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Mosley v. Lancaster

Supreme Court of Georgia

March 27, 2015


Wills. Montgomery Superior Court. Before Judge Mullis.

Kaufold & Everett, Howard C. Kaufold, Jr., Nelson & Dixon, James F. Nelson, Jr., Balch & Bingham, Malissa A. Kaufold-Wiggins, Geremy W. Gregory, for appellant.

Hendrix, Nelson & Cook, Robert R. Cook, Ray C. Smith, for appellees.

NAHMIAS, Justice. All the Justices concur.


Page 874

Nahmias, Justice.

This case involves a dispute among the grandchildren of Mildred Warnock Hilton (" Decedent" ) concerning the distribution of her estate. The probate court denied probate of Decedent's purported 1988 will, which meant that her estate would be distributed according to the rules of intestate succession. On de novo appeal to the superior court, the parties stipulated to a bench trial, after which the superior court affirmed the probate court's decision, ruling that Decedent had revoked her 1988 will and it was not validated by the doctrine of " dependent relative revocation." The grandchild who offered the 1988 will for probate now appeals to this Court, arguing that the superior court lacked subject matter jurisdiction to deny probate of the will without impaneling a jury and also challenging the court's judgment on the merits. We affirm.

Page 875

1. This case has a long and complicated factual and procedural history, which we recount to put our later discussion of the legal issues in context. Viewed in the light most favorable to the superior [296 Ga. 863] court's judgment, see Thomas v. Sands, 284 Ga. 529, 530 (668 S.E.2d 731) (2008), the facts are as follows. Decedent died on July 23, 2004, at the age of 95. She and her husband, Chester Hilton, had two children, Joe and James. Joe had three children: Joe Hilton, Jr. and appellees Teresa Hilton Lancaster and Donna Hilton Swinson. James had two children: appellant Jamie Hilton Mosley and appellee Jimmy Hilton.

Prior to her death, Decedent executed two documents purporting to be her last will and testament, the first dated June 23, 1988 (the " 1988 Will" ), and the second dated June 28, 2004 (the " 2004 Will" ). When the 1988 Will was executed, Decedent's son Joe and her grandson Joe, Jr. were already deceased. The 1988 Will left Decedent's son James a 150-acre parcel of land and a smaller tract outright, as well as a life estate in a second 150-acre parcel and a 100-acre parcel with the remainder of each to his children Jamie and Jimmy in equal shares on his death. The 1988 Will directed the sale of the merchantable timber on the second 150-acre parcel within 12 months after Decedent's death, with the proceeds to be distributed one-third to Decedent's son James and one-third each to Teresa and Donna, Decedent's two living grandchildren through her son Joe. That will also gave Donna a conditional life estate in a half-acre tract of land with the remainder on Donna's death to her living children, if any, and otherwise to Decedent's son James. The residue of Decedent's estate was left to her husband Chester. The 1988 Will nominated Chester and James to be the co-executors of Decedent's estate.

Several events bearing on the distribution and administration of Decedent's estate occurred between the execution of the 1988 Will and the 2004 Will. Decedent's son James died in October 1999, and her husband Chester died in December 2000. In January 2001, Decedent's estranged granddaughter Teresa sent her a letter stating that Teresa had consulted with an attorney and that she wanted to disclaim any interest in Decedent's estate. And on February 13, 2004, James's widow, Joy Hilton, died, after which Decedent expressed unhappiness with the way Joy's will distributed her estate between her children Jamie and Jimmy, who is disabled.[1]

[296 Ga. 864] Over the next few months, Decedent declined physically and mentally. In June 2004, Decedent's brother, J'Mon Warnock, set up a meeting between Decedent and attorney Tom Everett to discuss the preparation of a new will. Warnock drove Decedent to the meeting, at which Decedent gave Everett the original of her 1988 Will, which had X's marking out some provisions and comments written in the margins and between lines in ink. Decedent told Everett that she wanted to change her 1988 Will. Everett went over the marked-up will with Decedent, but he could not determine from that document and the markings alone what Decedent wanted, so he asked Decedent how she wished her estate to be distributed. Everett then prepared the 2004 Will based on the marked-up original of the 1988 Will, his conversation with Decedent, and his meeting notes.

On June 28, 2004, Decedent returned to Everett's office with Warnock and their sister Florence Overstreet, and Decedent executed the 2004 Will before Everett and two disinterested witnesses. In Decedent's presence and at her direction, Everett then tore up the original of ...

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