Tuesday, September 17, 2019

Can A Lawyer Take A Percentage Interest In A Probate Estate? Maybe Not.



Can a lawyer take a percentage interest in a probate estate?  Maybe not.  It has to be a contested recovery.

Be careful of giving a probate lawyer a percentage interest in your probate case or your estate case.  Here are the reasons why.  If you and your family already stand to recover inherited property (that is property you owned at the moment your mother, father, or grandfather dies) then it is improper for an attorney to take a percentage recovery in that land or those funds.  However, if there's a significant dispute over something that the estate may or may not recover (a disputed loan to a third party) then, like any other disputed contract or tort case, an attorney is allowed to take a percentage recovery in that disputed amount.

Consider the following scenarios. 

SCENARIO ONE (Undisputed Inherited Property):

Your mother has passed away and then your father (despite lots of advice from lawyers) dies without a Will. 

You don't know what to do after your father dies so you visit your local estate and probate lawyer.  She says “[D]on't worry, you don't have to pay me anything now, you just give me a third interest in everything that gets resolved in the estate”.  You and your two brothers sign the fee agreement with the lawyer.  You and your two brothers go to the safe deposit box at the bank to look for additional assets and you find a deed to some land in South Georgia that you never heard of that is worth $600,000.00.

So, after you and your brothers discover this unexpected windfall of a deed in South Georgia you visit the property and learn that you are in fact entitled to this $600,000.00 property and you apparently inherited it – even though your father died without a Will.  See, OCGA § 53-2-1.  You get appointed administrator.  The debts get paid and you're ready to settle the estate and pay the lawyer.  The lawyer pulls out her fee agreement that says I'm entitled to a third of everything in the estate; and, she says you all need to write me a check for $200,000.00 or sell the land and give me $200,000.00 and you three heirs can keep the other $400,000.00 of the unexpected unknown piece of land in South Georgia.

            What result?

            Is the lawyer entitled to $200,000.00?  Or anything?

            Well lots of folks, even sophisticated lawyers, seem not to know the answer to the question.  If the property is owned at the time of death instanter by intestate succession, then the three brothers owned it at the time they visited the lawyer and signed the fee agreement.  The lawyer recovered nothing because the property was owned at the time the fee agreement was signed (or the property would as a matter of law eventually go to them) and thus nothing was "recovered."  Brown v. Welch, 253 Ga. 118, 317 S.E.2d 520 (1984).  [1]

Brown's one-fifth interest vested immediately upon his father's death. OCGA § 53–4–8 [Code Ann. § 113–901]. He “recovered” no assets of the estate which had devolved to the other heirs, therefore, nothing was restored through the partition action. “It does not appear that the conclusion of the litigation resulted in any monetary or property accrual to any of the defendants which they would not have had in their status as heirs of the deceased ... and there is accordingly nothing on which the [attorney's] lien could operate.” Griner v. Foskey, 158 Ga.App. 769, 770, 282 S.E.2d 150 (1981).  

Id.  See Also, Hornsby, et al. v. Hunter, 262 Ga. App. 598, 585 S.E.2d 900 (2003).

In order for a contingent fee contract to entitle an attorney to any participation in a right or entitlement which is already vested in the client (as is here in this case) or which is immediately and unequivocally available to the client (as in an offer of settlement), such an intention on the part of both the attorney and their client must appear in plain and unambiguous terms. 

Hornsby at 603.  [2]

            Under law, title to land (and generally other personal property) vests immediately to its ultimate owners.  In the case of such things as administration you may have an intervening trustee or administrator title holder while the ownership is being resolved.  However, the ultimate ownership of land vests immediately upon death of the owner even if ownership cannot be determined shortly after the death of the owner.  So, the individuals who own property at their father's death own it immediately and no attorney can take a "percentage" in resolving the issues of the estate and taking back a percentage in collection. 

The lawyer would not get a “zero” fee, but would be entitled to the number of hours he or she worked on your case times the reasonable acceptable rate for that work.  That is a quantum meruit recovery of fees.

So be vigilant if you enter into an agreement with a probate attorney who wants to take back a percentage of "recovery."  That recovery should not include property that you stand to inherit without regard to any action or non-action of the attorney.

SCENARIO TWO (Disputed Property):

Let's change the scenario to where the property in South Georgia is disputed.  Suppose that after your father dies the brothers go to the attorney and sign a fee contract that says they will pay 33 percent to the attorney for the recovery of any disputed assets of the estate.  When the brothers open the safe deposit box and find the land in South Georgia there's a note that says “Dear Sons: I think we own this land but the farmer next door disputes this title and asserts that he too owns this 40 acres.  Love Dad”.  The Estate attorney gets involved she finds out that she has to file a lawsuit to quiet the title to the property in South Georgia and she eventually recovers it in the estate's favor. 

Is the attorney then entitled to her one third fee interest?

Yes. 

The property and title were both actively disputed, and it was not apparent that the land was subject to clear and undisputed inheritance at the time of the father's death.  Because the land was in dispute and because the lawyer resolved the title dispute (it doesn't have to be resolved through a lawsuit) the attorney would be entitled to her one third fee interest in a recovery in that situation.

            The most standard method of compensation in probate is an hourly rate for hours worked to resolve the case.  Some attorneys do abide by fixed fee structures for relatively simplistic estate cases. However, any estate that is going to generate significant administrative work or significant litigation almost always has a customary hourly rate for that work at the time.  With regard to other professionals employed on behalf of the estate:  accountants, CPAs, bookkeepers, etc. they charge their hourly rate or their standard fees.   There are also statutory payments to executors and administrators which are a relatively small percentage of every dollar received (money flowing into the estate) and every dollar paid (money flowing out of the estate) on behalf of the estate.  The process and percentage changes from state to state and is subject to whether it is a stated executor or appointed administrator.  Please consult your own counsel for the exact percentage payable to executors or administrators. 

If you have any questions concerning whether a fee agreement is appropriate (or legal) in estate resolution or estate litigation, please do not hesitate to give us a call.  404.633.4100 or hwood@woodandmeredith.com

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Endnotes

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[1]

317 S.E.2d 520 (PDF)
253 Ga. 118
Supreme Court of Georgia.
BROWN
v.
WELCH.
No. 41097.
June 29, 1984.
Synopsis
Attorney brought action against client for fees allegedly owed him for his representation of client in land partition action. The Superior Court, Towns County, Jack N. Gunter, J., directed verdict for attorney on all issues except unconscionability of contract and granted attorney judgment notwithstanding verdict on issue of unconscionability, and client appealed. The Supreme Court, Weltner, J., held that where attorney undertook to represent client in attempt to secure title to client's father's entire farm from father's estate, and attorney and client agreed that attorney would receive percentage of assets recovered from estate, recovery of assets from estate was condition precedent to attorney's entitlement to fee, and thus, where client was awarded only his intestate share of estate, attorney was entitled to nothing.
Judgment reversed.
Attorneys and Law Firms
**520 *119 Nisbet S. Kendrick, III, Fishman, Freeman & Kendrick, P.C., Atlanta, for James N. Brown.
Robert F. Oliver, Oliver & Oliver, Clarksville, for Martin W. Welch.
Opinion
*118 WELTNER, Justice.
Welch sued Brown for attorney fees allegedly owed him for his representation of Brown in a land partition action.
Brown lived on his father's farm and claimed ownership through oral gift. The father died intestate, and Brown's siblings sought equitable partition of the land.
Welch undertook to represent Brown in his attempt to secure title to the entire tract. They agreed orally that Welch would receive “twenty-five percent (25%) of all assets and money recovered from the James N. Brown, Sr. estate.” The agreement was reduced to writing two years later.
The trial court ruled that Brown was entitled only to a one-fifth share by intestacy. Welch then claimed that the contract entitled him to 25% of that interest, and this action ensued.
The trial court directed a verdict for Welch on all issues except that of unconscionability of contract. The jury found the contract unconscionable and the trial court granted to Welch a judgment notwithstanding the verdict.
1. The trial court construed the contract as one for a contingency fee, wherein no fee can be received unless the specific contingency comes about. Sellers v. City of Summerville, 208 Ga. 361, 67 S.E.2d 137 (1951). The contingency here is a recovery from the estate. “Recovery” has been defined **521 as the “restoration of a right by solemn judgment of a court of justice.” Daughtry v. Cobb, 189 Ga. 113, 119, 5 S.E.2d 352 (1939).
Brown's one-fifth interest vested immediately upon his father's death. OCGA § 53–4–8 [Code Ann. § 113–901]. He “recovered” no assets of the estate which had devolved to the other heirs, therefore, nothing was restored through the partition action. “It does not appear that the conclusion of the litigation resulted in any monetary or property accrual to any of the defendants which they would not have had in their status as heirs of the deceased ... and there is accordingly nothing on which the [attorney's] lien could operate.” Griner v. Foskey, 158 Ga.App. 769, 770, 282 S.E.2d 150 (1981).
1 Recovery of assets from the estate is the condition precedent to Welch's entitlement. That never occurred, and hence Welch is entitled to nothing. Any issue of unconscionability is therefore immaterial.
2 In reaching this conclusion, we apply this strict construction to contingent fee contracts: in order for a contingent fee contract to entitle an attorney to any participation in a right or entitlement which is already vested in the client (as is here the case) or which is immediately and unequivocally available to the client (as in an offer of settlement), such an intention on the part of both attorney and client must appear through plain and unambiguous terms. Otherwise, an ambiguously worded agreement must be construed against the party which prepared it. Kennedy v. Brand Banking Co., 245 Ga. 496, 266 S.E.2d 154 (1980).
Judgment reversed.
All the Justices concur.
All Citations
253 Ga. 118, 317 S.E.2d 520

&&&&

[2]

585 S.E.2d 900 (PDF)
262 Ga.App. 598
Court of Appeals of Georgia.
HORNSBY et al.
v.
HUNTER.
No. A03A0243.
July 16, 2003.
Reconsideration denied July 31, 2003.
Certiorari Denied Nov. 17, 2003.
Synopsis
Attorney brought action against clients and developer holding option to develop land to foreclose attorney's statutory lien on clients' real property. Following a jury trial, the Superior Court, Columbia County, Fleming, J., awarded attorney parcel of land. Clients and developer appealed to Supreme Court, which transferred case. The Court of Appeals, Phipps, J., held that: (1) jury issue existed as to whether letter from clients' new attorney terminated attorney's representation; (2) jury issue existed as to whether attorney's right of action did not accrue until attorney completed defense of clients' title to land; and (3) contingency fee contract did not obligate clients to convey 20 percent of inherited real property.
Reversed.
Blackburn, P.J., concurred in judgment only.
Attorneys and Law Firms
**901 *604 Warlick, Tritt & Stebbins, Charles C. Stebbins III, Hull, Towill, Norman, Barrett & Salley, David E. Hudson, Augusta, for appellants.
Tucker, Everitt, Long, Brewton & Lanier, John B. Long, Augusta, for appellee.
Opinion
*598 PHIPPS, Judge.
Attorney Robert W. Hunter III brought an action to foreclose an attorney's statutory lien on real property owned by Walter S. Hornsby III and his sister, Willena Hornsby Butler (collectively the Hornsbys). Because the Hornsbys had extended an option to Southeastern Family Homes, Inc. to develop the land, Hunter named the Hornsbys and Southeastern as defendants. At the close of evidence at the jury trial, the Hornsbys and Southeastern moved for a directed verdict on several grounds. The trial court denied their motions and submitted the case to the jury, which returned a verdict in Hunter's favor, awarding him “44.65 acres of land.” The court adopted the verdict and further awarded post-judgment interest. The Hornsbys and Southeastern appealed to the Supreme Court of Georgia, which transferred the case to this court. Appellants contend that they were entitled to a directed verdict and that the award of post-judgment interest was unauthorized. Because the record demonstrates that the appellants were entitled to a directed verdict, we reverse. The issue of post-judgment interest is moot.
1 A directed verdict is authorized only when there is no conflict in the evidence as to any material issue, and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.1 The appellate standard used to review the grant or denial of a directed verdict is the any evidence test.2
The Hornsbys were co-owners of over 700 acres of property that had been owned by their maternal grandfather, Paul Dixon, who had died in 1941. The property, which was located near the Savannah River in Columbia County, had been in their family since 1870. Certain of the Hornsbys' relatives were living on and farming the land, and Walter Hornsby testified that he had retained Hunter to “clear the title of [that] heir property.”
In September 1986, Hornsby, his sister, and their mother3 hired *599 Hunter as their attorney. Their engagement contract, supplied by Hunter, provided,
We, PAULINE D. HORNSBY, WALTER S. HORNSBY, III, and WILLENA HORNSBY BUTLER, employ Robert W. Hunter, III, as our attorney to represent us and our heirs in all of our claims arising out of our inheritance of the Estate of Mr. Paul H. Dixon, Jr., consisting mainly of real estate located in said County.
We agree to pay said attorney Twenty (20%) percent of the gross proceeds in this case, whether the result of suit or negotiation, regardless of whether any such proceeds paid are paid under any preexisting rights we may have, either statutory or at common law. This agreement covers any causes of action we have in order to fully vest title to any property in our names, including any petitions for partitioning and quieting title.
We also agree to reimburse him all out-of-pocket expenses, costs, advances, etc., incurred by him in pursuing these claims, which will be deducted prior to determining the gross proceeds.
We do hereby constitute and appoint Robert W. Hunter, III, as our true and lawful attorney in fact, for us and in our name, place and stead, to sign our names to any pleading, notice, release, check, draft or other paper necessary or advisable in the pursuit of any of these claims. We hereby **902 grant him complete power and authority in these claims, or all of them, and all matters attendant thereto, to do generally all things necessary, or advisable, or desirable in their pursuit. The power and agency herein granted is coupled with an interest and is irrevocable by death or incompetence.
We have read this agreement and agree that it binds our heirs, assigns, executors, administrators and any other successor in interest.
Hunter testified that, under this agreement, his fee was contingent upon “get [ting] marketable title to Willena and Walter.” He stated that he had negotiated with the attorney representing “the other side” and that an agreement was reached as to the division of the property. In December 1988, the probate court accepted the proposed division. The Hornsbys received deeds for four tracts of land totaling 371 acres. Hunter thereafter asked the Hornsbys for his fee. The Hornsbys disputed Hunter's claim that the agreement entitled *600 him to 20 percent of their land. In 1989, having not received a fee, Hunter recorded a lien for attorney fees against the property under OCGA § 15–19–14.
In 1991, a lawsuit was filed, challenging the deed by which Willena Butler had claimed an interest to the original undivided estate. Walter Hornsby testified that after he and his sister were served, he gave the papers to Hunter because he had not “received any kind of title to my property” and because “[Hunter] was still on the case.” Hunter defended the Hornsbys' title, and that case was resolved in their favor in 1995.
In 1992, a second lawsuit challenged the Hornsbys' property interest. Walter Hornsby testified that he took that case to Hunter also because he expected Hunter to defend his family's interest because “he [had] agreed to give us a clear title.” During the pendency of that case, the Hornsbys entered into a joint venture agreement with Southeastern that gave the company an option to develop the property. The Hornsbys hired Southeastern's attorney for the limited purposes of resolving the issue of Hunter's fee. That attorney wrote Hunter a letter, dated September 29, 1994, stating that the Hornsbys believed that Hunter “[was] claiming too much in the way of a fee.” The letter further stated that the Hornsbys considered the contract's language ambiguous. The letter stated, “If you wish to withdraw from representing them, I believe you are entitled to be paid the reasonable value of your services to date. If you elect to continue to represent them, I believe you are entitled to be paid a reasonable fee.” Hunter continued working on the Hornsbys' behalf, later testifying, “my clients did not ask me to withdraw.” He successfully defended the Hornsbys' interest in that case, which was resolved in April 1996.
In February 1999, a third lawsuit challenged the Hornsbys' title. Hunter testified that Walter Hornsby told him that he had an obligation under the contract to represent them in that matter. In a letter dated March 19, 1999, Hunter informed the Hornsbys that he had prepared responsive pleadings and that, “I have undertaken this representation of you under the assumption that it reaffirms our contract for representation with regard to this same property.” Hunter represented the Hornsbys in that action, and in December 1999, that case concluded with summary judgment entered in favor of the Hornsbys.
In September 2000, Hunter sought to foreclose on his attorney's lien, seeking 20 percent of the Hornsbys' property, or in the alternative, sale of their land and receipt of 20 percent of the proceeds. At trial, Hunter clarified, “I want the land.” The jury returned a verdict in favor of Hunter for 44.65 acres. The court adopted the verdict and then awarded post-judgment interest thereon. After a hearing, the *601 court determined that the value of the property was $15,000 per acre. Citing OCGA § 9–12–10, the court determined, “[g]iven the award to [Hunter] of 44.65 acres undivided interest in said property, the value of [Hunter's] judgment for the purposes of calculating post judgment interest is $669,750.” Finally, the court stated, “ If [Hunter] wishes to have his interest in the real property in question separated out, he should proceed by initiating a statutory partitioning.”
**903 2 1. Appellants contend that the court erred in denying their motions for a directed verdict, arguing that the Hornsbys' new counsel's letter of September 24, 1994 terminated the contingency fee contract before the contingency vested. We disagree.
3 While it is true that “a client has the absolute right to discharge the attorney and terminate the relation at any time,”4 the cited letter did not purport to do that. No evidence shows that the Hornsbys ever told Hunter that they were discharging him. Hunter continued to represent the Hornsbys through 1999. And regarding whether Hunter was obligated to defend their title in those subsequent challenges, Walter Hornsby testified, “[Hunter] would not have fulfilled that contract if he would not have.” Because there was evidence that the September 29, 1994 letter did not terminate the representation, the trial court correctly denied the motions for directed verdict on this ground.
45 2. Appellants contend that the court erred in denying their motions for directed verdict, arguing that Hunter's claim was barred by the statute of limitation. Foreclosure on a lien to secure a debt is time-barred when a claim on the underlying debt has become time-barred.5 Therefore, the dispositive issue is whether the statute of limitation barred an action on the underlying debt at the time Hunter sought to foreclose his attorney's lien.
6 The statute of limitation begins to run when the right of action accrues.6 Appellants argue that Hunter's right of action accrued in December 1988, when the probate court's partitioning order was entered. They claim that since Hunter did not seek to foreclose on the lien until almost 12 years later, his action to foreclose the lien was time-barred.
Hunter counters that his right of action did not accrue in December 1988 because he had an ongoing obligation to defend title for the Hornsbys, as he did in three subsequent lawsuits. He claims that the statute of limitation could not have started running until the latest *602 lawsuit was concluded in 1999. Because he filed the instant action the next year, he argues, it was not time-barred.
 The engagement contract shows that the Hornsbys agreed that Hunter would represent them “in all of our claims arising out of our inheritance of the Estate of Mr. Paul H. Dixon, Jr., consisting mainly of real estate....” The contract further shows that the Hornsbys agreed that, “This agreement covers any causes of action we have in order to fully vest title to any property in our names, including any petitions for partitioning and quieting title.” While the contract's language may have obligated Hunter to represent the Hornsbys only to obtain title, the parties' actions demonstrated, as confirmed by their trial testimony, that they understood that Hunter was contractually obligated to defend the Hornsbys' title through 1999.
7 “An open account for continuous service of an attorney, for which he is entitled to be paid only after a particular result is procured and accepted by his employer, is not barred until four years after such result is accepted.”7 Here, Hunter continued to work on the Hornsbys' behalf through 1999. Because there was evidence that Hunter's right of action did not accrue until 1999, which was within four years of the date Hunter filed this action, the trial court did not err in denying the motions for directed verdict on the statute of limitation defense.8
 8 3. Appellants contend that the trial court erred in denying their motions for directed verdict on the ground that the engagement contract was unenforceable with regard to land inherited by the Hornsbys. They complain that the contract sought to **904 collect a contingent fee where there was no contingency. The Hornsbys claim that before they employed Hunter, they already owned an undivided interest in the original estate and that the probate court decree merely granted them specific acreage. Further, they claim, the term “gross proceeds” was too vague to be understood as encompassing the actual land inherited.
In Brown v. Welch, 9 an attorney claimed part of his client's inheritance under a fee contract providing that the attorney would be compensated with a percentage of “all assets and money recovered” from the estate of the client's father. The Supreme Court of Georgia reasoned that the client had not “recovered” any estate assets that had devolved to the other heirs, but had received only what he was due via intestacy. Thus, the Court ruled, the attorney was entitled to *603 nothing. In Brown, the Court instructed that the following “strict construction” be applied to contingent fee contracts:
[I]n order for a contingent fee contract to entitle an attorney to any participation in a right or entitlement which is already vested in the client (as is here the case) or which is immediately and unequivocally available to the client (as in an offer of settlement), such an intention on the part of both attorney and client must appear through plain and unambiguous terms. Otherwise, an ambiguously worded agreement must be construed against the party which prepared it.10
Appellants argue that the engagement agreement did not plainly and unambiguously show an intent that Hunter would be entitled to a percentage of the Hornsbys' land.
The engagement contract required the Hornsbys to “pay” Hunter 20 percent of the “gross proceeds in this case,” including “such proceeds paid ... under any preexisting rights ... either statutory or at common law.” But the contract did not expressly obligate the Hornsbys to convey to Hunter 20 percent of the inherited real property. Hunter testified that he understood “gross proceeds” to mean “recovery,” “whether it be timber, whether it be crops, whether it be money, whether it be land.” But the contract did not define that term. Black's Law Dictionary defines proceeds, not as land inherited, but as
[i]ssues; income; yield; receipts; produce; money or articles or other thing[s] of value arising or obtained by the sale of property; the sum, amount, or value of property sold or converted into money or into other property. Proceeds does not necessarily mean only cash or money. [Cit.] That which results, proceeds, or accrues from some possession or transaction....11
In this case, an interpretation of “gross proceeds” as contemplating the payment of money and not inherited real property is indicated by the fact that elsewhere in the contract the Hornsbys agreed to reimburse Hunter for various expenses that he incurred by deducting such expenses, costs, and advances “prior to determining the gross proceeds.” Furthermore, Hunter testified that he was paid a 20 percent share of funds obtained by the Hornsbys from a sale of timber from the land.
In accordance with Brown,12 having applied a strict construction to the contract in this case, we are unable to find “plain and unambiguous terms” in it that show that the Hornsbys intended for Hunter to be compensated by a percentage of their inherited land. Accordingly, the court erred in denying appellants' motions for a directed verdict.13
4. Although the Hornsbys contend that the trial court erred in awarding interest on the judgment, that contention is now moot.
Judgment reversed.
ELLINGTON, J., concurs.
BLACKBURN, P.J., concurs in judgment only.
All Citations
262 Ga.App. 598, 585 S.E.2d 900, 03 FCDR 2351, 03 FCDR 2437
Footnotes
1
OCGA § 9–11–50(a); Beasley v. Paul, 223 Ga.App. 706, 707(2), 478 S.E.2d 899 (1996).
2
City of Columbus v. Barngrover, 250 Ga.App. 589, 594(2), 552 S.E.2d 536 (2001).
3
Their mother, Pauline Dixon Hornsby, died in 1996 or 1997. Walter Hornsby received his mother's interest by deed. Willena Hornsby Butler received her interest from an uncle by deed. The grantors conveyed real estate interests “that will become [theirs] from the settling of” the estate of Paul Dixon.
4
(Citation and punctuation omitted.) AFLAC, Inc. v. Williams, 264 Ga. 351, 353(1), 444 S.E.2d 314 (1994).
5
Jones v. Wellon, 237 Ga.App. 62, 66–67, 514 S.E.2d 880 (1999).
6
Kicklighter v. Woodward, 267 Ga. 157, 158(1), 476 S.E.2d 248 (1996); OCGA § 9–3–25.
7
City of Summerville v. Sellers, 94 Ga.App. 152, 163(13), 94 S.E.2d 69 (1956).
8
See Kueffer Crane &c. Svc. v. Passarella, 247 Ga.App. 327, 329–330(2), 543 S.E.2d 113 (2000).
9
253 Ga. 118, 317 S.E.2d 520 (1984).
10
Id. at 119, 317 S.E.2d 520.
11
Black's Law Dictionary (6th ed. 1990), p. 1204.
12
Supra.
13
See Id.

&&&&

[3]

504 S.E.2d 480 (PDF)
233 Ga.App. 534
Court of Appeals of Georgia.
WINBURN, LEWIS & BARROW, P.C.
v.
RICHARDSON et al.
RICHARDSON et al.
v.
WINBURN, LEWIS & BARROW, P.C.
Nos. A98A0587, A98A0588.
July 6, 1998.
Reconsideration Denied July 21, 1998.
Certiorari Denied Dec. 3, 1998.
Synopsis
After law firm represented clients, who were estate's contingent beneficiaries, in litigation and settlement negotiations against trustee of testatrix' marital trust, which resulted in consent judgment and settlement agreement providing clients with vested interests in equal shares of family farm's sale proceeds, law firm filed attorney's lien and declaratory judgment action against clients. Firm alleged that it was entitled to one third of clients' share of farm's sale proceeds under retainer letter executed by clients, which provided that clients would pay firm $75 per hour plus “one-third of the value of proceeds of recovery in your individual behalves, if any.” The Superior Court, Jackson County, McWhorter, J., entered judgment on jury verdict finding that “proceeds of recovery” did not encompass any proceeds from sale of farm. Firm appealed. The Court of Appeals, McMurray, P.J., held that: (1) evidence supported jury's verdict, and (2) firm “opened the door” to evidence concerning appropriateness of its professional judgment.
Affirmed.
Blackburn, J., issued specially concurring opinion in which Eldridge, J., joined.
Attorneys and Law Firms
**481 *539 Cashin, Morton & Mullins, Harry L. Cashin, Jr., Troutman Sanders, Richard W. Gerakitis, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Atlanta, for appellant.
Stewart, Melvin & Frost, Frank Armstrong III, Gainesville, for Appellees.
Opinion
*534 McMURRAY, Presiding Judge.
These appeals concern interpretation of an hourly plus contingency attorney fee contract between Winburn, Lewis & Barrow, P.C. (“the firm”) and contingent beneficiaries to the Estate of Smith Bridges (“the estate”), Carol B. Richardson, Lavern Parton and Jeanene Pass (“the clients”). The clients initially agreed to pay the firm $85 per hour to account for their brother's, Kenneth Bridges', suspected waste of estate property while he was serving as trustee of their mother's marital trust. After probate court proceedings confirmed that Kenneth Bridges had squandered about half of the estate's estimated gross value-leaving the Bridges' family farm (“the farm”) as the estate's primary asset, the firm posted an attorney fee retainer letter to the clients indicating that the firm would file a superior court action against Kenneth Bridges and others to recover the estate's lost assets if the clients would pay the firm $75 per hour plus “one-third of the value of proceeds of recovery in your individual behalves, if any.”1 The clients executed this letter (“the retainer *535 letter”), and the firm proceeded on the clients' behalf in two consecutive superior court actions and an appeal in Richardson v. Bridges, 260 Ga. 62, 389 S.E.2d 215. The firm also represented the clients during negotiations which resulted in a consent judgment and a settlement agreement providing the clients with vested interests in equal shares of the farm's sale proceeds. This settlement provided Kenneth Bridges with a lesser share of the farm's sale proceeds. The case sub judice arose when the clients challenged the firm's claim to a third of their share of the farm's sale proceeds.
The firm filed an attorney's lien and a declaratory judgment action to determine its rights under the retainer letter. The clients filed undue influence, unreasonableness, unconscionability, illegality, fraud and breach of fiduciary duty defenses, pertinently claiming that the firm unfairly inserted the contingent fee provision in the modified retainer agreement without explaining the scope of the provision's coverage. The trial court, however, struck these defenses because the clients did not file a supporting expert's affidavit in compliance with OCGA § 9-11-9.1. The trial court also denied the parties' opposing motions for summary judgment, allowing a jury to resolve the scope of the retainer letter's “proceeds of recovery” terms. Before trial, the trial court granted the firm's motion in limine to exclude any evidence concerning the clients' malpractice claims.
The clients' trial testimony indicates that the firm never explained the scope of the retainer letter's “proceeds of recovery” terms; that there were no discussions or negotiations regarding a need to replace the **482 existing $85 per hour retainer agreement; and that the firm did not advise the clients (until after the clients had settled their claims against Kenneth Bridges) about its position that the retainer letter gave the firm a stake in the Bridges' family farm. The clients explained during trial that they understood the retainer letter's “proceeds of recovery” terms to mean that the firm would be entitled to a third of any funds returned to the estate by Kenneth Bridges and others. The clients testified that they never intended the “proceeds of recovery” terms to cover their share of the Bridges' *536 family farm. The firm challenged these explanations in a motion for directed verdict, urging that the “proceeds of recovery” language should be construed in its favor by the trial court as a matter of contractual construction.
The trial court denied the firm's motion for directed verdict, and the jury returned a special verdict finding that the retainer letter's “ ‘value of proceeds of recovery’ ” terms do not encompass any proceeds from the sale of the Bridges' family farm. The firm filed an appeal in Case No. A98A0587 after the trial court entered judgment on this verdict, and the clients filed a cross-appeal in Case No. A98A0588. Held:
Case No. A98A0587
1 1. Citing Brown v. Welch, 253 Ga. 118, 317 S.E.2d 520, and Daughtry v. Cobb, 189 Ga. 113, 5 S.E.2d 352, the firm contends the retainer letter's “proceeds of recovery” language requires the clients to pay the firm a percentage of the farm's sale proceeds.
In Brown v. Welch, 253 Ga. 118, 317 S.E.2d 520, supra, an attorney claimed part of his client's inheritance under a fee contract providing the attorney with a percentage of “ ‘all assets and money recovered’ ” from the client's father's estate. Because the client did not “recover” more than he was due via intestacy, the Supreme Court of Georgia held that the attorney was due nothing. The Supreme Court of Georgia reasoned that the fee agreement's “ ‘all assets and money recovered’ ” language did not include the client's vested interest in his father's estate because, absent clear and unambiguous contractual terms stating an opposite intent, such broad terms will not be presumed to provide an attorney with a right to participate in an entitlement which is already vested in the client or which is immediately and unequivocally available to the client. Id. at 119, 317 S.E.2d 520. Extending this logic in the case sub judice, the firm urges that the retainer letter's “proceeds of recovery” terms require the clients to pay over a percentage of the farm's sale proceeds because, before settling with Kenneth Bridges and others, the clients only had contingent interests in the farm. This reasoning is not in line with the basis of the holding in Brown.
2 The Brown decision was based on strict construction of an attorney fee agreement which did not precisely set out the scope of its coverage. The Supreme Court of Georgia thus concluded that the attorney fee contract was “ambiguous” and construed it against the attorney who drafted the agreement. Id. at 119, 317 S.E.2d 520. While the case sub judice is like Brown in that the retainer letter's “proceeds of *537 recovery” language may be construed broadly, the retainer letter is unlike the attorney fee agreement in Brown because it goes further by suggesting a contingent attorney fee based only on the “proceeds of recovery” from a lawsuit to bring wasted assets back into the estate. This difference brings the case sub judice more in line with the analysis in Daughtry v. Cobb, 189 Ga. 113, 5 S.E.2d 352, supra.2
**483 In Daughtry, an attorney claimed a percentage fee under a contingency attorney fee contract which was based on the client's recovery from an estate. The Supreme Court of Georgia read this contract's percentage of “recovery” language in conjunction with another contractual provision and found that the apparent ambiguity injected by these provisions authorized a jury's finding that the parties intended for the attorney to take a percentage of the client's inheritance. Applying this analysis in the case sub judice, we find that the retainer letter's suggestion that the “proceeds of recovery” terms apply only to gains the clients may acquire in a lawsuit to bring wasted assets back into the estate injects ambiguity in the retainer letter which takes the contract's “proceeds of recovery” language outside the definition of the term, “recovery,” set out in Brown v. Welch, 253 Ga. 118, 317 S.E.2d 520, supra. Accordingly, finding no rule of law or contractual construction controlling the scope of the retainer letter's coverage, we hold that the trial court properly allowed the jury to resolve the parties' intent with regard to the retainer letter's “proceeds of recovery” terms. See CareAmerica v. Southern Care Corp., 229 Ga.App. 878, 880(1), 881, 494 S.E.2d 720.
The clients' testimony that they understood the retainer letter's coverage to include only gains from a lawsuit to bring wasted assets back into the estate and that the firm's attorneys never told them otherwise (before settling their dispute with Kenneth Bridges) authorizes the jury's finding that the retainer letter's “ ‘value of proceeds of recovery’ ” terms do not apply to the farm's sale proceeds. Accordingly, just as in Daughtry v. Cobb, 189 Ga. 113, 118(2), 5 S.E.2d 352, supra, the jury's verdict was authorized. The trial court did not err in denying the firm's motion for directed verdict. A party is not entitled to a directed verdict if there is any evidence to support the jury's verdict. OCGA § 9-11-50(a); Denson v. City of Atlanta, 202 Ga.App. 325, 326(1), 414 S.E.2d 312.
*538 2. The firm next contends that the trial court erred in entering judgment on the jury's verdict because, even under the clients' explanation of intent, the undisputed facts reveal that the lawsuits against Kenneth Bridges enhanced the clients' interest to the extent that Kenneth Bridges, in settling with the clients, compromised his right to an equal share of the farm's sale proceeds. We do not agree. Although Kenneth Bridges settled for a lesser percentage of the farm's sale proceeds, the evidence adduced at trial indicates that this compromise did not bring any of the assets he allegedly wasted back into the estate. The jury's verdict was therefore in line with the evidence and the client's understanding of the retainer letter's “proceeds of recovery” terms. Since this Court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict, the trial court did not err in entering judgment on the jury's verdict. Denson v. City of Atlanta, 202 Ga.App. 325, 326(1), 414 S.E.2d 312, supra.
3 3. Lastly, the firm challenges the trial court's judgment on the jury's verdict, contending Carol B. Richardson violated the trial court's pre-trial order excluding evidence of the firm's alleged malpractice by testifying that the firm unnecessarily modified the parties' initial attorney fee agreement (because the clients could afford the firm's $85 per hour charges); that the firm needlessly filed the superior court actions (because the dispute could have been resolved in the existing probate court action); and that the firm unnecessarily named the clients' mother as a party to the underlying dispute. The firm cannot complain about this testimony because it “opened the door” to the appropriateness of its professional judgment by offering professional testimony regarding the reasonableness of its decision to modify the existing attorney fee agreement. See Krebsbach v. State, 209 Ga.App. 474(1), 475, 433 S.E.2d 649.
Case No. A98A0588
4. Our holding in Case No. A98A0587 renders it unnecessary to address the clients' cross-appeal.
Judgments affirmed.
BLACKBURN and ELDRIDGE, JJ., concur specially.
**484 BLACKBURN, Judge, concurring specially.
I agree that the judgment below must be affirmed, but write separately to address plaintiff's claim that the trial court erred in entering judgment on the jury's verdict.
In its second enumeration of error, plaintiff contends that the trial court erred in entering judgment on the verdict, because there was no evidence to support the jury's finding that the parties did not intend for the term “value of proceeds of recovery” to include monies recovered from Bridges out of his share of the farm proceeds. In essence, plaintiff is contending that, even if it is not entitled to one-third of the entire proceeds from the sale of the farm, it is entitled to some recovery because, under the consent judgment, defendants received more than they would otherwise have been entitled to upon the sale of the farm. Plaintiff contends that this extra amount, coming out of Bridges' share of the proceeds, constitutes a recovery for which it is entitled to a contingency fee.
4 However, plaintiff did not move for a directed verdict on this specific ground. Moreover, plaintiff did not object to the special interrogatory submitting this issue to the jury. Accordingly, plaintiff cannot now complain of the trial court's entry of judgment upon the jury's special verdict on this issue. See Sun v. Bush, 179 Ga.App. 80, 81(4), 345 S.E.2d 85 (1986) (party not entitled to judgment n.o.v. in absence of motion for directed verdict on issue); Knisely v. Gasser, 198 Ga.App. 795, 796-797(1), 403 S.E.2d 85 (1991) (party waived claim that special verdict was inconsistent with evidence by failing to timely object to special verdict form).
I am authorized to state that Judge ELDRIDGE joins in this opinion.
All Citations
233 Ga.App. 534, 504 S.E.2d 480, 98 FCDR 2844
Footnotes
1
This letter pertinently provides as follows: “Re: Carol B. Richardson, et al. v. Kenneth S. Bridges, et al., Jackson County Superior Court.... You have retained us to represent your interests further in the matter involving the Bridges Estate, and to that end we are proceeding in the Superior Court of Jackson County as reflected in the copy of the Complaint enclosed herewith. After conferring with each of you, and with Ms. Richardson who will assist us in communications with each other, we have agreed to represent your interests on the following basis: ... Our fee for services in this matter will be based on the hourly rate of $75.00 per hour for all time expended in the prosecution of the Superior Court civil action only from here on out. In addition, and in consideration of the fact that this represents less than our usual hourly fee, we have also agreed to accept as additional compensation for services rendered an amount of money equal to one-third of the value of the proceeds of recovery in your individual behalves, if any. It is understood that this portion of our fee agreement is contingent only, in that if nothing is recovered for you in your individual behalves, then our sole compensation for services rendered in this matter shall be the amount calculated on the basis of the hourly rate set forth above.... If this arrangement is agreeable with you, then please indicate by signing your name to the place provided below, returning the signed copy of this letter for our files and keeping the enclosed copy for your records.”
2
Another distinction is that Brown involves an attorney fee contract made at inception of the attorney-client relationship while the retainer letter at issue in the case sub judice was made during the attorney-client relationship. Under such circumstances, many jurisdictions adhere to the view that the fee agreement is presumptively invalid, with the burden of proving the agreement's validity on the attorney. See annotation, Validity & Effect or Contract for Attorney's Compensation Made After Inception of Attorney-Client Relationship, 13 ALR3d 701, 731, § 13(a). No such presumption arises in Georgia, however, absent proof that the modified fee agreement was the result of “overreaching, duress, fraud or violation of the confidential relationship, etc.” O'Kelley v. Evans, 119 Ga.App. 167, 169(2), 166 S.E.2d 392. See Bailey v. Devine, 123 Ga. 653, 656(5) (51 S.E. 603), and 13 ALR3d 701, 737, § 13(c), supra. While the clients contend in the case sub judice and in their cross-appeal that the retainer letter was the result of such wrongdoing, we need not address these contentions in light of the disposition in the case sub judice. See Brown v. Welch, 253 Ga. 118, 119, 317 S.E.2d 520, supra.

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END

Saturday, March 16, 2019

Documents for Re: Topic and Paper for 17th Annual General Practice and Trial Institute March 28-30 | St. Simons Island | Offering 12 CLE Hours (12/1/1/3)


Attorney’s Fees:  Defending and Proving the Ugly Ones.   OCGA § 9-11-68 (Offers of Settlement); OCGA § 9-15-14 (Frivolous Litigation); OGCA § 13-6-11 (Bad Faith); OCGA § 15-19-14 (Notice of Filing Attorney’s Lien), etc.   Hugh C. Wood, Wood & Meredith, LLP, Atlanta (Tucker), GA



























Hillman et al. v. Bord et al., 820 SE2d 482 (2018)

[ Add Link ]

$544,000 awarded at OCGA Sec. 9-15-14 Attorney's Fees

Bubniak v Kamler Superior Court of Cobb County 13-1-8555-52  02192019

https://drive.google.com/drive/folders/1Vb2B5I2WcYlqFWedRoP6y9gO_kL9689G














Tuesday, July 10, 2018

Navigating [Probate] Court Rules, Processes and Procedures



VI. Navigating Court Rules, Processes and Procedures
Written and Presented by Hugh C. Wood in Atlanta and Macon.

A.        Do You Even Have a Case? Preparing for Litigation
B.        Trust/Estate Litigation vs. Civil Litigation Procedures
C.        Filing and Responding to the Suit: Jurisdiction and Pleadings
D.        Discovery, Depositions and Examinations
E.         Motion Practice
F.         Evidence Rules and Admission Tips
G.        Trial and Appeals: Key Pointers
H.        Sample Documents





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IV.       NAVIGATING COURT RULES, PROCESS, AND PROCEDURES
            A.        DO YOU HAVE A CASE?  PREPARING FOR LITIGATION
The probate court, unlike the superior court, is a court of limited jurisdiction.  The superior courts in Georgia are courts of plenary jurisdiction; however, original jurisdiction as to probate courts is carved out of the superior court's plenary jurisdiction.  The types of litigation that seem relevant to this topic are associated with proving up a will, or fighting the caveat to a will.  Also there are issues associated with accounting actions against the executor and challenges the fiduciaries. 
Two (2) issues that are deeply intertwined with probate concern trusts and title to land.  Both the trust issues and the final determination of title to land are, generally, superior court issues not probate court issues.
            It is perhaps instructive to look at the types of petitions that may be filed in probate court.  While one can refer to the statutes it's perhaps more instructive to simply look at the types of petitions that can be found filed in probate court in Georgia.


[Note: Clicking on the above link will take you to PDF Downloads at the Council of Probate Court Judges of Georgia]



General Instructions
Form 2: Petition for Temporary Letters of Administration
Form 3: Petition for Letters of Administration
Form 4: Petition to Probate Will in Common Form
Form 5: Petition to Probate Will in Solemn Form
Form 6: Reserved See Supplement 6
Form 7: Petition to Probate Will in Solemn Form & for Letters of Administration w/ Will Annexed
Form 8: Petition for Letters of Administration with Will Annexed (Will Previously Probated)
Form 9: Petition for Order Declaring No Administration Necessary
Form 10: Petition for Year's Support
Form 11: Petition for the Appointment of an Emergency Guardian and/or Conservator for a Proposed Ward
Form 12: Petition for the Appointment of a Guardian and/or Conservator for a Proposed Ward
Form 13: Petition of Personal Representative for Leave to Sell Property
Form 14: Petition of Conservator for Leave to Sell Property or Rent, Lease, or Otherwise Dispose of Property
Form 15: Petition for Leave to Sell Perishable Property by Conservator
Form 16: Reserved See Supplement 1
Form 17: Petition for Leave to Convey or Encumber Property Previously Set Aside as Year's Support
Form 18: Petition for Presumption of Death of Missing Individual Believed to be Dead
Form 19: Petition to Compromise Doubtful Claim of Minor/Ward
Form 20: Petition for Leave to Encroach on Corpus
Form 21: Bond of Administrators, Conservators, & Executors, Etc.
Form 22: Petition to Establish Custodial Account for Minor or Incapacitated Adult
Form 23: GPCSF 23 through 27 Reserved/Relocated
Form 28: Petition for Temporary Letters of Guardianship of Minor
Form 29: Petition for Permanent Letters of Guardianship of Minor
Form 30: Petition for Letters of Conservatorship of Minor
Form 31: Application for Permit to Conduct Public Fireworks Display
Form 32: Petition by Personal Representative for Waiver of Bond and/or Grant of Certain Powers
Form 33: Petition for Discharge of Personal Representative
Form 34: Petition of Conservator for Final Settlement of Accounts and Discharge from Office and Liability
Form 35: Reserved See Supplement 4
Form 36: Petition for the Appointment of a Temporary Medical Consent Guardian for a Proposed Medical Consent Ward
Form 37: 37 through 52 Reserved/Relocated
Form 53: Commission to Administer Oath
Form 54: Service upon Minor or Adult Ward through Service Upon Guardian
Form 55: GPCSF 55 through 57 Reserved/Relocated
Form 58: Adult Conservatorship Inventory and Asset Management Plan
Form 59: Minor Conservator Inventory and Asset Management Program
Form 60: GPCSF 60 Reserved
Form 65: Petition for the Restoration of an Individual Found to Be in Need of a Guardian and/or Conservator
Form 70: Certificate in Accordance with Uniform Probate Court Rule 5.9(D)
Form 71: Petition for Leave to Sell Perishable Property by Personal Representative
Form 72: Petition for Determination of Right of Disposition of Remains of a Decedent
Supplement 1: Determination by Court that a Person May Act as Guardian or Appointment of Guardian Ad Litem
Supplement 2: Appointment of Special Process Server
Supplement 3: Certificate of Service
Supplement 4: Guardian/Conservator/Personal Representative Oath
Supplement 5: Petition for Letters of Testamentary Guardianship
Supplement 6: Interrogatories to Witness to Will


            From the Georgia probate judges’ website we found they have 72 forms (above) for the filing of probate claims.  The most common in terms of this type of litigation arise out of
Form 5: Petition to Probate a Will in Solemn Form; and,
Form 7:  Petition to Probate a Will in Solemn Form & For Letters of Administration with Will Attached (previously known as:  Administration CTA).
            While adult guardianship and adult conservator (Form 11 and Form 12) consume a great deal of activity in the probate court, it's difficult to discuss their highly particular litigation in terms of our review of litigation in this short topic.
1.      Presumption of Probate
            Before a caveat asserting undue influence arises, the Propounder of the will must come forward and establish the factum of the will.  The Propounder must prove that the document and the attendant circumstances in order to set up the prima facie case for the validity of the will.  Once that is established the burden shifts to those challenging the will (caveators) to come forward with evidence, such as undue influence, to invalidate the existence of the prima facie will.  Ellers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948). 
2.      Caveat Litigation
            The most common form of challenge in probate (within litigation) is probably the challenge the will itself by caveat.  The petition to probate the will in solemn form (Form 5) or (Form 7) is filed and a prima facie case is made out for the probate of the will.  That is, the petitioner proves up the death of the decedent, that the decedent authored a written document that is a will.  The petitioner shows that the testator signed the will in the presence of sui juris witnesses who testify that they saw the testator execute the will and then Propounder moves the will into the court as the testator's last request for the disposition of his or her property. 
Once that prima facie case has been made the heirs are then served by law and if no objection the will goes forward as the last instructions of the testator.  However, in litigation we generally receive a caveat.  In Georgia caveats are required to be filed 10 days after the heirs are served (as discussed below, an answer may be posed within 25 days in some circumstances).
Caveat challenges include.  The Will was not attested correctly according to law; that is, one of the required witnesses is missing or that witness was not qualified to witness the will in question;
The formalities of the Will were not followed;
The document propounded is not a Last Will and Testament (is may be missing necessary language);
One or more of the witnesses was incompetent at the time the Will was witnessed (this may also disqualify the self-proving affidavit, if one is presented for Probate);
The Testator was unduly influenced to make the Will propounded;
The Testator was unduly influenced to insert certain bequest and/or legacies in the Will, which were not the intent of the Testator;
The Testator was insane or incompetent to make a Will at the time it was attested;
The Testator was so weak and infirm that the Testator could not have known what was in the Will at the time he or she signed it;
The Testator did not know what he or she was signing at the time it was attested;
The will was revoked by tearing or burning or was revoked by a will that was executed AFTER the date of the propounded Will and thus the propounded Will is not the final Last Will and Testament of the Testator.
http://hughwood.blogspot.com/2016/05/how-to-file-caveat-objection-to-last.html ; Hinkel, Daniel F., Ga. Probate & Administration: Georgia Probate and Administration with Forms § 4:1 (4th ed.)(2015).  
A Form Fill-in for a Caveat is Attached.   Exhibit A.
3.      Opening Default in Caveat
            A caveat is barred if not filed within ten (10) days of service on the heir or beneficiary.  However, it can, under some circumstances, be extended to twenty-five (25) days.
            The methods to open default in superior court allow a party that is beyond the 30 days to file an answer  (which is granted as a matter of right) to open default under O.C.G.A. §9-11-55.  If the party filing the motion pays the cost the case opens.  The default is set aside and an answer entered.  Until the 1990’s it was an unanswered question whether default could be opened in caveat litigation.  In Green et al. v. Woodward, 198 Ga.App. 427, 41 S.E.2d 617 (1991) (concerning the opening of default on a petition for year support) the Court of Appeals applied O.C.G.A. §9-11-55(a) to probate court pleading and said that default could be opened.  In a more recent case, In Re Estate of Loyd, 328 Ga.App. 287, 761 S.E.2d 833 (2014), the Court of Appeals specifically reviewed the ability of the probate section on default O.C.G.A. §15-9-47 and compared it to O.C.G.A. §9-11-55(b) and found that default in probate may be opened by the payment of costs in filing of an answer.  The practical effect of In Re Loyd, supra, is that all is not lost if you encounter a caveator between the 10th and 25th day.  A caveat may be successfully interposed by opening default and paying for costs.
B.        TRUST\ESTATE LITIGATION VERSUS
CIVIL LITIGATION PROCEDURES

            Any discussion of jurisdiction in probate court needs to start with the overview that probate court has exclusive jurisdiction of probate of wills and of guardians of adults and minors and that the superior court has exclusive jurisdiction of trusts. 
            In probate court we revisit the distinction between Metro (above 90,000 residents and rural below 90,000 residents) jurisdiction in Georgia.  Wherever you file (or defend) be aware that O.C.G.A. § 15-9-120(2) separates Georgia probate courts based on population.  Large county (Metro) counties act as superior courts (within limited probate jurisdiction) and appeals are taken directly to the Georgia Court of Appeals.  Rural probate courts (populations less than 90,000) are akin to magistrate courts and appeals are taken to the superior court by Writ of Certiorari. 
O.C.G.A. § 15-9-120. Definitions
As used in this article, the term:
(1)        "Civil case" means those civil matters:
(A)       Over which the judge of the probate court exercises judicial powers;
(B)       Within the original, exclusive, or general subject matter jurisdiction of the probate court; and
(C)       Which, if not for this article and Code Section 5-6-33, could be appealed to superior court for a de novo investigation with the right to a jury trial under Code Sections 5-3-2 and 5-3-29.
(2)        "Probate court" means a probate court of a county having a population of more than 90,000 persons according to the United States decennial census of 2010 or any future such census in which the judge thereof has been admitted to the practice of law for at least seven years.
            The original jurisdiction of probate is stated at O.C.G.A. §15-9-30.  In its most general form it covers all probative wills, granting of letters testamentary and administration of wills and resolving controversies concerning executors and administrators associated with those. 
            With regard to venue – the question arises: where do you file when someone dies? Generally, and historically, the probate estate opens in the county where the individual died.  O.C.G.A. § 15-9-31.  However, the general assembly – being aware that many elderly pass away in nursing homes not near their resident county – allowed for venue to exist either county – historical residence or nursing home residence.  No longer do you have to follow the anomaly that if a decedent passes away in a distant county that probate is required in the distant county.  O.C.G.A. §15-9-31 and 32.  In the event a non-resident decedent is required of probate, that probate may be originated in any county in Georgia where property is found. 
O.C.G.A. § 15-9-30. Subject-Matter Jurisdiction; Powers and Duties Generally; Copy of Official Code of Georgia Annotated Furnished for Each Judge
(a)        Probate courts have authority, unless otherwise provided by law, to exercise original, exclusive, and general jurisdiction of the following subject matters:
(1)        The probate of wills;
(2)        The granting of letters testamentary and of administration and the repeal or revocation of the same;
(3)        All controversies in relation to the right of executorship or administration;
(4)        The sale and disposition of the property belonging to, and the distribution of, deceased persons' estates;
(5)        The appointment and removal of guardians of minors , conservators of minors, guardians of incapacitated adults, and conservators of incapacitated adults and persons who are incompetent because of mental illness or intellectual disability;
(6)        All controversies as to the right of guardianship and conservatorship, except that the probate court shall not be an appropriate court to take action under Code Section 19-7-4;
(7)        The auditing and passing of returns of all executors, administrators, guardians of property, conservators, and guardians;
(8)        The discharge of former sureties and the requiring of new sureties from administrators , guardians of property, conservators, and guardians;
(9)        All matters as may be conferred on them by Chapter 3 of Title 37;
(10)      All other matters and things as appertain or relate to estates of deceased persons and to persons who are incompetent because of mental illness or intellectual disability; and
(11)      All matters as may be conferred on them by the Constitution and laws.
(b)        In addition to the jurisdiction granted in subsection (a) of this Code section and unless otherwise provided by law, the probate courts shall have the power to carry out the following duties as assigned by specific laws:
(1)        Perform county governmental administration duties;
(2)        Perform duties relating to elections;
(3)        Fill vacancies in public offices by appointment;
(4)        Administer oaths to public officers;
(5)        Accept, file, approve, and record bonds of public officers;
(6)        Register and permit certain enterprises;
(7)        Issue marriage licenses;
(8)        Hear traffic cases;
(9)        Receive pleas of guilty and impose sentences in cases of violations of game and fish laws;
(10)      Hold criminal commitment hearings; and
(11)      Perform such other judicial and ministerial functions as may be provided by law.
(c)        To assure proper administration of the court's duties, the judge of the probate court of each county shall be furnished a copy of the Official Code of Georgia Annotated and annual supplements to the Code to keep it current. The costs of such Code and maintenance thereof shall be paid by the governing authority of each such county from the county library fund, if sufficient, otherwise any additional amount required shall be paid from the general funds of the county.
            Thorny issues associated with trusts.  It is unfortunate, this author has had a number of cases where trusts and probate litigation runs on dual tracks in both the superior and probate court, but exclusive jurisdiction over trusts is found in the superior courts.  Despite requests for modifications of this provision in the general assembly, there seems to be no change to jurisdiction of trusts in superior court and jurisdiction of probate in probate court for the foreseeable future.  The practitioner should be aware that if dispute arising with regard to a trust (they are very common in probate) only the superior court has jurisdiction over the trust.  O.C.G.A. § 53-12-6.  In these rather cumbersome dual litigation matters, this author can only suggest you work with (as much as possible) opposing counsel and try to coordinate the orders of the superior and probate court on issues such as timing, scheduling and particularly discovery.  Having the discovery available for use in both superior and probate court and providing for similar timing issues in discovery is very helpful.  However, such coordination is at the pleasure of both the probate and superior court judge and opposing counsel.  In some counties, probate judge will allow him or herself to be designated by the superior court for that particular claim.
O.C.G.A. § 53-12-6. Jurisdiction of Suits by or Against Trustee
(a)        Trusts are peculiarly subjects of equity jurisdiction. Suits by or against a trustee which sound at law may be filed in a court of law.
(b)        Actions concerning the construction, administration, or internal affairs of a trust shall be maintained in superior court except as otherwise provided in Code Section 15-9-127.
(c)        Any action by or against the trustee or to which the trustee is a party may be maintained in any court having jurisdiction over the parties and the subject matter except as provided in subsection (b) of this Code section.
Concurrent Jurisdiction between Superior And Probate Court.  The general assembly has declared certain jurisdiction overlaps between superior and probate court with regard to trust and estates.  O.C.G.A. § 15-9-127.  For example, declaratory judgments with regard to fiduciaries; tax motivated estate planning; approval of settlement agreements; appointment of a new trust; conversion to a unitrust (a tax issues associated with converting a low interest distributions to a higher paying distribution) and adjudication of petitions for directions of construction of a will, are concurrent. 
O.C.G.A. § 15-9-127. Additional Concurrent Jurisdiction with Superior Courts
Probate courts subject to this article shall have concurrent jurisdiction with superior courts with regard to the proceedings for:
(1)        Declaratory judgments involving fiduciaries pursuant to Code Sections 9-4-4, 9-4-5, and 9-4-6 ;
(2)        Tax motivated estate planning dispositions of wards' property pursuant to Code Sections 29-3-36 and 29-5-36 ;
(3)        Approval of settlement agreements pursuant to former Code Section 53-3-22 as such existed on December 31, 1997, if applicable, or Code Section 53-5-25
(4)        Appointment of new trustee to replace trustee pursuant to Code Section 53-12-201;
(5)        Acceptance of the resignation of a trustee upon written request of the beneficiaries pursuant to Code Section 53-12-220;
(6)        Acceptance of resignation of a trustee upon petition of the trustee pursuant to Code Section 53-12-220;
(7)        Motions seeking an order for disinterment and deoxyribonucleic acid (DNA) testing as provided in Code Section 53-2-27 ;
(8)        Conversion to a unitrust and related matters pursuant to Code Section 53-12-362; and
(9)        Adjudication of petitions for direction or construction of a will pursuant to Code Section 23-2-92.
            Superior courts have broader powers to modify a trust than this author ever imagined.  Early on I was surprised at, despite language in a trust that says it was irrevocable and not subject to modification, trust practitioners (far superior to this author) were able to go in superior court completely modify the trust and come out with something not resembling the original trust.  Be aware that O.C.G.A. § 53-12-62 allows very substantial changes to a trust if the trustee or some interested party can show that the trust no longer makes sense in the present for the reason that is was designed. 
O.C.G.A. § 53-12-62. Modification by Court; Petition for Modification by Trustee; Notice of Petition to Modify
(a)        The court may:
(1)        Modify the administrative or dispositive provisions of a trust if, owing to circumstances not known to or anticipated by the settlor, compliance with the provisions of the trust would defeat or substantially impair the accomplishment of the purposes of such trust;
(2)        Modify the administrative provisions of a trust if continuation of the trust under its existing provisions would impair such trust's administration; or
(3)        Modify the trust by the appointment of an additional trustee or special fiduciary if the court considers the appointment necessary for the administration of the trust.
(b)        A petition for modification may be filed by the trustee or any beneficiary or, in the case of an unfunded testamentary trust, the personal representative of the settlor's estate.
(c)        Notice of a petition to modify the trust shall be given to the trustee and all beneficiaries.
(d)        The court may modify the trust regardless of whether it contains spendthrift provisions or other similar protective provisions.
(e)        An order for modification shall conform as nearly as practicable to the intention of the settlor.
Or, that significant changes need to be made because of changes with regard to the beneficiary, his or her income, changes in the ownership property that dramatically affect the trust and its usefulness or (rather common) significant tax changes.  So, when sometimes it seems all else fails, simply go in and modify or destroy the trust.  I've seen it done more than once. 
C.        FILING AND RESPONDING TO THE SUIT; JURISDICTION AND PLEADINGS
                        See. Section B.
D.        DISCOVERY, DEPOSITIONS AND EXAMINATIONS
Discovery in Probate.  After the caveat (or whatever form of Petition is filed and opposed) is filed the case then proceeds forward into discovery.  The petitioner has already met his or her burden of proof by proving up the existence and the attestation of the will.  The caveator now has the burden of proof to prove its caveat survives and defeats the will.  The great bulk of probate caveat litigation turns on whether the caveator can carry his or her burden.
            It is important to note that discovery moves along in a very similar pathway in probate court in Georgia as the pathway to superior courts.  While the superior courts are governed by the Uniform Superior Court Rules, the probate courts are governed by the Uniform Probate Court Rules. 
            The full Uniform Probate Court Rules may be found at this URL:
https:www.georgiacourts.org/content/uniform-rules-probate-court
            Civil discovery works in a similar fashion as in superior court.  However, be aware that in non-Article 6 probate courts (probate courts and counties with less than 90,000 individuals in population) discovery only runs for two (2) months.  In other courts discovery runs for six (6) months as is similar to the superior courts.
            The rules on civil discovery and probate court being uniform probate court Rules 7.1 through 7.4 are reproduced below:
Rule 7. Civil Discovery
7.1 Time for discovery.
       (A) In non-Article 6 Probate Courts, in order for a party to utilize the court's compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay, and within two (2)
months after the filing of the answer, unless for cause shown the time has been extended or shortened by court order.
       (B) In Article 6 Probate Courts as defined in Rule 2.7, in order for a party to utilize the court's compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay, and within six (6) months after the filing of the answer, objection, or other response. At any time, the court, in its discretion, may extend, reopen or shorten the time for discovery.
7.2 Filing requirements.
       (A) Depositions and other original discovery material shall not be filed with the court unless or until required by the provisions of OCGA § 9-11-29.1 (a) (1)-(5).
       (B) A party serving interrogatories, requests for production of documents, requests for admission, and answers or responses thereto upon counsel, a party or a non-party may file with the court a certificate indicating the pleading which was served, the date of service (or that the same has been delivered for service with the summons), and the persons served.
7.3 Depositions upon oral examination.
       Unless otherwise authorized by the court or stipulated by the parties, the duration of a deposition is limited to one (1) day of seven (7) hours. The court must allow additional time if needed for a fair examination of the deponent or if the deponent or another person or other circumstance impedes or delays the examination.
7.4 Failure to make discovery and motion to compel discovery.
       (A) Prior to filing a motion to compel discovery, counsel for the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the matters involved. At the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred, and that the effort to resolve by agreement the issues raised failed. If some of the issues have been resolved by agreement, the statement shall specify the issues remaining unresolved.
       (B) Motions to compel discovery in accordance with OCGA § 9-11-37 shall:
       1. Quote verbatim or attach a copy as an exhibit of each interrogatory, request for admission, or request for production to which objection is taken;
       2. Include the specific objection or response said to be insufficient;
       3. Include the grounds assigned for the objection (if not apparent from the objection); and
       4. Include the reasons assigned as supporting the motion. Such objections and grounds shall be addressed to the specific interrogatory, request for admission, or request for production and may not be made generally.

            Cases proceed such as superior court cases through motion hearings and motions for summary judgment.  Uniform Probate Court Rule 6.5.  However note:  unlike superior courts that generally provide court reporters at any significant motion hearing, please be aware that court reporters are almost always the election of the party in probate court.  Uniform Probate Court Rule 10.4. 
This author does not know if there's any particular hard and fast rule in probate.  Metro probate courts tend to have a court reporter available and Article 2 probate courts almost never have a court reporter available unless you request one.  Simply be advised that if you are proceeding to a hearing in a rule probate court and you haven't reserved a court reporter you may be forced to rely on a recording device brought by the probate judge or you may need to obtain your own court reporter.
            FORMS:
Form Request for Production of Documents [Medical Records]; and,
                        Forms to Take Deposition of Medical Records or Attorney with Records. 
Exhibit B.

E.         MOTION PRACTICE IN PROBATE
Motion practice is highly similar to superior court motion practice.  However, be aware that in a rural probate court (less than 90,000 population), you may find that the hearing or trial arrives before your time to respond (or file a motion) runs.   This is because the court can schedule the hearing after the two (2) month discovery period.
Relevant rules on Probate Motion practice are:
Rule 6. Motions and Applications
6.1 Filing.
      Every motion made prior to trial, except those consented to by all parties, when filed shall include or be accompanied by citations of supporting authorities and, where allegations of unstipulated fact are relied upon, supporting affidavits, or citations to evidentiary materials of record. The clerk shall promptly upon filing furnish a copy provided by the attorney of such motions and related materials to the judge.
6.2 Reply.
      Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than thirty (30) days after service of the motion.
6.3 Hearing.
      Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, may be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.
      Provided, however, oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing”, and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.
6.4 Motions for summary judgment.
      Upon any motion for summary judgment pursuant to the Georgia Civil Practice Act, there shall be annexed to the notice of motion a separate, short and concise statement of each theory of recovery and of each of the material facts as to which the moving party contends there is no genuine issue to be tried. The response shall include a separate, short and concise statement of each of the material facts as to which it is contended there exists a genuine issue to be tried.
6.5 Time for filing summary judgment motions.
      Motions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.
6.6 Motions in emergencies.
      Upon written notice and good cause shown, the judge may shorten or waive the time requirement applicable to emergency motions, except motions for summary judgment, or grant an immediate hearing on any matter requiring such expedited procedure. The motion shall set forth in detail the necessity for such expedited procedure.
6.7 Motions for new trial (applies to Article 6 Probate Courts only).
[ * * *]
6.8 Default judgments pursuant to OCGA § 15-9-47. [* * *]
6.9 Leaves of absence. [ * * * ]
6.10 Recusal. [ * * * ]

F.         EVIDENCE RULES AND ADMISSION TIPS

            Georgia revised its Evidence Code in 2012 – after years and years of demands to bring the Georgia Evidence Code into the modern age.  The fundamental change is that current Georgia Evidence Code parallels the Federal Evidence Code which became law in 1973 (and replaced the Field Code).  Georgia retains a few evidence issues not conforming to the Federal Rules.  For every change you wish to read, it may be found at:   Milich, Paul S. Ga S. U. Law Rev., 2 Winter 2012 Article 3, Vol. 28.


            The entire code is found at Chapter 24. 

CODE OF GEORGIA (2015)
Title 24. Evidence (§§ 24-1-1 - 24-14-47)
 Chapter 1. Generally (§§ 24-1-1 - 24-1-106)
 Chapter 2. Judicial Notice (§§ 24-2-201 - 24-2-221)
 Chapter 3. Parol Evidence (§§ 24-3-1 - 24-3-10)
 Chapter 4. Relevant Evidence (§§ 24-4-401 - 24-4-417)
 Chapter 5. Privilege (§§ 24-5-501 - 24-5-510)
 Chapter 6. Witnesses (§§ 24-6-601 - 24-6-658)
 Chapter 7. Opinions or Inferences And Expert Testimony (§§ 24-7-701 - 24-7-707)
 Chapter 8. Hearsay (§§ 24-8-801 - 24-8-826)
 Chapter 9. Authentication And Identification (§§ 24-9-901 - 24-9-924)
 Chapter 10. Best Evidence Rule (§§ 24-10-1001 - 24-10-1008)
 Chapter 11. Establishment of Lost Records (§§ 24-11-1 - 24-11-29)
 Chapter 12. Medical and Other Confidential Information (§§ 24-12-1 - 24-12-31)
 Chapter 13. Securing Attendance of Witnesses And Production And Preservation Of Evidence (§§ 24-13-1 - 24-13-154)
 Chapter 14. Proof Generally (§§ 24-14-1 - 24-14-47)

            With regard to probate there are few differences concerning the introduction of evidence in a bench trial and jury trial from that of superior court.
            As a matter of practice, this author has noticed that evidentiary issues in Probate Court are less problematic than in superior court.  Perhaps the reasons is that in mediation – hearsay is admissible.  And, in bench trials, the Judge will generally “hear” the evidence and decide later whether it should be technically admissible.  That is certainly allowed in a bench trial.
            Handwriting expert proof becomes extremely technical and be prepared for significant opposition to a handwriting expert if you propose one/oppose one.   Medical testimony can be problematic.  The issue with medical testimony may turn on whether the doctor knew or was a treating physician prior to the testator’s death.  And, statements the deceased testator made to third parties prior to death.  Until the Dead Man’s Rule was replaced in 1979, such comments were completely barred.  While now they are admitted, they are still viewed with some skepticism.   Most of those statements are self serving.
G.        TRIAL AND APPEALS: KEY POINTERS

Concerning the strategy with regard to trial and a potential appeal, the most important jurisdictional issue to look at initially is whether the probate court is a metro or rural probate court.  While those are not terms of art, a metro court (being a court in a county in excess of 90,000 people) is a probate court designated under O.C.G.A. § 15-9-120(2).  That is, a court in a county of a population in excess of 90,000 people. 
A rural (less than 90,000) probate appeal is by writ of certiorari to the superior court.
On a de novo appeal from a rural probate court to the superior court of the county, the review of the record of the issues is not limited to the matters that were presented to the probate court.  On a de novo appeal to the superior court the superior court may consider new evidence not related to those issues that were raised before the probate court.  O.C.G.A. § 5-3-29; Garren v. Garren, 316 Ga.App. 646, 730 S.E.2d 123 (2012).
The court of appeals wrote:
An appeal taken from the probate court to superior court comes up de novo where the issues are tried anew as if no trial had been had.  "It is not the province of the superior court on such appeal to review and affirm …, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial."  All competent evidence may be introduced in the superior court whether or not it was submitted before the probate court. 
Garren, supra, at 126.
An Article 6 probate court (over 90,000 in population)  has the ability to seat a jury and its judgments are final just as the superior court.  Appeals are taken directly from an Article 6 court to the Georgia Court of Appeals.  In a "rule" probate court, being a county with less than 90,000 citizens, that court does not have the power to seat a jury and an appeal is by writ of certiorari to the superior court of the county.
O.C.G.A. § 5-3-2. Right to Appeal From Probate Courts; Exception

(a)        An appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.
(b)        Notwithstanding subsection (a) of this Code section, no appeal from the probate court to the superior court shall lie from any civil case in a probate court which is provided for by Article 6 of Chapter 9 of Title 15.

Once a case is taken up on final appeal, the ordinary rules of appellate procedure apply to direct appeal from the metro probate court to the Georgia Court of Appeals.  O.C.G.A. § 15-9-123(b).
O.C.G.A. § 15-9-123. Appeal

(a)        Either party to a civil case in the probate court shall have the right of appeal to the Supreme Court or the Court of Appeals, as provided by Chapter 6 of Title 5.
(b)        The general laws and rules of appellate practice and procedure which are applicable to cases appealed from the superior courts of this state shall be applicable to and govern appeals of civil cases from the probate courts.

There is no appeal from an order admitting a Will to probate in common form.  Rather where a Will has been admitted to probate in common form, and the propounder does not thereafter alter the Will or probate in solid form, an adverse party may petition the probate court for the issuance of a citation to the propounder of the Will to offer the Will in solid form.  It is from the petition to offer the probate of a Will in solid form from which the right of appeal lies.  10 Ga.Jur. Georgia Juris Prudence: Decedent's Estates and Trusts § 5:27.  March 2018.
The pathway for an appeal the Georgia Court of Appeals has changed dramatically in the last few years.  For as long as the Georgia Constitution has existed and been amended (there have been ten (10) Georgia Constitutions through the 1983 Constitution) challenges to wills and titles to land have been a direct appeal to the Georgia Supreme Court.  That pathway was eliminated on January 1, 2017.  With the passage of the Appellate Jurisdiction Reform Act of 2016 the pathway for probate, divorce and land title appeals changed dramatically.  In the past, practitioners were able to take appeals of "will" or "no will" directly to the Georgia Supreme Court.  The same direct appeal was true of land titles and to a limited extent divorces.  (Some years ago the Georgia Supreme Court eliminated direct appeals of divorces through a pilot project that has now been folded into the new legislation).  With the new amendments to O.C.G.A. § 15-3-3.1, probate practitioners should not docket appellate will contests in the Georgia Supreme Court.  They should, however, be docketed in the Georgia Court of Appeals.  The modification and revisions to the statute read as follows:
O.C.G.A.§ 15-3-3.1.  (Effective January 1, 2017) Appellate jurisdiction of Court of Appeals
Universal Citation: GA Code § 15-3-3.1 (2016)
(a) Pursuant to Article VI, Section VI, Paragraph III of the Constitution of this state, the Court of Appeals rather than the Supreme Court shall have appellate jurisdiction in the following classes of cases:

(1) Cases involving title to land;

(2) All equity cases, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death;

(3) All cases involving wills;

(4) All cases involving extraordinary remedies, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death;

(5) All divorce and alimony cases; and

(6) All other cases not reserved to the Supreme Court or conferred on other courts.

(b) This Code section shall not otherwise affect the jurisdiction of the Supreme Court or the Court of Appeals.

As is true of a superior court's findings of fact, the probate court's findings of fact will not be set aside unless it's clearly erroneous.  Brown v. Brown, 277 Ga. 594, 592 S.E.2d 854 (2004).  And a jury finding will be affirmed if there is any evidence to support the jury's decision.  This is similar to the finding in superior court.  McDaniel v. McDaniel, 288 Ga. 711, 707 S.E.2d 60 (2011).
            H.        Sample Documents
FORMS:
How to file a Caveat http://hughwood.blogspot.com/2016/05/how-to-file-caveat-objection-to-last.html ; Hinkel, Daniel F., Ga. Probate & Administration § 4:1 (4th ed.)(2015).   Georgia Probate and Administration with Forms
A Form Fill-in for a Caveat is Attached.   Exhibit A
Form Request for Production of Documents [Medical Records]; and,
                        Forms to Take Deposition of Medical Records or Attorney with Records. 
Exhibit B.

END