Jury will determine validity of Hubert Johnson will (GA)

ALBANY, GA -   The woman who believes that she has inherited the estate of Hubert H. Johnson wants a Dougherty County jury to decided if the man’s will leaving the property to her will stand.

Several others are involved in the matter, telling the court that they have a claim to the property as well.

The Supreme Court of Georgia issued this summary of the complicated case Tuesday.

ELLIS V. JOHNSON ET AL. (S12A0315)

The Georgia Supreme Court has upheld a Dougherty County Probate Court’s grant of a woman’s request for a jury trial to determine the validity of her uncle’s latest will in which he replaced her with “a friend and neighbor” as the primary beneficiary of his estate.

The legal issue in this case is whether under state law, the probate court had the authority to grant a jury trial. Under Official Code of Georgia § 15-9-120, a person has the right to a jury trial in a probate court if the probate court is in “a county having a population of more than 96,000 persons according to the United States decennial census of 1990 or any future such census.”

By the 2010 census, Dougherty County’s population had declined from over 96,000 to 94,565.

But in today’s opinion, Justice David Nahmias writes that “for more than 70 years, this Court has held that when a statutory classification is based on a county’s having a specified population under a particular census or any future census, the use of the disjunctive ‘or’ creates the required elasticity, setting a starting population but then permitting counties to move into or fall out of the class based on the latest census.”

The case stems from the death of Hubert H. Johnson who owned a farm in Dougherty County. According to briefs filed in the case, Johnson had adopted his wife’s son, Henry G. Johnson, when Henry was 18. Because Johnson’s wife died before he did, Henry was by law his only heir. But father and son had a falling-out, and the two never reconciled.

Henry had a niece, Kendall Hash, however, and she claims her uncle intended to leave the farm to her. Hash, a physician, testified that Johnson and his wife were essentially her “grandparents” and on many occasions, Johnson had driven her around the farm, explained what he wanted her to do with it, and told her she would one day inherit it.

Lynn Burrell ran the farm for Johnson, baling hay, feeding cows and picking up limbs. Burrell lived in a house that Johnson had deeded to him. In his initial will, which he had drawn up in 2001, Johnson left everything to Hash, with the exception of his guns, farm equipment and tools, which were bequeathed to Burrell.

In May 2005, Donna Ellis, whose husband had passed away, moved in with Burrell. Soon she too was working on the farm and started spending time with Johnson. The two would check on the cattle together and inspect the pecan trees. In September 2006, Johnson had his will changed, replacing Hash with Ellis as the beneficiary of his estate.

Subsequently, he had four successive wills drawn up, switching the beneficiary back and forth between Hash and Ellis. In the fourth version – signed in June 2008 – Johnson again left everything to his niece.

But on May 28, 2009, Johnson allegedly called the lawyer, asking him to come to his house so he could change his will yet again. That was the final will, in which Johnson left everything to Donna Ellis. The lawyer later testified that Johnson felt “Kendall might be more likely to sell [the farm] than Donna.” Johnson also felt that as a physician, Hash “was well provided for,” the attorney said.

In June 2009, following Johnson’s death, Ellis filed a petition to “probate” the will – or authorize it as authentic and valid. In July, Johnson’s son, Henry, filed a “caveat,” challenging the validity of the will on several grounds, including undue influence and false representations. The son alleged his father “was incompetent, both mentally and physically, and was mentally impaired and lacked sufficient understanding or capacity to make significant responsible decisions concerning disposition of his estate and property.”

In October 2009, Hash filed a “motion to intervene,” which the probate court granted in February 2011. The next day, Hash filed a demand for a jury trial. Ellis objected, but the probate court granted Hash’s request. Ellis then appealed to the state Supreme Court, arguing several things, including that § 15-9-120 gives “expanded jurisdiction” only to counties with more than 96,000 persons, which Dougherty County no longer has.

Ellis’ attorneys argued the statute is an unconstitutional “special law” that does not apply uniformly to everyone because the language does not state that a county loses the authority to conduct jury trials if its population falls below the threshold. The probate court interpreted the statute to permit it to continue to hold jury trials even though Dougherty County’s population had dropped below 96,000 and ruled that, as a result, the statute was a constitutional “general law.”

In today’s opinion, the Georgia Supreme Court disagreed with the probate court’s reasoning but nevertheless affirmed its judgment because it reached the right result in ruling that the statute was a constitutional general law.

Furthermore, this year, after the 2010 census showed that Dougherty County’s population had dipped below 96,000, the General Assembly amended the law to set the population threshold at 90,000. The Dougherty County probate court maintains the right to hold jury trials, the high court rules.

Attorneys for Appellant (Ellis): Richard Fields, George Donaldson, III

Attorney for Appellees (Johnson): Kermit Dorough, Jr.

Attribution:

Jury will determine validity of Hubert Johnson will
May 29, 2012
WALB News 10
http://www.walb.com/story/18644066/jury-will-hear-case-of-mans-will