English v. Ricart

Melton, Justice.

In this case, we are asked to consider whether the probate court erred by finding that Beatrice Ricart, who married Robert English (“Decedent”) a number of years following his execution of a will which did not contemplate their marriage, had not waived her right to an intestate share of the estate under OCGA § 53-4-48¹ because she initially assented to the petition to probate the will in solemn form. Under the facts of this case, we find that Ricart has not waived this right.

The record shows that, after divorcing his first wife, Decedent left his entire estate in trust to his two sons, Tyler and Blake, pursuant to a will executed on June 8, 1994. This will does not contemplate future marriages. In 1999, Decedent hired Ricart, a citizen of France, to be his sons’ au pair. In June 2001, Decedent married Ricart in a secret ceremony, but he made no changes to his will to provide for his new wife. Decedent died on November 22, 2004, and his 1994 will was offered for probate in solemn form on January 7, 2005. The petition for probate was filed by Decedent’s brother and executor, William F. English, and the petition listed Ricart as Decedent’s current spouse and an heir of the estate.² An “Acknowledgment of Service and Assent to Probate Instanter” signed by Ricart was attached to the petition.

Both of Decedent’s sons filed answers to the petition to probate on February 7, 2005. In his answer, Tyler contended that Ricart was not Decedent’s legal wife, that Ricart’s prior assent to probate waived any rights she may have had pursuant to OCGA § 53-4-48 to take under the will, and that William English should be removed as executor of the estate because he had refused to investigate the validity of Ricart’s marriage to Decedent. Tyler also requested a hearing. Through a guardian, Blake contended that William English was not properly investigating the marriage, and he requested a hearing as well.³

On March 2, 2005, Ricart filed a motion “for clarification of her status as an heir under OCGA § 53-4-48.”⁴ On April 11, 2005, Ricart filed a follow-up motion to which she attached a copy of her marriage certificate. In this motion, Ricart rescinded her prior acknowledgment and assent to the petition to probate. Following a subsequent hearing, the trial court entered an order determining that, despite the fact that Ricart assented to the probate of the will in solemn form prior to filing any motion which could be considered an assertion of her statutory entitlement, Ricart had not waived her right to make a claim pursuant to OCGA § 53-4-48. Tyler now takes issue with this ruling on appeal.

1. Tyler contends that the trial court erred by allowing Ricart to assert her statutory right to an intestate share after her initial acknowledgment and assent to the petition to probate the will. In support of his claim that Ricart waived and renounced any of her rights under OCGA § 53-4-48, Tyler points to the fact that the petition to probate included standard language informing Ricart that any objection to the will would have to be filed within ten days of service of the petition.

The nature of the probate court’s discretion regarding the timing of responses to petitions to probate, however, is statutory. OCGA § 53-11-5 provides, in relevant part: “The probate judge may . . . extend the time to respond with respect to any proceedings covered by this chapter as the judge may determine to be proper in the interests of due process and reasonable opportunity for any party or interest to be heard.” OCGA § 53-11-10 (a) further states: “Except as otherwise prescribed by law or directed by the judge pursuant to Code Section 53-11-5 with respect to any particular proceeding, the date on or before which any objection is required to be filed shall be not less than ten days after the date the person is personally served.”

Prior to the time that the will has been probated, these statutes provide the probate court with discretion to extend the time for the filing of responses or objections to a will in order to preserve the interests of justice. This discretion, in turn, would allow the probate court to extend Ricart’s time in which to object or raise her claim under OCGA § 53-4-48 prior to the probate of the will in order to safeguard the intent of the legislature to provide for “after-married spouses” through the partial revocation of a will by operation of law. Therefore, under the facts of this case in which the will had not yet been admitted to probate, the probate court did not err in its determination that Ricart had not waived her right to make a claim pursuant to OCGA § 53-4-48 in order to affect the intent of that statute.

In support of his argument, Tyler cites numerous cases for the proposition that, once an individual has assented to the immediate probate of a will with full knowledge of its contents, he or she is estopped from later contesting the will after it has been probated. See, e.g., Sutton v. Hancock, 118 Ga. 436 (45 SE 504) (1903) (question of whether a will is revoked by birth of child subsequent to execution cannot be raised after probate in solemn form); Clark v. Clark, 265 Ga. 434 (1) (457 SE2d 564) (1995) (heir who assented to probate estopped from asserting that the will was not witnessed properly after probate occurred). These cases, however, simply are not applicable to the matter now before us because the will in question had not been probated at the time that Ricart asserted her rights under OCGA § 53-4-48 with the ultimate permission of the probate court.⁵

2. Tyler further contends that the probate court erred by failing to immediately probate the will after he submitted a proposed order to the court on February 15, 2005. In his brief, however, Tyler concedes that no statutory authority supports his argument that the trial court was required to act upon any proposed order within any specific amount of time. Furthermore, OCGA§ 53-11-10 (b) provides: “Except as otherwise prescribed by law or directed by the judge with respect to any particular proceeding, the date on which any required hearing shall be held shall be the date by which any objection is required to be filed or such later date as the probate court may specify.” In this case, both of Decedent’s sons made it clear to the probate court from the earliest point that issues regarding Ricart’s status as an heir remained to be determined, and, in fact, each requested a hearing regarding William English’s failure to contest this very matter. The trial court ultimately held a timely hearing regarding the matter on which Decedent’s sons requested relief. In doing so, the probate court properly dealt with the necessary issues with which it was confronted.

Judgment affirmed.

All the Justices concur, except Car ley and Thompson, JJ., who concur specially.

1 Subsection (c) of this Code provision states: “If the will was made prior to [the testator’s marriage] and does not contain a provision in contemplation of such [marriage], the subsequent spouse... shall receive the share of the estate he or she would have received if the testator had died intestate.”

2 At the time that he filed the petition, William English assured Ricart that she would receive one-third of Decedent’s estate.

3 William English later renounced his position as executor on February 24, 2005.

4 The probate court treated this motion as one for declaratory judgment. See OCGA§ 9-4-4.

5 We do not reach the issue of whether an after-married spouse who assents to the probate of a will in solemn form retains the right, as a matter of law, to object to the will or raise a claim under OCGA § 53-4-48 after the will has been admitted to probate.