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In re Estate of Jones

Court of Appeals of Georgia, Fifth Division

June 12, 2018

IN RE ESTATE OF JONES.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          McFadden, Presiding Judge.

         After the probate court entered an order admitting to probate in solemn form the 2013 will of Robert Ellsworth Jones, Jr., Jones's stepson, Jacob Swygert, petitioned to set aside the probate court's order and petitioned to probate a 2005 will instead. He also sought discovery in connection with these petitions, and he sought to intervene in the proceedings pertaining to the 2013 will. In a series of orders, the probate court dismissed or denied all of Swygert's petitions and motions, and Swygert appeals.

         The probate court erred in rejecting Swygert's set-aside petition[1] on the basis that it does not satisfy OCGA § 9-11-60 (d). That provision sets out the narrow grounds on which a motion to set aside a judgment may be brought under the Civil Practice Act. But set-aside petitions like the one before us today are special statutory proceedings; specific rules of practice and procedure for such petitions are set out at OCGA §§ 53-5-50 and 53-5-51. To the extent that those specific rules of practice and procedure conflict with the Civil Practice Act, the Civil Practice Act does not apply. OCGA § 9-11-81.

         So we reverse the probate court's order insofar as she ruled on the set-aside petition. Because the probate court's ruling on the set-aside petition, and her erroneous rationale for that ruling, impacted her rulings on Swygert's discovery requests and motion to intervene, we vacate those rulings. We remand the case to the probate court for further proceedings not inconsistent with this opinion.

         1. Procedural history.

         The record shows that Swygert's mother, Joie Ellison Jones, was married to Jones when she passed away on December 22, 2012. Shortly thereafter, on January 8, 2013, Jones executed a will that specifically excluded Swygert as a beneficiary.

         Jones passed away on November 7, 2015, and later that month his daughter and executor, Page Jones Littlewood, filed a petition to probate in solemn form Jones's 2013 will. The record does not show that Swygert was served with or otherwise given notice of the petition, and the parties appear to agree that he was not given notice of it. See generally OCGA § 53-5-22 (a) (requiring notice of probate in solemn form to be given to "all the heirs of the testator, and, if there is any other purported will of the testator for which probate proceedings are pending in this state, . . . to the beneficiaries and propounders of such purported will"). On November 18, 2015, the probate court ordered the will admitted to probate in solemn form and issued letters testamentary to Littlewood as executor.

         In March 2016, Swygert filed in the probate court a petition asking that the probate court, among other things, permit him to intervene, set aside the order admitting the 2013 will to probate, and admit to probate in solemn form a 2004 will of Jones that named Swygert as a beneficiary. In his set-aside petition, Swygert challenged the validity of the 2013 will that disinherited him, asserting that Jones lacked sufficient testamentary capacity and that he had been unduly influenced to make the 2013 will by his adult children. Swygert filed a separate petition to probate the 2004 will in solemn form.

         After learning of the existence of a will executed by Jones in 2005, Swygert withdrew his petition to probate the 2004 will and filed a petition to probate in solemn form the 2005 will. He amended his set-aside petition to reflect this change. The 2005 will, like the 2004 will, named Swygert a beneficiary.

         The probate court entered an order in which she denied Swygert's motion to intervene, denied his set-aside petition, and reaffirmed her order admitting the 2013 will to probate, among other things. In a separate order, the probate court denied Swygert's petition to probate the 2005 will in solemn form. She also entered orders resolving discovery disputes in favor of Littlewood.

         2. Set-aside petition.

         The probate court held that Swygert was not entitled to have the earlier probate court order set aside, reasoning that he had not satisfied the requirements of OCGA § 9-11-60 (the provision of the Civil Practice Act pertaining to the grounds for obtaining relief from judgments) and no separate basis existed for obtaining such relief under OCGA § 53-5-50 (the provision of the Probate Code pertaining to an action to set aside a probate court order admitting a will into probate). We disagree with the probate court's interpretation of these Code sections.

         "When we construe . . . statutory authority on appeal, our review is de novo." In the Interest of K. S., Ga. (S.E.2d) (Case No. S17G1344, decided May 7, 2018) (citation omitted). In ...


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