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Virtual Adoption Requires Intestacy

July 15, 2015

Authors

Luke Lantta

Virtual Adoption Requires Intestacy

July 15, 2015

by: Luke Lantta

For the second time this year, the Georgia Supreme Court has addressed the equitable doctrine of virtual adoption.  Here’s how we previously described the doctrine:

In a virtual adoption, the ‘adopting parent’ orally agrees to adopt the child of another as his or her own without actually legally adopting the child and all parties act on the oral agreement to adopt.   Virtual adoption is not legal or statutory adoption.  It is an equitable remedy that is applied only upon the death of the ‘adopting parent’ to avoid an unfair result to the ‘adopted child’ by the application of intestacy laws.

In Johnson v. Rogers, the Georgia Supreme Court reaffirmed that this equitable doctrine can only be applied where the ‘adoptive parent’ dies Read More

Preparing A Will For A Blind Testator

May 22, 2014

Authors

Luke Lantta

Preparing A Will For A Blind Testator

May 22, 2014

by: Luke Lantta

People with disabilities need wills, too.  Depending on the disability, however, an estate planner may need to do a little extra work to ensure that the testator’s intent is upheld if the will is challenged.  In deciding other issues in Ammons v. Clouds, the Georgia Supreme Court gave estate planners a few suggestions on how to draft a will for a blind client.

In Georgia, there is some authority that, if a testator is blind, more than the ordinary degree of “positive proof that he actually knew and assented [to the contents of the will] is required to repel any suspicion which circumstances may have cast upon the good faith of the transaction . . . .”  Estate planners, therefore, should take extra care to show that the will was prepared according to the testator’s

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Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

Authors

Luke Lantta

Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

by: Luke Lantta

Guardianship actions sometimes serve as a precursor to will contests.  If a petitioner seeks a guardianship of an alleged incapacitated adult and loses, what implications does that ruling have on a later will contest alleging incapacity?  In Copelan v. Copelan, the Georgia Supreme Court addressed that question while cleaning up some overruled guardianship law.  In the end, it came down to the standard of proof.

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Petition To Probate Copy Of Testator’s Will Denied

January 30, 2014

Authors

Luke Lantta

Petition To Probate Copy Of Testator’s Will Denied

January 30, 2014

by: Luke Lantta

Just a few months ago, we saw the Georgia Supreme Court decide that a copy of a will was good enough to admit to probate.  At that time, we said

Under Georgia law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke the will.  But this presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy of the original and if it is established by a preponderance of the evidence that the testator did not intend to revoke the will.

Now, in Britt v. Sands, we see that same Supreme Court decide that a copy was not good enough.  What was the difference?

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Georgia Self-Proving Affidavit Was Insufficient

September 17, 2013

Authors

Luke Lantta

Georgia Self-Proving Affidavit Was Insufficient

September 17, 2013

by: Luke Lantta

When a legislature goes through the trouble of giving you a statutory form, as the Georgia General Assembly has done with self-proving affidavits under O.C.G.A. § 53-4-24, why would you omit items from the statutory form?  In Martina v. Elrod, a will contest case, the caveators invalidated a self-proving affidavit because the self-proving affidavit was not in substantial compliance with the statutory requirements.  So, what was missing?

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Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

Authors

Luke Lantta

Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

by: Luke Lantta

Standing to caveat a will?  Check.  Undue influence?  Check.  Testamentary capacity?  Check.  Monomania?  Fraud?  Check and double check.  While the Georgia Supreme Court’s opinion in Odom v. Hughes didn’t break any new ground, it examined such a wide range of will contest topics that it’s definitely worth a read.  Without further ado . . .

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Can A Beneficiary Do An End-Run Around An In Terrorem Clause By Getting Someone Else To File A Caveat?

January 17, 2013

Authors

Luke Lantta

Can A Beneficiary Do An End-Run Around An In Terrorem Clause By Getting Someone Else To File A Caveat?

January 17, 2013

by: Luke Lantta

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

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How To Prove A Will When Your Subscribing Witnesses Are All Dead Or Unavailable?

January 30, 2012

Authors

Luke Lantta

How To Prove A Will When Your Subscribing Witnesses Are All Dead Or Unavailable?

January 30, 2012

by: Luke Lantta

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.

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Georgia Caveator Failed To Demonstrate Undue Influence Or Incapacity

January 19, 2012

Authors

Luke Lantta

Georgia Caveator Failed To Demonstrate Undue Influence Or Incapacity

January 19, 2012

by: Luke Lantta

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.

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