Duncan v. Moreland

325 Ga.App. 364

751 S.E.2d 139

DUNCAN

v.MORELAND et al.

No. A13A1491.

Court of Appeals of Georgia.

Nov. 6, 2013.

Reconsideration Denied Dec. 10, 2013.

Lawrence Alan Stagg, Ringgold, for Appellant.

Glenn Edward Roebuck III, Rossville, for Appellees.

BARNES, Presiding Judge.

Mary Teresa Duncan appeals from the order of the trial court granting summary judgment to her aunts, Etta Sue Moreland and Wilma E. Wilson, and dismissing her challenge to the probate court's order admitting her grandmother's will to probate in solemn form. Upon our review and for the reasons that follow, we affirm.

On May 27, 2008, Moreland and Wilson, two of the decedent's three daughters, filed a petition to probate their mother's will. The will appointed Moreland, Wilson, and their sister, Evelyn Duncan, as co-executors. Duncan was served with a copy of the petition and will by certified mail. On September 16, 2009, Evelyn Duncan's daughter, Teresa, filed a caveat to the will alleging that she and her mother possessed a later-dated valid will, that the decedent had been under undue influence and lacked the mental capacity to execute the will propounded by Moreland and Wilson, that Evelyn Duncan should be appointed executor of the decedent's estate, and that the petition to probate the will should be denied.

After a hearing on the caveat, the trial court found in favor of Moreland and Wilson and on December 16, 2011, entered an order accepting their petition to probate the will and issued Letters Testamentary to them as co-executors. However, on December 28, 2011, the trial court entered an order rescinding Moreland and Wilson's Letters Testamentary. The probate court's order instructed that “no business on behalf of [the decedent's] estate shall be conducted from the date of said Order ... until new Letters of Testamentary have been issued by the court.” The court set the date of February 1, 2012, to appoint the three sisters as co-executors.

On January 31, 2012, Moreland and Wilson filed a “Petition for Removal and/or Denial of Appointment of Co–Administrat[or]” alleging that Evelyn Duncan was unfit to serve as a co-administrator of the estate. Following court-ordered mediation that ended in an impasse, Moreland and Wilson withdrew their petition to deny Evelyn Duncan's appointment as co-administrator of the estate. Thereafter, on July 2, 2012, Teresa Duncan filed a “Motion for Clarification” to determine whether it was “the intent of the Court on December 28, 2011 to rescind the entire Order of December 13, 2011 and for the Court to retain jurisdiction of the matter until further proceedings could be carried out.” Moreland and Wilson apparently maintained that Duncan did not have the right to appeal the validity of the will because the December 28 order appeared to only rescind the Letters Testamentary, not the court's finding that the will was valid. Duncan asked that the court re-enter its December 13, 2011 order admitting the will to probate, but name all three sisters as co-executors rather than just Moreland and Wilson.

The following day, July 3, 2012, the probate court issued Letters Testamentary to Moreland, Wilson and Evelyn Duncan, naming the three sisters co-executors of their mother's estate. The document further stated that on “ July 3, 2012 at a regular term of the Probate Court, the last Will and Testament dated May 11, 2005 of [the decedent] ... was legally proven in SOLEMN form and was admitted to the record by order.” (Emphasis supplied.)

The probate court initially set a hearing on the motion for clarification on July 18, 2012, but then rescheduled it for August 6, 2012. It also entered an order purporting to grant Duncan an additional five days to appeal the probate court's July 3 order, should the court find against her in ruling on the motion for clarification. Following the hearing, the probate court entered an order on August 8, 2012, finding that the date that triggered the running of Duncan's 30 days to appeal was

not December 28, 2011 because those letters issued were rescinded by the court on December 28, 2011. The correct date for the appellate process to begin should be July 3, 2012 when the corrected Letters of Testamentary ... to [Moreland, Wilson, and Evelyn Duncan] were issued by this court.

On August 9, 2012, Duncan filed her appeal from the July 3, 2012 order to superior court. Subsequently, Moreland and Wilson filed a motion for summary judgment in which they maintained that Duncan's appeal was untimely because it was filed more than 30 days after the probate court's December 13, 2011 order admitting the will into probate. They also argued that the probate court did not have authority to extend the period for filing the appeal. The superior court granted the motion, agreeing...