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In re Estate of Loyd

Court of Appeals of Georgia, Fourth Division

July 15, 2014

In re ESTATE OF LOYD

Default. DeKalb Probate Court. Before Judge Rosh.

Robert E. Turner, Mark D. Welsh, for appellant.

Dana C. Ashford, Robert S. Wayne, Witcher & Witcher, William G. Witcher, for appellee.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Page 834

Miller, Judge.

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 [328 Ga.App. 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 ...


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