Mary H. Sinclair Testatrix executed a will designating as beneficiaries Appellant Ben H. Sinclair and Appellees Upton M. Sinclair and Joanne Sinclair. The will also appointed Upton M. Sinclair as her executor Executor and contained the following in terrorem clause:In the event any legatee, devisee or beneficiary taking under this Will contests the validity thereof, or any provision thereof, or institutes any proceedings to contest the validity of this Will, or any provision thereof, from being carried out in accordance with its terms, whether or not in good faith and with probable cause, then all the benefits provided to such legatee, devisee or beneficiary in this Will are revoked and annulled and the benefits which such legatee, devisee or beneficiary would have received if he or she had made no such contest, or brought no such proceedings, shall go to the other beneficiaries of this Will. In the event all the beneficiaries named in this Will shall join in such a contest or proceedings, then such benefits shall go to the persons who are nearest related to me by blood. Each and every benefit conferred by this Will is made on the condition precedent that the beneficiaries hereof acquiesce in all the provisions of this Will and not make any such contest and the provisions of this item are an essential ingredient of every benefit conferred by this Will.After Testatrix died, the will was admitted to probate in solemn form without objection by Appellant or any other heir. Appellant then filed a complaint for declaratory judgment, seeking to determine whether he would violate the in terrorem clause by bringing an appropriate action in good faith against Executor for his removal on the grounds of hostility, incompetence, self-dealing, flagrant abuses of fiduciary responsibilities and other wrongs, and for an accounting and other relief for breaches of trust, collusion, and negligence in the performance of his duties under the will. Appellant subsequently filed a motion for summary judgment. The trial court entered a final order finding that in terrorem clauses in general, and the one in Testatrix’s will in particular, are valid and enforceable, and are not contrary to public policy. The trial court further “declined Appellant’s Petition for Declaratory Judgment as the same seeks an ‘advisory opinion’ contrary to Georgia law,” denied the motion for summary judgment, deemed “the remaining issues in the Complaint” to be “moot,” and ordered “that all other matters in this action be dismissed with prejudice.” Appellant appeals from this judgment of the trial court. 1. Any person interested as a legatee, heir, or beneficiary “may have a declaration of rights or legal relations . . . and a declaratory judgment . . . to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” OCGA § 9-4-4 a 3. “This statute is to be liberally construed and administered so as to ‘afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. . . .’ OCGA § 9-4-1.” Kesler v. Watts , 218 Ga. App. 104, 106 2 460 SE2d 822 1995.
As a beneficiary of Testatrix’s will, Appellant seeks a judgment in order to determine whether, under the condition in terrorem, he would forfeit his interest if he brings an action for an accounting and removal of the executor. If that action constitutes a proceeding to contest the will or any provision thereof, Appellant “will forfeit his right to receive any property under the will. On the other hand,” if the proposed action does not constitute such a proceeding, Appellant can bring the action “without risk of forfeiting his interest in Testatrix’s estate under the in terrorem clause.” Kesler v. Watts , supra.Here is an unquestionably justiciable controversy, where there is uncertainty and insecurity with respect to the rights of the litigant as to whether he would forfeit his rights under the will by bringing an action of the character indicated. It follows from what has been said that the instant case clearly comes within the purview of the declaratory-judgment act . . . .Cohen v. Reisman , 203 Ga. 684, 685 3 48 SE2d 113 1948. See also Kesler v. Watts , supra. Therefore, the trial court erred to the extent that it held that the complaint for declaratory judgment seeks an advisory opinion and must be dismissed.
