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In re Estate of Burkhalter

Court of Appeals of Georgia, Second Division

October 27, 2017

IN RE: ESTATE OF LOUISE RAY BURKHALTER.

          DOYLE, J., BRANCH and REESE, JJ.

          Branch, Judge.

         William Thomas Ray Burkhalter and John Allan Burkhalter, executors of the estate of Louise Ray Burkhalter, appeal from the Bibb County Probate Court's order granting, in part, a petition for a declaratory judgment filed by George Laris Burkhalter and Nancy Gayle Ward. In the rulings at issue in this appeal, the probate court granted the petitioners' requests for a declaratory judgment that they may, without invoking the in terrorem clause[1] included in the testator's will, file subsequent petitions concerning the will and its administration. For the reasons that follow, we vacate the probate court's rulings and remand for further proceedings consistent with this opinion.[2]

         Louise Ray Burkhalter, the testator, died on March 18, 2015, and her will was admitted to probate. "Item IV" in her will provides as follows:

[I]t is my desire that an equitable distribution of my estate is made among my children. I have considered the distress I have incurred due to actions by my daughter, Nancy Gayle Burkhalter Ward as well as her son Robert Watkins, in an effort to thwart actions by my other children, which were taken in an effort to benefit my trust. Due to the for[e]going I desire that my sons, William Thomas Ray Burkhalter and John Allan Burkhalter make a calculation on loss sustained due to the actions of my daughter and grandson. I desire that this calculation be at the complete discretion of my executors/executor, and may be up to my entire remaining estate. I have complete confidence in their decisions and desire to avoid any further dispute whether through a court or otherwise.
I direct that this calculation, whatever it shall be, be considered, for the limited purpose of distribution, an asset of my estate already held by my daughter, Nancy Gayle Burkhalter.[3] Each of my other children are entitled to the same benefit. Therefore, I direct that prior to further distribution, an amount equal to this calculation be distributed to each of my other children, William Thomas Ray Burkhalter, John Allan Burkhalter, George Laris Burkhalter and Mary Alice Burkhalter to be held by them in fee simple forever.

         "Item IX" in the will contains the in terrorem clause, which provides, in relevant part:

In order to assure there will be no dispute between my children concerning some of the expenditures made out of the Burkhalter Family Trust and other financial transactions with the assets in my estate, I want to declare that I have personally authorized these transactions. . . . I absolutely do not wish for my children to engage in legal disputes over this estate after my death. Therefore:
Any person whether named as a beneficiary under my Last Will and Testament or becoming an heir of my estate by operation of law or any other means who attacks in any court of law any provision of my Last Will and Testament, or the administration of my estate, or the management or expenditures of the Burkhalter [F]amily [T]rust shall be specifically disinherited from any portion of my estate that would go to them either from provisions in my will or through operation[ ] of law. If this provision becomes operative, I direct that any portion of my estate that is involved be added to the residue and be distributed to the remaining beneficiaries, according to this, my Last Will and Testament.

         On June 10, 2015, the probate court issued letters testamentary qualifying the appellants as the executors of the testator's estate. On June 15, 2015, the petitioners filed a petition for a declaratory judgment. As relief, the petitioners sought a declaration that they may, without invoking the in terrorem clause in the testator's will, file additional declaratory judgment actions (i) "regarding Item IV" of the will, (ii) "regarding Item IX" of the will, and (iii) to remove William and John as executors of the estate. The petitioners did not, however, file copies of any proposed actions that they intended to file in these subsequent actions.

         On August 15, 2015, the probate court held a hearing on the petition, following which the court made three rulings: it denied the petition as to Item IV (the share calculation provision), granted the petition to file a second petition as to Item IX (the in terrorem provision), and granted the petition to file a second petition for the removal of the executors.

         As to Item IV, the court noted that it was "being asked to pre-determine" whether a future action "not filed or presented to the Court, concerning Item IV of the Will violates the in terrorem clause in Item IX of the Will." The court found that it was unclear whether the petitioners were "seeking to declare a provision of the Will void or merely seeking interpretation or construction of the language of the Will." Accordingly, the court found it impossible to pre-determine whether such an action would violate the in terrorem condition, and it therefore denied the petition as to Item IV. The appellee petitioners have not cross-appealed this ruling.

         As to Item IX, the court held that a legatee may seek clarity as to the "validity of" an in terrorem clause. The court therefore granted the petition to file another petition for declaratory judgment regarding the validity of the in terrorem clause in Item IX of the will. Finally, the court concluded that a petition for the removal of the executors also would not invoke the in terrorem clause because such a clause does not apply to "an action for an accounting and/or removal of an executor." This appeal followed.[4]

         The appellant executors have not provided to this Court a transcript of the August 15, 2015 hearing. Accordingly, they may only challenge the ...


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