Summary
The Georgia Supreme Court affirmed the denial of Gregory and Adam Piccione’s motion for summary judgment in a dispute over whether their deceased mother’s testamentary share passed to them under Georgia’s anti-lapse statute. The court held that the will’s use of the capitalized term “PER CAPITA” created a limitation requiring the named beneficiaries to survive the testator, so the anti-lapse statute did not apply to the gift to Donna Piccione. Because the Picciones therefore had no property interest in the estate, the trial court properly denied summary judgment.
Topics
Practice areas
Questions Presented
- Whether Virginia Arp's bequests to her four named children were individual gifts or a class gift.
- Whether the phrase "PER CAPITA" in the will constituted a limitation requiring each named beneficiary to survive the testator.
- Whether Georgia's anti-lapse statute, OCGA § 53-4-64 (a), preserved Donna Piccione's testamentary gift for her descendants.
Holdings
- The bequests to Virginia's four named children were individual gifts, not a gift to a class.
- In the circumstances of this will, the phrase "PER CAPITA" imposed a limitation requiring the named children to survive Virginia in order to take their bequests.
- OCGA § 53-4-64 (a) did not apply because Donna's testamentary gift was subject to a limitation requiring her to survive Virginia; Donna's gift therefore lapsed and did not vest in the Picciones.
Key quotations
“The choice of “PER CAPITA” in this circumstance imposes a requirement that the individuals named take the bequests in their own stead, that those bequests not pass through representation, and accordingly, that the named individuals must survive Virginia.” (302 Ga. at 276)
Factual background
Virginia Arp executed a will in 2002 leaving all of her property to her four named children, including Donna Piccione, "PER CAPITA." Donna died in 2006, before Virginia died in 2013. The executors distributed the estate among Virginia's three surviving children, and Donna's children claimed that they were entitled to Donna's one-fourth share under Georgia's anti-lapse statute.
Procedural history
Virginia Arp's will was probated without objection in the Probate Court of Polk County. After the executors distributed the estate among Virginia's three surviving children, Gregory and Adam Piccione sued in superior court for conversion, fraud, and trespass, claiming that they inherited their deceased mother's share under Georgia's anti-lapse statute. The superior court denied their motion for summary judgment, issued a certificate of immediate review, and the Supreme Court of Georgia granted their application for interlocutory appeal.