A Strong Offense
A Stronger Defense
It’s a new year and with it comes many resolutions. Each year, a popular resolution is to be more forgiving or to forgive someone who wronged you. Apparently, trying to get a head start on its resolutions, on December 30, the Georgia Court of Appeals entered its opinion in In re: Estate of James Lynn Hill. What does this have to do with forgiveness? Remember that time we said that “in Georgia, the time to file a caveat may be short and unforgiving?” Well, some forgiveness may be available.
An executrix filed a petition to probate a will. Notice was sent to an heir informing him of the deadline to object. The heir filed a caveat, but did so over a month late. Under In re: Estate of Loyd, this should be the end of it, right? Not quite.
The executrix did not immediately move for default judgment or to dismiss the untimely caveat. Instead, she proceeded with the case. She deposed the heir. She sought a trial. Months after the deposition and over a year after the untimely caveat, the executrix finally sought dismissal of the caveat. The probate court dismissed the caveat and, on appeal, the superior court entered summary judgment in favor of the executrix on the issue of the late caveat. The Georgia Court of Appeals, however, reversed.
The reason the appellate court allowed the late caveat was because the executrix waived her right to seek a default judgment by engaging in discovery and waiting to seek dismissal of the caveat. She deposed the heir almost a year after the untimely caveat. She also proceeded toward trial by opposing the heir’s request for a continuance and asking for a trial herself. It was only 8 days before trial and 15 months after the untimely caveat was filed that the executrix sought dismissal. This lengthy course of conduct waived the executrix’s right to default judgment.
While the Georgia Court of Appeals has shown us that forgiveness may be available, like all forgiveness, a lot depends on how the wronged party acts.