IN RE ESTATE OF Robert A. JOHNSON.
Andrew Donsbach, Augusta, for Appellant.
Allen Lanier, Augusta, for Appellee.
Brothers Robert Johnson, Jr., and Christopher Johnson
(collectively "the Johnsons") appeal from the
probate courts denial of their petition for declaratory
judgment seeking to interpret certain provisions in their
fathers will. Because the probate court properly concluded
that the Johnsons declaratory judgment action would trigger
the in terrorem clause, we affirm.
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.
will contained an "in terrorem clause," which
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
will also created a living trust, for which Gerrity was to be
the trustee following the fathers 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 fathers
"wife," himself, or his descendants. Additionally,
the trust contemplated that, upon the fathers 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
trusts 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
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 fathers 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 fathers 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
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
declaratory judgment action would remove Gerrity as a
beneficiary and, therefore, was barred by the in terrorem
clauses. The Johnsons now appeal.
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 courts 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 fathers ...