In Re ESTATE OF LOYD
328 Ga. App. 287
| Ga. Ct. App. | 2014Background
- Decedent Virginia Childs Loyd executed a will in 1996 naming nephew Jack Childs as a beneficiary and personal representative; a 2004 codicil revoked Jack’s inheritance and appointed Charles Childs as personal representative.
- Loyd died December 24, 2011. Charles filed a petition to probate the will and codicil on March 30, 2012.
- Probate court ordered notice by certified mail to out-of-state heirs; Jack was served at his California residence on April 9, 2012 (signed by his wife).
- Jack filed a caveat on April 23, 2012 asserting undue influence as to the 2004 codicil; Charles moved to dismiss as untimely and later reserved the right to challenge timeliness in discovery responses.
- Jack moved to open default under OCGA § 15-9-47, claiming he was overseas April 7–18, 2012 and first saw the mail on April 19, 2012; he did not move to open default within the 15-day period provided by OCGA § 9-11-55 and waited about ten months to file the motion.
- Probate court dismissed the caveat as untimely and denied the motion to open default; Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Jack) | Defendant's Argument (Charles) | Held |
|---|---|---|---|
| Jurisdiction — whether Court of Appeals has jurisdiction | Implied: appeal permitted | Court of Appeals asserted jurisdiction because appeal concerns timeliness/default, not will validity | Court of Appeals has jurisdiction (Supreme Court retains will-construction cases) |
| Timeliness of caveat | Temporary overseas travel prevented timely filing; should get more time (30 days) | Service was within continental U.S.; notice was received April 9 so objection due within 10 days; no authority for extra time due to temporary travel | Caveat untimely; trial court did not err in dismissing it |
| Entitlement to 30-day period for persons outside U.S. | Jack sought 30 days because he was temporarily abroad | Statute’s 30-day period applies to residents outside continental U.S., not temporarily traveling persons | No 30-day extension; service at residence effective despite temporary absence |
| Motion to open default under OCGA § 15-9-47 | Providential cause/excusable neglect (overseas trip); offered to plead and proceed | Default can be opened but only with prompt, meritorious, sworn showing; Jack delayed and had notice Charles reserved timeliness challenge | Denial of motion to open default affirmed — Jack failed to act promptly or show excusable neglect or providential cause |
Key Cases Cited
- In re Estate of Farkas, 325 Ga. App. 477 (court explains Supreme Court jurisdiction for will-construction appeals)
- Simmons v. Harms, 287 Ga. 176 (probate court discretion in motions to open default under OCGA § 15-9-47)
- English v. Ricart, 280 Ga. 215 (statutory framework for objection periods in probate proceedings)
- Vibratech, Inc. v. Frost, 291 Ga. App. 133 (factors for determining whether to open default)
- Goldberg v. Painter, 128 Ga. App. 214 (service on resident via spouse valid despite temporary absence abroad)