Summary Judgment Reversed Where Probate Petitioner Offered Contradictory Evidence

In In re Estate of Curvan (Ga. Ct. App. A21A1435 2/16/2022), Sharon Lavant offered a July 31, 2019 Will of Randolph Curvan for probate.  Cheryl Curvan, Charmaine Curvan and Randolph Curvan filed a caveat. Among their complaints, they alleged the Will was not the valid last will of Decedent, that the signatures on the Will were not Decedent’s, and that Petitioner was not fit to serve as executor.

The Probate Court appointed a temporary administrator while reviewing the objection. Meanwhile, Petitioner found and offered for probate a different Will dated January 5, 2019. Without addressing the petition to probate the January 2019 will, the probate court granted Petitioner’s motion for summary judgment as to the validity of the Will and admitted it as proven in solemn form.

The Court of Appeals reversed. “The sole question in a proceeding to probate a will in solemn form is whether the paper propounded is, or is not, the last will and testament of the deceased.” (Citation and punctuation omitted.) Wilbur v. Floyd, 353 Ga. App. 864, 867 (1) (839 SE2d 675) (2020). Here, Petitioner has propounded two different wills and sworn that both are the last will and testament of Decedent. By doing so, Petitioner has created a factual question that must be resolved by the factfinder. Accordingly, the trial court erred by granting summary judgment to Petitioner. See Fabrizio, 344 Ga. App. at 267.

In reversing, the Court cited Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

In Prophecy, the Supreme Court of Georgia clarified the circumstances under which the testimony of a respondent to a motion for summary judgment would be construed against him or her. Id. at 28-29 (1). But “the general rule of construing contradictory testimony against a summary judgment respondent is inapplicable here because [Petitioner] is the movant.” Fabrizio, 344 Ga. App. at 266. The rule for construing testimony is separate from the rule allocating the burden [*5] of proof on summary judgment, which requires the movant to demonstrate that there are no genuine issues of fact and that he or she is entitled to judgment as a matter of law. Prophecy Corp., 256 Ga. at 28 (1).