MILBOURNE et al.
MILBOURNE et al.
case comes to us as a dispute between the daughter and sister
of decedent Edison Jamal Milbourne ("Edison").
Daughter Janay Milbourne ("Janay") filed a caveat
asserting that Edison's January 2013 Will was invalid
because it had been procured by undue influence by sister and
guardian Vashti Milbourne ("Vashti"); because it
had been revoked by Edison; because it had been improperly
executed; and because Edison lacked testamentary capacity to
make the will in the first place. The Gwinnett County Probate
Court rejected all of these contentions on summary judgment
motions except the first; the court found that a question of
fact remained on the issue of undue influence. Vashti
disagrees with that decision, and this Court granted her
application for an interlocutory appeal. Janay, meanwhile,
filed a cross appeal of the probate court's grant of
summary judgment to Vashti on the issue of revocation.
Because the probate court was correct that an issue of fact
remains on undue influence, and in its conclusion that Edison
did not revoke his January Will, we affirm both judgments.
in the light most favorable to the non-movant,  the facts show
that in 1999, Edison suffered a work-related brain injury
that impaired his ability to care for himself independently.
He initially lived at home with his wife Janita and his
infant child, Janay, but it soon became clear that his
round-the-clock care requirements were more than Janita could
handle (she worked two jobs and also cared for Janay). Edison
then lived in rehabilitation facilities. His sister Vashti
was appointed as guardian in 2009-approximately 10 years
after Edison's brain injury and one month after his $726,
000 workers compensation settlement was finalized. Up until
the settlement, Vashti had not been Edison's caregiver.
Vashti's appointment, she came to Georgia and moved
Edison out of his rehabilitation facility. Vashti began to
make significant financial demands. "Because of the huge
budget requested by [Edison's] guardian, " the
probate court appointed a guardian ad litem to advise the
court on how best to manage Edison's budget and living
arrangements. In that same order, the court provided that
Edison would receive a monthly allotment of $1, 000; as it
turns out, that was the only money that Edison, Vashti, or
Vashti's daughter Tiffany, who also lived with Edison,
had to pay their living expenses; Vashti earned no income on
her own. Guardian ad litem Janet Grayson explained that she
had tried to make Edison and Vashti understand that the
combination of Edison's medical needs and his likely
lifespan of 26 more years meant that the settlement money
could not be spent quickly. Nonetheless, Grayson recounted
that Vashti repeatedly demanded a Cadillac Escalade (in spite
of the fact that Edison himself had no prospect of being able
to drive), about $300, 000 for a four or five bedroom home,
and $27, 000 to furnish the home. Vashti also asked for $30,
000 in advance for her services as care giver. According to
Grayson, Vashti also told Edison "many times" that
"[t]hey're going to put you in one of those
homes." Grayson stated that she could see the fear in
Edison's face when Vashti made these kinds of remarks,
and added that in her view Vashti induced Edison's fear
of long-term care facilities.
also recalled that Vashti repeatedly stated that
"everybody else had gotten paid, and it was her turn to
get paid." With respect to Edison's daughter Janay,
on the other hand, Grayson testified that "he very
strongly had a desire to reestablish a relationship with her
and to include her in his financial bounty, " but also
that his expectation that Janay may come live with him was
"very sweet but very unrealistic." There is
evidence that Vashti hindered Edison's relationship with
Janay. When Janay attempted to call Edison at his home, for
instance, Vashti informed her that he was not there, or that
he did not want to speak with her. When Janay visited Edison
for one of his birthdays, which coincided with Christmas Eve,
Vashti and Janay got into an argument and Vashti called the
police. Grayson considered calling Adult Protective Services
and recommending that Vashti be removed as Edison's
guardian, but made the reluctant decision not to do so
because he was "emotionally dependent" on her.
did not have a will when Vashti became his guardian, but
apparently began to seek one after Vashti arrived in Georgia.
In her deposition, Vashti asserted that Edison's
conservator, John Tomlinson, refused to write the will.
Tomlinson, in contrast, testified that he wrote a will for
Edison but when he called to let Edison know the draft was
ready to review, Vashti relayed that she had hired a
different lawyer, Charles Tingle, to write the will. When
Tomlinson called Tingle to ask about paying the bill for
Edison's will, Tomlinson was told that the bill had
already been paid.
turns out, Vashti found Tingle "[i]n the Yellow Pages
just randomly" and called to set up an appointment with
him. Vashti drove Edison to visit Tingle between two and five
times. During one visit, Vashti approached Tingle about the
possibility of replacing Tomlinson as conservator of the
estate, and shared relevant documents with him, but, after
reviewing the papers, Tingle declined to do so. Vashti
admitted that she filled out the client information sheet for
Edison during the first visit with Tingle, but gave
inconsistent testimony on whether she was present as Edison
described his wishes to Tingle, ultimately claiming that she
could not recall whether she was present or not. For his
part, Tingle testified that Vashti had "probably"
attended at least one of two meetings regarding the will. As
noted above, there were several additional meetings between
at least Vashti and Tingle; the record is not clear whether
Edison attended any of those meetings. Vashti paid the bills
for Tingle's work over the course of several visits, and,
during one of the meetings, Edison executed the January Will.
months later, in October 2013, Edison executed a second will
("October Will"). Following Edison's death in
July 2014, Vashti submitted the October Will to probate.
Janay filed a caveat alleging that the October Will was
procured through undue influence. The jury returned a verdict
denying probate of the October Will, concluding that it was
invalid because Vashti had exercised undue influence and
because Edison had failed to properly execute the document.
the jury verdict on the October Will, Tiffany Wootson,
Vashti's daughter, petitioned to probate the January
Will. As she had done for the October Will, Janay filed a
caveat to the probate of the January Will, this time arguing
that lack of testamentary capacity, fraud, undue influence,
and revocation barred probate. Subsequently, Vashti joined
Tiffany's petition to probate the January Will.
and Tiffany filed a motion for summary judgment, contending
that Janay's caveat was meritless and that they were
entitled to probate the January Will as a matter of law. The
probate court conducted a hearing on the motion for summary
judgment on December 15, 2015. During a recess in the
hearing, Janay filed a copy of former guardian ad litem Janet
Grayson's testimony from the October Will trial, a
proceeding that had been held before the same probate judge.
December 21, 2015, the probate court entered an order
granting Vashti and Tiffany's motion for summary judgment
on all but one ground, leaving the claim that the January
Will was procured by undue influence for the jury to decide.
and Tiffany now appeal the probate court's order denying
their motion for summary judgment on the undue influence
claim, as well as the probate court's decision to
consider Grayson's testimony and other evidence that they
claim was untimely filed. Janay cross-appeals the probate
court's order granting summary judgment against her claim
that Edison revoked the January Will.
moving to the parties' substantive disagreements with the
probate court's summary judgment rulings, we first
consider what evidence was available for the probate court to
consider when making those rulings. Vashti and Tiffany
contend that the probate court erred by overruling an
objection to Janay's filing of evidentiary
materials-specifically, Grayson's trial testimony-during
the probate court's hearing on the motion for summary
judgment. Janay, on the other hand, argues that the probate
court properly considered the transcript, which was from the
October Will trial, and thus was already ...