Court in 2010.  In “Swain I,” the Georgia Supreme Court reversed the trial court’s grant of judgment on the pleadings and found that it was a question of fact whether two documents taken together were Eloise Collins’ will.  These two document were (1) an unwitnessed letter written in 1999 detailing how Collins wanted her property distributed after her death, and (2) a partially filled-out commercial will form that, while properly witnessed, did not address distribution of property.

When the case was sent back down to the trial court, a jury found that the two instruments together were “the true Last Will and Testament of Eloise Harley Collins.”

The caveator appealed on a number of grounds and the Georgia Supreme Court had another chance to weigh in on this case.  While the Court stayed mostly out of the substantive fray, it did provide a little guidance to estate planners. (more…)

October 2nd, 2012

There is almost never anything good that can be gained by videotaping the execution of a will.  Chances are the testator will be nervous that the whole episode is being taped and that likely will end up showing up on the video.  One of the only reasons that you would tape the execution of a will is a concern about an incapacity challenge, so think about – nerves aside – how the testator is going to look to a jury.

If you think there will be an incapacity challenge, you’re almost always better off instead having witnesses execute contemporaneous affidavits attesting to all those facts that will support a finding of capacity under the laws of your jurisdiction.

Of course, then cases like Patterson-Fowlkes v. Chancey come along where the videotaping of a will execution pays off.

So, what good stuff was on the tape of Ruth Chancey Wright executing her will? (more…)

April 18th, 2012

Talk to a guardian or conservator and you’ll likely find out it is a thankless, demanding job.  Often these fiduciaries not only have to provide a great deal of care and protection for their wards but also have to be wary of persons eager to bring claims against them for converting the ward’s assets, breaching fiduciary duties, or any number of other possible claims.

Take for example the case of James McQuien.  McQuien began living with Clorina Haring way back in 1974.  In 2001, Haring wasn’t doing so well on account of Alzheimer’s, so McQuien was appointed Haring’s guardian and conservator.  In this role, McQuien hired a sitter for Haring while he was at work and wrote checks to himself and for cash, some of which he used to pay the sitter and the rest of which he used for food and other household expenses.

McQuien also filed his annual reports with the probate court, none of which was challenged.

Nevertheless, after Haring’s death, the executor of Haring’s estate petitioned the probate court for a final accounting and settlement from McQuien.  After a two-day bench trial, which included testimony from 15 witnesses including experts in assisted living and home health care, the probate court accepted McQuien’s accounting and discharged him and his surety from any other estate obligations.  The probate court’s order was affirmed by the Georgia Court of Appeals in In re Estate of Haring.  Let’s briefly see why. (more…)

March 12th, 2012

It seems like the Georgia appellate courts are on a little bit of a run when it comes to addressing the limited jurisdiction of Georgia’s probate courts.  Interestingly enough, the latest opinion on limited probate court jurisdiction also involves a petition for year’s support.

In In re Mahmoodzadeh, the Georgia Court of Appeals explained how a probate court should handle an award of year’s support when title to the subject property is disputed.  The case highlights that when it comes to petitions for year’s support, the available objections are extremely limited. (more…)

March 6th, 2012

Probate courts are courts of limited jurisdiction in Georgia, so they can’t hear every possible claim remotely relating to an estate dispute.  For example, in Georgia, they lack certain equitable powers that are held solely by the superior courts.  Nevertheless, if you find yourself in a probate court, you best raise every issue you have regarding the subject estate or you may end up losing that claim.  Likewise, it’s worth giving the underlying set of facts giving rise to your claim a thorough analysis to ensure that you’re raising all possible claims that could arise from that set of facts.

In Crowe v. Elder, the Georgia Supreme Court considered a decedent’s daughter’s breach of contract claim allegedly arising from the decedent’s widow’s failure to honor an alleged agreement regarding the distribution of the intestate decedent’s estate.  The Supreme Court determined that the breach of contract claim was barred on the grounds of res judicata insofar as an identity of causes of action existed between the daughter’s previously (adversely) adjudicated fraud claim and her breach of contract claim.  Tying this back into our original point about raising all possible claims in the probate court – the Georgia Supreme Court determined that res judicata applied even if the probate court lacked authority over the fraud or contract claims.  Let’s see why. (more…)

February 27th, 2012

Guardianship and conservatorship disputes involve extremely sensitive issues and personal information about the ward.  That’s probably why in Georgia, at least, there isn’t an overwhelming amount of appellate authority in this area.  At the probate court level, much of the information is kept under seal.  Once it goes up on appeal, however, that which was once private gets a very public airing.

In a rare appeal of the appointment of a conservator, the Georgia Court of Appeals gave us guidance on the type of circumstances that justify appointment of a conservator.  In In re Cochran, the appellate court considered the case of Sara Cochran who, at 79 years of age, was a serial victim of fraudulent lottery schemes. (more…)

January 30th, 2012

As ill luck or the passage of time would have it,  subscribing witnesses to a will may be dead or otherwise unavailable when it finally comes time to petition to probate the will.  How can you prove the will without subscribing witnesses?

In Mason v. Phillips, the Georgia Supreme Court walked through how you do it in Georgia, and found that the executor failed to prove the will. (more…)