Lillian and Jimmie Lee Johnson were married for 37 years, and together, they raised her grandniece, Jessica Rogers. In 2005, Ms. Johnson made a will that included a number of bequests to Rogers.1 Ms. Johnson died in 2011, and Mr. Johnson then sought to probate her will. Rogers filed a caveat, asserting that she had been adopted by Ms. Johnson after the will was made, which would entitle her to an intestate share of the estate under OCGA § 53-4-48 c.2 Although Rogers was unable to point to any statutory adoption by Ms. Johnson, she claimed nonetheless that she had been adopted pursuant to the equitable doctrine of “virtual adoption.” The probate court agreed that Rogers was “virtually adopted” by Ms. Johnson after she made her will, and so, the probate court admitted the will to probate, but subject to Rogers taking an intestate share of the estate. Mr. Johnson appeals, and he argues that the doctrine of virtual adoption has no application in a case in which the decedent disposed of her entire estate by will. We agree, and for that reason, although we affirm the admission of the will to probate, we reverse the judgment that Rogers is entitled to an intestate share.
“Virtual adoption is an equitable remedy utilized when the conduct of the parties creates an implied adoption without a court order.” Morgan v. Howard, 285 Ga. 512, 512 1 678 SE2d 882 2009 citation omitted. This Court first recognized the doctrine of virtual adoption in Crawford v. Wilson, 139 Ga. 654, 654 1 78 SE 30 1913, noting that “a parol obligation by a person to adopt the child of another as his own, . . . acted upon by all parties concerned for many years and during the obligor’s life, may be enforced in equity upon the death of the obligor, by decreeing the child entitled as a child to the property of the obligor, undisposed of by will.” As we recently explained, the doctrine of virtual adoption “is applied only after the death of the person who agreed to adopt the child . . . and when there has been no legal statutory adoption. The child, who is often an adult by that time, is allowed to invoke the doctrine of virtual adoption to avoid an unfair result from the application of intestacy statutes.” Sanders v. Riley, 296 Ga. 693, 698 2 770 SE2d 570 2015 citation and punctuation omitted. Indeed, the purpose of virtual adoption is “to correct the injustice that would result were the intestacy laws woodenly applied,” and “the courts have traditionally limited the doctrine to narrow circumstances, reasoning that the adoption statutes are in derogation of the common law and thus provide the exclusive means for equitably effecting an adoption or obtaining its benefits.” Jan Ellen Rein, “Relatives by Blood, Adoption, and Association: Who Should Get What and Why,” 37 Vand. L. Rev. 711, 767 VII 1984. See also Welch v. Welch, 265 Ga. 89, 90 453 SE2d 445 1995 “virtual adoption is not a doctrine to be employed broadly”.
