                              SECOND DIVISION
                                 DOYLE, J.,
                            BRANCH 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


                                                                   October 27, 2017




In the Court of Appeals of Georgia
 A16A1698. IN RE: ESTATE OF LOUISE RAY BURKHALTER.

      BRANCH, Judge.

      William Thomas Ray Burkhalter and John Allan Burkhalter, executors of the

estate of Louise Ray Burkhalter, appeal from the Bibb County Probate Court’s order

granting, in part, a petition for a declaratory judgment filed by George Laris

Burkhalter and Nancy Gayle Ward. In the rulings at issue in this appeal, the probate

court granted the petitioners’ requests for a declaratory judgment that they may,

without invoking the in terrorem clause1 included in the testator’s will, file

subsequent petitions concerning the will and its administration. For the reasons that




      1
        An “in terrorem” or “no-contest” clause refers to “a testamentary provision
that threatens to dispossess any beneficiary who challenges the terms of the will.”
Black’s Law Dictionary 1209 (10th ed. 2014).
follow, we vacate the probate court’s rulings and remand for further proceedings

consistent with this opinion.2

      Louise Ray Burkhalter, the testator, died on March 18, 2015, and her will was

admitted to probate. “Item IV” in her will provides as follows:

             [I]t is my desire that an equitable distribution of my estate is made
      among my children. I have considered the distress I have incurred due
      to actions by my daughter, Nancy Gayle Burkhalter Ward as well as her
      son Robert Watkins, in an effort to thwart actions by my other children,
      which were taken in an effort to benefit my trust. Due to the for[e]going
      I desire that my sons, William Thomas Ray Burkhalter and John Allan
      Burkhalter make a calculation on loss sustained due to the actions of my
      daughter and grandson. I desire that this calculation be at the complete
      discretion of my executors/executor, and may be up to my entire
      remaining estate. I have complete confidence in their decisions and
      desire to avoid any further dispute whether through a court or otherwise.

             I direct that this calculation, whatever it shall be, be considered,
      for the limited purpose of distribution, an asset of my estate already held




      2
         We initially transferred this appeal to the Supreme Court on the ground that
its resolution potentially required an evaluation of the meaning of the testator’s will.
The Supreme Court returned the case to this Court, concluding that none of the
probate court’s findings turned on the construction or interpretation of the testator’s
will or on a determination as to the validity of any provision thereof.

                                           2
      by my daughter, Nancy Gayle Burkhalter.[3] Each of my other children
      are entitled to the same benefit. Therefore, I direct that prior to further
      distribution, an amount equal to this calculation be distributed to each
      of my other children, William Thomas Ray Burkhalter, John Allan
      Burkhalter, George Laris Burkhalter and Mary Alice Burkhalter to be
      held by them in fee simple forever.


“Item IX” in the will contains the in terrorem clause, which provides, in relevant part:

             In order to assure there will be no dispute between my children
      concerning some of the expenditures made out of the Burkhalter Family
      Trust and other financial transactions with the assets in my estate, I want
      to declare that I have personally authorized these transactions. . . . I
      absolutely do not wish for my children to engage in legal disputes over
      this estate after my death. Therefore:

             Any person whether named as a beneficiary under my Last Will
      and Testament or becoming an heir of my estate by operation of law or
      any other means who attacks in any court of law any provision of my
      Last Will and Testament, or the administration of my estate, or the
      management or expenditures of the Burkhalter [F]amily [T]rust shall be
      specifically disinherited from any portion of my estate that would go to
      them either from provisions in my will or through operation[ ] of law. If
      this provision becomes operative, I direct that any portion of my estate




      3
      Nancy Gayle Burkhalter Ward, Nancy Gayle Burkhalter, and Petitioner Nancy
Gayle Ward are the same person.

                                           3
      that is involved be added to the residue and be distributed to the
      remaining beneficiaries, according to this, my Last Will and Testament.


      On June 10, 2015, the probate court issued letters testamentary qualifying the

appellants as the executors of the testator’s estate. On June 15, 2015, the petitioners

filed a petition for a declaratory judgment. As relief, the petitioners sought a

declaration that they may, without invoking the in terrorem clause in the testator’s

will, file additional declaratory judgment actions (i) “regarding Item IV” of the will,

(ii) “regarding Item IX” of the will, and (iii) to remove William and John as executors

of the estate. The petitioners did not, however, file copies of any proposed actions

that they intended to file in these subsequent actions.

      On August 15, 2015, the probate court held a hearing on the petition, following

which the court made three rulings: it denied the petition as to Item IV (the share

calculation provision), granted the petition to file a second petition as to Item IX (the

in terrorem provision), and granted the petition to file a second petition for the

removal of the executors.

      As to Item IV, the court noted that it was “being asked to pre-determine”

whether a future action “not filed or presented to the Court, concerning Item IV of the

Will violates the in terrorem clause in Item IX of the Will.” The court found that it

                                           4
was unclear whether the petitioners were “seeking to declare a provision of the Will

void or merely seeking interpretation or construction of the language of the Will.”

Accordingly, the court found it impossible to pre-determine whether such an action

would violate the in terrorem condition, and it therefore denied the petition as to Item

IV. The appellee petitioners have not cross-appealed this ruling.

      As to Item IX, the court held that a legatee may seek clarity as to the “validity

of” an in terrorem clause. The court therefore granted the petition to file another

petition for declaratory judgment regarding the validity of the in terrorem clause in

Item IX of the will. Finally, the court concluded that a petition for the removal of the

executors also would not invoke the in terrorem clause because such a clause does not

apply to “an action for an accounting and/or removal of an executor.” This appeal

followed.4




      4
        The parties’ appellate briefs refer to proceedings that postdate the probate
court order at issue in this appeal. Because those proceedings are not part of the
current record on appeal, we do not consider them and express no opinion on the
effect of any such proceedings on the issues on appeal.

                                           5
       The appellant executors have not provided to this Court a transcript of the

August 15, 2015 hearing. Accordingly, they may only challenge the legal rulings in

the trial court’s order.5

       The executors challenge two probate court rulings: (1) the declaration that the

petitioners may file a future petition for a declaratory judgment “regarding the

validity of” the in terrorem clause without violating the in terrorem clause itself; and

(2) the declaration that the petitioners may file a future petition to remove the

executors without violating the in terrorem clause. . As shown below, we conclude

that the petitioners’ claims and the trial court’s rulings on these issues are flawed as

a matter of law.

       1. By statute, 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 . . . , including questions of construction of wills and other


       5
        This appeal raises a question of law that can be decided without reference to
the omitted transcript. See ISP Alliance v. Physiotherapy Assocs., 238 Ga. App. 436,
437 (1) (519 SE2d 241) (1999); see also Bradley v. Roberts, 233 Ga. 114, 114 (210
SE2d 236) (1974). Moreover, the hearing does not appear to have been an evidentiary
hearing; in its order, the trial court stated that it relied on “the pleadings, cases cited
and argument of counsel.”

                                            6
writings.” OCGA § 9-4-4 (a) (3) (emphasis supplied); 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.” Sinclair, 284 Ga. at 501 (1) (citations and

punctuation omitted; emphasis supplied ); see OCGA § 9-4-1 (stating the purpose of

the Declaratory Judgment Act).

      Thus, under OCGA § 9-4-4 (a) (3), an interested party may seek a declaration

concerning the validity of an in terrorem clause. See Kesler v. Watts, 218 Ga. App.

104, 105 (2) (460 SE2d 822) (1995); Sinclair, 284 Ga. at 501 (1). And the filing of

such an action is not itself a violation of the in terrorem clause at issue: “The search

for the true meaning of a will is not an attack upon it.” Hicks v. Rushin, 228 Ga. 320,

324 (2) (185 SE2d 390) (1971); see also Sinclair, 284 Ga. at 504 (2) (citing Hicks).

Our Supreme Court also sanctions the use of a declaratory judgment action to

determine whether a proposed future action by the petitioner would violate an in

terrorem clause. Sinclair, 284 Ga. at 501 (1); Cohen v. Reisman, 203 Ga. 684 (48

SE2d 113) (1948). Typically these proposed actions involve questions of whether and

how an interested party may challenge actions by an executor, trustee or other



                                           7
fiduciary in the face of an in terrorem clause. See, e.g., Sinclair, 284 Ga. at 501 (1);

Cohen, 203 Ga. at 685 (3).

      But we find 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. Rather,

a question regarding the validity of an in terrorem clause should be resolved in the

first declaratory judgment action raising that issue. Cf. Kessler, 218 Ga. App. at 106

(2) (in declaratory judgment action filed concerning validity of in terrorem clause,

case remanded for that determination). Because we find no law allowing a second

declaratory judgment action on the question of the validity of an in terrorem clause

the court’s order must be reversed on this issue and remanded for that determination.6

      2. We next address the court’s declaration that a future petition to remove the

executors would not violate the in terrorem clause found in the will. We again find

legal error.


      6
        It is clear that the issue has not been addressed below. As already established
by the Supreme Court’s order transferring this case back to this Court, the trial court
“did not . . . interpret any specific provision of the will” and none of its findings
“turned on any determination as to the validity of any specific provision of Ms.
Burkhalter’s will or even on a construction or interpretation as to the meaning of any
specific provision of Mrs. Burkhalter’s will.”

                                           8
      As a part of this declaratory judgment action, the trial court was required to

determine whether the petitioner’s proposed action violates the specific in terrorem

clause at issue as properly construed under the law. See Sinclair, 284 Ga. at 500-502.

In Sinclair, the petitioner in the declaratory judgment action specified that he

intended to file a subsequent action for removal of an executor for cause:

      on the grounds of hostility, incompetence, self-dealing, flagrant abuses
      of fiduciary responsibilities and other wrongs, and for an accounting and
      other relief for breaches of trust, collusion, and negligence in the
      performance of his duties under the will.


Id. at 500. The specific in terrorem clause in that case provided that any legatee,

devisee or beneficiary of the will who contested the validity of the will or any

provision thereof or instituted any proceedings to do so would have their benefits

under the will revoked and given to the other beneficiaries under the will. Id. The

Supreme Court then described the dilemma facing the petitioner in terms of whether

the proposed future action violated the in terrorem clause at issue:

      If that action constitutes a proceeding to contest the will or any
      provision thereof, Appellant “will forfeit [his] right to receive any
      property under the will. On the other hand,” if the proposed action does
      not constitute such a proceeding, Appellant can bring the action



                                          9
      “without risk of forfeiting [his] interest in [Testatrix’s] estate under the
      in terrorem clause.”


Id. at 501 (1) (emphasis supplied), quoting Kessler, 218 Ga. App. at 106 (2). The

court in Sinclair then strictly construed the in terrorem clause, as required,7 and

determined that it applied “only to an actual will contest” and not to the proposed

action by the petitioner, which sought an accounting and removal of the executor for

cause. Sinclair, 284 Ga. at 502 (2). The Supreme Court also found that “it would

violate public policy to construe the condition in terrorem so as to require the

forfeiture of a beneficiary’s interest for bringing an action for accounting and removal

of the executor.” Id. The court concluded that “the in terrorem clause in Testatrix’s

will does not and cannot require forfeiture of [the appellant’s] interest if he files the

proposed action for accounting and removal of Executor.” Id. at 504 (2). Finally,

Sinclair noted that a declaration that a proposed action will not violate an in terrorem

clause is limited to the type of proposed action that the petitioner has described:

“Appellant could conceivably choose to risk a forfeiture of his interest under the will

by requesting relief [in the future action] beyond that which is outlined in his

      7
        “Because in terrorem clauses result in forfeitures, they must be strictly
construed.” Preuss v. Stokes-Preuss, 275 Ga. 437, 438 (569 SE2d 857) (2002)
(footnote omitted).

                                           10
complaint for declaratory judgment.” Sinclair, 284 Ga. at 503 (2). As can be seen, the

court had to both construe the relevant in terrorem clause and compare it to the action

proposed by the petitioner in the declaratory judgment action.

      Here, the petition fails to specify the proposed claims against the executors

sufficient for the trial court to have determined that those claims would not violate

the in terrorem clause. The petition does not include a proposed complaint or

otherwise state the basis for a suit to remove the executors. Absent such allegations,

the record does not support the probate court’s conclusion that the petitioners’

proposed petition to remove the executors will not violate the in terrorem clause.

Compare Sinclair, 284 Ga. at 500-503 (1) & (2); Cohen, 203 Ga. at 685-686 (3) & (4)

(appellant sought a ruling on whether, under the in terrorem provision in the testator’s

will, appellant would forfeit her interest in the estate if she brought an action to

compel the executor to dispose of the estate in accordance with the terms of the will);

Cohen, 203 Ga. at 685 (3) (beneficiary under will sought declaration as to application

of certain in-terrorem clause “should she bring an action seeking to show that the

executor has wrongfully withheld from her assets of the estate going to her under the

will, and that he as executor had perpetrated a fraud upon the ordinary in procuring

his discharge”); see also OCGA § 9-11-54 (c) (“[T]he court shall not give the

                                          11
successful party relief, though he may be entitled to it, where the propriety of the

relief was not litigated and the opposing party had no opportunity to assert defenses

to such relief.”). At best, the petition here can be read to allege that the executors

should be removed because they have a conflict of interest between their roles as

executors and as beneficiaries of any forfeiture that might result from the effect of the

in terrorem clause. But the trial court did not examine whether any such assertion

would be a violation of the in terrorem clause or whether, based on those allegations,

application of the in terrorem clause would be void.

       It is true that an in terrorem clause may not punish litigation brought “to

enforce the will and to compel the executor . . . to carry out its terms” because an

executor “has no arbitrary powers to avoid the provisions of a will which he is

appointed to execute.” See Sinclair, 284 Ga. at 502-503 (2). But absent some

indication in the record that the petitioners seek to remove the executors to enforce

the testator’s wishes, the petitioners’ reliance on Sinclair is of no avail. See id. at 502

(2); accord Norman v. Gober, 292 Ga. 351, 354 (1) (737 SE2d 309) (2013)

(concluding that a caveat to the decedent’s will was not governed by Sinclair because

the caveat sought to challenge the will, whereas the petition in Sinclair sought to



                                            12
affirm the will). The court therefore failed to analyze the issue of the petitioners’

proposed claim against the executors in accordance with Sinclair and Kessler.

      For the above reasons, the trial court erred in its rulings as to the petitioners’

proposed petitions for declaratory judgment regarding Item IX of the will and

removal of the executors without violating the in terrorem clause. We therefore vacate

the probate court’s judgment and remand this case for further proceedings consistent

with this opinion.

      Judgment vacated and case remanded. Doyle and Reese, JJ., concur.




                                          13
