November 12, 2013
Authored by: Luke Lantta
Probate court litigation can be very different from other types of litigation, especially when it comes to procedural matters. Within a single probate case, there can be multiple evidentiary hearings, which can be like mini-trials. Also, the probate court may enter numerous orders along the way, the rules of appealing which can be different from typical appeals. For example, in Georgia, “[a]n appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.” The time limit for such an appeal is “within 30 days of the date the judgment, order, or decision complained of was entered.” How hard is that 30 day time limit? In Duncan v. Moreland, the Georgia Court of Appeals let us know.
That 30 day time limit is so firm that not even the probate court that issued the judgment, order, or decision complained of can extend the period of time for filing the notice of appeal. But what was it about this particular probate court proceeding that made the time for appeal confusing? It really goes back to that whole multiple order thing.
Etta Sue Moreland and Wilma E. Wilson filed a petition to probate their mother’s will. The will appointed Moreland, Wilson, and their sister, Evelyn Duncan, as co-executors. Moreland and Wilson’s niece (and Evelyn’s daughter), Teresa Duncan, filed a caveat and contended that Evelyn should be appointed executor.
The probate court heard the caveat, found in favor of Moreland and Wilson, and on December 13, 2011 entered an order accepting their petition to probate the will and issued letters testamentary to them as co-executors. On December 28, 2011, however, the probate court entered an order rescinding the letters testamentary. After some additional motions were filed, on July 3, 2012, the probate court issued letters testamentary to Moreland, Wilson and Evelyn. This document went on to state that on “July 3, 2012 at a regular term of the Probate Court, the last Will and Testament dated May 11, 2005 of [the decedent] . . . was legally proven in solemn form and was admitted to the record by order.” The probate court apparently recognized that the record was convoluted, so, on August 8, 2012, the probate court entered another order that stated that Duncan’s time to appeal the validity of the will was triggered by the July 3, 2012 order, not the December 13, 2011 (or December 28th) order.
The problem, of course, as the superior court and appellate court recognized was that on December 13, 2011, the probate court entered an order finding the will to be valid. Thus, the 30 day appeal timeline ran from that date and not the reiteration of the will’s validity on July 3. What, in essence, the probate court tried to do was extend the time in which Duncan could appeal the order regarding the will’s validity. This attempt to extend the time for an appeal was a power that the probate court did not have.