Saturday, June 4, 2016

How to Extend The Time to File a Caveat (Objection) to a Last Will and Testament



How to Extend The Time to File a Caveat (Objection) to a Last Will and Testament.
 
            Or:    

            How to Save Your Bacon and Avoid calling your E&O Carrier.


Your client calls and has been served with (Form 5) [1]  a Petition to Probate a Last Will and Testament in Solemn Form (Petition).  That call came in two (2) weeks ago.  Two (2) weeks is not a very long time, but in Georgia probate it is an eternity.  Generally, your client only has 10 days (plus three (3) days for mail) to file a Caveat or an Objection to the Last Will and Testament or ---- you client is out of probate court.

Don’t panic.  Unless, the Petition has been sitting on your desk for two (2) weeks while you were binge drinking in Cancun, Mexico.

FIRST:

Read the Petition carefully.  We have had some success in spotting address errors on the Petition.  Many times the Petitioner or the Court will cooperate with timing issues, if the Petition contains errors on its face (and many do).

If you are beyond the time and there are no errors, then:

SECOND:

Move to open default and pay the costs.  You have the absolute statutory right to open default for an additional fifteen (15) days.  For some reason practitioners seem to know this exists for use in the Superior Courts, but overlook the obvious and simplistic application in the Probate Courts.

                 The Georgia Civil Practice Act (CPA) applies to proceedings in probate court to "under OCGA § 9-11-1; the CPA applies ‘all courts of record in this state and all actions of a civil nature whether cognizable as cases at law or in equity, with exceptions as stated in Code § 9-11-81.’  Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974) a probate court is a court of record.  Id.  Thus, the provisions of the CPA apply in probate court, except as provided in OCGA § 9-11-81."  Greene, et al. v. Woodard, 198 Ga. App. 427, 401 S.E.2d 617 (1991).  [2]

OCGA  § 9-11-55 under the Civil Practice Act states as follows:

(a)          When case in default; opening as matter of right; judgment. If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.

The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages.

An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.

                Thus under the procedural aspects to be applied in probate court, OCGA § 9-11-55 a defendant or respondent can open default as a matter of right by filing its answer, affirmative defenses and the other pleadings.  Defendant has within 15 days of going into default to open default.  This can be done as long as there is payment of costs.  OCGA § 9-11-55(a).  Costs MUST BE PAID or the opening of default is defective. 



THIRD:

If you are beyond twenty five (25) days, it is bad.  But, all is not lost.

File a Motion to Open Default.

OCGA § 9-11-55

(b)          Opening default. At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

                Notice that OCGA § 9-11-55, though styled in a similar fashion to the probate statute, is procedural whereas OCGA § 15-9-47 is the substantive default statute in probate court.  Default judgments in probate court are governed by OCGA § 15-9-47 “Default Judgments in Probate Court”.  That statute states in its entirety:

Notwithstanding any provisions of Chapter 11 of Title 9, if in any case pending before the probate court an answer, caveat, or other responsive pleading has not been filed within the time required by law or by lawful order of the court, the case shall automatically become in default unless the time for filing the answer, caveat, or other responsive pleading has been extended as provided by law. The petitioner at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the petition or other pleadings filed in the matter were supported by proper evidence. At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to open for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to open, on terms to be fixed by the court. In order for the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the hearing in the matter.

                OCGA § 15-9-47 contains the same language in the Civil Practice Act for opening default for providential cause.  Thus, it is similar to OCGA § 9-11-55(b).    Before judgment is entered, the probate court under OCGA 15-9-47 may open default for the same three grounds as stated in OCGA § 9-11-55(b).  They are:  (1), providential cause, (2) excusable neglect – no willful disregard for the timing, and (3) where from a review of all the facts that judge can determine that a proper case has been made for opening default.

                The defendant or respondent must prove one of the three elements to open default.  A proper case for opening default under the third provision of OCGA § 15-9-47 is that respondent must (1) show a proper reason that default should be opened (sworn testimony), (2) the defendant or respondent must be able to make out an immediate meritorious defense, (3) the respondent must be ready to stand and defend him or herself instanter, and the respondent must be ready to proceed immediately to trial.  By analogy, see, C.W. Matthews Contracting Company vs. Walker, 197 Ga. App. 345, 398 S.W.2d 297 (1990). 

                The probate court has broad discretion to open default (assuming the underlying elements are presented to the court) and the probate court will not be reversed absent an abuse of discretion.  In Re Estate of Loyd, 328 Ga. App. 287, 761 S.E.2d 833 (2014), [3] citing Simmons v. Harms, 287 Ga. 176, 178, 695 S.E.2d 38 (2010).

                It would appear that the court has the power to open default up to either the entry of a judgment.  In In Re the Estate of Loyd at 291, the court found that Ten (10) months was excessive and there was no abuse of discretion by the probate court to refuse to open default for the motion being untimely at Ten (10) months.  By analogy in a non-probate case, the Court of Appeals found that the 4 months was upheld as untimely.  See, Evers v. Money Masters Inc., 203 Ga. App. 546, 417 S.E.2d 160 (1992).  Thus, there seems to be some latitude and no set bright line with regard to when a motion to open default may be considered by the trial court [in this case, the probate court]. 

                So, if you find your client in a situation where the client missed the 10-day or 13‑day time frame to file a caveat and the client has missed the 25-day window to open default as a matter of right, don't lose all hope.  If you can make out, for your client, the three opening default provisions as stated in OCGA § 15-9-47, immediately file a motion to open default. 

                Happy Caveating. 

Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084

www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068

& & &

Endnotes:

[1]

Form 5.

https://www.scribd.com/doc/314288633/Petition-to-Probate-Will-in-Solemn-Form-Georgia-Probate-Form-5
[2]

Greene, et al. v. Woodard, 198 Ga. App. 427, 401 S.E.2d 617 (1991). 

BEASLEY, Judge.
Year's support. Gwinnett Probate Court. Before Judge Meyer.
The question is whether OCGA 9-11-55 (a), a section of the Civil Practice Act regarding the opening of default judgments, governs an application for year's support and caveat filed in probate court. We conclude that it does.
Virginia Martin Woodard died testate on April 16, 1990, leaving as her heirs at law her husband, who is the appellee, and four daughters by a prior marriage, who are the appellants.
On May 4, 1990, the husband applied for year's support in the probate court. The daughters were served by mail with a copy of the application and a citation ordering them to show cause by "on or before 10:00 a.m. on the first Monday in June 4th 1990, next, why said application should not be granted."
During the afternoon of June 4, the daughters sought to file a caveat to the application and a demand for jury trial. The deputy clerk of the probate court informed their counsel that the caveat was not timely filed. Later that day, counsel attempted to pay costs and open the default as a matter of right under OCGA 9-11-55 (a). The deputy clerk refused to accept the check.
On June 18, the daughters filed a "notice of opening default" and submitted a check for costs. The clerk's office allowed this notice to be filed and cashed the check. Later they filed a request for jury trial.
On July 9, the probate court judge denied the caveat and dismissed the "notice of opening default." He ruled that the provisions of the CPA relating to the opening of default judgments under OCGA 9-11-55 (a) do not apply to proceedings involving applications for year's support, which are governed by Chapter 5 of OCGA Title 53.
Under OCGA 9-11-1, the CPA applies to "all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81." Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974). A probate court is a court of record. Id. Thus, the provisions of the CPA apply in probate court, except as provided in OCGA 9-11-81.
OCGA 9-11-81 states that the CPA "shall apply to all special statutory proceedings except to the extent that specific rules of practice or procedure in conflict herewith are expressly prescribed by law. . . ." 1 See Kipp v. Rawson, 193 Ga. App. 532, 534 (1) (388 SE2d 409) (1989). At least certain proceedings in probate court are classifiable as "special statutory proceedings." See Bragg v. Bragg, 225 Ga. 494 (170 SE2d 29) (1969); OCGA 15-9-122. Thus, provisions of the CPA apply in probate court proceedings, unless there are special rules of practice or procedure which are conflicting and which have been expressly prescribed by law. See Howell v. Tidwell, 256 Ga. 647 (352 SE2d 372) (1987); Kipp v. Rawson, supra; Leathers v. Gilland, 141 Ga. App. 681, 683 (1, 2) (234 SE2d 336) (1977).
Rule 13 of the Uniform Rules for the Probate Courts is expressly applicable to default judgments and provides: "The party seeking entry of a default judgment in any action shall certify to the court the date and type of service effected as shown by court records and that there has been no defensive pleading from the party against whom the judgment is sought. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature." 254 Ga. 811, 829 (1985). There is no conflict between this rule and OCGA 9-11-55 (a).
Statutory provisions concerning probate courts are contained in Chapter 9 of OCGA Title 15. By its terms, Article 6 of Chapter 9, OCGA 15-9-120 through 15-9-127, applies to jury trials and appeals. Article 6 was amended by 6 of a 1986 Act generally applicable to probate courts in counties having a population of more than 150,000 persons. Ga. L. 1986, pp. 982, 985-987. However, under a 1988 amendment to OCGA 15-9-120 (2), Article 6 applies to probate courts in counties having a population of more than 100,000 persons. OCGA 15-9-122 states: "Unless provided to the contrary by Code Section 9-11-81, the general laws and rules of practice, pleading, procedure, and evidence which are applicable to the superior courts of this state shall be applicable to and govern civil cases in the probate courts." Thus, OCGA 15-9-122 complements OCGA 9-11-81.
The statutory provisions concerning year's support proceedings, which are contained in OCGA 53-5-1 through 53-5-21, do not address default judgments.
Consequently, appellants were entitled to open their default as a matter of right under OCGA 9-11-55 (a) by filing defenses within 15 days of the day of default, upon payment of costs.
Fred W. Minter, for appellee.
Notes
1  It might be argued that the provisions of the CPA relating to the opening of default judgments concern "relief from judgments" and "the effect of judgments," and, therefore, OCGA 9-11-55, insofar as it governs the opening of default judgments, is expressly made applicable to probate court proceedings by OCGA 9-11-81. This argument has not been advanced here.
Schreeder, Wheeler & Flint, David Flint, Timothy C. Batten, for appellants.
DECIDED JANUARY 31, 1991.

[3]

In Re Estate of Loyd, 328 Ga. App. 287, 761 S.E.2d 833 (2014).
Opinion
MILLER, Judge.
*287 In March 2012, Charles Bentley Childs, Sr., as executor, filed a petition to probate Virginia Childs Loyd's last will and testament, as well as her codicil to the will. Loyd's nephew, Jack Childs, filed an untimely caveat, objecting to the petition on the ground of undue influence. Charles moved to dismiss the untimely caveat, and Jack responded with a motion to open default pursuant to OCGA §§ 15–9–47 and 9–11–55(b). The trial court granted Charles's motion to dismiss, and Jack appeals, contending that the trial court erred in dismissing *288 his caveat as untimely, failing to grant him an extension to file a caveat and denying his motion to open default. For the reasons that follow, we affirm.
1. Before turning to the merits of Jack's appeal, we must first examine this Court's jurisdiction over this appeal.
It is the duty of this Court on its own motion to inquire into its jurisdiction. The Constitution of the State of Georgia of 1983, Article VI, Section VI, Paragraph III(3), confers upon the Supreme Court of Georgia jurisdiction in all cases involving wills. The Supreme Court of Georgia has interpreted this language to mean only those cases where the validity or construction of a will is the main issue on appeal.
(Citations and punctuation omitted.) In re Estate of Farkas, 325 Ga.App. 477, 478(1), 753 S.E.2d 137 (2013). Here, the issues on appeal concern the timeliness of the caveat and whether Jack was entitled to open default. Since the issues do not concern the validity or construction of the will or codicil, we have jurisdiction over the appeal. Id.
2. Jack first contends that the trial court erred in dismissing his caveat as untimely. We disagree.
OCGA § 15–9–47 provides for automatic default in pending probate court proceedings if an answer, caveat, or other responsive pleading has not been filed within the time required by law or by lawful order of the court. Nevertheless, at any time before final judgment, the probate court, in its discretion, and upon payment of costs may allow the default to open for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to open, on terms to be fixed by the court. In order for the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the hearing in the matter.
OCGA § 15–9–47. We will not disturb the probate court's ruling on a motion to open default, absent an abuse of discretion. See Simmons v. Harms, 287 Ga. 176, 178(1), 695 S.E.2d 38 (2010) (probate court has discretion with regard to motions to open default under OCGA § 15–9–47).
So viewed, the record shows that Loyd executed her will in 1996, devising her property in equal shares to her sisters, Doris Richwine *289 and Eugenia Pitts, her brothers, Charles and Mobley Childs, and her nephew, Jack Childs. The will also named Jack as Loyd's personal representative. In October 2004, Loyd executed a codicil to her will, in which she appointed Charles as her personal representative to administer the will. In the codicil, Loyd also specifically provided that “it is my wish and desire that my nephew, Jack D. Childs, not inherit under any paragraph or provision of my Will.”
Loyd died on December 24, 2011. Thereafter, on March 30, 2012, Charles filed a petition to probate the will and codicil. On April 3, 2012, the probate court entered an **835 order requiring personal service on two of Virginia's nephews who resided in Georgia—Dr. Samuel Richwine and Joseph Richwine. The order also required service by registered or certified mail on Virginia's sister Eugenia Pitts, and her nephews, Jack Childs and David Richwine, who all lived out of state. That same day, the probate court also entered an order requiring Jack, David and Eugenia to file any objections to the petition within 13 days or within 10 days from the date of receipt as shown on the certified or registered mail return receipt.
A copy of the petition to probate was sent by certified mail to Jack at his residential address in Carlsbad, California. On April 9, 2012, the copy was delivered to Jack's residence and was signed for by his wife, Barbara. Thereafter, on April 23, 2012, Jack filed a caveat and objection to the petition to probate, contending that the 2004 codicil was “fraudulently procured through undue influence.”
On January 17, 2013, Charles filed a motion pursuant to OCGA § 53–11–10 to dismiss Jack's caveat as untimely filed. On February 19, 2013, Jack responded to the motion to dismiss, and filed a separate motion to open default for failing to file a timely caveat.
Jack attached an affidavit to his motion to open default, averring that he was away from his residence on an overseas business trip from April 7 through April 18, 2012. Jack further averred that he had no actual notice of the petition to probate until he examined his mail on April 19, 2012, and he filed his caveat as soon as he was able to on April 23, 2012.
The probate court subsequently granted Charles's motion to dismiss Jack's caveat, finding that the deadline for Jack to file an objection to the petition to probate was April 19, 2012 (ten days from the April 9 date shown on the certified mail return receipt), and Jack did not move to open default during the 15 days in which he could have opened default as a matter of right. The probate court further found that Jack was aware of the timeliness issue because Charles included language in his responses to Jack's discovery requests about not waiving the right to raise and challenge the timeliness of the caveat. Finally, the probate court found that Jack failed to explain *290 why he waited more than ten months before filing his motion to open default, and he failed to show excusable neglect, providential cause or a proper case to open default.
Contrary to Jack's contention, the trial court did not err in dismissing his caveat as untimely.  The nature of the probate court's discretion regarding the timing of responses to petitions to probate ... is statutory. OCGA § 53–11–5 provides, in relevant part: The probate judge may extend the time to respond with respect to any proceedings covered by this chapter as the judge may determine to be proper in the interests of due process and reasonable opportunity for any party or interest to be heard. OCGA § 53–11–10(a) further states: Except as otherwise prescribed by law or directed by the judge pursuant to Code Section 53–11–5 with respect to any particular proceeding, the date on or before which any objection is required to be filed shall be not less than ten days after the date the person is personally served.  (Punctuation omitted.) English v. Ricart, 280 Ga. 215, 216(1), 626 S.E.2d 475 (2006). Here, in accordance with OCGA § 53–11–10(a), the probate court's order required Jack to file his objection to the petition to probate no more than 13 days from the April 3, 2012 date of mailing of the notice or within 10 days from the April 9, 2012 date of receipt of notice as shown on the certified mail return receipt.
Jack admits that he was a resident of the State of California when the notice of the probate court's order was received at his residence by certified mail on April 9, 2012. Jack nevertheless argues that the trial court should have allowed him 30 days to file his caveat because he was temporarily out of the country on a business trip.
Although OCGA § 53–11–10(a) provides for a 30–day objection period for persons who are outside the continental United States, the only reasonable interpretation of that statute is one in which the extended 30– **836 day objection period applies to persons residing outside the continental United States. There is no dispute that Jack was served within the continental United States. Moreover, this Court has previously upheld service on a defendant at his residence by handing a copy to the defendant's wife, even though the defendant was temporarily working outside the country. See Goldberg v. Painter, 128 Ga.App. 214, 196 S.E.2d 157 (1973). Jack cites to no authority, and we have found none, providing that his temporary absence from his California residence entitled him to additional time to file his caveat. Accordingly, the trial court did not err in dismissing Jack's caveat as untimely filed.  *291 3. Jack also contends that the trial court erred in denying his motion to open default. We discern no error.
Pursuant to OCGA § 15–9–47, the probate court had discretion to open default for providential cause or excusable neglect prior to admitting the will and codicil to probate. In reviewing the probate court's decision on a motion to open default, “we must determine whether all the conditions set forth in OCGA § [15–9–47] have been met and, if so, whether the [probate court] abused its discretion based on the facts peculiar to [this] case.” (Citation and punctuation omitted.) Vibratech, Inc. v. Frost, 291 Ga.App. 133, 144(2), 661 S.E.2d 185 (2008).
[T]his Court has recognized a number of factors for determining whether opening default would be appropriate in a particular case, including: whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9–11–55(a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default[.] ... Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether [the defaulting party's] neglect was excusable.
(Citation omitted.) Vibratech, supra, 291 Ga.App. at 145(2), 661 S.E.2d 185.
Here, it is undisputed that Jack did not move to open the automatic default as a matter of right within the 15 days provided under OCGA § 9–11–55. Moreover, the record shows that Jack waited more than ten months, until February 19, 2013, to move to open the default, even though he had notice at least as early as November 2012 that Charles had reserved the right to raise and challenge the timeliness of Jack's caveat.1 Finally, as the trial court found in its order denying Jack's motion to open default, Jack failed to provide a reasonable excuse for the delay in filing his motion to open default, particularly after he had notice that Charles might challenge the timeliness of the caveat. Accordingly, Jack cannot show that the probate court abused its discretion in denying his motion to open default. See Vibratech, supra, 291 Ga.App. at 146(2), 661 S.E.2d 185.
*292 4. In light of our holding in Divisions 2 and 3 above, we need not address Jack's additional enumeration of error.
Judgment affirmed.
DOYLE, P.J., and DILLARD, J., concur.
All Citations
328 Ga.App. 287, 761 S.E.2d 833
Footnotes
1.       Jack argues that Charles buried the statement regarding the reservation of his right to raise and challenge the timeliness of the caveat in prefatory language to his discovery responses. Our review of these discovery responses, however, shows that the reservation of rights was clearly and expressly set out on the first page of each responsive pleading.

END

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