The probate of a will does not bar tort and fraud claims

After the decedent’s will was admitted to probate over the objections of two of his children, they sued the decedent’s third child alleging intentional interference with a gift based on the failure of the third child, who was the decedent’s agent, to carry out the decedent’s written instructions to him, and fraud based on the third child’s statements in the mediation of the probate case.
   
The court in Morrison v. Morrison, No. S08A0328, 2008 WL 2634164 (Ga. July 7, 2008), held that the tort claim stated a cause of action, that the requested constructive trust was the proper remedy for the alleged breach of fiduciary duty in failing to carry out the written instructions, that statements made in the course of mediation proceeding were not privileged, and that none of the claims were barred by res judicata or collateral estoppel.