In re Estate of Loyd

• Decision Date: 15 July 2014
• Docket Number: No. A14A0037.,A14A0037.
• Citation: 328 Ga.App. 287,761 S.E.2d 833
• Court: Georgia Court of Appeals
• Parties: In re ESTATE OF LOYD.

328 Ga.App. 287

761 S.E.2d 833

In re ESTATE OF LOYD.

No. A14A0037.

Court of Appeals of Georgia.

July 15, 2014.

Robert Edwin Turner, Mark D. Welsh, for Appellant.

Dana Cubbedge Ashford, Decatur, Robert S. Wayne, Atlanta, William G. Witcher Jr., for Appellee.

MILLER, Judge.

In March 2012, Charles Bentley Childs, Sr., as executor, filed a petition to probate Virginia Childs Loyd's last will and testament, as well as her codicil to the will. Loyd's nephew, Jack Childs, filed an untimely caveat, objecting to the petition on the ground of undue influence. Charles moved to dismiss the untimely caveat, and Jack responded with a motion to open default pursuant to OCGA §§ 15–9–47 and 9–11–55(b). The trial court granted Charles's motion to dismiss, and Jack appeals, contending that the trial court erred in dismissing his caveat as untimely, failing to grant him an extension to file a caveat and denying his motion to open default. For the reasons that follow, we affirm.

1. Before turning to the merits of Jack's appeal, we must first examine this Court's jurisdiction over this appeal.

It is the duty of this Court on its own motion to inquire into its jurisdiction. The Constitution of the State of Georgia of 1983, Article VI, Section VI, Paragraph III(3), confers upon the Supreme Court of Georgia jurisdiction in all cases involving wills. The Supreme Court of Georgia has interpreted this language to mean only those cases where the validity or construction of a will is the main issue on appeal.

(Citations and punctuation omitted.) In re Estate of Farkas, 325 Ga.App. 477, 478(1), 753 S.E.2d 137 (2013). Here, the issues on appeal concern the timeliness of the caveat and whether Jack was entitled to open default. Since the issues do not concern the validity or construction of the will or codicil, we have jurisdiction over the appeal. Id.

2. Jack first contends that the trial court erred in dismissing his caveat as untimely. We disagree.

OCGA § 15–9–47 provides for automatic default in pending probate court proceedings if an answer, caveat, or other responsive pleading has not been filed within the time required by law or by lawful order of the court. Nevertheless, at any time before final judgment, the probate court, in its discretion, and upon payment of costs

may allow the default to open for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to open, on terms to be fixed by the court. In order for the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the hearing in the matter.

OCGA § 15–9–47. We will not disturb the probate court's ruling on a motion to open default, absent an abuse of discretion. See Simmons v. Harms, 287 Ga. 176, 178(1), 695 S.E.2d 38 (2010) (probate court has discretion with regard to motions to open default under OCGA § 15–9–47).

So viewed, the record shows that Loyd executed her will in 1996, devising her property in equal shares to her sisters, Doris Richwine and Eugenia Pitts, her brothers, Charles and Mobley Childs, and her nephew, Jack Childs. The will also named Jack as Loyd's personal representative. In October 2004, Loyd executed a codicil to her will, in which she appointed Charles as her personal representative to administer the will. In the codicil, Loyd also specifically provided that “it is my wish and desire that my nephew, Jack D. Childs, not inherit under any paragraph or provision of my Will.”

Loyd died on December 24, 2011. Thereafter, on March 30, 2012, Charles filed a petition to probate the will and codicil. On April 3, 2012, the probate court entered an order requiring personal service on two of Virginia's nephews who resided in Georgia—Dr. Samuel Richwine and Joseph Richwine. The order also required service by registered or certified mail on Virginia's sister Eugenia Pitts, and her nephews, Jack Childs and David Richwine, who all lived out of state. That same day, the probate court also entered an order requiring Jack, David and Eugenia to file any objections to the petition within 13 days or within 10 days from the date of receipt as shown on the certified or registered mail return receipt.

A copy of the petition to probate was sent by certified mail to Jack at his residential address in Carlsbad, California. On April 9, 2012, the copy was delivered to Jack's residence and was signed for by his wife, Barbara. Thereafter, on April 23, 2012, Jack filed a caveat and objection to the petition to probate, contending that the 2004 codicil was “fraudulently procured through undue influence.”

On January 17, 2013, Charles filed a motion pursuant to OCGA § 53–11–10 to dismiss Jack's caveat as untimely filed. On February 19, 2013, Jack responded to the motion to dismiss, and filed a separate motion to open default for failing to file a timely caveat.

Jack attached an affidavit to his motion to open default, averring that he was away from his residence on an overseas business trip from April 7 through April 18, 2012. Jack further averred that he had no actual notice of the petition to probate until he examined his mail on April 19, 2012, and he filed his caveat as soon as he was able to on April 23, 2012.

The probate court subsequently granted Charles's motion to dismiss Jack's caveat, finding that the deadline for Jack to file an objection to the petition to probate was April 19, 2012 (ten days from the April 9 date shown on the certified mail return receipt), and Jack did not move to open default during the 15 days in which he could have opened default as a matter of right. The probate court further found that Jack was aware of the timeliness issue because Charles included language in his responses to Jack's discovery requests about not waiving the right to raise and challenge the timeliness of the caveat. Finally, the probate court found that Jack failed to explain why he waited more than ten months before filing his motion to open default, and he failed to show excusable neglect, providential cause or a proper case to open default.

Contrary to Jack's contention, the trial court did not err in dismissing his caveat as untimely.

The nature of the probate court's discretion regarding the timing of responses to petitions to probate ... is statutory. OCGA § 53–11–5 provides, in relevant part: The probate judge may extend the time to respond with respect to any proceedings covered by this chapter as the judge may determine to be proper in the interests of due process and reasonable opportunity for any party or interest to be heard. OCGA § 53–11–10(a) further states: Except as otherwise prescribed by law or directed by the judge pursuant to Code Section 53–11–5 with respect to any...