In re Florance

898 S.E.2d 818

IN RE ESTATE OF Anne Smith FLORANCE, Deceased.

A23A1491

Court of Appeals of Georgia.

February 21, 2024

Review Denied March 15, 2024

Jennifer Lynne Shelter, Atlanta, Andrew B. Flake, for Appellant.

Daniel Francis Diffley, Atlanta, Marguerite Ashley Miller, Valerie Mincey, Desiree Polmear, Melanie Smith Allen, for Appellee.

Fuller, Senior Judge.

Executor Philip A. Bates filed a petition to probate in solemn form the will of Anne Smith Fiorance. Emily Howell, Florance’s niece, filed a caveat to the petition.¹ Bates sought partial summary judgment on the issue of Howell’s standing to contest the validity of the will. The trial court denied the motion, and we granted Bates’s application for interlocutory appeal. For reasons that follow, we reverse.

The relevant background facts are not in dispute. In 1997, Fiorance executed her will and created a revocable inter vivos trust. In general terms, the trust distributed amounts to various beneficiaries with the remainder divided between specified charities. The will poured over any remaining assets into the trust. Fiorance then, over time, transferred her assets into the trust. The documents were amended and updated throughout the years, with the final versions executed on February 20, 2013. That same day, Fiorance executed an assignment, which irrevocably transferred her remaining assets into the trust.

Fiorance died in May 2013. Bates – who was nominated as executor – filed the will with the probate court, but he did not offer the document for probate since the estate had no assets. Bates – who also served as trustee – notified Howell that she was to receive $25,000 under the trust. After receiving notice of her distribution, Howell filed a petition in probate court, claiming that Florance died intestate and seeking to have herself appointed as administrator of the estate. Howell also filed an ex parte petition for a temporary restraining order (TRO) against Bates to stop him from selling Florance’s home and transferring the proceeds from the sale to the trust.

In response to Howell’s petition, Bates filed two actions. First, in superior court, Bates filed a declaratory judgment action, seeking a ruling that the trust was valid. In this action, Bates also asserted a claim against Howell for wrongful restraint against the orderly administration of the trust. Second, in probate court, Bates sought to probate the will in solemn form. Howell filed a caveat, challenging the validity of the will and Bates’s fitness to serve as executor.

In the superior court action, Bates moved for partial summary judgment on the issue of the trust’s validity, and the court granted the motion. Howell appealed the ruling, and we affirmed. Howell v. Bates as Trustee of Anne S. Florance Revocable Trust, 350 Ga. App. 708, 830 S.E.2d 250 (2019). The superior court then granted Howell’s motion for summary judgment on Bates’s wrongful restraint claim. Bates appealed this ruling, and we reversed, finding Howell liable as a matter of law for wrongful restraint. Bates v. Howell, 352 Ga. App. 733, 741-745 (1), 835 S.E.2d 814 (2019).

While the superior court action remained pending, Bates filed a motion for partial summary judgment in the probate court, arguing that Howell lacked standing to contest the validity of the will. Specifically, Bates argued that Howell lacked any pecuniary interest in the estate as all estate assets had been transferred to the trust and there was nothing left to pass via intestate distribution. Howell objected to the motion, arguing among other things that no pecuniary interest is required to create standing. Howell further argued that, even if the estate did not currently have assets, it potentially had valuable claims against Bates based upon his alleged misconduct.²

At the hearing, the court found on the record "that all blood relatives have standing to file a caveat." Although the trial court questioned whether there were any assets left in the estate to inherit, it let the caveats proceed. The trial court thus denied the motion for partial summary judgment. Bates sought review of the trial court’s ruling, and we granted his interlocutory application.

[1] On appeal, Bates argues that the trial court erred in finding that all family members have standing to caveat a will. He argues, among other things, that a caveator must have a legal or pecuniary interest in the estate to have standing. Howell, on the other hand, argues that the appeal should be dismissed as moot. While the interlocutory application was pending, Howell filed a "joint notice of amendment" on behalf of herself and the other caveators "removing the claim contesting the validity of the Will of Anne S. Florance[.]" According to Howell, her standing to challenge the validity of the will was the only issue presented by the interlocutory application; she thus reasons that her removal of this issue precludes appellate review. Howell claims that the remaining caveat to Bates’s fitness to serve as executor remains pending before the trial court.

[2–4] Contrary to Howell’s contention, the standing issue has not been rendered moot. The issue on appeal—as framed by the trial court’s order—is Howell’s standing to caveat the will. And standing is a threshold issue. Rondowsky v. Beard, 352 Ga. App. 334, 340 (1) (b), 835 S.E.2d 28 (2019); see also New Cingular Wireless PCS, LLC v. Georgia Dept. of Revenue, 303 Ga. 468, 470 (1), 813 S.E.2d 388 (2018) (appellate court is duty-bound to consider standing, which is a threshold jurisdictional issue).

As the Supreme Court of Georgia has held, standing is in essence the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues, and litigants must establish their standing to raise issues before they are entitled to have a court

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