Deering v. Keever

646 S.E.2d 262 (2007)

DEERING
v.
KEEVER.

No. S07A0419.

Supreme Court of Georgia.

June 11, 2007.

Allison Barnes Salter, The Barnes Law Group, LLC, Marietta, for Appellant.

William Morgan Akin, Akin & Tate, LLC, Cartersville, S. David Smith Jr., Smith, Price & Wright, Rome, for Appellee.

HINES, Justice.

Lynn Elizabeth Dysart Deering ("Deering") appeals the order of the superior court granting the motion of the propounder of a will to dismiss Deering's filed objection to the will's probate. For the reasons that follow, we reverse.

On July 2, 2004, David Keever ("Keever") filed in the probate court a petition to probate the will of his father, Henry Alexander Keever ("testator"), who died on April 29, 2004. Deering and her brother, Don Alex Dysart, are the children of another son of the testator, Don Alex Keever, who died in 1970; their mother remarried, and in 1977 they were adopted by their stepfather, James Dysart. Deering and her brother were not initially named as heirs in the petition to probate the will. On September 23, 2004, Keever filed an amendment to the petition adding Deering and her brother as heirs for purpose of notice. Deering was served with the amended petition on September 26, 2004. On October 6, 2004, acting pro se, Deering filed an objection to the petition; the only basis of objection articulated was that the will failed to identify either her or other heirs as being disinherited. On October 7, 2004, still pro se, Deering amended her objection, adding as additional grounds for objection the contended exercise of undue influence over the testator, and his alleged mental incapacity.^[1]

At a hearing before the probate court, Keever moved to dismiss Deering's filed objection as amended on the basis that: her initial objection of October 6, 2004 did not specify sufficient legal grounds for the objection to be deemed a caveat; and, as such, it was not a valid caveat under OCGA § 15-9-88; thus, the initial objection essentially did not exist and could not be amended outside the ten-day period provided for under OCGA § 53-11-10 which began to run when Deering was served; the ten-day period expired on October 6, 2004; and, consequently her amendment of October 7, 2004, was ineffective as either a separate caveat or an amendment. The probate court denied the motion, allowed the amended objection to stand, and issued an order admitting the will to probate. Deering appealed this order to the superior court, and Keever filed a motion on September 9, 2005 to dismiss Deering as a party to the proceedings on the ground that her initial objection was not a legally sufficient caveat. On September 12, 2006, the superior court granted this motion and dismissed Deering's pleadings, finding that as the initial objection did not set forth a legally sufficient reason as to why the will should not be admitted to probate, there was thus nothing to amend, and to allow the amendments to stand would be tantamount to allowing the late filing of a caveat.

OCGA § 15-9-88, one of the statutes setting forth procedure in probate courts, reads: "All objections or caveats to an order sought shall be in writing, setting forth the grounds of such caveat." There is no dispute that the failure to specifically name potential heirs who are not devisees under the will is not a valid basis for a caveat. See Cross v. Stokes, 275 Ga. 872, 874(1), 572 S.E.2d 538 (2002); SunTrust Bank v. Peterson, 263 Ga.App. 378, 380 (n. 1), 587 S.E.2d 849 (2003). However, the Code does not require that the legal sufficiency of Deering's objection as amended be assessed on the date the original objection was filed. In fact, OCGA § 15-9-89 states: "The petition and caveat shall be amendable at all times and in every particular." Further, while governance of pleadings in probate courts is set forth in Chapter 11 of Title 53 of the Code, that governance is supplemented by the provisions of the Civil Practice Act. See OCGA §§ 9-11-1; 9-11-8; and 53-11-1; see also Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838 (1983); Bloodworth v. Bloodworth, 240 Ga. 614, 241 S.E.2d 827 (1978).

Generally, the Civil Practice Act advances "liberality of pleading." Porquez v. Washington, 268 Ga. 649, 652(1), 492 S.E.2d 665 (1997). OCGA § 9-11-15 is liberally construed in favor of allowing amendments. See Cheeley v. Henderson, 261 Ga. 498(3), 405 S.E.2d 865 (1991), overruled on other grounds, Hewett v. Kalish, 264 Ga. 183, 442 S.E.2d 233 (1994); Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 252 Ga. 537, 539-540, 314 S.E.2d 903 (1984). Under OCGA § 9-11-15, an amendment to a complaint may raise a new cause of action, see Cochran v. White, 269 Ga.App. 182, 184(2), 603 S.E.2d 509 (2004), and an amendment to an answer may assert a new defense. See Gober v. Hospital Auth. of Gwinnett County, 191 Ga. App. 498(1), 382 S.E.2d 106 (1989). And, "[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." OCGA § 9-11-15(c), See Koncul Enterprises, Inc. v. Fleet Finance, Inc., 279 Ga.App. 39, 630 S.E.2d 567 (2006). An amendment relates back to the original pleading even if the original pleading failed to assert facts sufficient to bring the case within the trial court's jurisdiction, or is otherwise insufficient. See Bolden v. Barton, 278 Ga. 831, 607 S.E.2d 889 (2005); Rojas v. State of Georgia, 269 Ga. 121, 498 S.E.2d 735 (1998); Gambrell v. Gambrell, 246 Ga. 516, 518, 272 S.E.2d 70 (1980). It is plain that an amendment to a caveat is permitted even when it is the amendment that sustains the validity of the caveat. See Churchill v. Neal, 142 Ga. 352(4), 82 S.E. 1065 (1914).

Deering's original pleading put Keever on notice of her objection to the probate of the will. Her amendment the following day to include the grounds of undue influence and mental incapacity was proper under OCGA §§ 9-11-15 and 15-9-89. Accordingly, the trial court erred in dismissing Deering's filed objection as amended.

Judgment reversed.

All the Justices concur.

NOTES

[1] After obtaining counsel, Deering filed another amendment to her objection, asserting essentially the same grounds as in her pro se amendment.