Milbourne v. Milbourne

• Decision Date: 01 May 2017
• Docket Number: S17A0450,S17X0451
• Citation: 799 S.E.2d 785
• Parties: MILBOURNE et al. v. MILBOURNE. Milbourne v. Milbourne et al.
• Court: Georgia Supreme Court

301 Ga. 111

799 S.E.2d 785

MILBOURNE et al.

v.MILBOURNE.

Milbourne

v.Milbourne et al.

S17A0450

S17X0451

Supreme Court of Georgia.

Decided, May 1, 2017

David Franklin Cooper, Christopher Joseph Hoffman, KITCHENS KELLEY GAYNES, PC, Glenridge Highlands One, Suite 800, 5555 Glenridge Connector, Atlanta, Georgia 30342, for Appellant in S17A0450.

Robert W. Hughes, Jr., ROBERT W. HUGHES & ASSOCIATES, P.C., 390 West Crogan Street, Suite 230, Lawrenceville, Georgia 30046, John E. Tomlinson, JOHN E. TOMLINSON, P.C., 3905 Harrison Road, Suite 100, Loganville, Georgia 30052, Deana M. Spencer, SPENCER LAW, LLC, Building C, Suite 1, 175 Langley Drive, Lawrenceville, Georgia 30046, for Appellee in S17A0450.

Robert W. Hughes, Jr., ROBERT W. HUGHES & ASSOCIATES, P.C., 390 West Crogan Street, Suite 230, Lawrenceville, Georgia 30046, John E. Tomlinson, JOHN E. TOMLINSON, P.C., 3905 Harrison Road, Suite 100, Loganville, Georgia 30052, Deana M. Spencer, SPENCER LAW, LLC, Building C, Suite 1, 175 Langley Drive, Lawrenceville, Georgia 30046, for Appellant in S17X0451.

David Franklin Cooper, Christopher Joseph Hoffman, KITCHENS KELLEY GAYNES, PC, Glenridge Highlands One, Suite 800, 5555 Glenridge Connector, Atlanta, Georgia 30342, for Appellee in S17X0451.

GRANT, Justice.

This case comes to us as a dispute between the daughter and sister of decedent Edison Jamal Milbourne ("Edison"). Daughter Janay Milbourne ("Janay") filed a caveat asserting that Edison's January 2013 Will was invalid because it had been procured by undue influence by sister and guardian Vashti Milbourne ("Vashti"); because it had been revoked by Edison; because it had been improperly executed; and because Edison lacked testamentary capacity to make the will in the first place. The Gwinnett County Probate Court rejected all of these contentions on summary judgment motions except the first; the court found that a question of fact remained on the issue of undue influence. Vashti disagrees with that decision, and this Court granted her application for an interlocutory appeal. Janay, meanwhile, filed a cross appeal of the probate court's grant of summary judgment to Vashti on the issue of revocation. Because the probate court was correct that an issue of fact remains on undue influence, and in its conclusion that Edison did not revoke his January Will, we affirm both judgments.

I.

Viewed in the light most favorable to the non-movant,¹ the facts show that in 1999, Edison suffered a work-related brain injury that impaired his ability to care for himself independently. He initially lived at home with his wife Janita and his infant child, Janay, but it soon became clear that his round-the-clock care requirements were more than Janita could handle (she worked two jobs and also cared for Janay). Edison then lived in rehabilitation facilities. His sister Vashti was appointed as guardian in 2009—approximately 10 years after Edison's brain injury and one month after his $726,000 workers compensation settlement was finalized. Up until the settlement, Vashti had not been Edison's caregiver.

Following Vashti's appointment, she came to Georgia and moved Edison out of his rehabilitation facility. Vashti began to make significant financial demands. "Because of the huge budget requested by [Edison's] guardian," the probate court appointed a guardian ad litem to advise the court on how best to manage Edison's budget and living arrangements. In that same order, the court provided that Edison would receive a monthly allotment of $1,000; as it turns out, that was the only money that Edison, Vashti, or Vashti's daughter Tiffany, who also lived with Edison, had to pay their living expenses; Vashti earned no income on her own. Guardian ad litem Janet Grayson explained that she had tried to make Edison and Vashti understand that the combination of Edison's medical needs and his likely lifespan of 26 more years meant that the settlement money could not be spent quickly. Nonetheless, Grayson recounted that Vashti repeatedly demanded a Cadillac Escalade (in spite of the fact that Edison himself had no prospect of being able to drive), about $300,000 for a four or five bedroom home, and $27,000 to furnish the home. Vashti also asked for $30,000 in advance for her services as care giver. According to Grayson, Vashti also told Edison "many times" that "[t]hey're going to put you in one of those homes." Grayson stated that she could see the fear in Edison's face when Vashti made these kinds of remarks, and added that in her view Vashti induced Edison's fear of long-term care facilities.

Grayson also recalled that Vashti repeatedly stated that "everybody else had gotten paid, and it was her turn to get paid." With respect to Edison's daughter Janay, on the other hand, Grayson testified that "he very strongly had a desire to reestablish a relationship with her and to include her in his financial bounty," but also that his expectation that Janay may come live with him was "very sweet but very unrealistic." There is evidence that Vashti hindered Edison's relationship with Janay. When Janay attempted to call Edison at his home, for instance, Vashti informed her that he was not there, or that he did not want to speak with her. When Janay visited Edison for one of his birthdays, which coincided with Christmas Eve, Vashti and Janay got into an argument and Vashti called the police. Grayson considered calling Adult Protective Services and recommending that Vashti be removed as Edison's guardian, but made the reluctant decision not to do so because he was "emotionally dependent" on her.

Edison did not have a will when Vashti became his guardian, but apparently began to seek one after Vashti arrived in Georgia. In her deposition, Vashti asserted that Edison's conservator, John Tomlinson, refused to write the will. Tomlinson, in contrast, testified that he wrote a will for Edison but when he called to let Edison know the draft was ready to review, Vashti relayed that she had hired a different lawyer, Charles Tingle, to write the will. When Tomlinson called Tingle to ask about paying the bill for Edison's will, Tomlinson was told that the bill had already been paid.

As it turns out, Vashti found Tingle "[i]n the Yellow Pages just randomly" and called to set up an appointment with him. Vashti drove Edison to visit Tingle between two and five times. During one visit, Vashti approached Tingle about the possibility of replacing Tomlinson as conservator of the estate, and shared relevant documents with him, but, after reviewing the papers, Tingle declined to do so. Vashti admitted that she filled out the client information sheet for Edison during the first visit with Tingle, but gave inconsistent testimony on whether she was present as Edison described his wishes to Tingle, ultimately claiming that she could not recall whether she was present or not. For his part, Tingle testified that Vashti had "probably" attended at least one of two meetings regarding the will. As noted above, there were several additional meetings between at least Vashti and Tingle; the record is not clear whether Edison attended any of those meetings. Vashti paid the bills for Tingle's work over the course of several visits, and, during one of the meetings, Edison executed the January Will.

Nine months later, in October 2013, Edison executed a second will ("October Will").² Following Edison's death in July 2014, Vashti submitted the October Will to probate. Janay filed a caveat alleging that the October Will was procured through undue influence. The jury returned a verdict denying probate of the October Will, concluding that it was invalid because Vashti had exercised undue influence and because Edison had failed to properly execute the document.

After the jury verdict on the October Will, Tiffany Wootson, Vashti's daughter, petitioned to probate the January Will. As she had done for the October Will, Janay filed a caveat to the probate of the January Will, this time arguing that lack of testamentary capacity, fraud, undue influence, and revocation barred probate. Subsequently, Vashti joined Tiffany's petition to probate the January Will.

Vashti and Tiffany filed a motion for summary judgment, contending that Janay's caveat was meritless and that they were entitled to probate the January Will as a matter of law. The probate court conducted a hearing on the motion for summary judgment on December 15, 2015. During a recess in the hearing, Janay filed a copy of former guardian ad litem Janet Grayson's testimony from the October Will trial, a proceeding that had been held before the same probate judge.³ On December 21, 2015, the probate court entered an order granting Vashti and Tiffany's motion for summary judgment on all but one ground, leaving the claim that the January Will was procured by undue influence for the jury to decide.

Vashti and Tiffany now appeal the probate court's order denying their motion for summary judgment on the undue influence claim, as well as the probate court's decision to consider Grayson's testimony and other evidence that they claim was untimely filed. Janay cross- appeals the probate court's order granting summary judgment against her claim that Edison revoked the January Will.

II.

Before moving to the parties' substantive disagreements with the probate court's summary judgment rulings, we first consider what evidence was available for the probate court to consider when making those rulings. Vashti and Tiffany contend that the probate court erred by overruling an objection to Janay's filing of evidentiary materials—specifically, Grayson's trial testimony—during the probate court's hearing on the motion for summary judgment. Janay, on the other hand, argues that the probate court properly considered the transcript, which was from the October Will trial, and thus was already known to the judge. Neither party's argument is completely correct, but we find that the probate court was within its discretion in considering the transcript.

As an...