Georgia Supreme Court Blog

February 4, 2010

Revision or Revocation? 5-2 Decision Validates Ink Changes to Will

Filed under: George Carley, Hugh Thompson, wills — bce30064 @ 2:00 am

In a 5-to-2 decision released February 1, 2009, the Georgia Supreme Court upheld a Gwinnett County court’s finding that the will left by Marion Peterson was legally valid, despite changes she made in pen.

Peterson, who died in 2008, wrote her will in 1976. As required by state law, two witnesses attested to the will’s legitimacy. In the document, Peterson left her estate in the form of a trust to her longtime companion, Vasta Lucas, whom she also named as executor or manager of the estate. Upon Lucas’s death, any remaining assets were to be distributed to four beneficiaries, including her brother and sister, Arvin Peterson and Carolyn Basner.

At some point after the will’s execution, Peterson struck through with an ink pen the names of all successor beneficiaries. She also struck through language naming Richard Harrell as successor executor and trustee once Lucas died. Instead, she wrote that Julie Peterson was to be the will’s executor. No one witnessed or attested to the strikethroughs.

After Peterson’s death, Lucas filed a petition in probate court asking the court to authorize the will as valid. But Peterson’s siblings filed a “caveat,” contesting the will as invalid and arguing that Peterson had revoked the will by virtue of the strikethroughs.

Georgia law states: “The intent to revoke [a will] shall be presumed from the obliteration or cancellation of a material portion of the will, but such presumption may be overcome by a preponderance of the evidence.”

The trial court ruled against the siblings and admitted the will to probate. Lucas has since died, and the court appointed Harrell as executor and trustee of the estate.

In an opinion written by Justice Hugh Thompson (data), the high court affirmed the lower court’s ruling, finding no error in the conclusion that Peterson “did not intend to revoke her entire will.” The will was found in good condition on Peterson’s desk, with the proper signatures, and she had initialed her changes. “As found by the trial court, this evidence clearly indicates testator’s intent to cancel only certain provisions of the will, not an intent to revoke the will in it its entirety as required for revocation” under the law.

But in dissent, Presiding Justice Carley (data) wrote that “the cancellation of a material portion of the will raises the presumption, which has not been rebutted, that Testatrix intended to revoke the entire will. … Because there was an actual cancellation of the names of all successor beneficiaries, the next question presented is whether that cancellation is ‘material’ within the meaning of the statute.” Justice Carley concluded the cancellation was material “because it directly affected the distribution of all property in the estate.” The trial court’s ruling should be reversed, according to the dissent, which was joined by Chief Justice Carol Hunstein (data).

More Information:
Georgia Supreme Court Database: PETERSON V. HARRELL (S09A1857): Full Text and Visual Summary

Summary by the Georgia Supreme Court Public Information Office
Attorney for Appellant (Peterson): Tom Pye
Attorney for Appellee (Harrell): Michael Goode

Legal Resources:
Georgia Estate Planning and Probate Information: From the Center for Legal Solutions


December 30, 2009

Special Master Needed to Quiet Title to 2,000 Acres of Land in Will Dispute

Filed under: property law, special masters, wills — bce30064 @ 9:49 pm

The Georgia Supreme Court is sending back to a lower court a case involving a dispute over who owns certain land in Troup County – the Georgia Sheriffs Youth Homes, a charitable organization, or the heirs of a man who used the property for years.

According to the evidence, the disputed property was owned by Joe Young, who died in 1986. In his will, he left the bulk of his estate to the Sheriffs Youth Homes with instructions that it would pass to the Georgia Department of Natural Resources to be used as a park or wildlife refuge if the charitable organization quit using it. In 1987, the executor of the estate deeded over 2,000 acres to the youth homes, and the organization has enjoyed uninterrupted possession and title to the property ever since. Meanwhile, since 1982, James Nelson, who worked for Young for years, lived on and farmed about 158 acres of the land. Nelson died in 2004, and in 2006, his widow and remaining heirs filed a petition seeking title to the 158 acres and claiming ownership. They said that in 1982, Young had given a “parol” gift of the land – one made orally but not in writing – to Nelson in consideration of his years of service, friendship and assistance. Furthermore, they are entitled as Nelson’s heirs to gain title based on the law of “adverse possession” because Nelson used the land with Young’s blessing from 1982 until his death in 2004.

The trial court ruled against Nelson’s hiers, granting “summary judgment” to the Georgia Sheriffs organization, meaning it ruled in its favor without a trial because based on the facts, the law was on its side. In dealing with disputes over title claims, the Quiet Title Act requires a trial court to appoint a special master – usually an attorney appointed by the court to carry out some sort of action on its behalf. In disputed title claims, the law requires the special master cases to make a report of its findings for the court. But here, the trial court made a decision without getting a report from the special master.

In a unanimous decision written by Justice Robert Benham (data), the state Supreme Court sent the case back to the trial court with instructions to include the special master’s report or write up a report of its own findings. “The statutory requirement that a special master make a report to the trial court of the special master‟s findings is important to both the trial court’s entry of judgment and the appellate court’s review,” says today’s opinion. “In light of the trial court’s summary adjudication without findings of fact and the absence of a report of the special master’s findings in this case which involves a myriad of issues, we are left at a distinct disadvantage because we do not know the basis of the trial court’s judgment.” “Accordingly, the case is remanded to the trial court for the inclusion of findings of fact made by either the special master or the trial court upon which the judgment is made.”

More Information: Georgia Supreme Court Database: Nelson et al. v. Georgia Sheriffs Youth Homes, Inc. et al. (S09A0609) : Full Text and Visual Summary

Attorney for Appellant (Nelson): Carol Clark
Attorneys for Appellee (Sheriffs): Daniel Lee, Thurbert Baker, Attorney General, Keilani Parker, Asst. A.G.


  • Online Bibliographies on Perfecting Title via Quia Timet in Georgia from Georgia State Law School Library

  • Sample Quia Timet Case Files from Cobb Superior Court

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