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BACON v. SMITH8/19/1996
In Case No. A96A1475, Jerry Bacon appeals the superior court's order which reversed the probate court and upheld Walter Smith's investment of his ward's assets in annuities. In Case No. A96A1476, Walter Smith appeals the portion of the superior court's order which denied his motion for summary judgment, thereby affirming the probate court's revocation of the letters of dismission granted to Walter H. and Lois L. Smith as guardians of Christopher Lee Smith (minor). The underlying action arose out of a petition for accounting and distribution filed by Bacon.
On April 25, 1990, Walter and Lois Smith were appointed the guardians of their 15-year-old adopted son, Christopher Lee Smith, for the purpose of managing Christopher's assets until he reached the age of majority. Also on April 25, 1990, the Liberty County Probate Court authorized the settlement of the tort claims Christopher lodged against Anneewakee, Inc., in the total amount of $452,740.05, from which attorney fees were deducted. On May 14, 1990, Christopher's guardians filed a petition in probate court seeking the court's approval to invest Christopher's settlement in certain described annuity plans. After review, the probate court specifically approved of and authorized the purchase of the annuities requested.
The annuities were purchased, and Christopher listed his parents as primary beneficiaries and Henry and Sheila Smith as secondary beneficiaries. Bacon, Christopher's half-brother from his mother's previous marriage was not listed as a beneficiary. Christopher designated the beneficiaries in the probate court judge's presence and outside the presence of his guardians.
On December 24, 1991, Christopher was killed in an accident. Christopher's guardians administered his estate and were issued letters of dismission on September 16, 1993. On November 1, 1994, Bacon filed the underlying petition for accounting and distribution of Christopher's estate, asserting that he was entitled to a one-fifth share in the annuities and estate assets. The probate court determined that letters of dismission granted to the guardians should be
set aside as the final return did not show a zero balance and no distribution was made to Bacon of the cash funds in the estate. The probate court further determined that, although the purchase of the annuities was authorized, Bacon was entitled to a one-fifth share of all annuity payments upon Christopher's death.
On appeal from the probate court's order, the superior court determined that the probate court properly set aside the letters of dismission because Bacon was omitted from the distribution of estate funds; however, the superior court found that the probate court erred in determining the annuities were part of Christopher's estate. The superior court determined that the annuities were authorized by court order and that Christopher had the right to dispose of his property by designating the beneficiaries to the annuities. These appeals followed.
Case No. A96A1475
1. In his first enumeration of error, Bacon contends the trial court erred in determining that Christopher's designation of beneficiaries to the annuities was tantamount to making a will. This enumeration is without merit as it misconstrues the trial court's order. The trial court merely drew an analogy between the right of a 15 year old to dispose of his property by will, see OCGA § 53-2-22, and 15-year-old Christopher's right to determine the beneficiaries of his annuities. OCGA § 53-2-22 provides that the minimum age for testamentary capacity is 14 years. The trial court correctly determined that Christopher had the ability to designate beneficiaries to his annuities.
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