What is Clear and Convincing Evidence?

In many cases in involving the Probate Court, the moving party must present clear and convincing evidence to prevail. But what does that mean? The standard was explained (at least in part) in In re Knight, 372 Ga. App. 485 (2024).

Lillian Knight passed away, naming her daughter, Karen, as executor. Prior to her death, Lillian had added Karen to bank accounts as joint owner. After Karen was appointed executor, her brothers tried to have Karen removed as executor, requested an accounting, and asked the Probate Court to find that the bank accounts were part of the probate estate. The Probate Court ruled for the brothers, finding the accounts belonged to the estate.

On Appeal, the Court disagreed. “It is well settled under Georgia law that [s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. OCGA § 7-1-813(a).” (Emphasis added).

Clear and convincing evidence’ is an intermediate standard of proof, greater than `the preponderance of evidence,’ but less than the `beyond a reasonable doubt’ standard applicable in criminal cases.” (Citation and punctuation omitted.) In re Estate of Mobley, 369 Ga. App. 326, 329(1), 893 S.E.2d 457 (2023). Whether there is sufficient evidence to overcome the presumption is typically a question for the fact finder. Godwin, 197 Ga. App. at 831(1), 399 S.E.2d 581; see also In re Estate of Burkhalter, 354 Ga. App. at 235, 840 S.E.2d 614 (following declaratory judgment hearing, probate court’s factual findings will be upheld if there is any evidence to support them).

The only testimony supporting the Probate Judge’s decision was testimony of the parties and the bank documents showing that Karen co-owned them with rights of survivorship. The Probate Court expressed concern regarding Lillian’s intent, but nonetheless ruled they were part of the estate. The Court of Appeals found “[t]he very fact that the probate court had “concerns” about Lillian’s intent essentially negates its finding of clear and convincing intent to overcome the presumption that the accounts belonged to Karen.” The Court went farther, finding that Karen’s conduct after her mother’s death was not relevant. The Court looks “to Lillian’s intent at the time the accounts were created.”