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In re Estate of Johnson

Court of Appeals of Georgia, Fourth Division

October 8, 2019

IN RE ESTATE OF Robert A. JOHNSON.

         John Andrew Donsbach, Augusta, for Appellant.

         Troy Allen Lanier, Augusta, for Appellee.

         OPINION

         Markle, Judge.

Page 284

          Brothers Robert Johnson, Jr., and Christopher Johnson (collectively "the Johnsons") appeal from the probate court’s denial of their petition for declaratory judgment seeking to interpret certain provisions in their father’s will. Because the probate court properly concluded that the Johnsons’ declaratory judgment action would trigger the in terrorem clause, we affirm.

          The record shows that the Johnsons’ father, Robert A. Johnson ("the father"), executed both a will and a trust in 2016. Per the terms of the will, the father left his property either in trust or through a life estate to benefit Wendy Gerrity, who was his fiancée at the time he executed both the will and trust. The father appointed Gerrity as executor of his will, but identified her in this document as his "wife" even though the two had not yet married.

          The will contained an "in terrorem clause," which provided:

Should any beneficiary of this Will contest the validity of this Will or any provision thereof or institute any proceedings to contest the validity of this Will, any trust created by this Will or by me during my life, or any other provision thereof or to prevent any provision thereof from being carried out in accordance with its terms (whether or not in good faith and with probable cause), then all benefits provided for such beneficiary in this Will ... are revoked and annulled[.][1]

          The will also created a living trust, for which Gerrity was to be the trustee following the father’s death. With regard to the trust, the document expressly indicated that it was "made in contemplation to my marriage to WENDY E. GERRITY." Per the terms of the trust, the trustee was to manage the funds and direct payment to support the father’s "wife," himself, or his descendants. Additionally, the trust contemplated that, upon the father’s death, all items in the trust would be distributed to "my wife, WENDY E. GERRITY" as a life estate, and that any interest in his home would be distributed to "the WENDY E. GERRITY LIVING TRUST ... if and only if, WENDY E. GERRITY is alive at the time of my death." In several of the trust’s provisions, the father made specific provisions for his "wife," without referring to her by name. The trust also contained an in terrorem clause that mirrored the clause in the will. It is undisputed that, at the time these documents were executed, the father and Gerrity were not married.

          The father died in October 2018, and at the time of his death, the father and Gerrity had not married. Gerrity submitted the will to probate in solemn form. Thereafter, the Johnsons filed the instant petition for declaratory judgment seeking an opinion from the probate court that they could file a second declaratory action to construe the terms of the will and trust without running afoul of the in terrorem clauses. Attached to the petition was a copy of the second, proposed declaratory judgment ("proposed declaratory judgment action") they wished to file. The gist of their argument in the proposed declaratory judgment action was that, because Gerrity was not the father’s wife, she was not entitled to be a beneficiary or to serve as the executor of the will or a trustee of the trust. They later amended the proposed declaratory judgment action to allege that because Gerrity was not the father’s wife when the father died, "this Court should interpret his documents such that 1) the Trust is valid, but a necessary condition of his Trust was not met, thereby causing its termination; 2) [Gerrity] is not a beneficiary of the Will, Trust, or heir of the [father] as she and the [father] were not married; and 3) [Gerrity] is ineligible to serve as the Personal Representative of the Will or Trustee of the Trust because she was not married to [the father]."

          Gerrity opposed the petition, arguing that the proposed declaratory judgment action would violate the in terrorem clause. Following a hearing, at which the probate court heard argument but did not take any evidence, the probate court denied the petition for declaratory judgment because the proposed

Page 285

declaratory judgment action would remove Gerrity as a beneficiary and, therefore, was barred by the in terrorem clauses. The Johnsons now appeal.

          In their sole enumeration of error, the Johnsons argue that the probate court erred by denying their petition for declaratory judgment because the instant petition only sought to determine the "true meaning of the Will and Trust." They further point to the probate court’s erroneous factual findings that they contend led the probate court to its incorrect ruling. They argue that the probate court was confused because they filed the instant petition for declaratory judgment to determine if they could bring the proposed declaratory judgment action to challenge the will and trust without violating the in terrorem clauses. According to the Johnsons, their proposed declaratory judgment action merely sought to determine if Gerrity, who was the father’s ...


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