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Howell v. Bates

Court of Appeals of Georgia, Second Division

June 21, 2019

HOWELL
v.
BATES, AS TRUSTEE OF THE ANNE S. FLORANCE REVOCABLE TRUST.

          MILLER, P. J., RICKMAN and REESE, JJ.

          Reese, Judge.

         In this declaratory judgment action, Emily Howell appeals from the grant of partial summary judgment to Phillip Bates, as Trustee of the "Anne S. Florance Revocable Trust." Howell contends that the superior court erred in ruling that the estate of her aunt, Anne S. Florance (the "decedent"), was not a necessary party to this action and that Howell's challenge to the validity of the Trust was time-barred. Howell also asserts that the court erred in finding that she violated the "no contest" provision of the Trust and, thus, forfeited her right to a distribution under the Trust. For the reasons set forth, infra, we affirm.

         Viewing the undisputed facts in favor of Howell, as the nonmovant, [1] the record shows that, in October 1997, the decedent, with the assistance of her estate-planning attorney, Suzanne Tucker Plybon, executed a "Last Will and Testament" and documents establishing a revocable, inter vivos trust entitled the "Anne S. Florance Revocable Trust." Over the next several years, with the assistance of Plybon, and the decedent's personal attorney, Bates, the decedent amended and re-executed both documents about ten times to address changes in tax and estate laws, to provide for the residue of her estate to go to charitable organizations, to change beneficiaries, and/or to change the amounts to be distributed to certain beneficiaries. On February 20, 2013, the decedent executed a final amended will ("Will") and trust ("Trust").[2]

         The Will contained a "pour-over" provision which bequeathed all of the decedent's tangible and intangible assets to the Trust upon her death.[3] The Will also named Bates as the executor of the decedent's estate. The Trust provided that the decedent would serve as the trustee until her incapacity or death, at which time Bates would become the trustee.

         In addition, both documents included "no contest" or "in terrorem"[4] clauses that were essentially mirrors of one another. For example, the "no contest" clause in the Trust provided:

Should any person contest or initiate legal proceedings to contest the validity of this Trust or of the Grantor's Will or of any provision herein or in the Grantor's Will, or to prevent any provision in either document from being carried out in accordance with its terms (whether or not in good faith and with probable cause), then such person shall be deemed to have predeceased the Grantor, and all of the benefits provided for such person in this Trust and under the Grantor's Will are revoked and annulled, and any property to which such person would have been entitled shall be distributed in equal shares among the [charities that will receive the residue of the Trust].[5]

         The decedent died on May 14, 2013; at the time of her death, the decedent was a widow with no direct descendants. Bates, as executor of the decedent's estate, promptly filed the Will in the Probate Court of Fulton County, but he did not take steps to probate the Will because the estate had no assets, as they had been automatically transferred to the Trust upon the decedent's death.[6]

         On July 25, 2013, Bates sent a letter to the decedent's niece, Howell (the appellant in this case), informing her that the decedent had provided that $25, 000 was to be distributed to her as a beneficiary of the Trust.[7] Attached to the letter was a redacted copy of the page of the Trust that contained the distribution to Howell. Howell received the letter the next day.[8]

         In January 2016, Howell filed a verified "Petition for Letters of Administration" in the probate court, claiming that the decedent died "intestate[, ]" i.e., "without a valid Will and Testament[, ]" and asking to be appointed as administrator of the decedent's estate. In response, on February 12, 2016, Bates filed a "Petition to Probate [the decedent's] Will in Solemn Form" in the probate court, as well as a motion to dismiss Howell's petition. Howell then filed a caveat to Bates's petition to probate the Will in the probate court on February 25, 2016, objecting to Bates's appointment as executor of the estate and asserting that the Will was invalid because Bates had exerted "undue influence" over the decedent. In addition, Howell obtained two ex parte temporary restraining orders ("TROs") prohibiting Bates from distributing or disbursing any property, money, or assets of the Trust.[9]

         On November 10, 2016, Bates filed a petition for declaratory judgment[10] in the Superior Court of Fulton County, seeking rulings that the Trust was valid and in full force and effect; the transfers of the decedent's real and personal property to the Trust were valid, binding, and free from undue influence; the statute of limitation period for challenging the validity of the Trust had expired; and Howell had violated the "no contest" clause of the Trust and, thus, had forfeited her right to a distribution under the Trust. In her answer to the petition, Howell asserted, inter alia, that the Trust was invalid. Bates moved for partial summary judgment, [11] and, following a hearing, the superior court granted the motion. This appeal followed.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment[, ] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.[12]

         With these guiding principles in mind, we turn now to Howell's specific claims of error.

         1. Howell contends that the estate may have claims against the Trust, or against Bates as the trustee, that would be impacted by the instant litigation, so the superior court erred in ruling that the estate was not a necessary party to this action. She also argues that, because the probate court has not yet ruled on her caveat to the Will or appointed someone as administrator of the estate, there was no one to represent the estate's interests in this case, so any ruling by the superior court in this case was premature.

OCGA § 9-11-19 (a) provides:
A person who is subject to service of process shall be joined as a party in the action if:
(1) In his absence complete relief cannot be afforded among those who are already parties; or
(2) He claims an interest relating to the subject of the action and is so situated that the disposition of the ...

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