A Strong Offense
A Stronger Defense
It’s not uncommon to hear that someone gets left the family farm allegedly based on a promise to keep farming the land or to keep the farm in the family. What if the devisee never follows through on that promise and once he receives the property, he quickly sells it? In Johnson v. Burrell, the Georgia Supreme Court considered claims that a devisee of a pecan farm made false statements to the testator, upon which the testator relied in making a will.
In a new will, Hubert Johnson devised a 350 acre pecan farm to Donna Ellis Burrell. A few weeks after executing the will, Hubert died. Two of Hubert’s kin filed caveats alleging that Donna executed undue influence over Hubert and that she procured the execution of the will through fraud or misrepresentation. In Georgia, a will can be invalidated if anything destroys the testator’s “freedom of volition,” which would include misrepresentations upon which the testator relies in making a will. What were Donna’s alleged material misrepresentations?
First, the caveators claimed that Donna persuaded Hubert that Donna was no longer living with a man, whom Hubert had come to dislike, believing that Donna “could do better.” There was some evidence that Hubert was under the mistaken impression that Donna and the man were no longer living together. But, there was no evidence that Hubert’s mistaken belief was the result of any misrepresentation of Donna. Moreover, there was no evidence to suggest that, had Hubert known the truth, he would’ve not given the farm to Donna.
Second, the caveators claimed that Donna convinced Hubert that she would preserve the farm. The month before Hubert died, Donna had discussed the sale of the pecan grove with a person who had previously met with Donna and Hubert to discuss a lease. There was, however, no evidence that Donna ever told Hubert that she would not sell or subdivide the farm. The evidence, instead, showed that Hubert believed Donna would be less likely to sell or subdivide the farm and he understood that she would not have been prohibited from doing so.
Because the caveators could not point to any specific evidence or reasonable inference of fraud, the will would not be set aside.