MILLER, P. J., RICKMAN and REESE, JJ.
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.
the undisputed facts in favor of Howell, as the nonmovant,
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").
Will contained a "pour-over" provision which
bequeathed all of the decedent's tangible and intangible
assets to the Trust upon her death. 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
addition, both documents included "no contest" or
"in terrorem" 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].
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.
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. 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
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.
November 10, 2016, Bates filed a petition for declaratory
judgment 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,  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.
these guiding principles in mind, we turn now to Howell's
specific claims of error.
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 ...