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
&&&&&
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.
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:
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
