Banner v. Vandeford
293 Ga. 654
Ga.2013Background
- Huscusson died testate and left three adult daughters: Banner, Vandeford, Nee.
- The 2012 will, drafted by an attorney and executed in 2012, revoked the prior 2006 will.
- The 2012 will names Banner as executrix and includes $10 bequests to Vandeford and Nee, but no residue clause.
- Probate court held the will plain and unambiguous and that the residue passes by intestacy under OCGA § 53-4-65(b).
- Banner appeals claiming the testator intended to disinherit Vandeford and Nee and that the residue should pass to Banner; the court rejects this and affirms judgment.
- The court also rejects allowing parol evidence to contradict the will where no ambiguities exist, maintaining that the will should control
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the residue passes by intestacy given the will’s plain terms. | Banner argues the testator intended to disinherit Vandeford and Nee. | Vandeford and Nee contend the will is plain and no residue provision exists for them. | Residue passes by intestacy; will is plain and unambiguous. |
| Whether parol evidence could be used to show testator's intent contrary to the will's terms. | Banner seeks to admit the attorney's testimony to show intended remainder. | Testamentary terms are not to be contradicted by parol evidence when no ambiguities exist. | Parol evidence cannot contradict an unambiguous will; testimony excluded. |
| Whether the court should interpret the will to favor Banner as executrix on the residue. | Banner asserts the testator’s trust in Banner warrants charitable interpretation of the residue. | Court cannot rewrite unambiguous terms to change disposition. | Court cannot supply a residue clause or alter an unambiguous bequest scheme. |
Key Cases Cited
- Hungerford v. Trust Co. of Ga., 190 Ga. 387, 389-390 (9 SE2d 630) (Georgia 1940) (court may not rewrite an unambiguous will; respect testator's expressed wish)
- Frost v. Dixon, 204 Ga. 268, 271 (49 SE2d 664) (Georgia 1948) (each sentence weighed in connection with entire plan; do not overemphasize one sentence)
- Donehoo v. Donehoo, 229 Ga. 627, 629 (193 SE2d 827) (Georgia 1972) (court cannot supply a missing residue clause; continued fidelity to testator’s plan)
- Jackson v. Brown, 203 Ga. 602, 605 (47 SE2d 867) (Georgia 1948) (an unambiguous will controls; consider whole document)
- Walker v. Wells, 25 Ga. 141 (1858) (Georgia 1858) (parol evidence generally cannot contradict patent terms)