If It’s Not In The Will, Does It Matter What The Testator Wants?

Bryan Cave Leighton Paisner

If you want someone to get your money or property when you die, why don’t you just say so?  The case reporters are thick with stories of testators who left money or property to one person with the supposed ‘understanding’ or ‘instruction’ that the person who got the money would use it for the care of another.  Add Rabun v. Rabun to that list.

In this trust and estate dispute, the decedent transferred assets during his life and through his will to his grandson (who was also his executor and his adopted son).  The decedent’s widow claimed that the decedent intended for some of these assets to be used by the executor for her support, so she sought imposition of a constructive trust on those assets.

In support of her claim, the widow pointed to evidence that the decedent allegedly told people that assets he left to the executor would be used for the widow’s care.  For example, the widow’s daughter testified that, after the widow suffered a second stroke, the decedent told the daughter that the executor would care for the widow and, although the decedent’s money would be in the executor’s name, the executor would have the funds to take care of the widow.  The decedent and the daughter allegedly revisited that conversation and the decedent supposedly reiterated that the money was there and it was more than enough to take care of the widow.  Also, a friend of the decedent testified that the decedent told him that the executor assured the decedent that the widow would be taken care of.

The executor argued that the decedent’s supposed statements were inadmissible hearsay that could not be considered by the court.

The trial court granted summary judgment to the executor on the widow’s constructive trust claim and the Georgia Court of Appeals affirmed.

In reaching its decision, the appellate court considered what it determined was the trial court’s decision to exclude the hearsay testimony about what the decedent allegedly told people about his supposed intent.  A lot of times this sort of hearsay testimony about the supposed intent of the testator comes in – often even unchallenged – but here the appellate court decided it was okay to keep it out.  Without that testimony, the widow’s constructive trust claim could not survive because the documents said what they said.

Notably, there were other issues at play here.  The biggest issue may have been the lack of a transcript of the summary judgment hearing.  Where a transcript is not filed on appeal, the evidence is presumed as the trial court found it and the trial court is presumed to be correct on all issues presented.  Also, as we have seen, there can be some pretty big hurdles to overcome on constructive trust claims.  But, with all that said, over the last year, we have seen consistency in Georgia’s appellate courts to rely strictly on the four corners of the document before the court and to exclude outside evidence that would alter those words.  For testators, grantors, and others transferring property, if you leave what you truly want outside of the document you do so at your peril because what you tell others you actually wanted may never be heard.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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