(For Effective Date, See note.) Original Jurisdiction; Petition and Pleading Requirements

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Probate
5. Jurisdiction
6. (For Effective Date, See note.) Original Jurisdiction; Petition and Pleading Requirements

1. The probate court shall have original jurisdiction over any petition to vacate, set aside, or amend its order admitting a will to probate.
2. A petition under subsection (a) of this Code section may be brought in the probate court to vacate, set aside, or amend its order admitting a will to probate based upon:
   1. Another will being entitled to be admitted to probate;
   2. A codicil to the probated will being entitled to be admitted to probate;
   3. Lack of jurisdiction;
   4. Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the petitioner; or
   5. A nonamendable defect that appears upon the face of the record or pleadings.
3. 1. Any such petition based upon paragraph (1) of subsection (b) of this Code section shall be combined with a petition to probate the other will in solemn form.
   2. Any such petition based upon paragraph (2) of subsection (b) of this Code section shall be combined with a petition to probate the codicil in solemn form.
   3. In any such petition based upon paragraph (1) or (2) of subsection (b) of this Code section, the court shall consider the petition to probate in solemn form together with the petition to vacate, set aside, or amend; and the court shall grant relief as is appropriate with respect to each matter.
4. In any such petition based upon paragraph (5) of subsection (b) of this Code section, it is not sufficient that the pleadings fail to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.

(Code 1981, §53-5-50, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-26/HB 865.)

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 71 Mercer L. Rev. 327 (2019).

COMMENT

This section carries forward former OCGA Sec. 53-3-60. See Code Sec. 53-5-3, which establishes the time limit within which a will may be offered for probate.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 53-3-60 are included in the annotations for this Code section.

Applicability of section.

- Statute, which gives original jurisdiction to the probate court over an action in which it alleged that a later will is entitled to be admitted to probate, is not applicable to an appeal filed before the effective date of former O.C.G.A. § 53-3-60. Lee v. Wainwright, 256 Ga. 478, 350 S.E.2d 238 (1986) (decided under former O.C.G.A. § 53-3-60).

Civil Practice Act not applicable to petition to set-aside in probate proceeding.

- Probate court erred in rejecting the step-son's set-aside petition on the basis that the petition did not satisfy O.C.G.A. § 9-11-60(d) as that provision set out the narrow grounds on which a motion to set aside a judgment could be brought under the Civil Practice Act, O.C.G.A. T. 9, Ch. 11, but set-aside petitions in probate proceedings were special statutory proceedings, and the specific rules of practice and procedure for such petitions were set out at O.C.G.A. §§ 53-5-50 and53-5-51; thus, to the extent that those specific rules of practice and procedure conflicted with the Civil Practice Act, pursuant to O.C.G.A. § 9-11-81, the Civil Practice Act did not apply; thus, the probate court's order ruling on the set-aside petition was reversed. In re Estate of Jones, 346 Ga. App. 877, 815 S.E.2d 599 (2018).

Because the Civil Practice Act's (O.C.G.A. T. 9, Ch. 11) procedure for attacking a judgment through a set-aside motion was more restrictive than the Probate Code's procedure for attacking an order admitting a will to probate on the ground that another will should be admitted to probate, the constraints of the Civil Practice Act did not apply in the probate proceeding, and the probate court erred in denying the step-son's set-aside petition for failing to meet the requirements of the Civil Practice Act, rather than ruling on the merits of the petition. In re Estate of Jones, 346 Ga. App. 877, 815 S.E.2d 599 (2018).

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