undue influence claim in Georgia

2012Generally, questions of undue influence are for the factfinder, Mathis v. Hammond, 268 Ga. 158, 160 (3) ( 486 SE2d 356 ) (1997), and undue influence may be shown by a broad range of circumstantial evidence.

2012Generally, questions of undue influence are for the factfinder, Mathis v. Hammond, 268 Ga. 158, 160 (3) ( 486 SE2d 356 ) (1997), and undue influence may be shown by a broad range of circumstantial evidence.

2023But if the undue-influence claim fails—meaning that the formation 4 See id. at 722 (1), 725 (2). 5 314 Ga. 89 ( 876 SE2d 228 ) (2022). 6 Giller v. Slosberg, 359 Ga. App. 867 ( 858 SE2d 747 ) (2021). 7 See Slosberg, 314 Ga. at 90 . 8 See id. 3 of the trust instrument was valid—then any statutorily valid in terrorem clause is triggered and the beneficiary forfeits any benefits otherwise conferred upon him by the trust.9 Our Supreme Court further explained that we erred in relying on Duncan I for support in reversing the jury’s verdict, distinguishing that earlier case by noting [t]he beneficiari

2023But if the undue-influence claim fails—meaning that the formation 4 See id. at 722 (1), 725 (2). 5 314 Ga. 89 ( 876 SE2d 228 ) (2022). 6 Giller v. Slosberg, 359 Ga. App. 867 ( 858 SE2d 747 ) (2021). 7 See Slosberg, 314 Ga. at 90 . 8 See id. 3 of the trust instrument was valid—then any statutorily valid in terrorem clause is triggered and the beneficiary forfeits any benefits otherwise conferred upon him by the trust.9 Our Supreme Court further explained that we erred in relying on Duncan I for support in reversing the jury’s verdict, distinguishing that earlier case by noting [t]he beneficiari

2022See also Gray v. State, 310 Ga. 259, 262 ( 850 SE2d 36 ) (2020) (explaining that “‘statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it’” and that “‘common-law rules are still of force and effect . . . except where they have been changed by express statutory enactment or by necessary implication’”) (citations omitted).12 12 It is true that, although the General Assembly has codified the undue- influence rule in the Probate Code, see OCGA § 53-4-12 (“A will is not valid if anything destroys the testator’s freedo

2022See also Gray v. State, 310 Ga. 259, 262 ( 850 SE2d 36 ) (2020) (explaining that “‘statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it’” and that “‘common-law rules are still of force and effect . . . except where they have been changed by express statutory enactment or by necessary implication’”) (citations omitted).12 12 It is true that, although the General Assembly has codified the undue- influence rule in the Probate Code, see OCGA § 53-4-12 (“A will is not valid if anything destroys the testator’s freedo

2022Stating that this Court and the Court of Appeals have concluded in cases involving similar in terrorem clauses that the “mere ‘initiation’ of legal proceedings triggers [a] trust’s in terrorem clause,” the Court of Appeals said that “an in terrorem clause bars an individual from proceeding with an action—even one claiming undue influence.” Id. (citing, among other cases, Norman, 292 Ga. at 354, Norton v. Norton, 293 Ga. 177, 179 (744 SE2d 790) (2013), and Duncan, 345 Ga. App. at 345).

2022Stating that this Court and the Court of Appeals have concluded in cases involving similar in terrorem clauses that the “mere ‘initiation’ of legal proceedings triggers [a] trust’s in terrorem clause,” the Court of Appeals said that “an in terrorem clause bars an individual from proceeding with an action—even one claiming undue influence.” Id. (citing, among other cases, Norman, 292 Ga. at 354 , Norton v. Norton, 293 Ga. 177, 179 ( 744 SE2d 790 ) (2013), and Duncan, 345 Ga. App. at 345).

2022Stating that this Court and the Court of Appeals have concluded in cases involving similar in terrorem clauses that the “mere ‘initiation’ of legal proceedings triggers [a] trust’s in terrorem clause,” the Court of Appeals said that “an in terrorem clause bars an individual from proceeding with an action—even one claiming undue influence.” Id. (citing, among other cases, Norman, 292 Ga. at 354, Norton v. Norton, 293 Ga. 177, 179 (744 SE2d 790) (2013), and Duncan, 345 Ga. App. at 345).

2022Stating that this Court and the Court of Appeals have concluded in cases involving similar in terrorem clauses that the “mere ‘initiation’ of legal proceedings triggers [a] trust’s in terrorem clause,” the Court of Appeals said that “an in terrorem clause bars an individual from proceeding with an action—even one claiming undue influence.” Id. (citing, among other cases, Norman, 292 Ga. at 354, Norton v. Norton, 293 Ga. 177, 179 (744 SE2d 790) (2013), and Duncan, 345 Ga. App. at 345).

2022See Slosberg, 341 Ga. App. at 582-583 (holding that there was some evidence to support Plaintiff’s undue-influence claim and reversing the grant of summary judgment to Defendants on the basis that the trust was valid and that Plaintiff had forfeited his benefits under the in terrorem clause). 31 misunderstood the background law and our case law interpreting it, and Defendants repeat those misconceptions in their brief to this Court.

2022See Slosberg, 341 Ga. App. at 582-583 (holding that there was some evidence to support Plaintiff’s undue-influence claim and reversing the grant of summary judgment to Defendants on the basis that the trust was valid and that Plaintiff had forfeited his benefits under the in terrorem clause). 31 and Defendants repeat those misconceptions in their brief to this Court.