                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, 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


                                                                     October 8, 2019




In the Court of Appeals of Georgia
 A19A1537. IN RE ESTATE OF ROBERT A. JOHNSON.

      MARKLE, Judge.

      Brothers Robert Johnson, Jr., and Christopher Johnson (collectively “the

Johnsons”) appeal from the probate court’s denial of their petition for declaratory

judgment seeking to interpret certain provisions in their father’s will. Because the

probate court properly concluded that the Johnsons’ declaratory judgment action

would trigger the in terrorem clause, we affirm.

      The record shows that the Johnsons’ father, Robert A. Johnson (“the father”),

executed both a will and a trust in 2016. Per the terms of the will, the father left his

property either in trust or through a life estate to benefit Wendy Gerrity, who was his

fiancée at the time he executed both the will and trust. The father appointed Gerrity
as executor of his will, but identified her in this document as his “wife” even though

the two had not yet married.

      The will contained an “in terrorem clause,” which provided:

      Should any beneficiary of this Will contest the validity of this Will or
      any provision thereof or institute any proceedings to contest the validity
      of this Will, any trust created by this Will or by me during my life, or
      any other provision thereof or to prevent any provision thereof from
      being carried out in accordance with its terms (whether or not in good
      faith and with probable cause), then all benefits provided for such
      beneficiary in this Will . . . are revoked and annulled[.]1


The will also created a living trust, for which Gerrity was to be the trustee following

the father’s death. With regard to the trust, the document expressly indicated that it

was “made in contemplation to my marriage to WENDY E. GERRITY.” Per the terms

of the trust, the trustee was to manage the funds and direct payment to support the

father’s “wife,” himself, or his descendants. Additionally, the trust contemplated that,

upon the father’s death, all items in the trust would be distributed to “my wife,

WENDY E. GERRITY” as a life estate, and that any interest in his home would be

distributed to “the WENDY E. GERRITY LIVING TRUST . . . if and only if,


      1
       The will contained a provision for the distribution of assets in the event that
any bequest was revoked under the in terrorem clause.

                                           2
WENDY E. GERRITY is alive at the time of my death.” In several of the trust’s

provisions, the father made specific provisions for his “wife,” without referring to her

by name. The trust also contained an in terrorem clause that mirrored the clause in the

will. It is undisputed that, at the time these documents were executed, the father and

Gerrity were not married.

      The father died in October 2018, and at the time of his death, the father and

Gerrity had not married. Gerrity submitted the will to probate in solemn form.

Thereafter, the Johnsons filed the instant petition for declaratory judgment seeking

an opinion from the probate court that they could file a second declaratory action to

construe the terms of the will and trust without running afoul of the in terrorem

clauses. Attached to the petition was a copy of the second, proposed declaratory

judgment (“proposed declaratory judgment action”) they wished to file. The gist of

their argument in the proposed declaratory judgment action was that, because Gerrity

was not the father’s wife, she was not entitled to be a beneficiary or to serve as the

executor of the will or a trustee of the trust. They later amended the proposed

declaratory judgment action to allege that because Gerrity was not the father’s wife

when the father died, “this Court should interpret his documents such that 1) the Trust

is valid, but a necessary condition of his Trust was not met, thereby causing its

                                           3
termination; 2) [Gerrity] is not a beneficiary of the Will, Trust, or heir of the [father]

as she and the [father] were not married; and 3) [Gerrity] is ineligible to serve as the

Personal Representative of the Will or Trustee of the Trust because she was not

married to [the father].”

      Gerrity opposed the petition, arguing that the proposed declaratory judgment

action would violate the in terrorem clause. Following a hearing, at which the probate

court heard argument but did not take any evidence, the probate court denied the

petition for declaratory judgment because the proposed declaratory judgment action

would remove Gerrity as a beneficiary and, therefore, was barred by the in terrorem

clauses. The Johnsons now appeal.

      In their sole enumeration of error, the Johnsons argue that the probate court

erred by denying their petition for declaratory judgment because the instant petition

only sought to determine the “true meaning of the Will and Trust.” They further point

to the probate court’s erroneous factual findings that they contend led the probate

court to its incorrect ruling. They argue that the probate court was confused because

they filed the instant petition for declaratory judgment to determine if they could

bring the proposed declaratory judgment action to challenge the will and trust without

violating the in terrorem clauses. According to the Johnsons, their proposed

                                            4
declaratory judgment action merely sought to determine if Gerrity, who was the

father’s fiancée and not the father’s wife, was the fiduciary under the will and trust,

and therefore, they actually sought to carry out the will according to its intent as

written. We disagree.

      Under OCGA § 9-4-4 (a) (3), any person interested as a legatee, heir, or

beneficiary of the estate of a decedent “may have a declaration of rights or legal

relations in respect thereto and a declaratory judgment . . . [t]o determine any question

arising in the administration of the estate or trust, including questions of construction

of wills and other writings.” See also Sinclair v. Sinclair, 284 Ga. 500, 501 (1) (670

SE2d 59) (2008). “This statute is to be liberally construed and administered so as to

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

legal relations.” (Citations and punctuation omitted.) Sinclair, 284 Ga. at 501 (1); see

also OCGA § 9-4-1 (stating the purpose of the Declaratory Judgment Act).

Accordingly, OCGA § 9-4-4 (a) (3) permits an interested party to seek a declaration

regarding the validity of an in terrorem clause. In re Estate of Burkhalter, 343 Ga.

App. 417, 421 (1) (806 SE2d 875) (2017). Moreover, filing a declaratory judgment

does not itself violate the in terrorem clause, and our Supreme Court has sanctioned

the use of a declaratory judgment action to determine whether a proposed future

                                           5
declaratory action by the petitioner would violate an in terrorem clause. Sinclair, 284

Ga. at 501 (1), 504 (2); see also Kesler v. Watts, 218 Ga. App. 104, 105 (2) (460 SE2d

822) (1995) (permitting declaratory action to determine validity of in terrorem

clause).

      Here, the Johnsons filed a declaratory judgment action seeking to determine

whether they could file their proposed declaratory judgment action to “interpret” the

father’s will, specifically whether the will and trust were valid and whether Gerrity

was entitled to be a beneficiary, executor, or trustee.2 Although the filing of the

instant petition for declaratory judgment would be permissible and would not be

barred by the in terrorem clause, the proposed declaratory judgment action would, as

the trial court found, violate the in terrorem clause. Although the Johnsons contend

that they seek only an interpretation of the will and the use of the term “wife” when

referring to Gerrity, their proposed declaratory judgment action makes clear that what

they truly seek is to remove Gerrity as a beneficiary, executor, and trustee. Compare

Hicks v. Rushin, 228 Ga. 320, 324 (2) (185 SE2d 390) (1971) (filing declaratory

      2
        To the extent that the probate court’s order could be interpreted to conclude
that only Gerrity could bring a declaratory action, we disagree. Any beneficiary can
bring an action seeking to hold the fiduciary to enforcement of the document without
violating an in terrorem clause. See Snook v. Sessoms, 256 Ga. 482 (350 SE2d 237)
(1986).

                                          6
judgment petition was not an attack upon the will but rather was a “search for the true

meaning of [the] will”). Thus, as the probate court correctly found, the proposed

declaratory judgment action would trigger the in terrorem clause.3

      In support of their argument that they are entitled to bring their proposed

declaratory judgment action to interpret the will and trust, the Johnsons cite three

cases: Sinclair, 284 Ga. 500; Duncan v. Rawls, 345 Ga. App. 345 (812 SE2d 647)

(2018); and Burkhalter, 343 Ga. App. 417. However, none of these cases supports the

Johnsons’ argument.

      In Sinclair, the Supreme Court of Georgia held that a party could bring an

action for accounting or removal of an executor without triggering the in terrorem

clause because those claims did not seek to destroy the will. Sinclair, 284 Ga. at 501

(1). But that is not what the Johnsons have done here. As they clearly set out in the

proposed declaratory judgment action, the purpose of that action is to remove Gerrity

as a beneficiary, executor, and trustee. In other words, although they couch their

claims as if they were not trying to break the father’s will and trust, the outcome they


      3
         The Johnsons point to various factual errors by the probate court as a basis
for their argument that the probate court erred. The probate court incorrectly stated
in its order that the will had not been admitted into probate, but it had. This mistake,
however, has no impact on our analysis.

                                           7
seek is precisely that. Accordingly, Sinclair does not support their ability to bring the

proposed declaratory judgment action.

       Neither do Duncan or Burkhalter. In Duncan, this Court held that a party could

bring a declaratory judgment action to raise a breach of fiduciary duty claim without

running afoul of an in terrorem clause. 345 Ga. App. at 351-352 (2) (a). Again,

although the Johnsons argue that their petition is akin to a breach of fiduciary duty

claim, a review of their proposed declaratory judgment action confirms that they

actually seek to challenge the terms of the will and trust. Thus, nothing in Duncan

will enable the Johnsons to circumvent the in terrorem clause.

       Finally, in Burkhalter, this Court confirmed that a declaratory judgment was

a permissible mechanism to determine if a future declaratory judgment action would

be barred, but we explained that there was “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.” 343 Ga. App. at 421 (1). Instead, any question about the

validity of the in terrorem clause “should be resolved in the first declaratory judgment

action raising that issue.” Id. Applying this holding to the instant case, it is clear that



                                            8
the probate court properly considered whether the in terrorem clause would bar the

subsequent, proposed declaratory judgment action.

      Turning to the in terrorem clauses at issue in this case, we conclude that there

is no merit to the Johnsons’ argument that they seek only an interpretation of the will.

It is clear from the plain language of their proposed declaratory judgment action that

they sought to void any bequest to Gerrity or any involvement by Gerrity in the

father’s estate. This is exactly what the in terrorem clause is designed to prevent.

Compare Callaway v. Willard, 321 Ga. App. 349, 357 (3) (a) (739 SE2d 533) (2013)

(challenge to decedent’s competency to establish trust did not violate in terrorem

clause regarding management decisions because such challenge did not relate to

management of trust). Accordingly, the probate court properly concluded that the

proposed declaratory judgment action would violate the in terrorem clause, and we

affirm its denial of the petition.

      Judgment affirmed. Doyle, P. J., and Coomer, J., concur.




                                           9
