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Hicks v. Rushin

4 Citing cases

  1. Sinclair v. Sinclair

    284 Ga. 500 (Ga. 2008)   Cited 16 times
    Holding that " beneficiary assuredly is empowered to enforce the provisions of a will, no matter the terms of any in terrorem clause," but nevertheless recognizing that the beneficiary "could conceivably choose to risk a forfeiture of his interest under the will by requesting relief beyond that which is outlined in his complaint ..."

    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). Thus, Appellant "did not forfeit [his] legacy under the will by reason of having instituted the present action for a declaratory judgment."

  2. In re Estate of Johnson

    352 Ga. App. 164 (Ga. Ct. App. 2019)   Cited 4 times
    Holding that although the plaintiffs contended that they sought only an interpretation of the will, their proposed declaratory judgment action made it clear that their actual intent was to contest a provision of the will and, thus, their action would trigger 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 S.E.2d 390 (1971) (filing declaratory 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 re Estate of Burkhalter

    343 Ga. App. 417 (Ga. Ct. App. 2017)   Cited 3 times
    Holding 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

    See Kesler v. Watts, 218 Ga. App. 104, 105 (2), 460 S.E.2d 822 (1995) ; Sinclair, 284 Ga. at 501 (1), 670 S.E.2d 59. 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 S.E.2d 390 (1971) ; see also Sinclair, 284 Ga. at 504 (2), 670 S.E.2d 59 (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), 670 S.E.2d 59 ; Cohen v. Reisman, 203 Ga. 684, 48 S.E.2d 113 (1948).

  4. In re Ikuta

    64 Haw. 236 (Haw. 1981)   Cited 11 times

    We find here that cross-appellees' actions were in the nature of construing the will. As such, we follow the general rule and hold that will construction is not a "contest" to which the clause would apply.Wells v. Menn, 158 Fla. 228, 28 So.2d 881 (1946); Hicks v. Rushin, 228 Ga. 320, 185 S.E.2d 390 (1971). Accord, HRS ยง 560:3-905 (1976), which provides as follows: