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

Navigating [Georgia Probate] Court Rules :: Probate NBI 2018

Exhibit A: Form for a Georgia Last Will and Testament Caveat Exhibit B: Forms for Third Party Discovery in a Georgia Last Will and Testament Dispute

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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.

http://gaprobate.gov/content/2017-2018-fillable-pdf-standard-forms

[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

http://gaprobate.gov/content/2017-2018-fillable-pdf-standard-forms

            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.

https://readingroom.law.gsu.edu/gsulr/vol28/iss2/3/

            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