In re Estate of Burkhalter

354 Ga.App. 231

840 S.E.2d 614

IN RE ESTATE OF Louise Ray BURKHALTER.

A19A2056

Court of Appeals of Georgia.

March 9, 2020

James Wayne Davis, Douglasville, for Appellant.

Jenny Martin Walker, Stuart Ellis Walker, Macon, Amy M. Fletcher, for Appellee.

Dillard, Presiding Judge.

William Burkhalter, executor of the estate of Louise Ray Burkhalter, appeals the probate court’s grant of a declaratory judgment¹ to George Burkhalter and Nancy Ward, beneficiaries of Louise’s estate ("appellees").² In granting the declaratory judgment, the probate court made several declarations adverse to William with regard to the enforceability of the in terrorem clause in Louise’s will. And in doing so, William argues the probate court erred in failing to address his counterclaim that the appellees violated the in terrorem clause, and as a result, have been disinherited. William also maintains the probate court erred by declaring that (1) the in terrorem clause is invalid as to an attack by an heir or beneficiary on the administration of the estate; (2) the in terrorem clause is invalid as to an attack by an heir or beneficiary on the management or expenditures of the Burkhalter Family Trust; (3) William must provide, within 60 days of the court’s order, a complete accounting of the calculation of the loss sustained as referenced in a certain provision in the will; and (4) the appellees may proceed with a petition for an accounting or for removal of the executor without violating the in terrorem clause. For the reasons noted infra , we affirm.

The record shows that Louise died on March 18, 2015, and her will was admitted to probate.³ On June 10, 2015, the probate court issued letters testamentary qualifying William as the executor of the estate.⁴ Shortly thereafter, on June 15, the appellees filed a petition for a declaratory judgment, seeking declarations that they may file future declaratory actions regarding the will, as well as a petition to remove William as executor, without violating the will’s in terrorem clause.⁵ But with respect to the in terrorem clause, the appellees did not file copies of any proposed actions they intended to file in these proposed subsequent actions.⁶

Relevant to this appeal, "Item IX" of Louise’s will contains the in terrorem clause, which provides, in relevant part:

In order to assure there will be no dispute between my children concerning some of the expenditures made out of the Burkhalter Family Trust and other financial transactions with the assets in my estate, I want to declare that I have personally authorized these transactions .... I absolutely do not wish for my children to engage in legal disputes over this estate after my death. Therefore:

Any person whether named as a beneficiary under my Last Will and Testament or becoming an heir of my estate by operation of law or any other means who attacks in any court of law any provision of my Last Will and Testament, or the administration of my estate, or the management or expenditures of the Burkhalter [F]amily [T]rust shall be specifically disinherited from any portion of my estate that would go to them either from provisions in my will or through operation[ ] of law. If this provision becomes operative, I direct that any portion of my estate that is involved be added to the residue and be distributed to the remaining beneficiaries, according to this, my Last Will and Testament.⁷

On August 15, 2015, the probate court held a hearing on the appellees’ petition, after which it made the following rulings: "it denied the petition as to Item IV (the share calculation provision), granted the petition to file a second petition as to Item IX (the in terrorem provision), and granted the petition to file a second petition for the removal of the executor[ ]."⁸ Specifically, as to Item IX, the court held that "a legatee may seek clarity as to the ‘validity of’ an in terrorem clause."⁹ To that end, the court "granted the petition to file another petition for declaratory judgment regarding the validity of the in terrorem clause in Item IX of the will."¹⁰ Lastly, the court concluded that a petition for the removal of the executor would not invoke the in terrorem clause because such a clause does not apply to "an action for an accounting and/or removal of an executor."¹¹

William, as executor of testator’s will, appealed, challenging the probate court’s rulings that the petitioners may file (1) a future petition for a declaratory judgment regarding the validity of the in terrorem clause without violating the clause itself; and (2) a future petition to remove the executor without violating the in terrorem clause.¹² Ultimately, this Court concluded that the appellees’ claims and the probate court’s rulings on these matters are "flawed as a matter of law."¹³ In doing so, we first found "no authority supporting a procedure by which an interested party may file one declaratory judgment action to determine whether it may file a second declaratory judgment action to determine the validity of an in terrorem clause."¹⁴ Instead, a question regarding the "validity of an in terrorem clause should be resolved in the first declaratory judgment action raising that issue."¹⁵ And because we found no law allowing a second declaratory-judgment action on the question of the validity of an in terrorem clause, the probate court’s order was "vacated on this issue and remanded for that determination."¹⁶

In Burkhalter I , we also held the probate court erred in declaring that "a future petition to remove the executor[ ] would not violate the in terrorem clause found in the will."¹⁷ Specifically, we noted that the petition failed to specify the proposed claims against the executor sufficient for the probate court to have determined that those claims would not violate the in terrorem clause.¹⁸ Furthermore, the petition did not include a proposed complaint or otherwise state the basis for a suit to remove the executor.¹⁹ Under such circumstances, we held that the record, as it then existed, did not support the probate court’s conclusion that the petitioners’ proposed petition to remove the executor would not violate the in terrorem clause.²⁰ Thus, the probate court did not examine whether the proposed claims against the executor would violate the in terrorem clause, or whether—based on the particular allegations the appellees intended to make—the application of the in terrorem clause would be void.²¹ For all of these reasons, we held that "the [probate] court erred in its rulings as to the petitioners’ proposed petitions for declaratory judgment regarding Item IX of the will and removal of the executor[ ] without violating the in terrorem clause."²² Therefore, we vacated the probate court’s judgment as to this ruling as well, and remanded the case for further proceeding consistent with our opinion.²³

Upon remand, the appellees filed an amended petition for a declaratory judgment, asking the probate court to (1) accept the amended petition; (2) decide whether the in terrorem clause in Item IX is valid; (3) declare that they are permitted to file a "Petition for Enforcement of Last Will and Testament of [Louise] and For an Accounting or, in the alternative, for Removal of Executor without being in violation of the in terrorem clause in IX of the [w]ill"; (4) declare that the filing of a declaratory action is not an attack upon the will itself; and (5) grant such other relief as the court may deem just and proper. As an exhibit to the amended petition, the appellees attached a "petition for enforcement of last will and testament of [testator] and for an accounting or, in the alternative, for removal of executor." The appellees filed a supporting brief, and William filed a response.

Following a hearing, the probate court entered an order on the appellees’ petition and made the following findings: (1) the in terrorem clause in Item IX of testator’s will is valid as to an attack by an heir or beneficiary on any provision in the will; (2) the in terrorem clause is invalid as to an attack on an heir or beneficiary on the administration of the estate, or the management of expenditures of the Burkhalter Family Trust; (3) William, as the executor, must provide—within 60 days of the court’s order—a complete accounting of the calculation of loss sustained as referenced in Item IX²⁴ of the will and provide same to the court and the appellees; and (4) the appellees may file a petition for an accounting, or in the alternative, removal of the executor without violating the in terrorem clause of the will, should they deem such is necessary after receipt of the loss calculations from the executor. This appeal follows.

A probate court’s findings of fact after a declaratory judgment hearing are "analogous to a jury verdict and will not be interfered with if there is any evidence to support them"²⁵ but we review the probate court’s conclusions of law de novo .²⁶ Bearing this standard of review in mind, we turn to William’s claims of error.

1. William argues the probate court erred by failing to address his counterclaim that the appellees violated the in terrorem clause in Louise’s will and are therefore disinherited. We disagree.

While the probate court did not expressly reference William’s counterclaim, in substance, the court resolved all of the relevant issues regarding the in terrorem clause and determined that the appellees were not disinherited merely because they sought declaratory relief regarding that provision. And indeed, in Burkhalter I , this Court expressly instructed the probate court that the filing of a declaratory-judgment action regarding the validity of an in terrorem clause "is not itself a violation of the in terrorem clause at issue[.]"²⁷

In addition to claiming that the appellees should be disinherited merely for initiating this action, William’s counterclaim complained that the appellees "began this action to remove [e]xecutor[ ] the day after the executor[ ] [was] installed without any...