Harriet Harms executed a will on September 13, 2005, and died thirty months later on March 18, 2008, at age 93. In her 2005 will, she named her son, appellee Edward Harms, as executor of her estate and devised to him the family homeplace. She left the remainder of her estate, consisting of a brokerage account and an unimproved parcel of land in Savannah, to be divided among her four daughters, two of whom are appellants/caveators Marie Simmons and Frances Stockton. The 2005 will revoked a 1976 will which distributed the decedent’s estate equally among her five children and provided a life estate for her handicapped daughter in a small house on the property of the family homeplace. When appellee offered the 2005 will for probate in the Probate Court of Chatham County, appellants filed caveats alleging fraud, undue influence, and lack of testamentary capacity. After the probate court dismissed the caveators’ demands for a jury trial, it conducted a two-day bench trial June 15-16, 2009, admitted the will for probate by entry of an order filed June 24, and issued an order on August 17 in which it granted the putative executor’s June 9 motion for payment of expenses of probate pursuant to OCGA § 53-5-26. Appellants/caveators filed a notice of appeal on July 6 following the entry of the order admitting the will for probate and dismissing the caveats, and an amended notice of appeal on August 31, fourteen days after the entry of the order granting the motion for payment of expenses.1 1. Appellants contend the probate court erred when it denied as untimely their demands for a jury trial. OCGA §15-9-121a requires that a written demand for a jury trial in probate court be made “within 30 days after the filing of the first pleading of the party or within 15 days after the filing of the first pleading of an opposing party, whichever is later. . . . If a party fails to assert the right to a jury trial, the right shall be deemed waived and may not thereafter be asserted.”
Appellee filed the petition for probate on May 12, 2008, including a notarized acknowledgment of service and an assent to probate instanter signed by appellant Frances Stockton. Appellant Stockton filed a purported revocation of her consent to probate on July 21, a verified caveat that included a demand for jury trial on July 25, and a motion to open default on August 13, made necessary by her July 25 caveat not being filed within ten days of the petition for probate. See OCGA § 15-9-86. Appellant Marie Simmons filed a caveat on May 30, fifteen days after the petition for probate was personally served on her, a jury demand on July 16 and, on July 24, a verified motion to open default since her May 30 caveat was filed five days late. The probate court exercised its discretion under OCGA § 15-9-47 and granted the motions to open default, thereby allowing the caveats. The probate court denied the requests for jury trial on the ground that neither request was filed timely under the statute, noting the demands had to have been filed by June 11, thirty days after appellee filed the petition for probate.
