In re Estate of Burton , 265 Ga. 122 ( 1995 )

Carley, Justice,

concurring.

I completely agree with the majority that appellee did not produce “clear and convincing evidence” so as to authorize the probate court’s determination that appellee can inherit pursuant to OCGA § 53-4-4 (c) (1) (E). However, I am not convinced that “clear and convincing” should be defined with reference to “a greater quantum” as asserted by the majority’s citation with approval of Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1989). As recognized by the majority, this Court has suggested that

“clear and convincing evidence” is an intermediate standard of proof, requiring a higher minimum level of proof than the preponderance of evidence standard, but less than that required for proof beyond a reasonable doubt. [Cits.]

Clarke v. Cotton, 263 Ga. 861, 862, n. 1 (440 SE2d 165) (1994). Thus the majority in Clarke v. Cotton, supra, defined clear and convincing by comparing it with preponderance of the evidence and beyond a reasonable doubt. If we need to be more specific, we should consider Judge K. Dawson Jackson’s concurrence in Clarke, wherein he proposed the following definition:

Decided February 13, 1995 Reconsideration denied March 9, 1995. Joyce W. Bergman, for appellant. Lenn Storey, pro se.

CLEAR AND CONVINCING EVIDENCE: Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence, but less than beyond a reasonable doubt.

Clarke v. Cotton, supra at 863.