George Guess Robertson, a veteran of World War II and the recipient of benefits from the United States Department of Veteran Affairs “DVA”, executed a will in 1999 and died a few months later. In his will, Mr. Robertson left one-half of his estate to his cousin, appellee Zetta Stokes, and the other half to appellant John P. Cross, an attorney who had served Robertson’s family for over 25 years and who was serving as Robertson’s guardian when Robertson executed his will.1 When the will was presented for probate by the executor, the probate court, citing “somewhat unusual” circumstances, appointed a guardian ad litem for possible unknown heirs. The guardian ad litem filed a caveat suggesting the will was the product of lack of testamentary capacity and undue influence, but withdrew the caveat four months later.2 In his withdrawal pleading, the guardian ad litem questioned whether OCGA § 29-6-11c disqualified appellant Cross from taking any bequest pursuant to the will of his DVA ward.3 In November 2000, the probate court issued an order in which it found that the propounded will was the last will and testament of the decedent as alleged by the propounder and that all other requirements of law had been fulfilled; admitted the propounded will to probate as proved in solemn form; and gave the named executor leave to qualify in order that Letters Testamentary might issue to him. The order also noted that the guardian ad litem had brought to the court’s attention that Cross was disqualified under OCGA § 29-6-11c from receiving the Robertson bequest and that the guardian had submitted his position as to how the portion of the estate left to Cross should be distributed. The probate court concluded that any interested party could file a petition for determination of the parties entitled to participate in the distribution of the estate.
Because the named executor failed to qualify, appellee Stokes filed a petition in March 2001 in probate court asking for issuance to her of Letters of Administration with Will Annexed. Her petition was granted in April 2001, with the proviso that she file a petition for declaratory judgment to determine how the residuum of the estate was to be distributed prior to making final distribution. A week later, appellant Cross filed in the probate court a petition for declaratory judgment in which he sought a determination that the statute which purportedly disqualified him from being a beneficiary of the will, OCGA § 29-6-11c, was unconstitutional; two weeks after that filing, appellee Stokes filed a petition for declaratory judgment in the probate court pursuant to the probate court’s April 2001 order. In January 2002, the probate court issued an order on appellant’s declaratory judgment petition, ruling that OCGA § 29-6-11c was constitutional and that the statute applied to appellant and the ward’s entire estate. This appeal followed.
