The superior court judge of Athens-Clarke County apparently totally botched a trust litigation matter, according to the Georgia Court of Appeals.
The lower court had determined that a trust's maker (the "settlor") had improperly amended the trust, when she attempted to name her son its new trustee only two months before she died. (And, in so doing, to "un-name" her other two children).
Among other things, the "amendment" to the trust was written out by a non-lawyer; improperly used the word "executor" instead of "new trustee;" was captioned as a "general durable power of attorney;" and stated that the original trust was, in fact, revoked. Nevertheless, the Court of Appeals reversed the trial court's decision, declaring that the amendment was correct.
What was going on here? It's possible that the trial court saw that one of a group of children had taken the settlor, his mother, into his confidence only weeks before she died and had exerted undue influence over her, including having her write the extremely poorly worded trust amendment, allegedly naming him as the new trustee.
The problem may have been that the trial court didn't find that undue influence exists. (This issue is, after all, notoriously hard to prove). Instead, it relied only on the poorly written "general power of attorney," finding that the alleged trust amendments in it simply weren't done properly.
That led to the reversal. If an amendment isn't the product of fraud or duress, the courts will look not to whether it's worded perfectly but to the intent of the drafter. Clearly, the Court of Appeals said, the intent was that the trustee of the trust be changed.
A full text of the opinion is below the "read more" break.
Tanner Pittman, LLC is a West Georgia law firm that specializes in estate services, civil litigation, and legal transactions.
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