MCFADDEN, P. J., RAY and RICKMAN, JJ.
McFadden, Presiding Judge.
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.
probate court erred in rejecting Swygert's set-aside
petition 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.
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.
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.
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.
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.
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.
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.
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.
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 ...