¶1dissenting.
¶2I would hold that Lee is barred by her own conduct from obtaining relief from the judgment of the probate court.
¶3Lee’s apparent order of preference among the options she saw was first, an intestacy; next probate of the purported will executed in 1985; and last of all, probate of the purported will executed in 1984. There is support in the record for the conclusion that the 1985 will may never have come to light if Lee’s caveat had been successful in producing an intestacy. Lee took a chance by holding back the 1985 document until the unfavorable outcome in probate court. Such trifling with the orderly process of the courts should not be tolerated.
¶4Lee has breached her statutory duty to file the will she now seeks to probate, which breach of duty has placed her directly in the position from which she seeks to be removed. OCGA § 53-3-3; Mitchell v. Arnall, 203 Ga. 384, 386 (47 SE2d 258) (1948). For these reasons I would hold Lee is not entitled to have the judgment set aside.
¶5I therefore respectfully dissent.
¶6I am authorized to state that Presiding Justice Clarke and Justice Smith join in this dissent.