325 Ga. App. 288
Ga. Ct. App.2013Background
- Buinicky filed a petition to remove Auger as executrix of the decedent’s estate and appoint Buinicky as successor executrix.
- probate court held an evidentiary hearing and granted the petition based on a finding of conflict of interest due to Auger’s pre-death real estate actions.
- Auger and counsel appeared; Buinicky was absent but represented by counsel; the court overruled Auger’s objection and proceeded.
- The court found that, before the decedent’s death, Auger used decedent’s money to purchase a house for $90,000 and had the closing deed executed to Auger and the decedent as joint tenants.
- It further found that the decedent suffered mental deficits at closing, did not meet with the closing attorney, and Auger later prepared a separate purchase agreement to transfer the property to Auger; the court concluded a potential self-dealing conflict warranted removal and appointment of Buinicky.
- The appellate court affirmed, holding probate courts have jurisdiction to remove executors for conflicts of interest and that the absence of a transcript prevents review of the sufficiency of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Buinicky’s absence at the hearing required striking the petition or a continuance. | Buinicky’s representation by counsel was sufficient; no subpoena or order required personal appearance. | The absence deprived due process and justified striking or continuing. | Affirmed; no error in proceeding without personal appearance absent subpoena/order. |
| Whether the probate court relied on evidence not admitted at the hearing to find a conflict of interest. | Auger’s testimony and admissions provided competent evidence. | No transcript on appeal to review the sufficiency of evidence. | Affirmed; transcript unavailable leaves record presumed correct. |
| Whether the probate court lacked jurisdiction to address Auger’s pre-death real estate involvement as a fiduciary issue. | Removal for conflict of interest falls within probate jurisdiction. | probate courts do not adjudicate title to real property. | Affirmed; removal for conflict of interest within probate jurisdiction. |
Key Cases Cited
- Chapman v. Avco Financial Svcs. Leasing Co., 193 Ga. App. 147 (1989) (no personal appearance required absent subpoena or order to appear)
- Woods v. State of Ga., 243 Ga. App. 195 (2000) (counsel may represent client without personal appearance)
- Masonry Standards v. UPS Truck Leasing, 257 Ga. 743 (1988) (continuance may be warranted based on reliance on opponent’s witness)
- Burkhalter v. Durrence, 93 Ga. App. 374 (1956) (trial proceeded with counsel present but client absent)
- Adkins v. Bryant, 133 Ga. 465 (1909) (attorney’s appearance authorizes representation)
- In re Estate of Adamson, 215 Ga. App. 613 (1994) (probate court lacks title-decision jurisdiction; here it addressed removal for conflict of interest)
- Ray v. Nat. Health Investors, 280 Ga. App. 44 (2006) (probate court removal due to conflict of interest not void for lack of jurisdiction)
- Wardlaw v. Huff, 259 Ga. 1 (1989) (probate court may remove executor with conflict of interest)
- Benefield v. Martin, 276 Ga. App. 130 (2005) (probate court authority to remove executors)