A man who required 24/7 care, became the center of a battle between family members that resulted in a court deciding that a testator is not required to physically destroy a will in order to revoke it.
The case of a daughter and sister of decedent Edison Milbourne, Milbourne v. Milbourne, over whether or not a will was valid, was recently heard by the George Supreme Court. Edison’s daughter asked that the court invalidate a will, claiming that he had revoked it and that it had been improperly executed.
Edison had a work-related brain injury, so he couldn’t care for himself. He lived in rehabilitation facilities and his sister Vashti was appointed as guardian in 2009. This was about 10 years after his brain injury and a month after his $726,000 workers' compensation settlement was finalized. He didn’t have a will when his sister became his guardian, but said he wanted one thereafter. After Edison's conservator refused to write the will, an attorney hired by Vashti wrote a will. However, nine months later, he executed a second will.
After his death in 2014, Vashti submitted the October will to probate. Janay opposed this, claiming that the October will was procured through undue influence. A jury denied probate of the October will and said that Edison failed to properly execute the document.
The fight was because of the different terms in the two wills. The January will gave most of Edison's property to Vashti, except for gifts of $50,000 to his daughter and niece, Tiffany (Vashti's daughter). The January will stated that if Vashti predeceased Edison, Janay would take Vashti's place as devisee. The October will gave all of Edison's property to Vashti. If Vashti predeceased Edison, Tiffany would take Vashti's place as devisee.
After the jury verdict on the October will, Tiffany petitioned to probate the January will, but again opposed this, arguing a lack of testamentary capacity, fraud, undue influence and revocation barred probate. Vashti joined Tiffany's petition to probate the January will and filed a motion for summary judgment, arguing that Janay's contention was without merit, and that they were entitled to probate the January will. The probate judge called for a hearing on the issue.
Janay argued that the probate court erred in concluding that Edison didn’t revoke the January will. She claimed that he explicitly told Vashti that he didn’t want the January will, and that Vashti then breached the fiduciary duty she owed to Edison as his legal guardian, by not destroying the January will.
Janay argued that the statement was an express revocation that Vashti had an obligation to execute. Janay contended that a guardian has a duty to destroy a ward's will upon the ward's request—even when the guardian hasn’t been granted testamentary powers by the court—and even where the ward has testamentary capacity. However, Justice Britt C. Grant of the Georgia Supreme Court disagreed.
Justice Grant wrote that Edison's statement that he no longer wanted the January will was an insufficient revocatory act in and of itself. “Revocation of a will cannot be established by proof of parol declarations by the testator,” the justice wrote. Instead, Georgia law states there are only two ways to expressly revoke a will: (i) by stating so in a subsequent will or legal document; or (ii) by "destruction or obliteration of the will done by the testator with an intent to revoke, or by another at the testator's direction."
In this case, neither party argued that the subsequent (and rejected) October will had the legal effect of revoking the January will, and they also agreed that neither Edison nor Vashti destroyed the January will or took any steps to obliterate it. This is the kind of act that is required under Georgia law. While the justice found that Janay was correct that the law doesn’t require that the testator perform a particular act of destruction to validly revoke a will, it does require that someone perform the act of destruction.
Janay relied heavily on Vashti's status as guardian, but Justice Grant found that the appointment of a guardian didn’t offer an exception to the physical destruction rule or a determination that the ward lacked testamentary capacity. In fact, Janay's argument was because Edison retained testamentary capacity, or else any statement that he wanted to revoke the January will would be without legal effect. Even so, Georgia law specifically bars a guardian from disposing of a ward's property, without the involvement of a conservator. Edison's conservator, not his guardian, would’ve been responsible for estate planning matters, if he lacked testamentary capacity. However, the Court found no suggestion that Edison or his conservator destroyed or obliterated the January will after it was executed. The probate court found that Edison retained testamentary capacity, and this wasn’t challenged on appeal.
The Supreme Court’s decision was that the probate court was correct to grant Vashti’s motion for summary judgment on the issue of revocation. Even if Edison had said he did not want the January will to be his will, just that statement alone was not enough to either revoke the will or require his guardian to do so.
Reference: Leagle (May 1, 2017) Milbourne v. Milbourne, 301 Ga. 111; 799 S.E.2d 785; 2017 Ga. LEXIS 329 (Ga. May 1, 2017)