Jay Richard Smith Smith died testate on October 29, 2013, survived by his wife, Kathy Kristina Smith, appellant in this case, and the couple’s two minor daughters. At the time of his death, Smith was the beneficiary of the Jay Richard Smith Irrevocable Trust the Trust established by his parents, the provisions of which granted Smith an unrestricted testamentary power of appointment of the Trust assets remaining after his death. Following Smith’s death, appellant filed a petition to probate Smith’s will dated September 5, 2013 the Will in Gwinnett County Probate Court. Thereafter, the probate court appointed appellant to serve as personal representative of Smith’s estate and appellee, Dana C. Ashford, to serve as Guardian Ad Litem representing the interests of the minor children.
Appellant filed a Petition for Declaratory Judgment and Construction of a Will, seeking construction of the Will by the probate court and a declaration as to whether Smith, under the terms of the Will, exercised the testamentary power of appointment granted him by the Trust. Appellee filed a response on behalf of the children, asserting that the language of the Will was clear and unambiguous, that no construction of the Will was necessary or appropriate, and that no justiciable controversy existed to support the declaratory relief sought. After reviewing the pleadings, motions, briefs and arguments of counsel, the probate court entered an order on February 2, 2015, finding that the Will was not ambiguous and that the court thus could not look beyond the four corners of the document to ascertain Smith’s intent. Going further, the court decided that the plain language of the relevant provisions of the Will clearly and unambiguously showed Smith failed to exercise the testamentary power of appointment granted him by the Trust. Accordingly, the probate court ordered the Trust assets to be distributed pursuant to the terms of the Trust where no power of appointment had been exercised. Appellant appeals this order, and because we agree the language of the Will is unambiguous, but disagree with the probate court’s determination that Smith failed to exercise his testamentary power of appointment therein, we affirm in part and reverse in part the probate court’s order in this case.
