Search This Blog

A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Friday, January 25, 2013

Wills May Impose a Penalty on Challengers

In the first group of decisions issued by the Georgia Supreme Court in 2013, the court reviewed a trial court's decision allowing a lawsuit to determine the enforcement of a clause in a will that cancelled rights to receive benefits by someone who challenged the will.  The language of the will, which is called an in terrorem clause, provided as follows:
Should any beneficiary contest or initiate legal proceedings to contest the validity of this Will or any provision from being carried out in accordance with its terms (whether or not in good faith and with probable cause), then all benefits provided for such contesting beneficiary, and any such beneficiary's descendants, in this Will are revoked and annulled. 
Norman v. Gober, Appeal Case No. S12A1728 (Ga., January 7, 2013).

In Norman, supra, the court considered facts in which a person had previously challenged a will on behalf of a minor who was not an heir at law.  The petitioner had lost the first challenge due to a lack of standing, which is the legal interest necessary to bring a lawsuit.   In the second proceeding, the executors retaliated by enforcing the in terrorem clause to seek a determination that the petitioner could not take under the will.

In the opinion in Norman, supra, the court upheld the maintenance of the executor's petition to enforce the in terrorem clause.  The court held that the fact that the first suit had been rejected due to a lack of standing did not matter.  That suit was still a losing, "initiat[ion] of legal proceedings"  under the language of the in terrorem clause.  

No comments:

Post a Comment