2020 Georgia Code
Title 15 - Courts
Chapter 9 - Probate Courts
Article 6 - Jury Trials and Appeals
§ 15-9-121. Jury Trials in Civil Cases

Universal Citation: GA Code § 15-9-121 (2020)
  1. A party to a civil case in the probate court shall have the right to a jury trial if such right is asserted by a written demand for jury trial 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, except that with respect to a petition pursuant to Code Sections 29-4-10 and 29-5-10, relating to guardianship of an incapacitated adult, if any interested party desires a trial by jury, such party must make such request for a jury within ten days after the date of mailing of the notice provided for by subsection (c) of Code Section 29-4-12 and subsection (c) of Code Section 29-5-12. If a party fails to assert the right to a jury trial, the right shall be deemed waived and may not thereafter be asserted.
  2. Notwithstanding other laws, for any civil case in which a jury trial is demanded, the determination of issues of fact shall not be made by the probate judge but shall be for the jury as in cases in the superior courts.
  3. If the civil case could not be appealed to a jury in superior court from a probate court not meeting the definition provided in paragraph (2) of Code Section 15-9-120, the right to a jury trial shall not be available in a probate court which meets such definition.

(Code 1981, §15-9-121, enacted by Ga. L. 1986, p. 982, § 6; Ga. L. 1990, p. 1421, § 2; Ga. L. 2004, p. 161, § 2.1.)

Editor's notes.

- Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides that "all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act."

JUDICIAL DECISIONS

Construction with O.C.G.A. § 5-3-30. - Because appeals from the probate court to the superior court continue without special limitations on the right to a jury trial and de novo appeals to the superior court from the probate court are tried by a jury unless the right to a jury trial is waived, the trial court erred in denying the widow's request for a jury trial. Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007).

Based on the absence of a transcript of a hearing on the dismissal of a sibling's caveat to the petition to probate the decedent's will in solemn form, in which the probate court also held that the sibling lacked standing to proceed on that caveat, the Supreme Court of Georgia refused to hold that the probate court's orders were erroneous. Moreover, based on the probate court's finding that the sibling lacked standing, no jury trial was warranted. Smith v. Wyatt, 282 Ga. 902, 655 S.E.2d 581 (2008).

Timing of jury trial demand.

- In a probate proceeding wherein the ex-spouse of the decedent contested the appointment of the decedent's parent as the permanent administrator of the estate, the trial court did not err by denying the ex-spouse's demand for a jury trial because the ex-spouse failed to file a jury trial demand within the statutorily appointed time frame. In re Estate of Sands-Kadel, 292 Ga. App. 343, 665 S.E.2d 46 (2008).

Probate court erred when the court stated written demands for a jury trial filed more than 30 days after the filing of the petition for probate were untimely because O.C.G.A. § 15-9-121 provided for the filing of a timely demand for jury trial more than 30 days after the filing of the petition for probate. Simmons v. Harms, 287 Ga. 176, 695 S.E.2d 38 (2010).

Probate court did not err in denying as untimely a child's demand for a jury trial because the child was required to file the child's jury demand by June 29, which was 30 days after the child filed the child's first pleading on May 30, the child's caveat to probate in solemn form, making the child's written jury demand due by June 29, but the child did not file the demand for jury trial until July 16. Simmons v. Harms, 287 Ga. 176, 695 S.E.2d 38 (2010).

Beneficiary could not claim an intervening niece untimely demanded a jury in a probate case, under O.C.G.A. § 15-9-121(a), because: (1) the beneficiary did not object in the trial court on the grounds raised on appeal, waiving the grounds; (2) the niece was not a party until the niece was allowed to intervene, after which the niece timely demanded a jury; and (3) the niece's motion to intervene was not a "pleading" triggering the jury trial demand deadline. Ellis v. Johnson, 291 Ga. 127, 728 S.E.2d 200 (2012).

Waiver of right to jury trial in probate proceeding.

- Trial court had subject matter jurisdiction to review the probate court's decision under Ga. Const. 1983, Art. VI, Sec. IV, Para. I and O.C.G.A. § 15-6-8(4)(E) to deny probate of the decedent's 1988 will and the parties' waiver of the statutory right to a jury trial did not deprive the trial court of subject matter jurisdiction to deny probate of the will. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

Cited in In re Woodall, 241 Ga. App. 196, 526 S.E.2d 69 (1999); Harvey v. Sullivan, 272 Ga. 392, 529 S.E.2d 889 (2000); Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).

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