How Wills Are Proven Valid

In the opinion in Mason v. Phillips, decided January 23, 2012, the Georgia Supreme Court addressed an issue in a dispute between parties regarding the validity of a will discovered sixteen years after the death of the will's author.  Mason v. Phillips, Case No. S11A1951 (Slip Op., Ga., Jan. 23, 2012).   The will was even older.  The testator had made the will in 1974.   Given the age of the will and the delay in advancing it for probate, the witnesses to the will were no longer available.  Ultimately, the testator failed to prove the will was valid.  The dispute regarding the will at issue in  Mason v. Phillips, supra., was determined by old versions of the Georgia Probate Code.

In modern practice, estate attorneys will use an instrument called a self proving affidavit in which the witnesses to the will swear they saw the execution of the will at the same time that they signed as witnesses to the will itself.  Where a self proving affidavit does not exist, then the witnesses to the will may have to appear in court to prove that the will is valid.  The person offering a will for probate must prove the genuine nature of the testator's signature by a preponderance of the evidence using other means if the subscribing witnesses cannot be located and a self proving affidavit does not exist.  Mason v. Phillips, supra.  Because wills are often executed years before they are offered for probate, it is very important to make sure that a will is properly executed with a self proving affidavit.

Georgia Standard for Invalidating Wills is High

A person will sometimes change his will when he enters a hospital and delete a child included in a past will from the new will.  The excluded child may then seek to challenge the change in the will claiming it was the result of undue influence, coercion, or an unsound mind.   Such changes, which can be made at a time of extreme physical duress of the testator affecting his thinking, can have devastating effects.  However, the cases in Georgia regarding the burden of proof that a challenger must meet make it difficult for the newly excluded child to invalidate the new will.  The Georgia Supreme Court started out 2012 with two cases regarding this issue.  First, the recent case of the Georgia Supreme Court in Prine v. Blanton, Appeal Case No. SA11A1315 (Jan. 9, 2012), reiterated the rules that create this high burden on persons seeking to challenge the will.

Contempt Is the Remedy to Enforce Injunctions regarding Easements

Parties to court proceedings involving private rights of way or trespass sometimes question the power of a judge to tell them to do something.  Sometimes people do not take the orders of a court seriously and act in a recalcitrant manner to test whether a judge will enforce his order.  However, a Georgia Superior Court Judge is one of the most powerful officials in Georgia and has the power to fine and incarcerate parties who do not violate his orders.

Who Decides Whether an Ordinance Has Been Violated?

The temptation of courts in cases involving land use ordinances is to permit the testimony of city or county officials to take over the issue of how local ordinances should be applied.  However, the rules are clear that local officials cannot testify to a jury regarding their opinion as to the meaning of an ordinance.  Ordinances are part of the law and must be construed by the courts.  

            An understanding of the evidentiary basis for ordinance construction and application is crucial in any nuisance or trespass case regarding soil and erosion or flooding.   Since it has been a slow couple of weeks for opinions from the Georgia Supreme Court, I decided to write a little about an evidence issue that affects nuisance and trespass cases.   In these cases, a defendant will often violate ordinances in connection with the actions that result in an injury to another property owner.   The proof of the violation of these ordinances is connected to the proof of the plaintiffs' case. 

            All aspects of the investigation, presentation, and defense of a land use case can be affected by a basic misunderstanding of the proper roll of the judge and jury.  It is not unusual for attorneys and litigants to evaluate their case based on an assumption that the findings of a county or city official regarding an ordinance violation are dispositive of their case.  To the contrary, the opinions of officials may not even be admissible in a trial.

County officials do not have the discretion to ignore the plain language of an ordinance. Henry County Record, Inc. v. Cmty. Newspaper Holdings, Inc., 274 Ga. 353, 353, 554 S.E.2d 150, 151 (2001).  The ultimate issue of whether a defendant has been negligent is an issue for the jury to determine and is not a proper subject of testimony.  Emory v. Dobson, 206 Ga. App. 482, 484, 426 S.E.2d 50, 52 (1992).  The testimony of county officers is not admissible regarding the plain meaning of an unambiguous ordinance.   DeKalb County v. Post Apartment Homes, L.P., 234 Ga. App. 409, 411, 506 S.E.2d 899, 901 (1998). 

Road Abandonment Does Not Extinguish Private Easements on Plat

Cities and counties often engage in road abandonment at the request of developers or property owner associations or home owner associations.  For developers, the motive is usually to remove the road bed and permit development over a former road.  For associations, the goal may be to privatize subdivision streets in order to gate a community.  A recent opinion of the Georgia Court of Appeals in Zywiciel v. Historic Westside Village Partners, LLC,  2011 WL 5842763, p. 2, Slip Op., Case Nos. A11A1243, A11A1582   (Ga. App., Nov. 29, 2011),  reiterated the rules and reasoning followed in cases such as Northpark Associates No. 2, Ltd. v. Homart Development Co.,  262 Ga. 138, 138, 414 S.E.2d 214, 215 (1992), in holding that private easements in city streets created pursuant to recording of a subdivision plat by a developer are not extinguished by road abandonment.

Local Government Has Discretion Regarding Road Abandonment

Disputes sometimes arise regarding a local government's authority to abandon public streets and roads.  Generally, in Georgia it has been difficult to challenge an abandonment resolution by a county or municipality.  In fact, the Georgia General Assembly recently amended the abandonment statute to increase the discretion of local governments to abandon streets and roads.

Avoidance of Responsibility for Flooding and Erosion

The current economic environment in Georgia has affected maintenance and improvements to storm water pipes, drainage systems, culverts, and detention ponds.  Developers have gone bankrupt and county and city governments and large insurance companies are fighting to avoid responsibility for sewers and drains due to a lack of money to address problems due to flooding and erosion.  This era has come on the heals of a construction boom that lasted fifteen (15) years leaving drainage systems unattended and deteriorating.

Property owners suffering a nuisance due to problems created by extreme rainfall events have many options to find liable parties to repair the damages to their property, but are faced with finding a lack of funded parties to finance the repairs.  Moreover, large insurance companies that may insure land owners who have helped create a problem, and governments that may own the streets and roads routing storm water flows are fighting each case aggressively to deter future suits.  The emerging liability of municipalities and counties and insurers in Metro Atlanta is in the billions.   The avoidance of responsibility by all of the parties involved is further complicated by the possibility that deeper storms and extreme rain events, such as the event that plagued the North Georgia in September 2009, are becoming more and more frequent.