In Re: Estate of Sam Farkas

• Court: Court of Appeals of Georgia
• Decided: December 13, 2013
• Docket: A13A1939
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, 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/

December 13, 2013

In the Court of Appeals of Georgia A13A1939. IN RE: ESTATE OF FARKAS

MILLER, Judge.

In his will, Sam Farkas named his brother Leonard Farkas as the executor of

his estate and his daughter Lorie Farkas Van Linden as successor executor. Farkas

also made a codicil stating that the executor was not to receive any fees for work done

as executor of the estate. Following Sam’s death, Lorie filed a petition to probate the

will and codicil in solemn form. In the petition, Lorie asked to be appointed as

executor, rather than Leonard, because his involvement in several suits against the

estate and money he owed to the estate created conflicts of interest. Following a

hearing, the probate court entered an order admitting the will to probate and

appointing Lorie as the executor, finding that there were grounds upon which to

question Leonard’s fitness to serve in that capacity. Leonard appeals from that ruling. 1. Before turning to the merits of Leonard’s appeal, we must first examine this

Court’s jurisdiction over this appeal. “It is the duty of this Court on its own motion

to inquire into its jurisdiction.” (Citation and punctuation omitted.) Cooper v. Spotts,

309 Ga. App. 361 (1) (710 SE2d 159) (2011).

The Constitution of the State of Georgia of 1983, Article VI, Section VI,

Paragraph III (3), confers upon the Georgia Supreme Court jurisdiction in “[a]ll cases

involving wills.” The Georgia Supreme Court has interpreted this language to mean

only those cases where the validity or construction of a will is the main issue on

appeal. See In re Estate of Lott, 251 Ga. 461 (306 SE2d 920) (1983). Here, the issue

on appeal concerns the appointment of the executor, and does not concern the validity

or construction of the will. Therefore, we have jurisdiction over the appeal. See

Darnell v. Tate, 209 Ga. 23, 26-27 (64 SE2d 582) (1951) (transferring appeal to this

Court because the issue on appeal concerned appointment of executor).

2. In several enumerations of error, Leonard, representing himself,1 generally

contends that the trial court erred in appointing Lorie as the executor and finding that

he was unfit to serve in that capacity.

1 Leonard is admitted to practice law in the State of Georgia.

2 “Unless adjudged unfit, nominated executors shall have the right to qualify in

the order set out in the will.” OCGA § 53-6-10 (b); see also In re Estate of Bagley,

239 Ga. App. 877, 879 (1) (522 SE2d 281) (1999) (probate court is not required to

appoint a named executor). Generally, a probate court has broad discretion in the

disqualifying a named executor. See In re Estate of Moriarty, 262 Ga. App. 241, 242

(2) (585 SE2d 182) (2003). We review a probate court’s determination regarding

whether one is fit to serve as an executor for an abuse of discretion. See id. On

appeal, the relevant question is whether the probate court had grounds to conclude

that there was good cause for its determination to disqualify an executor. Cf. id. (good

cause must be shown to remove executor). “Where the personal interests of the

representative of an estate conflict, or might conflict, with the interest of the estate

or the beneficiaries, such fact may be sufficient grounds for removal. We will not set

aside the probate court’s findings of fact unless the findings are clearly erroneous.”

(Punctuation and footnotes omitted.) Ray v. Nat. Health Investors, Inc., 280 Ga. App.

44, 50-51 (5) (633 SE2d 388) (2006).

Here, although the probate court conducted an evidentiary hearing on Lorie’s

petition, including her request to disqualify Leonard as executor, the hearing was not

transcribed. In his enumerations of error, Leonard generally argues that the evidence

3 introduced at the hearing did not support the trial court’s findings. Since our review

of Leonard’s claims would require us to review the evidence submitted at the hearing,

which we are unable to do, we must affirm.

When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of [relief]. As the appellant[, Leonard] had the burden to affirmatively show error by the record. This [he] failed to do.

(Citation, punctuation, and footnote omitted.) Jackman v. LaSalle Bank, N.A., 299 Ga.

App. 894, 896 (1) (683 SE2d 925) (2009). Accordingly, this case is affirmed because,

in the absence of a transcript, we must assume that the evidence adduced at the

hearing supported the trial court’s findings. Murray v. Hooks, 313 Ga. App. 485, 485-

486 (722 SE2d 82) (2011).

Judgment affirmed. Barnes, P. J., and Ray, J., concur.