In re Farkas
325 Ga. App. 477
| Ga. Ct. App. | 2013Background
- Testator Sam Farkas named his brother Leonard as executor and his daughter Lorie as successor executor; a codicil disallowed executor fees.
- After Sam’s death, Lorie petitioned to probate the will in solemn form and sought appointment as executor instead of Leonard, alleging conflicts (Leonard’s litigation involving the estate and debts owed to the estate).
- The probate court held an evidentiary hearing (no transcript was made), admitted the will, and appointed Lorie as executor, finding grounds to question Leonard’s fitness.
- Leonard appealed pro se, challenging the probate court’s fitness determination and the appointment of Lorie.
- The Court of Appeals first confirmed it had jurisdiction because the appeal concerned executor appointment, not will validity or construction.
- Because no transcript or statutory substitute of the probate hearing was provided, the appellate court assumed the evidence supported the probate court’s findings and affirmed.
Issues
| Issue | Plaintiff's Argument (Lorie) | Defendant's Argument (Leonard) | Held |
|---|---|---|---|
| Whether the probate court erred in disqualifying a nominated executor | Lorie: Leonard’s suits against the estate and debts to the estate create conflicts of interest warranting disqualification | Leonard: Hearing evidence did not support findings of unfitness; he should remain entitled to qualify as named executor | Court of Appeals: Affirmed — probate court had grounds; in absence of hearing transcript, must assume evidence supported disqualification |
| Whether this Court has jurisdiction over the appeal | Lorie implicitly: Appointment of executor is reviewable by Court of Appeals | Leonard: (did not contest jurisdiction) | Court: Jurisdiction proper because dispute concerns executor appointment, not will validity |
Key Cases Cited
- Cooper v. Spotts, 309 Ga. App. 361 (discussing duty of appellate court to inquire into jurisdiction)
- In re Estate of Lott, 251 Ga. (Ga. 1983) (Supreme Court’s rule that Supreme Court hears only cases where will validity/construction is central)
- Darnell v. Tate, 209 Ga. 23 (transfer to Court of Appeals appropriate where issue is appointment of executor)
- In re Estate of Bagley, 239 Ga. App. 877 (probate court not required to appoint a named executor)
- In re Estate of Moriarty, 262 Ga. App. 241 (probate court has broad discretion to disqualify an executor; review for abuse of discretion)
- Ray v. Nat. Health Investors, Inc., 280 Ga. App. 44 (conflict of interest by a representative can justify removal; appellate review standards)
- Jackman v. LaSalle Bank, N.A., 299 Ga. App. 894 (when transcript is necessary and omitted, appellate court assumes evidence supports the judgment)
- Murray v. Hooks, 313 Ga. App. 485 (affirming where absence of transcript requires assumption that evidence supported trial court)