GEORGIA PROBATE COURT BENCHBOOK

Transcription

1 GEORGIA PROBATE COURT BENCHBOOK 4 TH EDITION SUPPLEMENT July, 2014 William J. Self Senior Judge, Probate Courts of Georgia

2 MASTER TABLE OF CONTENTS CHAPTER GENERAL DUTIES, POWERS AND PROCEDURES CHAPTER CONTESTED PETITION FOR LETTERS OF ADMINISTRATION CHAPTER CONTESTED SOLEMN FORM WILL PROBATE CHAPTER CONTESTED YEAR S SUPPORT CHAPTER PPROCEDURE FOR DETERMINATION OF HEIRS CHAPTER CONTESTED GUARDIANSHIP AND/OR CONSERVATORSHIP OF MINOR CHAPTER COMPROMISE OF CLAIM OF MINOR OR WARD CHAPTER APPOINMENT OF GUARDIANS AND CONSERVATORS OF ADULTS; MODIFICATION OR TERMINAION CHAPTER REMOVAL OF PERSONAL REPRESENTATIVES AND GUARDIAN/CONSERVATORS; ACCOUNTINGS; DISCHARGE OF PERSONAL REPRESENTATIVES AND CONSERVATORS; DISMISSAL OF GUARDIANS; SUIT FOR MONEY DAMAGES CHAPTER INVOLUNTARY TREATMENT PROCEDURES FOR THE MENTALLY ILL, AND FOR ALCOHOLICS, DRUG DEPENDENT INDIVIDUALS, AND DRUG ABUSERS CHAPTER EVIDENCE UNDER NEW TITLE TABLE OF CONTENTS CHAPTER CONTESTED PETITION FOR LEAVE TO SELL IN DECEDENTS ESTATES Fourth Edition pg Supplement

3 CHAPTER CONTESTED PETITION FOR LEAVE TO SELL BY CONSERVATORS CHAPTER APPEALS OF DETERMINATION THAT DOG IS DANGEROUS OR VICIOUS Fourth Edition pg Supplement

4 CHAPTER 1 GENERAL DUTIES, POWERS AND PROCEDURES TABLE OF CONTENTS I. PRELIMINARY MATTERS A. CONTEMPT Authority to punish for contempt No remedy for mere debt I. APPOINTMENT AND DUTIES OF CLERKS Probate judges as clerks The appointed clerks Authority of clerks of Article 6 Probate Courts Associate judges; appointment and authority B. CALLING A CASE Party s presence not required J. POWER TO HOLD JURY TRIAL IV. JUDGMENTS; MOTIONS TO SET ASIDE A. JUDGMENTS Definition Multiple claims or parties Relief granted B. ENFORCEABILITY AND JUDGMENTS NUNC PRO TUNC Order must be signed and filed Nunc pro tunc purpose C. DEFAULT JUDGMENT Default and right to open default D. SUMMARY JUDGMENT For claimant For defending party Motion and proceedings thereon If case not finally adjudicated on motion Form of affidavits; further testimony; defense required When affidavits are unavailable Affidavits made in bad faith Use of medical records to oppose summary judgment Fourth Edition pg Supplement

5 9. Appeal E. RECORDING OF JUDGMENTS Signing F. WHEN JUDGMENT ENTERED Filing with clerk G. MOTION TO SET ASIDE Motion for directed verdict denied V. APPEALS B. TIME FOR FILING APPEAL Extensions of time; timely filing C. STANDING TO APPEAL Who may appeal De Novo Appeals D. TRANSMITTAL OF RECORD Clerk s duty to transmit record E. EFFECT OF APPEAL; SUPERSEDEAS Jurisdiction suspended Jurisdiction not suspended C. LIMITATIONS Attorney s lien Applicable standard; bad faith alleged EXHIBIT A NOTICE OF HEARING Fourth Edition pg Supplement

6 I. Preliminary Matters B. Jurisdiction 12. Jurisdiction concerning dangerous or vicious dogs a. See Chapter Violations of responsible dog ownership law a. See Chapter 14. G. Contempt 1. Authority to punish for contempt Fourth Edition pg Supplement

7 a. In a case of long-running litigation between siblings, a superior court held one of the siblings in contempt of court. He filed an appeal arguing that the trial court lacked jurisdiction to hold him in contempt. The Court of Appeals, on a de novo review, agreed and reversed the trial court s order holding the appellant in contempt. In the underlying litigation, the parties had sought to reach a settlement agreement, and, in 2007, the parties each filed cross motions for contempt seeking to enforce an agreement that had been drafted. In 2010, the court granted each motion in part and entered two orders directing the parties to sign a written settlement agreement and a written indemnification agreement. Shortly after executing the agreements, the parties again filed cross-motions for contempt. The trial court denied those motions in one of the orders appealed from, dated October 27, 2010, and imposed requirements on appellant to report on her progress in meeting the obligations under the court's prior order directing execution of the settlement and indemnification agreement. Also on October 27, 2010, the trial court issued a second order sua sponte dismissing the case without prejudice and directing the clerk of court to close the case. However, this order also stated that the trial court retains complete jurisdiction to vacate this Order and to reopen the action if necessary. Neither party moved for reconsideration or objected to this order. Nearly a year later, on October 21, 2011, appellee renewed his motion for contempt under the same case number as the action that had been dismissed, alleging that appellant had wilfully failed to comply with the terms of the trial court's prior orders. After a hearing, the trial court on May 30, 2012, held appellant in contempt for failing to subdivide a piece of real property as required by the terms of the settlement agreement, ordered her to have the property surveyed within 30 days of the date of the order, and ordered her to pay half the costs of the survey. This appeal followed.. The Court held that, once the trial court entered the order dismissing the case, there remained no pending claims between the parties. The Court held further that the trial court lost the ability to explicitly vacate its dismissal, since such action must be taken by the court during the same term of court. Montgomery v. Morris, 322 Ga. App. 558 (2013). 2. Attachment for contempt is not the remedy for compelling the payment of a mere debt but would be proper where a representative held particular property in his possession that the court ordered delivered to a distributee or legatee and which he refused to deliver. [Pascal v. Melton, 174 Ga. 910 (1932)] [See also O.C.G.A (b)] Fourth Edition pg Supplement

8 a. Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied. [Affatato v. Considene, 305 Ga. App. 755 (2010)] b. Inability to pay is a defense only where the contemnor demonstrates that he has exhausted all resources and assets available, has in good faith clearly exhausted all resources at his command and has made a diligent and bona fide effort to comply and that he cannot borrow sufficient funds to comply. [See Affatato v. Considene above.] [The following Section replaces Section I. of Part I. of Chapter One.] I. Appointment and Duties of Clerks; Appointment of Associate Judges 1. Probate judges, by virtue of their office, are clerks of their own court, but may appoint one or more clerks for whose conduct they are responsible and who hold their offices at the pleasure of the judge. Probate judges also have the authority to appoint one of their clerks as chief clerk of the probate judge unless otherwise provided by local law. {O.C.G.A (a)}. 2. The appointed clerks, including the chief clerk of the probate judge, may do all acts the judges of the probate courts could do which are not judicial in their nature. {O.C.G.A (b)}. {See Handbook for duties and responsibilities of clerks.} 3. Authority of Clerks of Article 6 Probate Courts a. In addition to the other powers granted to appointed clerks, the chief clerk of the probate court or, if there is no chief clerk, a clerk designated by the judge, may exercise all the jurisdiction of the judge of the probate court concerning uncontested matters in the probate court. Such clerk may exercise such power regardless of whether the judge of the probate court is present. The powers granted by this subparagraph may be exercised only by a chief clerk or designated clerk who has been a member of the State Bar of Georgia for at least three years or has been a clerk in the probate court for at least five years. [NOTE: This paragraph shall apply to each county of this state having a population of 90,000 or more persons according to the United States decennial census of 2010 or any future such census. {O.C.G.A (c); Cf. O.C.G.A }] Fourth Edition pg Supplement

9 4. Associate Judges: Appointment and Authority a. As of July 1, 2009, associate judges may be appointed by the judge of the probate court of any county, subject to the approval of the governing authority of the county. Associate judges serve at the pleasure of the judge of the probate court; however, the term of an associate judge cannot extend beyond the term of the appointing judge. Compensation for associate judges is fixed by the judge of the probate court with the approval of the county governing authority, and the salary and any employment benefits are to be paid from county funds. Associate judges must have the same qualifications of the elected judge (that is, be eligible to run for election to the office), excepting only the residency requirements. Every associate judge is required to take and subscribe the following oath: I do swear that I will well and faithfully discharge the duties of associate judge of the probate court for the County of during my continuance in office, according to law, to the best of my knowledge and ability, without favor or affection to any party. So help me, God. Fourth Edition pg Supplement

10 b. Associate judges may be appointed on a full-time or part-time basis. If appointed on a full-time basis, the associate judge will become an associate member of the Georgia Council of Probate Court Judges, without voting power or eligibility to hold office. In such cases, a certified copy of the Order of Appointment is to be sent to the Council. Associate judges are not eligible to participate in the Judges of the Probate Courts Retirement Fund of Georgia. c. If the judge of the probate court also serves as chief magistrate for the county, an associate judge of the probate court may serve in the magistrate court without further oath, certificate or commission. d. Full-time associate judges are required to complete all of the educational (training) requirements which apply to judges of the probate courts, and part-time associate judges are required to attend a minimum of nine hours of related training. [It is uncertain whether this was intended to be an annual requirement. The Code Section does not make an annual reference. Since full-time associate judges must meet all requirements which apply to probate judges, presumably, the annual requirements for the probate judges, as well as the initial training (the new judges orientation course), apply to full-time associate judges.] The cost for the attendance of associate judges at training courses is to be paid from county funds. Full-time associate judges are prohibited from practicing law. Part-time associate judges are prohibited from practicing law in any case, proceeding or matter in the court in which serving or in any other court in any case, proceeding or matters of which the court in which serving has pending jurisdiction or had jurisdiction. Full- and part-time associate judges are prohibited from giving legal advice or counsel on any matter of any kind which has arisen directly or indirectly in the court in which serving, except as may be incidental to such service. Furthermore, the limitations which are applicable to judges of the probate courts regarding fiduciary roles apply to both full- and part-time associate judges. e. Whenever the judge of the probate court is disqualified to act in any case under the provisions of Code Section , any associate judge serving in the court shall also be disqualified. [O.C.G.A ] Fourth Edition pg Supplement

11 III. IV. GENERIC TRIAL PROCEDURES B. Calling a case 1. Absent a properly served subpoena or court order requiring a party s presence, a party may choose not to be present and be represented solely by counsel. In re Estate of Coutermarsh, 325 Ga. App. 288 (2013). J. Power to Hold Jury Trial 1. The population at which probate courts must become Article 6 Probate Courts [O.C.G.A (2).] was lowered in the 2012 Session of the General Assembly from 96,000 to 90,000, and the referenced census was changed to the census of 2010 or any future such census. However, the Supreme Court has held that when a statutory classification is based on a county having a specified population under a particular census or any future census, the use of the disjunctive or creates the required elasticity (under the Georgia Constitution), setting a starting population but then permitting counties to move into or fall out of the class based on the latest census. Sumter County v. Allen, 193 Ga. 171 (1941). This was affirmed and clarified as to Article 6 Probate Courts in a recent challenge to whether the Dougherty County Probate Court continued to have expanded jurisdiction after its population fell below 96,000, the then existing threshold under O.C.G.A (2). Ellis v. Johnson, 291 Ga. 127 (2012). JUDGMENTS; MOTIONS TO SET ASIDE A. Judgments 1. Definition. The term "judgment," as used in this chapter, includes a decree and any order from which an appeal lies. Fourth Edition pg Supplement

12 2. Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. 3. Relief granted. a. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of the relief was not litigated and the opposing party had no opportunity to assert defenses to such relief. b. As used in this subsection, the term "action for medical malpractice" means any claim for damages resulting from the death of or injury to any person arising out of: (A) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such services or by any person acting under the supervision and control of a lawfully authorized person; or (B) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment. Fourth Edition pg Supplement

13 c. Notwithstanding paragraph (1) of this subsection, where a claim in an action for medical malpractice does not exceed $10,000.00, a judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Where the claim exceeds $10,000.00, a judgment by default may be rendered for the amount determined upon a trial of the issue of damages, provided notice of the trial is served upon the defaulting party at least three days prior to that trial. (d) Costs. Except where express provision therefor is made in a statute, costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs; but costs against this state and its officers, agencies, and political subdivisions shall be imposed only to the extent permitted by the law. O.C.G.A B. Enforceability and Judgments nunc pro tunc 1. Until an order is signed by the judge and is filed, it is ineffective for any purpose. But an exception to this general rule may be made when an order is entered nunc pro tunc to the date of the court's oral ruling. State v. Sullivan, 237 Ga. App. 677 (1999). 2. A nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in the record of action really had but omitted through inadvertence or mistake. A judgment entered nunc pro tunc is one written, signed and filed after an oral pronouncement of judgment intended to take effect immediately. In the Interest of A.R. et al., children 315 Ga. App. 357 (2012). C. Default judgment. 1. When case in default; opening as matter of right; judgment. a. Opening default. (1) At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial. O.C.G.A Fourth Edition pg Supplement

14 D. Summary judgment. 1. For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. 2. For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. 3. Motion and proceedings thereon. The motion shall be served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; but nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage. 4. Case not fully adjudicated on motion. If on motion under this Code section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. Fourth Edition pg Supplement

15 5. Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties. When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Fourth Edition pg Supplement

16 a. The Supreme Court has affirmed the granting of a summary judgment in the trial (superior court on appeal de novo), wherein the caveators had alleged that the proffered will was the subject of undue influence. The Motion and Response referred to depositions and attached affidavits, to which the Supreme Court looked in deciding that there was no genuine issue of fact on issue of undue influence. The proffered will was dated May 13, 2008, at which time a Power of Attorney and a Durable Power of Attorney for Health Care was given by testator to one son (the alleged influencer). On May 27, 2008, the agent changed POD beneficiaries on the testator s CDs from all four of testator s children to himself only. Using the DPOHC, the son/agent moved testator from south Georgia to north Georgia, where son/agent lived. The Supreme Court held: However, even assuming that such evidence would support a finding of undue influence after the will was executed, they (sic) do not support a finding that the son/agent exercised undue influence regarding testator s making of the May 27, 2008, will. Simmons et al v. Norton et al, 290 Ga. 223 (2011). This author does not fully agree with this decision. I would find it hard to grant a summary judgment in an undue influence case. Prior case law has held that evidence of undue influence is almost always circumstantial. [A malpractice case was filed against the losing attorney by his clients, and I should disclose that I served as a consultant to the attorney for the malpractice insurer. This gave me the benefit of having read all of the depositions and affidavits. Admittedly, the caveators had a heavy burden in proving the alleged undue influence, and the will certainly may have been upheld by a jury.] 6. When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just. 7. Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Code section are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party may be adjudged guilty of contempt. O.C.G.A Use of Medical Records to oppose Summary Judgment Fourth Edition pg Supplement

17 a. The Supreme Court upheld the grant of Summary Judgment on appeal to superior court on issues of testamentary capacity and undue influence. The Caveator relied on medical records and findings of a neurologist from an examination of Testator the day after will was signed. The Supreme Court held that the neurologist s report to Testator s treating physician did not meet the hearsay exception in O.C.G.A of a report in narrative form. Referring to Bell v. Austin, 278 Ga. 844 (2005), the Supreme Court re-affirmed that the exception applies only to those reports which set forth the relavent information in prose language that is more readily understandable to laymen than unexplained medical terms and test results. The Court held that the neurologist s report was not in narrative form, even though it had some sections that use plain language understandable to a juror, because it relies heavily on unexplained medical terms and abbreviations, includes lab results with minimal interpretation, and fails to set forth an assessment of the patient in story form. The narrative required in the statute should be prepared (or approved and signed) by the physician in response to a specific request to prepare such a narrative for litigation. Prine v. Blanton, 290 Ga. 307 (2012). 9. Appeal. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with subsection (b) of Code Section O.C.G.A E. Recording of Judgments 1. Signing. a. Except when otherwise specifically provided by statute, all judgments shall be signed by the judge and filed with the clerk. The signature of the judge shall be followed by the spelling of the judge's name and title legibly typed, printed, or stamped. The failure of the judgment to have the typed, printed, or stamped name of the judge shall not invalidate the judgment. O.C.G.A (a). F. When judgment entered. 1. The filing with the clerk of a judgment, signed by the judge, with the fully completed civil case disposition form constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same. O.C.G.A (b). G. Motions to set aside Fourth Edition pg Supplement

18 V. Appeals 1. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 30 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or, if a verdict was not returned, such party, within 30 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. If the court grants the motion for new trial, motions for directed verdict and/or for judgment notwithstanding the verdict become moot. Brantley v. McMichael, 295 Ga. 42 (2014). B. Time for filing appeal Fourth Edition pg Supplement

19 1. In a somewhat convoluted case, two of a testator s three daughters offered the testator s will for probate; the will named all three daughters as co-executors. The third daughter and her daughter, a granddaughter of the testator, claimed that there was a later will, and the granddaughter filed a caveat, asking that her mother, the third daughter, be appointed as executor. After a hearing, the probate court ruled in favor of the first two daughters, admitted the will to probate and named those two daughters as executors. Twelve days later, the probate court rescinded the Letters issued to the first two daughters. There were arguments whether the third daughter was fit to serve, and motions filed indicated that there was confusion over whether the rescission order applied only to the issuance of the Letters or to both the probate of the will and the issuance of the Letters. Over six months later, the probate court issued an order granting Letters to all three daughters, which order recited that the will was being admitted to probate on that date. The probate court also issued an order granting the granddaughter an extra five days to appeal the latest order. Thirty-seven days later, that granddaughter did file an appeal to superior court. The first two daughters alleged that the appeal was filed too late and that the time to appeal began on the date the will was first admitted to probate. The superior court granted summary judgment to the first two daughters, finding that the appeal was filed too late and also held that the probate court was without authority to rant an extension of time to appeal in the first place. The Court of Appeals affirmed the rulings of the superior court, finding first that it did not matter from which date the 30 days to file an appeal began, because the time to file an appeal is jurisdictional and that a superior court lacks jurisdictional to hear an appeal filed after the deadline. The Court further found that, while extensions of time are permitted in certain circumstances under the Civil Practice Act, the authority to grant such extensions does not apply to periods of time which are definitively set by other statutes. Duncan v. Moreland, 325 Ga. App. 364 (2013). [NOTE: While there are provisions for requesting and granting extensions of time to file a notice of appeal to the appellate courts, this case holds that no extensions may be granted on appeals de novo to superior courts.] C. Standing to Appeal/Right to Trial by Jury 1. The Court of Appeals has held that an appeal may be taken under O.C.G.A or only by a party plaintiff (petitioner) or a party defendant (caveator). {286 Ga. App. 6 (2007) } Presumably, unless otherwise provided by law, this would apply to appeals to the appellate courts from Article 6 Probate Court. Fourth Edition pg Supplement

20 VI. 2. Appeals de novo to superior courts from probate courts are to be tried by a jury, unless specifically waived by the parties. {287 Ga. App 77 (2007) } D. Transmittal of Record on Appeal 1. Within 10 days of the filing of the notice of appeal, it is the duty of the judge or other official of the court to transmit the record in accordance with Uniform Probate Court Rule 9.3.{See O.C.G.A (a)}. E. Effect of Appeal - Supersedeas 1. The filing of a notice of appeal serves as supersedeas when all costs in the trial court are paid. This automatic supersedeas deprives the trial court of jurisdiction to modify or alter the judgment in the case pending the appeal. {O.C.G.A (a); 259 Ga. App. 807 (2003).} Accordingly, any subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect. {150 Ga. App. 525, 531 (2) (1979) }. 2. However, the supersedeas doesn t not deprive the court of jurisdiction to rule on a completely separate issue which has no effect upon the judgment under appeal. For example, an appeal of the ruling in the probate court admitting a will to probate does not preclude the probate court from ruling on a motion for attorney s fees and costs; a ruling on the motion has no effect on the judgment granting probate. [Simmons et al. v. Harms, 287 Ga. 176 (2010)] ASSESSMENT OF ATTORNEYS FEES AND EXPENSES C. Limitations Fourth Edition pg Supplement

21 1. In a recent case, after the alleged daughter of an intestate decedent was appointed administrator of the estate, the son filed a Petition to Determine Heirs, alleging that the administrator was not a legitimate heir. Two years later, the son s attorney filed a Motion to Withdraw, which motion was granted, and an attorney s lien for $18, for service rendered until the withdrawal. O.C.G.A The son had signed a contingent fee contract with the attorney with a condition that, if the attorney-client relationship ended, the attorney would be paid an hourly rate. The withdrawal was granted. After the hearing, the probate court found that the administrator was a legitimated heir of the decedent and that she and the son would inherit equally. Another administrator was appointed, who filed a Petition for Direction. The son s net distributive share was $14,000, and the administrator sought direction whether to pay the funds over to the attorney or to the son. The probate court found the lien to be invalid, relying on Outlaw v. Rye, 312 Ga. App. 579 (2011) and directed payment directly to the son. The attorney appealed, and the Court of Appeals reversed, holding the lien to be valid and distinguished Outlaw. The Court of Appeals had earlier ruled that an attorney s lien for services was not defeated when the attorney-client relationship ended before (verdict or) settlement. Woods v. Jones, 305 Ga. App. 349 (2010). Having held the lien to be valid, the Court of Appeals found that the administrator was not authorized to distribute money from the son s share until the lien was satisfied. In re Estate of Estes, Ga. App. 241 (2012). Fourth Edition pg Supplement

22 2. Very recently, the Court of Appeals issued an opinion essentially finding that the trial courts inconsistent rulings on denying attorney s fees based on a provision of a Consent Order and its application of the standard in denying the requests for attorney s fees under O.C.G.A required a remand for the trial court for clarification of the trial court's ruling with regard to attorney fees pursuant to the consent order and for the court to apply the proper standards to determine if the movants for attorney s fees entitled to an award of attorney fees pursuant to O.C.G.A (a) and (b). The Court held that a finding of bad faith, required to determine an award of expenses of litigation is not required for an award of attorney fees pursuant to O.C.G.A (a) and (b). Haggard v. Bd. of Regents, 257 Ga. 524 (1987). While the trial court is not required to make findings of fact in denying an award of attorney fees, [Evers v. Evers, 277 Ga. 132 (2003).] it appears from the trial court's oral ruling here that it applied an incorrect legal standard for analyzing the award of attorney fees pursuant to O.C.G.A (a) and (b). Haney v. Camp, 320 Ga. App. 111 (2013). Fourth Edition pg Supplement

23 EXHIBIT A TO CHAPTER 1 PROBATE COURT OF COUNTY STATE OF GEORGIA IN THE MATTER : ESTATE NO. ESTATE OF, : RE: TO: : NOTICE OF HEARING/PRETRIAL INFORMATION REQUEST The above-styled action has been set for hearing on, at in the County Probate Court. A prehearing conference will be held prior to the hearing, beginning at. Please provide the Court and opposing counsel with the following at least one week prior to the hearing date: List of all witnesses you plan to call. Each witness' relationship to the action. Approximate length of time of each witness' testimony. General nature of each witness' testimony. List of all exhibits to be offered into evidence. Any prehearing motions to be presented. Income tax returns and savings records of deceased covering the twelve month period prior to death. (Only in year s support actions) All requests for continuances should be directed in writing to the Court, with a copy to opposing counsel. Requests for continuances based on conflicts with proceedings in other courts must comply with Uniform Probate Court Rule 15. A new notice of hearing will be mailed specifying the new date and time if the hearing is continued for any reason. If it is agreed between the parties to have the matter removed from the calendar, please confirm in writing to the Court as soon as possible, with a copy to opposing counsel. No court reporter will be present at this hearing. If either party wishes to employ a reporter, it should be arranged in advance of the hearing. This day of, 20. CLERK, PROBATE COURT Fourth Edition pg Supplement

24 CHAPTER 2 CONTESTED PETITION FOR LETTERS OF ADMINISTRATION [No new material.] Fourth Edition pg Supplement

25 CHAPTER 3 CONTESTED SOLEMN FORM WILL PROBATE TABLE OF CONTENTS I. CHECKLIST II. PRELIMINARY MATTERS A. JURISDICTION B. STANDING TO CAVEAT Standing; case-by-case basis E. PLEADINGS Requirement of filing will III. PRIMA FACIE CASE - PROPOUNDER'S BURDEN OF PROOF A. FORMALITIES OF EXECUTION AND ATTESTATION Formalities Self-Proved Wills Offering a Copy for Probate Probate of joint and mutual wills Revocation D. TESTAMENTARY CAPACITY Sufficient mental capacity Court not bound by opinions of witnesses IV. CAVEATOR'S BURDEN OF PROOF A. GENERALLY Collateral estoppel C. GROUNDS OF A CAVEAT Mental Capacity Undue Influence VI. EVIDENCE G. CONSTRUCTION IN ARTICLE 6 PROBATE COURTS No residuary clause Fourth Edition pg Supplement

26 2. Construction whether certain Effect of in terrorem lause IX. APPEALS C. STANDING TO APPEAL/RIGHT TO TRIAL BY JURY Standing by filing of objection Fourth Edition pg Supplement

27 I. Checklist II. Preliminary Matters A. Jurisdiction B. Standing to Caveat 1. Standing to caveat a will is determined on a case by case basis {237 Ga. 510, 512 (1976) }. The general rule is that the probate of a will may be contested by any person interested in the estate of the decedent, but cannot be contested by a stranger {237 Ga. 510, 512 (1976) }. a. An heir who would benefit from the probate of a will and be harmed by the denial of probate does not have standing to caveat the probate of the will. Norman v. Gober, 288 Ga. 754 (2011) (guardian of minor heir and beneficiary sought to file, on behalf of the minor, a caveat to the probate of a will under which the heir was a contingent beneficiary but would not inherit in intestacy). b. On the issue of standing to caveat a will, the Supreme Court recently held that a nephew who had been a grantee under a warranty deed executed by the testator two years prior to the date of the propounded Will did have standing to file a caveat since the propounded and challenged Will contained provisions intended to influence the grantees to deed back their interest in the property transferred. A provision in the Will gave whatever interest the testator might have in the property if the transfers back did not occur. The propounded Will left the testator s estate to the propounder, a daughter of the testator. The Supreme Court held that by this provision the propounder would succeed to a possible claim challenging the deed, an interest that would be adverse to the nephew and conferred standing on him. Odom v. Hughes, 293 Ga. 447 (2013). 2. Objection to appointment of nominated executor(s) Fourth Edition pg Supplement

28 a. An objection to the appointment of a nominated executor may be filed on the basis that the nominated executor has a conflict of interest and should not be permitted to serve. In a recent case, the nominated alternate executor filed for probate of the will, seeking her appointment instead on the first nominated executor, alleging a conflict of interest. She alleged that the nominated executor was involved in several suits against the estate and owed the estate money. The probate court appointed the nominated alternate executor, finding that there were sufficient grounds to question the fitness of the nominated executor to so serve. The Court of Appeals affirmed, holding that, while a nominated executor has a right to serve unless adjudged unfit [O.C.G.A (b)], probate courts are given broad discretion in disqualifying a named executor. There being no transcript of the hearing in probate court, the Court of Appeals held that it must presume that the evidence supporting the probate court s findings. In re Estate of Farkas, 325 Ga. App. 477 (2013). E. Pleadings 1. Petition must include the will a. Presumption of revocation In a recent case, the Supreme Court upheld the admission to probate of a copy of a will when the original could not be found after the testator s death. O.C.G.A (a). The propounded will left bequests to a church cemetery fund and to the executor; the residue was left to a trust for the benefit of a foundation created by the testator. The heirs caveated the probate based on the presumption of revocation when the original cannot be found. The probate court had admitted the copy, as did the superior court on appeal when the jury found in favor of the propounded copy. Noting that the presumption of revocation could be overcome by a preponderance of the evidence [O.C.G.A (b)], the Court held that the following evidence was sufficient to overcome the presumption: after the execution, the testator took actions with regard to the trust that showed his continuing intent to have the trust funded under the will; the testator told the pastor of the church about the bequest to the cemetery fund and stated that he did not want his relatives Fourth Edition pg Supplement

29 IV. to get his money; and previous wills admitted by the trial court were held relevant to show the consistency of the testator s testamentary scheme. Johnson v. Fitzgerald, 294 Ga. 160 (2013). Prima Facie Case - Propounder's Burden of Proof A. Formalities of Execution and Attestation 1. The will must have been executed and attested with the formalities required by law, in that: a. The testator signed the will. {O.C.G.A (a)}. (1) The fact that the testator needed assistance in signing does not, alone, give sufficient grounds to object to probate on the basis of it not being signed by the testator. [Strong v. Holden, 287 Ga. 482 (2010)] b. A declaration by the testator that the paper is the testator's will, coupled with a request that the witnesses sign it, is a sufficient acknowledgment {59 Ga. 472, (1877) }. (1) It is not required that a will be comprised by a single document. More than one document can, together, constitute a will if the documents were together at the time of execution and were presented together to the witnesses as a will. It is not necessary that separate pages or separate documents be bound together or even that the pages appear to be continuous. [Swain v. Lee, 287 Ga. 825 (2010)] After the Swain case (fn 117) was remanded for a trial by jury to determine the intent of the testator and whether the testator intended a 1999 written, unwitnessed, letter and a commercial form will executed in 2005 and duly witnessed, constituted, together the testator s will. The jury so found; Swain and the attesting witnesses testified that the two documents were presented for attestation. The caveators appealed on several grounds, including denial of a directed verdict and the court s given instructions and failure to give certain requested charges. The Supreme Court upheld the denial of the motion for directed verdict and the jury s finding that the documents were the testator s last will and testament. The Court found further that the trial court s instruction, as a whole, were sufficient to the case, even though they could have been clearer and more precise. One of the Fourth Edition pg Supplement

30 charges not given was that incorporation by reference of an extrinsic document requires that the document be described clearly, explicitly and unambiguously. Interestingly, given the specific incorporation by reference of powers 0under O.C.G.A , the Supreme Court stated that the appellant had failed, however, to cite any authority indicating that the doctrine of incorporation by reference has been embraced in the context of wills under Georgia law. Lee v. Swain, 291 Ga. 799 (2012). c. The testator had knowledge of the contents of the will. {O.C.G.A }. (1) The fact that only a portion of the will was read aloud to the testator at the time of signing does not, alone, overcome this presumption. [Strong v. Holden, 287 Ga. 482 (2010)] (2) The Supreme Court has held that a propounder failed to meet his burden to prove the Will, when, with regard to the three witnesses, propounder proved death of one, alleged that the second could not be located, and produced only one to testify. The testifying witness stated that he had seen the testator a couple of times, did not remember witnessing the will, and did not think the signature was that of testator. The probate court had ruled that the propounder failed to meet the requirements to produce the testimony of all subscribing witnesses and the one subscribing witness testimony did not prove proper execution and attestation of the will. The Supreme Court affirmed the ruling of the probate court in that propounder failed to prove the signatures of the missing witnesses (O.C.G.A ) and failed to prove the signature of testator through two credible, disinterested witnesses identifying testator s signature (O.C.G.A ). The Supreme Court held further that the record shows that propounder failed to prove by a preponderance of the evidence that the signature to the will was in the testator s handwriting. Mason v. Phillips, 290 Ga. 433 (2012). Fourth Edition pg Supplement

31 2. Self-Proved Wills a. At the time of its execution or at any subsequent time during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved, that is, the testator and the witnesses execute a sworn affidavit before a notary public providing evidence of the due and proper execution and attestation of the will. The affidavit and notary s certificate must be substantially in form and content as the statutory form set forth in the Code and are the only prerequisites of a selfproved will. For purposes of self-proving a will and for all other purposes under Title 53, any oath or affirmation or affidavit that is required to be made before a notary public may be made before any notary public or other officer who is authorized to administer oaths under the laws of the state in which the affirmation is made. Self-proved wills or codicils may be contested, revoked, or amended by a codicil in the same manner as are wills which are not self-proved. [O.C.G.A ] b. If a will was self-proved, the execution and attestation requirements are presumed to have been met (subject to rebuttal) without the necessity of testimony from any of the witnesses. Even in contested cases, offering a properly selfproved will is all that is initially necessary from the propounder(s) to make out a prima facie case. The propounder need not produce the witnesses, and the burden to call the witnesses for examination or to challenge the validity of the self-proving affidavit falls upon the caveator(s). [O.C.G.A (a), O.C.G.A (a)] [Duncan v, Moore, 275 Ga. 656 (2002); Singleman v. Singlemann, 273 Ga. 894 (2001)] Fourth Edition pg Supplement

32 c. The failure to include witnesses' names in notary's certificate contained in self-proving affidavit does not invalidate the affidavit, and thus affidavit is sufficient to satisfy signature and attestation requirements for valid will if the affidavit substantially complies in form and content with statutory example of selfproving affidavit; by signing and sealing certificate, the notary has attested that witnesses had sworn and subscribed to statement of facts before notary, and unnamed witnesses to whom notary's certificate referred were easily identifiable, having signed the lines designated witness appearing below the statement of facts and just above the notary's certificate. [Auito v. Auito, 288 Ga. 443 (2011)] d. The Supreme Court granted an interlocutory appeal from a ruling by a superior court on a de novo appeal from probate court that a self-proving affidavit was in substantial compliance with the requirements of the statute providing for same and sufficiently proved the will. The Supreme Court reversed the superior court s ruling for want of three essential elements required by the statute: the notary public did not affirm (1) that those signing were known (to the notary) to be the testator and the witnesses, (2) the witnesses were signing at the testator s request, and (3) the witnesses were each at least 14 years of age. Citing General Elec. Credit Corp. v Brooks, 242 Ga. 109 (1978), the Supreme reiterated that the doctrine of substantial compliance, though tolerant of variations in mode of expression used to satisfy statutory requisites, nonetheless, requires actual compliance as to all matters of substance. Martina v Elrod, 293 Ga. 538 (2013). Fourth Edition pg Supplement