IN RE ESTATE OF ROBERT A. JOHNSON.
P. J., COOMER and MARKLE, JJ.
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.
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 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.
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
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 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 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 fiancée and not the father's
wife, was the fiduciary under the will and trust, and
therefore, they actually sought to carry out the will
according to its intent as written. We disagree.
OCGA § 9-4-4 (a) (3), any person interested as a
legatee, heir, or beneficiary of the estate of a decedent
"may have a declaration of rights or legal relations in
respect thereto and a declaratory judgment . . . [t]o
determine any question arising in the administration of the
estate or trust, including questions of construction of wills
and other writings." See also Sinclair v.
Sinclair, 284 Ga. 500, 501 (1) (670 S.E.2d 59) (2008).
"This statute is to be liberally construed and
administered so as to afford relief from uncertainty and
insecurity with respect to rights, status, and other legal
relations." (Citations and punctuation omitted.)
Sinclair, 284 Ga. at 501 (1); see also OCGA §
9-4-1 (stating the purpose of the Declaratory Judgment Act).
Accordingly, OCGA § 9-4-4 (a) (3) permits an interested
party to seek a declaration regarding the validity of an in
terrorem clause. In re Estate of Burkhalter, 343
Ga.App. 417, 421 (1) (806 S.E.2d 875) (2017). Moreover,
filing a declaratory judgment does not itself violate the in
terrorem clause, and our Supreme Court has sanctioned the use
of a declaratory judgment action to determine whether a
proposed future declaratory action by the petitioner would
violate an in terrorem clause. Sinclair, 284 Ga. at
501 (1), 504 (2); see also Kesler v. Watts, 218
Ga.App. 104, 105 (2) (460 S.E.2d 822) (1995) (permitting
declaratory action to determine validity of in terrorem
the Johnsons filed a declaratory judgment action seeking to
determine whether they could file their proposed declaratory
judgment action to "interpret" the father's
will, specifically whether the will and trust were valid and
whether Gerrity was entitled to be a beneficiary, executor,
or trustee. Although the filing of the instant
petition for declaratory judgment would be permissible and
would not be barred by the in terrorem clause, the proposed
declaratory judgment action would, as the trial court found,
violate the in terrorem clause. Although the Johnsons contend
that they seek only an interpretation of the will and the use
of the term "wife" when referring to Gerrity, their
proposed declaratory judgment action makes clear that what
they truly seek is to remove Gerrity as a beneficiary,
executor, and trustee. Compare Hicks v. Rushin, 228
Ga. 320, 324 (2) (185 S.E.2d 390) (1971) (filing declaratory
judgment petition was not an attack upon the will but rather
was a "search for the true meaning of [the] will").
Thus, as the probate court correctly found, the proposed
declaratory judgment action would trigger the in terrorem
support of their argument that they are entitled to bring
their proposed declaratory judgment action to interpret the
will and trust, the Johnsons cite three cases:
Sinclair, 284 Ga. 500; Duncan v. Rawls, 345
Ga.App. 345 (812 S.E.2d 647) (2018); and Burkhalter,
343 Ga.App. 417. However, none of these cases supports the
Sinclair, the Supreme Court of Georgia held that a
party could bring an action for accounting or removal of an
executor without triggering the in terrorem clause because
those claims did not seek to destroy the will.
Sinclair, 284 Ga. at 501 (1). But that is not what
the Johnsons have done here. As they clearly set out in the
proposed declaratory judgment action, the purpose of that
action is to remove Gerrity as a beneficiary, executor, and
trustee. In other words, although they couch their claims as
if they were not trying to break the father's will and