In Re Estate of Sandra Elaine B. Barnett

• Court: Court of Appeals of Georgia
• Decided: January 10, 2019
• Docket: A18A1969
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., MCMILLIAN and REESE, 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

January 10, 2019

In the Court of Appeals of Georgia A18A1969. IN RE ESTATE OF SANDRA ELAINE B. BARNETT.

MCMILLIAN, Judge.

In this probate dispute, we are asked to determine whether, under OCGA § 53-

1-5, Buster Barnett, the husband of decedent Sandra Elaine B. Barnett,1 has forfeited

the right to take an interest in her estate and to serve as its personal representative

because Buster was allegedly involved in Sandra’s murder. For the reasons that

follow, we find that the trial court correctly determined that no genuine issue of

material fact exists tying Buster to Sandra’s murder and affirm.

Although somewhat limited, the record provides some context to the Barnetts’

complex relationship and the tragic end of Sandra’s life. Buster and Sandra were

married in 1987. At some point, they became estranged, and in 2011, Buster filed a

1 For clarity, we will refer to Buster and Sandra Barnett by their first names. pro se divorce action. After Sandra did not appear for the bench trial, the trial court

entered a final judgment and decree of divorce in 2012. Several months later, Sandra

obtained counsel and filed a motion to set aside the divorce decree, alleging that,

although they still lived together at the time, Buster had fraudulently identified her

address as one of their rental properties, and she therefore never received a copy of

the divorce complaint and summons. Following a hearing, the trial court granted her

motion to set aside the decree and reopened discovery. In January 2014, the parties

filed a mutual dismissal of the divorce action, asserting potential reconciliation. A

month later, Buster wrote a letter to the trial judge requesting that the divorce be

reinstated because he did not have notice of Sandra’s motion to set aside, but the trial

court explained in response that the case had been closed following the parties’

consent dismissal and either party could initiate new divorce proceedings.

In June 2015, Buster again filed for divorce. The following month, Lisa Brown,

Buster’s girlfriend, kidnapped Sandra from her home at gunpoint. The next day,

police spotted the vehicle Brown was driving and began a chase that crossed into

Alabama and ended with Brown fatally shooting Sandra and then herself. Buster has

not been charged with a crime in relation to his wife’s death.

2 In August 2015, Buster Barnett filed a petition to probate Sandra’s will.

However, when Buster did not appear at a scheduled hearing, his petition was

dismissed for want of prosecution. Shortly thereafter, Donna Brooks, Sandra’s sister,

filed a petition to probate the will. Buster, however, then filed a petition for letters of

administration. In response, Brooks filed a petition to invoke the “Slayer Statute” and

to appoint her as the executor to Sandra’s estate. In her petition, Brooks argued that

Buster and Brown had been having an affair for over two years and lived together for

several months prior to Sandra’s murder and that Brown was driving Buster’s car

when she kidnapped Sandra. Brooks further alleged that Buster deceived Sandra until

her death in order to avoid dividing their marital assets; that he was aware that Brown

suffered from mental illness and had violent and suicidal tendencies;2 and that he

conspired with Brown to have Sandra murdered.

Buster opposed Brooks’ petition and moved for summary judgment, asserting

that he did not kill his wife nor did he conspire with anyone to kill her. After the

2 As evidence, Brooks asserted that at the time of Sandra’s murder, Brown was on probation for kidnapping her own child after she lost custody. She also presented a 2013 police report following an allegation of aggravated assault committed by Brown against Buster.

3 probate court granted Buster’s motion,3 finding that there was no evidence to support

invoking the Slayer Statute against him, this appeal followed. In related enumerations

of error, Brooks asserts, on behalf of Sandra’s estate, that the trial court erred in

granting summary judgment to Buster.

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” OCGA § 9-11-56 (c). OCGA § 53-1-5, commonly

known as the “Slayer Statute,” provides, in relevant part:

(a) An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent’s estate and to serve as a personal representative or trustee of the decedent’s estate or any trust created by the decedent. For purposes of this Code section, the killing or conspiring to kill or procuring another to kill is felonious and intentional if the killing would constitute murder or felony murder or voluntary manslaughter under the laws of this state.

...

3 As neither party requested a hearing, the probate court decided the motion on the pleadings and available record.

4 (d) A final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive in civil proceedings under this Code section. In the absence of such a conviction or plea, the felonious and intentional killing must be established by clear and convincing evidence.

Our Supreme Court has explained that “OCGA § 53-1-5 requires some form of

judicial condemnation to divest a murderer or his or her interests from the murdered

decedent’s estate.” Levenson v. Word, 286 Ga. 114, 116 (686 SE2d 236) (2009). This

may happen “either through a criminal proceeding, i.e., final judgment of conviction

or a guilty plea, or through a civil proceeding establishing a felonious and intentional

killing by clear and convincing evidence.” Id.4

Here, it is undisputed that there has been no criminal conviction or civil

proceeding establishing by clear and convincing evidence that Buster participated in

the kidnapping and murder of his wife. Nor has Brooks produced any evidence in this

proceeding to support a finding that Buster conspired to kill or procured the killing

of his wife. Instead, Brooks only speculates that Buster had the motive to kill Sandra

4 The Supreme Court noted, however, that “[n]othing in OCGA § 53-1-5 precludes interested parties from utilizing other existing statutory and equitable remedies, e.g., caveat to the will or injunctive relief, to prevent an alleged murderer from dispersing his or her interest from a decedent’s estate.” Levenson, 286 Ga. at 116, n.3 (citing OCGA § 23-2-91).

5 to avoid losing assets in the divorce, that he knew about Brown’s violent tendencies

and criminal background, and that Brown was angry that Buster and Sandra were

planning to take a trip together. No evidence has been presented that Buster knew

about Brown’s plans to kidnap Sandra, that he encouraged her to do so, or that he had

done anything else to make himself a party to Brown’s criminal acts. Without more,

the probate court correctly granted summary judgment to Buster, and we must affirm.

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