In re Estate of Burton

Hunstein, Justice.

Lyndell Burton died intestate in February 1993. Appellee Lenn Storey, claiming to be the decedent’s out of wedlock son, applied for and was granted letters of administration as the sole heir at law. Appellant Allen Burton, the decedent’s brother, contested the claim. After a bench trial, the probate court ruled there was clear and convincing evidence that appellee was the decedent’s child, OCGA § 53-4-4 (c) (1) (E), and upheld that subsection against a constitutional challenge by appellant.

OCGA § 53-4-4 (c) (1) (E), which incorporates the “virtual legitimation” exception recognized in Prince v. Black, 256 Ga. 79 (344 SE2d 411) (1986), see Youmans v. Ormandy, 206 Ga. App. 255, 256 (424 SE2d 828) (1992), provides that a child born out of wedlock can inherit from its father or paternal relatives by reason of the paternal kinship where

[t]here is clear and convincing evidence that the child is the child of the father and that the father intended for the child to share in the father’s intestate estate in the same manner in which the child would have shared if legitimate.

“ ‘Clear and convincing’ is a more stringent standard than ‘preponderating’ and requires a greater quantum and a high quality of proof in plaintiff’s favor. [Cit.]” Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1989). Accord Clarke v. Cotton, 263 Ga. 861, 862, n. 1 (440 SE2d 165) (1994).

Although generally whether the evidence met the required standard is a question left for determination by the trier of fact, You-mans, supra at 257, after carefully reviewing the evidence adduced in this case, we are constrained to conclude that appellee failed to carry his burden of proving with “clear and convincing evidence” that he is the decedent’s child and that the decedent intended for him to share in his estate in the same manner in which appellee would have shared if legitimate. The evidence is uncontroverted that the decedent had no contact with appellee for the first 20 years of appellee’s life and that it was appellee who initiated contact with the decedent in 1968. Although appellee and his family testified that the decedent acknowledged appellee as his son and never charged them for meals at the decedent’s restaurant, appellant and other members of the decedent’s family, including a niece who had visited the decedent on a twice-weekly basis, testified that the decedent never mentioned having a son. Although one witness for appellee, a long-time employee of the decedent, testified that the decedent introduced appellee as his son to her and never in her presence denied paternity, another long-time employee testified that the decedent would claim appellee as his son on one occasion only to vehemently disavow paternity on the next occasion; yet another employee testified that the decedent had stated he was childless when interviewed by a local television station a few years before his death. All of the witnesses agreed that the decedent had repeatedly stated he did not care what happened to his property after his death.

The probate court erred by finding that this evidence met the “clear and convincing evidence” standard required by OCGA § 53-4-4 (c) (1) (E). Compare Prince, supra (decedent cared for child from age six months; named child as beneficiary of insurance policies; swore under penalty of perjury child was his son); Youmans, supra (child grew up treated as daughter by decedent and his family; stayed often with decedent; was supported financially and emotionally by decedent); Respress v. Ellison, 184 Ga. App. 674 (362 SE2d 468) (1987) (child was raised in part by decedent; was listed as his child in school records; decedent hosted marriage reception for child; child and her family lived with decedent until his death). Contrary to the probate court’s ruling, “clear and convincing evidence” of paternity was not demonstrated in this case by the decedent’s failure during his lifetime either to take legal steps to dispute the paternity claim or to execute a will so as to prevent appellee from sharing in his estate.

Because we reverse on evidentiary grounds, we need not address appellant’s constitutional challenge to OCGA § 53-4-4 (c) (1) (E).

Judgment reversed.

All the Justices concur, except Hunt, C. J., and Sears, J., who dissent.