During the last decade of his life, Harvey Strother Testator had an extramarital affair with Anne Melican. In that period, he executed codicils to his will on three occasions to provide for Ms. Melican and her son Propounders. Testator died in January 2004. The will named Sydney Parker as executor and as trustee of a testamentary trust created for Testator’s wife. Propounders petitioned to probate the codicils. However, caveats were filed by Mr. Parker, in his dual capacities as executor and trustee, and one of the Testator’s grandsons, David Strother Caveators, contending that the codicils were invalid based on a lack of testamentary capacity and undue influence. Propounders filed motions to dismiss Mr. Parker’s caveat and for summary judgment. The probate court denied the two motions, but certified both orders for immediate review. We granted an interlocutory appeal to consider those orders. 1. Only those who have some interest in the will or estate which will be affected or concluded by probate have a right to file a caveat. Doughty v. Futch , 219 Ga. 677, 679 135 SE2d 286 1964. Essentially the same rule has long existed, “by virtue of statutes or decisions, in practically all the other states. Cits.” Johnston v. Willis , 127 A 862, 864 Md. 1925. See also Anno., 94 ALR2d 1409, § 1 1964 “The right to contest a will is generally confined, either by express statutory language, judicial construction of broader statutory language, or by decisional law, to ‘persons interested.’ Cit.”. Furthermore, there has been “a healthy trend”to broaden rather than restrict the definition of those entitled to contest the probate of an alleged will during the period administration of the estate is pending. This trend may well be attributable to the fact that the creation of testamentary trusts is now commonplace in the preparation of wills taking full advantage of laws, rules and regulations governing estate taxes. Liberality as to parties who may contest the probate of an alleged will is an inherited tradition of great antiquity.State v. Haddock , 140 S2d 631, 636 Fla. App. 1962, rev’d on other grounds, 149 S2d 552 Fla. 1962. “Among such parties named in the Georgia cases are a purchaser from the heir, or his judgment creditor, an administrator appointed for the testator before discovery of the will, persons claiming under an earlier will, and others. Cits.” 2 Daniel F. Hinkel, Pindar’s Ga. Real Estate Law and Procedure § 16-26, p. 96 6th ed. 2004 also noting that “persons not entitled include general creditors of the estate, an adopted child of the testator’s child, and others”.
The question of who has standing to caveat a will has been determined on a case by case basis, the general statement of the rule being that a will may be contested by any person interested in the estate of the deceased, but cannot be contested by strangers. Cits.. . . A person who will be injured by probate of a will, or who will benefit by its not being probated, has an interest in the proceeding so as to provide the necessary standing to caveat.Lavender v. Wilkins , 237 Ga. 510, 512 1 228 SE2d 888 1976.
