In re Estate of Margretta K. Brice, 2007 Ga. App. LEXIS 1224 (2007)

Margretta K. Brice died leaving two children, Janice B. Stout and Stephen Curtice Brice. After Margretta died in 2005, Stephen filed a petition to probate her Will in solemn form. Stephen and Janice were the only beneficiaries. With the petition, Stephen filed an acknowledgment of service and assent to probate instanter executed by Janice. The probate court issued letters testamentary to Stephen and accepted the Will for probate. Under the terms of the Will, Janice got $100,000 in cash and Stephen got everything else.

Nine months later, Janice filed a caveat to the Will. Janice argued that the probated will was invalid because Margretta was in an advanced state of dementia at the time of its execution, and that she and Stephen had entered into a separate contractual agreement regarding the distribution of the estate and, in reliance on that agreement, Stephen fraudulently induced her signature on the assent to probate and therefore had committed fraud and/or a breach of fiduciary duty. The court summarily dismissed her petition without a hearing and Janice appealed.

The court of appeals affirmed the dismissal. By signing the letter of assent, Janice consented to the immediate probate of the will. The probate in solemn form conclusively established that Margretta died testate, that the paper propounded was her last will, that it was executed according to law, that she had sufficient mental capacity, and that at the date of the judgment of probate it was unrevoked. Janice did not allege that she lacked knowledge of any of the facts related to her mother’s physical condition at the time that she assented to probate. As the probate court noted, even if she had, she was charged with the duty to exercise due diligence to discover relevant facts prior to signing the letter of assent. She was therefore precluded from asserting that the will was invalid due to her mother’s mental capacity. Further, the probate court did not err in finding it had no jurisdiction over Janice’s claim that distribution of the estate should be controlled by a separate contractual agreement.

Decided: November 16, 2007

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