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…)

January 25th, 2012

Pam Crisp filed a petition in a Georgia probate court seeking removal of Mark Bocker as administrator of her stepfather’s estate and damages for Bocker’s alleged breach of fiduciary duties.  After a hearing, the probate court removed Bocker as administrator, appointed the county administrator as Bocker’s successor, and awarded damages to Crisp.  Bocker appealed the judgment to superior court.

The trial of the case was set for December 15, 2010.  Two days before the trial was set to begin, Bocker’s attorney filed a motion for continuance and noted that opposing counsel consented to a continuance of the matter until January 26, 2011.  This continuance was granted.

Two days before the trial was set to begin, on January 24, 2011, Bocker filed an amended motion for continuance.  This continuance was not granted, and neither Bocker nor his attorney appeared at the trial.  That did not work in Bocker’s favor. (more…)

January 19th, 2012

A recent Georgia Supreme Court case explains the shifting burdens in Georgia will contest cases.  In Parker v. Kelley, Virginia Crawford Kelley filed a petition to probate the will of Mabel Frances White in solemn form.  Phillip Harold Parker filed a caveat.

Let’s take a look at how this propounder satisfied her burden and thus shifted the burden of proof to the caveator. (more…)

January 10th, 2012

Trust litigation often involves many components.  If there is a dispute with a trustee, the plaintiffs often request removal of the trustee, an accounting, and damages.  As a practical matter, courts will often deal with the various requests for relief in a piecemeal fashion.  Thus, a court may enter an order removing a trustee and appointing a successor trustee many months before actually reaching a decision whether the trustee did, in fact, breach its fiduciary duties.

When these matters are addressed through separate orders, the question often becomes “can I appeal and when?”  In Guardianship & Protective Services, Inc. v. Setinsek, an Ohio Court of Appeals addressed that question under Ohio law. (more…)