Probate Litigation Case Study: Browner v. Moore & Gant
Probate Litigation Case Study
In Re: AVA BROWNER;
Case No. SU-15-CV-0495
IN THE SUPERIOR COURT OF CLARKE COUNTY, STATE OF GEORGIA.
Mr. Daniel represented Ava Browner, the sister of disabled war hero, Theodis Gant, in the Superior Court of Athens-Clarke County. Theodis had accumulated $479,790.00 in currency in his Estate. Though he failed designate his sister as the beneficiary in a Last Will and Testament, and State law provides that a sister is not entitled to any portion of an estate when a person dies without a Will and there are living children, Mr. Daniel was able to recover $320,000.00 for Ms. Browner. The recovery was based on the theory of quantum meruit
(for services rendered). Ava provided care for Theodis for 25 years following a motorcycle accident which paralyzed him from the waist down.
Theodis was born in 1949, and departed this life on February 5, 2015 at the age of 66 years old.
Theodis had two children through marriage, Sabrina and Tony, and two children out of wedlock, Nichole and Lesley.
Ava Browner is the younger sister of Theodis Gant.
In 1968, Theodis joined the United States Army and served in Vietnam as a “tunnel rat.” 25
Division, Company C, 214
He received a purple heart after being struck by shrapnel from a mine that killed one of his fellow soldiers. The injury occurred just outside of Saigon (Ho Chi Minh City) in Cu-Chi province. Theodis was honorably discharged in 1973.
On October 8, 1989, Theodis was involved in a motorcycle accident causing serious bodily injury and paralysis.
Following the accident and throughout the remainder of his life, he was cared for extensively by Ava.
Ava was designated by Theodis as his “next of kin” contact at the Shepherd Center in Atlanta, Georgia, the Veterans Hospital in Augusta, Georgia and Landmark Hospital in Athens, Georgia.
In 1990, Ava was trained to be the primary caregiver for Theodis at the Shepherd Center. She was trained in bladder care (which included assisting Theodis in the insertion of a catheter), a bowel program (which included assisting Theodis with evacuating stool) and a skin program.
In 2003, Theodis designated Ava as Attorney in Fact in his Living Will and Durable Power of Attorney for Healthcare, that Power of Attorney was never revoked and remained in effect throughout the remainder of his life.
Theodis was discharged into Ava’s care and lived with Ava for approximately 12 months during his transition from total dependence to semi independence.
Following the 12-month period, Theodis moved into his apartment, but was unable to live independently and moved in with his mother.
Between 1994 and 2013, Theodis gained independence in many areas; however, Ava and Theodis’ mother (until her death in 2000) cared for Theodis by cooking, cleaning and providing laundry service for Theodis, and dressing Theodis.
Until the year 1994, neither Theodis nor his mother could drive. From the time of his accident until 1994, Ava provided essentially all transportation for Theodis.
After Theodis began driving, Ava continued to provide transportation for him on long trips.
In 2013, Theodis received a colonoscopy at the VA Hospital. From that point forward, his health began to falter. Ava provided extensive care for Theodis from this point until his death.
As early as 2012, Theodis expressed a desire for Ava to receive his bounty upon his death.
While in the VA Hospital, Theodis again expressed his desire for Ava to receive his bounty.
As early as 2013, Theodis gave Ava verbal authority to handle his financial affairs, which included signing checks on his behalf.
Batts is a mortician with Gardenview Funeral Home in Athens, Georgia.
Batts knew Theodis personally by having buried several of Theodis’ loved ones and socializing with he and his family.
Batts was contacted by Theodis. Theodis told Mr. Batts that he wanted to prepare a Power of Attorney for Ava, so that he could have things prepared when he passed away.
On October 2, 2014, Theodis told Ava about his discussions with Mr. Batts, and that he wanted Mr. Batts to bring the document they had discussed. At Theodis’ request, Ava contacted Mr. Batts to come to Augusta.
In the early evening of October 2, 2014, Mr. Batts visited with Theodis. Mr. Batts determined that Theodis was competent.
Batts completed the power of attorney based on the information Theodis had provided in their earlier meeting.
Theodis told Mr. Batts that he was estranged from his children.
Immediately prior to Theodis passing, Ava closed the two accounts and transferred approximately $479,790.00 into an AFB&T Preferred account, titled “Theodis Gant, Ava Browner as Power of Attorney.”
Under Theodis’ direction, and with authority as attorney in fact, Ava designated herself as the Pay on Death beneficiary of the accounts. Ava took the same action on Theodis’ AFB&T Signature Personal Savings account in the amount of approximately $2,077.00.
Theodis departed life on February 5, 2015.
On or about April 16, 2015, Theodis’ children, Lesley and Sabrina, were appointed the personal representatives of the Estate of Theodis Gant. Under Georgia law they are the legal beneficiaries to his assets, not Ava.
On or about April 21, 2015, Lesley and Sabrina notified AFB&T that they were the Administrators of the Estate of Theodis Gant and requested that AFB&T place a hold on the accounts in Ava’s name.
At the request of Lesley and Sabrina, AFB&T placed a hold on the accounts and by Order of the Court paid the proceeds into the registry of the Court.
The Court ruled that testimony regarding Theodis’ intent to give his assets to Ava was inadmissible hearsay and prohibited by the Deadman doctrine. The Court also ruled the Power of Attorney invalid because the language was insufficient to allow Ava to designate a post death transfer, but the Court allowed the issue of the value of Ava’s services to go to the jury. The Jury returned the verdict after 6 hours of deliberation awarding Ava $320,000.00. No appeal was taken.