In Re Estate of Louise Ray Burkhalter

• Court: Court of Appeals of Georgia
• Decided: March 13, 2020
• Docket: A19A2056
• Status: Published

Opinion

THIRD DIVISION DILLARD, P. J., GOBEIL and HODGES, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

March 9, 2020

In the Court of Appeals of Georgia A19A2056. IN RE ESTATE OF LOUISE RAY BURKHALTER.

DILLARD, Presiding Judge.

William Burkhalter, executor of the estate of Louise Ray Burkhalter, appeals

the probate court’s grant of a declaratory judgment1 to George Burkhalter and Nancy

Ward, beneficiaries of Louise’s estate (“appellees”).2 In granting the declaratory

judgment, the probate court made several declarations adverse to William with regard

to the enforceability of the in terrorem clause in Louise’s will. And in doing so,

1 The court partially denied the petition for a declaratory judgment as to issues that are not relevant to this appeal. 2 As explained more fully below, this is the second time this case has been before us. See In re Estate of Burkhalter, 343 Ga. App. 417, 418 (806 SE2d 875) (2017) (“Burkhalter I”). In Burkhalter I, we remanded the case for further proceedings, and William now appeals the probate court’s ruling on the appellees’ post-remand amended petition for a declaratory judgment. Id. William argues the probate court erred in failing to address his counterclaim that the

appellees violated the in terrorem clause, and as a result, have been disinherited.

William also maintains the probate court erred by declaring that (1) the in terrorem

clause is invalid as to an attack by an heir or beneficiary on the administration of the

estate; (2) the in terrorem clause is invalid as to an attack by an heir or beneficiary on

the management or expenditures of the Burkhalter Family Trust; (3) William must

provide, within 60 days of the court’s order, a complete accounting of the calculation

of the loss sustained as referenced in a certain provision in the will; and (4) the

appellees may proceed with a petition for an accounting or for removal of the

executor without violating the in terrorem clause. For the reasons noted infra, we

affirm.

The record shows that Louise died on March 18, 2015, and her will was

admitted to probate.3 On June 10, 2015, the probate court issued letters testamentary

qualifying William as the executor of the estate.4 Shortly thereafter, on June 15, the

3 Burkhalter I, 343 Ga. App. at 418. 4 Id. at 419. Initially, William and John Burkhalter were both named as executors of Louise’s estate, but John passed away during the pendency of this proceeding and was removed as an executor. Id. For ease of reference, we refer to William as the sole executor throughout this opinion even though some of the underlying proceedings occurred when there were two executors.

2 appellees filed a petition for a declaratory judgment, seeking declarations that they

may file future declaratory actions regarding the will, as well as a petition to remove

William as executor, without violating the will’s in terrorem clause.5 But with respect

to the in terrorem clause, the appellees did not file copies of any proposed actions

they intended to file in these proposed subsequent actions.6

Relevant to this appeal, “Item IX” of Louise’s will contains the in terrorem

clause, which provides, in relevant part:

In order to assure there will be no dispute between my children concerning some of the expenditures made out of the Burkhalter Family Trust and other financial transactions with the assets in my estate, I want to declare that I have personally authorized these transactions . . . . I absolutely do not wish for my children to engage in legal disputes over this estate after my death. Therefore:

Any person whether named as a beneficiary under my Last Will and Testament or becoming an heir of my estate by operation of law or any other means who attacks in any court of law any provision of my Last Will and Testament, or the administration of my estate, or the management or expenditures of the Burkhalter [F]amily [T]rust shall be specifically disinherited from any portion of my estate that would go to

5 Id. 6 Id.

3 them either from provisions in my will or through operation[ ] of law. If this provision becomes operative, I direct that any portion of my estate that is involved be added to the residue and be distributed to the remaining beneficiaries, according to this, my Last Will and Testament.7

On August 15, 2015, the probate court held a hearing on the appellees’ petition,

after which it made the following rulings: “it denied the petition as to Item IV (the

share calculation provision), granted the petition to file a second petition as to Item

IX (the in terrorem provision), and granted the petition to file a second petition for

the removal of the executor[ ].”8 Specifically, as to Item IX, the court held that “a

legatee may seek clarity as to the ‘validity of’ an in terrorem clause.”9 To that end, the

court “granted the petition to file another petition for declaratory judgment regarding

the validity of the in terrorem clause in Item IX of the will.”10 Lastly, the court

concluded that a petition for the removal of the executor would not invoke the in

7 Id. at 419. 8 Id. 9 Id. at 420. 10 Id.

4 terrorem clause because such a clause does not apply to “an action for an accounting

and/or removal of an executor.”11

William, as executor of testator’s will, appealed, challenging the probate

court’s rulings that the petitioners may file (1) a future petition for a declaratory

judgment regarding the validity of the in terrorem clause without violating the clause

itself; and (2) a future petition to remove the executor without violating the in

terrorem clause.12 Ultimately, this Court concluded that the appellees’ claims and the

probate court’s rulings on these matters are “flawed as a matter of law.”13 In doing so,

we first found “no authority supporting a procedure by which an interested party may

file one declaratory judgment action to determine whether it may file a second

declaratory judgment action to determine the validity of an in terrorem clause.”14

Instead, a question regarding the “validity of an in terrorem clause should be resolved

in the first declaratory judgment action raising that issue.”15 And because we found

11 Id. (punctuation omitted). 12 Id. 13 Id. 14 Id. at 421 (1). 15 Id.

5 no law allowing a second declaratory-judgment action on the question of the validity

of an in terrorem clause, the probate court’s order was “vacated on this issue and

remanded for that determination.”16

In Burkhalter I, we also held the probate court erred in declaring that “a future

petition to remove the executor[ ] would not violate the in terrorem clause found in

the will.”17 Specifically, we noted that the petition failed to specify the proposed

claims against the executor sufficient for the probate court to have determined that

those claims would not violate the in terrorem clause.18 Furthermore, the petition did

not include a proposed complaint or otherwise state the basis for a suit to remove the

executor.19 Under such circumstances, we held that the record, as it then existed, did

not support the probate court’s conclusion that the petitioners’ proposed petition to

remove the executor would not violate the in terrorem clause.20 Thus, the probate

16 Id.; see Kesler v. Watts, 218 Ga. App. 104, 106 (2) (460 SE2d 822) (1995) (remanding a case in a declaratory-judgment action concerning validity of an in terrorem clause for the trial court to make that determination). 17 Burkhalter I, 343 Ga. App. at 421 (2). 18 Id at 423 (2). 19 Id. 20 Id.

6 court did not examine whether the proposed claims against the executor would violate

the in terrorem clause, or whether—based on the particular allegations the appellees

intended to make—the application of the in terrorem clause would be void.21 For all

of these reasons, we held that “the [probate] court erred in its rulings as to the

petitioners’ proposed petitions for declaratory judgment regarding Item IX of the will

and removal of the executor[ ] without violating the in terrorem clause.”22 Therefore,

we vacated the probate court’s judgment as to this ruling as well, and remanded the

case for further proceeding consistent with our opinion.23

Upon remand, the appellees filed an amended petition for a declaratory

judgment, asking the probate court to (1) accept the amended petition; (2) decide

whether the in terrorem clause in Item IX is valid; (3) declare that they are permitted

to file a “Petition for Enforcement of Last Will and Testament of [Louise] and For an

Accounting or, in the alternative, for Removal of Executor without being in violation

of the in terrorem clause in IX of the [w]ill”; (4) declare that the filing of a

declaratory action is not an attack upon the will itself; and (5) grant such other relief

21 Id. 22 Id. at 424 (2). 23 Id.

7 as the court may deem just and proper. As an exhibit to the amended petition, the

appellees attached a “petition for enforcement of last will and testament of [testator]

and for an accounting or, in the alternative, for removal of executor.” The appellees

filed a supporting brief, and William filed a response.

Following a hearing, the probate court entered an order on the appellees’

petition and made the following findings: (1) the in terrorem clause in Item IX of

testator’s will is valid as to an attack by an heir or beneficiary on any provision in the

will; (2) the in terrorem clause is invalid as to an attack on an heir or beneficiary on

the administration of the estate, or the management of expenditures of the Burkhalter

Family Trust; (3) William, as the executor, must provide—within 60 days of the

court’s order—a complete accounting of the calculation of loss sustained as

referenced in Item IX24 of the will and provide same to the court and the appellees;

and (4) the appellees may file a petition for an accounting, or in the alternative,

removal of the executor without violating the in terrorem clause of the will, should

they deem such is necessary after receipt of the loss calculations from the executor.

This appeal follows.

24 See infra note 34.

8 A probate court’s findings of fact after a declaratory judgment hearing are

“analogous to a jury verdict and will not be interfered with if there is any evidence

to support them;25 but we review the probate court’s conclusions of law de novo.26

Bearing this standard of review in mind, we turn to William’s claims of error.

1. William argues the probate court erred by failing to address his counterclaim

that the appellees violated the in terrorem clause in Louise’s will and are therefore

disinherited. We disagree.

While the probate court did not expressly reference William’s counterclaim,

in substance, the court resolved all of the relevant issues regarding the in terrorem

clause and determined that the appellees were not disinherited merely because they

sought declaratory relief regarding that provision. And indeed, in Burkhalter I, this

Court expressly instructed the probate court that the filing of a declaratory-judgment

action regarding the validity of an in terrorem clause “is not itself a violation of the

in terrorem clause at issue[.]”27

25 Strange v. Towns, 330 Ga. App. 876, 876 (769 SE2d 604) (2015) (punctuation omitted). 26 See id. 27 Burkhalter I, 343 Ga. App. at 421 (1).

9 In addition to claiming that the appellees should be disinherited merely for

initiating this action, William’s counterclaim complained that the appellees “began

this action to remove [e]xecutor[ ] the day after the executor[ ] [was] installed without

any objection to [his] installation by [the appellees] or otherwise and without the

executor[ ] yet taking any action whatsoever to give rise to [his] removal.” But the

probate court expressly addressed this allegation and even indicated that it shared

William’s concerns. Specifically, the declaratory judgment stated,

This court and [William] question the intent of the movants in filing a [d]eclaratory [j]udgment petition concerning an accounting and removal of executor[ ] a mere five days after the executor[ ] [was] appointed.[28]. On its face[,] the petition appears [to be] an anticipatory act; however, [William] [has] never denied that the beneficiary/movant, Gayle Ward, was never going to receive a distribution under the will. In other words, Gayle Ward already knew as soon as the will was probated that she was not going to receive a distribution under the estate . . . .

The probate court explained that the reason Ward would not receive a distribution

was related to a calculation of loss under a certain will provision, and she was simply

28 While William and the court appear to disagree about whether the declaratory judgment was filed one day or five days after the executor was appointed, this discrepancy is not relevant to the question of whether the court addressed the counterclaim in its order.

10 asking to know how the executor made the calculation. According to the court, as a

beneficiary, she had the right to do so. And William does not challenge the substance

of the court’s ruling in this regard, but claims only that it failed to address the issue.

But the record plainly shows that the court did so, and as a result, this claim is

without merit.

2. William has abandoned his next three claims of error because he fails to

provide relevant authority or make cognizable legal arguments to support them.

(a) William first contends the probate court erred in finding that the in terrorem

clause is invalid as to an attack by the appellees on the administration of the

decedent’s estate.

In the two pages William devotes to this argument, the only authority he cites

is part of a sentence in Lanier v. Lanier,29 noting “there is a limitation over to some

other person; in which event the latter shall take.”30 But rather than explain how

Lanier applies to this case, he summarily contends, “here, the [c]ourt found that

29 218 Ga. 137 (126 SE2d 776) (1962). 30 Id. at 146 (5). William provides only a portion of the sentence he quotes from Lanier. The complete sentence he references states, “Code § 113-820 provides, ‘A condition in terrorem shall be void, unless there is a limitation over to some other person; in which event the latter shall take.’” Id. at 145-46 (5) (punctuation omitted).

11 limiting an attack by a beneficiary against the administration of the will is against

public policy. . . . Nothing could be further than the truth.” William then presents

several assertions unsupported by authority or references to the record, and complains

that the probate court failed to specify the public policy that supported its ruling.31

Suffice it to say, William has failed to provide a discernable argument to support his

bare assertion that the probate court erred in finding the in terrorem clause is invalid

as to an attack by the appellees on the administration of the decedent’s estate, and

therefore, he has abandoned this claim of error.32

31 William contends, in passing, that this case is like “Sinclair,” but he does not cite to any particular portion of the opinion or provide any discussion of that case. Although William simply refers to the case as “Sinclair,” a review of his brief as a whole suggests that he intends to reference Sinclair v. Sinclair, 284 Ga. 500 (670 SE2d 59) (2008). But as explained below, a mere reference to a case citation to support a conclusory allegation is not the type of meaningful argument contemplated by our rules. See infra note 32. 32 See Farmer v. Dep’t of Corr., 346 Ga. App. 387, 394 (2) (816 SE2d 376) (2018) (“[M]ere conclusory statements are not the type of meaningful argument contemplated by our rules.” (punctuation omitted)); Woods v. Hall, 315 Ga. App. 93, 96 (726 SE2d 596) (2012) (“[A]n assertion of error followed by a case citation is not legal argument, which requires, at a minimum, a discussion of the appropriate law as applied to the relevant facts” (punctuation omitted)); Fleming v. Advanced Stores Co., 301 Ga. App. 734, 735 (688 SE2d 414) (2009) (“It is not the function of this [C]ourt to cull the record on behalf of a party in search of instances of error.” (punctuation omitted)); Dixon v. Metro. Atlanta Rapid Transit Auth., 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (“Rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant

12 (b) Next, William contends the probate court erred in finding that the in

terrorem clause is invalid as to an attack by an heir or beneficiary on the management

or expenditures of the Burkhalter Family Trust. But again, other than stating that the

arguments made as to Division 2 (a), supra, apply to this claim of error, William

provides no authority or references to the record. Indeed, in the half page of his brief

devoted to this claim, William merely provides a string of conclusory statements,

without making any discernable argument or applying any relevant authority to the

circumstances in this case. Thus, he has likewise abandoned his contention that the

probate court erred in finding the appellees would not violate the in terrorem clause

if they attacked the management or expenditures of the Burkhalter Family Trust.33

(c) William also maintains the probate court erred in declaring that he must

provide to the probate court and appellees—within 60 days of the date of its order—a

complete accounting of the calculation of loss sustained (as referenced in the in

terrorem clause).34

facts.”). 33 See supra note 32. 34 Although the probate court indicates that Item IX of Louise’s will—the in terrorem clause—provides for a calculation of loss, it appears that the court meant to reference Item IV, which provides, in part, that:

13 As to this claim of error, William details his version of certain facts underlying

[I]t is my desire that an equitable distribution of my estate is made among my children. I have considered the distress I have incurred due to actions by my daughter, Nancy Gayle Burkhalter Ward, as well as her son Robert Watkins, in an effort to thwart actions by my other children, which were taken in an effort to benefit my trust. Due to the for[e]going I desire that my sons, William Thomas Ray Burkhalter and John Allan Burkhalter make a calculation on loss sustained due to the actions of my daughter and grandson. I desire that this calculation be at the complete discretion of my executors/executor, and may be up to my entire remaining estate. I have complete confidence in their decisions and desire to avoid any further dispute whether through a court or otherwise.

I direct that this calculation, whatever it shall be, be considered, for the limited purpose of distribution, an asset of my estate already held by my daughter, Nancy Gayle Burkhalter. Each of my other children are entitled to the same benefit. Therefore, I direct that prior to further distribution, an amount equal to this calculation be distributed to each of my other children, William Thomas Ray Burkhalter, John Allan Burkhalter, George Laris Burkhalter and Mary Alice Burkhalter to be held by them in fee simple forever.

Burkhalter I, 343 Ga. App. at 418 (punctuation omitted).

William appears to suggest that there is no need for a calculation of loss because it “presupposes” Ward was disinherited for violating the in terrorem clause. But the probate court did not find that Ward violated the in terrorem clause and neither has this Court.

14 this appeal, but cites to only two pages of the record to support it. And yet again,

William fails to provide even a single reference to authority, much less apply that

authority to the facts of this case or make a cognizable argument to support his

contentions. As a result, William has also abandoned his claim that the probate court

erred by ordering him to provide a complete accounting of the calculation of loss

sustained within 60 days of its order.35

3. Finally, William argues the probate court erred in declaring that the

appellees may file a petition for an accounting, or in the alternative, for removal of

the executor without violating the in terrorem clause, should they deem it is necessary

after receipt of the loss calculation. Yet again, we disagree.

In Georgia, any person interested as a legatee, heir, or beneficiary of the estate

of a decedent, by statute, “may have a declaration of rights or legal relations in

respect thereto and a declaratory judgment to determine any question arising in the

administration of the estate, including questions of construction of wills and other

writings.”36 And this statute is to be construed “[unstintingly] and administered so as

35 See supra note 32. 36 Burkhalter I, 343 Ga. App. at 420 (1) (punctuation omitted); see OCGA § 9- 4-4 (a) (“Without limiting the generality of Code Sections 9-4-2, 9-4-3, 9-4-5 through 9-4-7, and 9-4-9, any person interested as or through an executor, administrator,

15 to afford relief from uncertainty and insecurity with respect to rights, status, and other

legal relations.”37

Thus, under OCGA § 9-4-4 (a) (3), “an interested party may seek a declaration

concerning the validity of an in terrorem clause.”38 And an interested party filing such

an action is “not itself a violation of the in terrorem clause at issue” because “[t]he

search for the true meaning of a will is not an attack upon it.”39 Furthermore, the

Supreme Court of Georgia “sanctions the use of a declaratory judgment action to

determine whether a proposed future action by the petitioner would violate an in

trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, ward, next of kin, or beneficiary in the administration of a trust or of the estate of a decedent, a minor, a person who is legally incompetent because of mental illness or intellectual disability, or an insolvent may have a declaration of rights or legal relations in respect thereto and a declaratory judgment: (1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (2) To direct the executor, administrator, or trustee to do or abstain from doing any particular act in his fiduciary capacity; or (3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.”). 37 Burkhalter I, 343 Ga. App. at 420 (1) (punctuation omitted); accord Sinclair v. Sinclair, 284 Ga. at 501 (1); Kesler, 218 Ga. App. at 105 (2); see OCGA § 9-4-1 (stating the purpose of the Declaratory Judgment Act). 38 Burkhalter I, 343 Ga. App. at 421 (1). 39 Id. at 421 (1) (punctuation omitted); see Sinclair, 284 Ga. at 504 (2) (“[T]he filing of a declaratory action by Appellant was not an attack upon the will.” (punctuation omitted)).

16 terrorem clause.”40 And as we have explained, “[t]ypically these proposed actions

involve questions of whether and how an interested party may challenge actions by

an executor, trustee or other fiduciary in the face of an in terrorem clause.”41

In Sinclair v. Sinclair,42 the Supreme Court of Georgia expressly held that “an

action for accounting and removal of [e]xecutor clearly would not amount to a contest

of the will by objecting to its probate; and such proceeding was clearly not an effort

to break the will.”43 The Sinclair Court further explained that the relevant will would

not be broken if a beneficiary “succeeds in obtaining an accounting and removal of

Executor. The effect of [her] success would leave the will in full force and effect.”44

40 Burkhalter I, 343 Ga. App. at 421 (1); see Sinclair, 284 Ga. at 504 (2) (holding that a beneficiary did not violate an in terrorem clause by filing “a complaint for declaratory judgment, seeking to determine whether he would violate the in terrorem clause by bringing an appropriate action in good faith against Executor for his removal “); Cohen v. Reisman, 203 Ga. 684, 685 (48 SE2d 113) (1948) (holding that “the trial court properly entered judgment declaring that the plaintiff beneficiary could maintain an action in the proper tribunal to bring the executor to account on the grounds set out in the petition, and also correctly ruled that the beneficiary did not forfeit her legacy under the will by reason of having instituted the present action for a declaratory judgment”). 41 Burkhalter I, 343 Ga. App. at 421 (1). 42 284 Ga. 500 (670 SE2d 59) (2008). 43 Id. at 502 (2) (punctuation omitted). 44 Id. (punctuation omitted).

17 Moreover, our Supreme Court concluded that it “would violate public policy to

construe the condition in terrorem so as to require the forfeiture of a beneficiary’s

interest for bringing an action for accounting and removal of the executor.”45

Ultimately, the Court held that “the trial court should have granted summary

judgment in favor of [the beneficiary] because the in terrorem clause in [the

decedent’s] will does not and cannot require forfeiture of his interest if he files the

proposed action for accounting and removal of [e]xecutor.”46

Thus, under Sinclair, the probate court did not err in declaring the appellees

could file a future petition for an accounting, or in the alternative, for removal of the

executor, without violating the in terrorem clause. Nevertheless, in Burkhalter I, this

Court acknowledged our Supreme Court’s holding in Sinclair, but distinguished it.

Specifically, we first noted that, in Sinclair, the beneficiary sought to bring an action

against the executor for his removal based “on the grounds of hostility, incompetence,

self-dealing, flagrant abuses of fiduciary responsibilities and other wrongs, and for

an accounting and other relief for breaches of trust, collusion, and negligence in the

45 Id. 46 Id. at 504 (2).

18 performance of his duties under the will.”47 Thus, we concluded that the Sinclair

Court had to “both construe the relevant in terrorem clause and compare it to the

action proposed by the petitioner in the declaratory judgment action.”48 We also

explained that, “Sinclair noted that a declaration that a proposed action will not

violate an in terrorem clause is limited to the type of proposed action that the

petitioner has described.”49 In Burkhalter I, the original petition for a declaratory

judgment, which was amended upon remand, “fail[ed] to specify the proposed claims

against the executor[ ] sufficient for the trial court to have determined that those

claims would not violate the in terrorem clause.”50 Thus, the probate court failed to

examine whether any proposed allegation against the executor “would be a violation

of the in terrorem clause or whether, based on those allegations, application of the in

terrorem clause would be void.”51 In remanding the case, we held that the probate

47 Burkhalter I, 343 Ga. App. at 422 (2), quoting Sinclair, 284 Ga. at 500. 48 Id. at 423 (2). 49 Id. at 422 (2). 50 Id. at 423 (2). 51 Id.

19 court erred in failing “to analyze the issue of the petitioners’ proposed claim against

the executor[ ] . . . .”52

As explained supra, following our remand of this case in Burkhalter I, the

appellees filed an amended petition for a declaratory judgment, requesting, inter alia,

a declaration that they could file a petition for an accounting, or in the alternative,

removal of the executor, without violating the in terrorem clause detailed supra.

Although the amended petition did not detail the specific claims the appellees

intended to assert against William, as the executor, they attached a proposed petition

for an accounting or removal of executor as an exhibit to the petition. In the proposed

petition, the appellees allege the executor failed to comply with and carry out the

dispositive provisions of Louise’s will. They also allege the executor “failed to

exercise good faith, care, and diligence in the management and administration of the

Estate.” And as to potential misconduct by William, the probate court expressed

concern that he admitted to distributing the estate to other beneficiaries and

determining the appellees’ actions violated the in terrorem provision, all while these

issues were pending before the court. The court concluded that this conduct “gives

a legitimate question of settlement of accounts by [the] executor to the beneficiaries.”

52 Id. at 424 (2).

20 Unlike the petition at issue in Burkhalter I, the appellees’ amended petition

provided the claims that they intended to assert in a future petition to remove the

executor, and the probate court expressed its specific concerns over William’s actions

as executor. Thus, under Sinclair, the probate court did not err in concluding that

filing the proposed petition for an accounting, or in the alternative, removal of

executor would not violate the will’s in terrorem clause.53

Notwithstanding our Supreme Court’s holding in Sinclair, William summarily

concludes the appellees will violate the in terrorem clause if they file a petition to

remove the executor “for a frivolous reason, or for no reason at all . . . .” William also

asserts that “[t]here seems little question[ ] that [his] actions . . . have been taken in

direct accordance with the wishes of the [t]estator through her written [w]ill.” But

those questions were not before the probate court, which only declared that the

53 See Norman v. Gober, 292 Ga. 351, 354 (1) (737 SE2d 309) (2013) (interpreting Sinclair as holding that a petition for accounting or for the removal of an executor does not constitute a will contest because it first affirms the validity of the will); Sinclair, 284 Ga. at 503 (2) (holding that “the trial court should have granted summary judgment in favor of [the beneficiary] because the in terrorem clause in [t]estatrix’s will does not and cannot require forfeiture of his interest if he files the proposed action for accounting and removal of [e]xecutor”); Burkhalter I, 343 Ga. App. at 423 (2) (“The [Supreme] [C]ourt in Sinclair . . . strictly construed the in terrorem clause, as required, and determined that it applied ‘only to an actual will contest’ and not to the proposed action by the petitioner, which sought an accounting and removal of the executor for cause.” (footnote omitted)).

21 appellees could initiate a future action challenging William’s potential misconduct

as executor. Moreover, William cites to no legal authority suggesting that a probate

court is required to determine whether the appellees’ proposed claims against an

executor are meritorious before determining the potential claims themselves would

not violate the in terrorem clause.

In Sinclair, our Supreme Court held that an action for an accounting or to

remove an executor does not violate an in terrorem clause, explaining that “nothing

herein ruled relates to the question as to whether the proposed action would be good

or bad in law or equity.”54 Furthermore, the Sinclair Court explained that “[i]t is not

material to this [declaratory-judgment] suit that, in the proposed action, [the

beneficiary] could conceivably choose to risk a forfeiture of his interest under the will

by requesting relief beyond that which is outlined in his complaint for declaratory

judgment.”55 Similarly, here, it is immaterial that the appellees’ claims might fail in

a future proceeding or that they might bring claims not detailed in their declaratory-

judgment petition. And given the binding precedents in Sinclair and Burkhalter I,

discussed supra, the probate court did not err in declaring that the appellees could file

54 Sinclair, 284 Ga. at 503 (2). 55 Id.

22 a future petition for an accounting, or in the alternative, removal of the executor

without violating the in terrorem clause in the decedent’s will.56

For all these reasons, we affirm the probate court’s order granting the

appellees’ petition for a declaratory judgment.

Judgment affirmed. Gobeil and Hodges, JJ., concur.

56 See supra note 53.