Justia Trusts & Estates Opinion Summaries

Appellant challenged the probate court's declaratory judgment interpreting her father's will to require equal distribution of his personal property and residual estate among his eight children. The court held that the probate court correctly ruled that appellant acted beyond her discretion in her distribution of the assets to date. Therefore, the court found no error, because under the correct interpretation of Items III and IV of the will, appellant did not have the discretion to distribute the bulk of the estate to herself to the exclusion of her seven siblings. Accordingly, the judgment was affirmed.

The trustee of a testamentary trust that was a beneficiary of the last will and testament of the late Edgar Hollis filed an action seeking an accounting, the removal of appellant who was the executor of the estate, and damages resulting from appellant's purported breach of his fiduciary duty. Appellant subsequently appealed the grant of summary judgment. The court held that it agreed with the trial court's construction of the Hollis will where the executor breached his fiduciary duties when he offered the Newnan-Coweta Historical Society a bequest declined by the City of Newnan. The court also held that the fact that appellant gathered some of the estate's assets did not preclude a finding of breach of fiduciary duty based on the fact that he did not gather all of the assets; that the trial court erred in determining that the trustee and temporary administrator were entitled to expenses of litigation pursuant to OCGA 13-6-11; and that the record appendix submitted to the court did not contain a request for oral hearing and the trial court was not required to hear oral argument on the motion prior to ruling on it. The court further held that the trial court did not err when it allowed petitioners, the City of Newnan and the Newnan-Coweta Historial Society, to intervene where appellant consented to the intervention and it appeared that petitioners were named in the Hollis will as a beneficiary and a successor beneficiary. Accordingly, the judgment was affirmed in part and reversed in part.

Lucien Cabrel died in December 1963 and Cabrel's wife and four minor children were the recipients of a joint award of year's support in 1964. In 2000, Cabrel's two daughters filed a petition to partition real property in Henry and Spalding counties in which property the daughters claimed an interest by virtue of the 1964 joint award of year's support. The daughters also sought an accounting and to recover from their mother income generated by the property between 1964-1997. In Case No. S11A0212, the mother appealed the denial of summary judgment on the partitioning issue and in Case No. S11A0214, the daughters took issue with the trial court's denial of their motion for summary judgment, its failure to conduct a hearing on their motion for attorney fees, and its determinations that they were barred from having an accounting and were not entitled to prejudgment interest. The court held that since the motion to set aside was filed more than three years after the entry of judgment of partition and that judgment was made by a court with jurisdiction, the trial court did not err when it denied the mother's motion to set aside the judgment of partition. The court held also that the partitioning judgment was not appealed and the daughters cannot now complain that they had a greater interest in the property than that which was awarded in 2004; that the trial court did not err in concluding that the daughters were not entitled to income from the property where they did not meet certain contingencies; and that the trial court did not err when it did not award attorney fees since the daughters were not awarded any damages.

Harvey Strother, who was domiciled in Georgia, bequeathed a Florida condominium to his long time mistress, Anne Melican, but prior to his death, he entered into a contract to sell the condominium. Although Strother died before the closing date, the condominium was nevertheless eventually sold pursuant to the agreement he had entered into before he died. When Melican filed an action to collect the proceeds from the sale, the executor and trustee of the testamentary marital trust and the Strother's grandson and beneficiary under the will, filed a response as caveators to the will. At issue was whether the bequest of the real property in question had been adeemed based on the sale and whether Melican therefore was not entitled to the proceeds of the sale. The court held that pursuant to Fla. Stat. 732.606(2)(a), Melican, as the specific devisee of the Florida condominium under the will, was entitled to the proceeds from the sale after Strother's death, as these proceeds had not yet been paid to decedent before he died.

Husband and wife executed a will in 1980, which was expressly identified as being "joint and mutual," bequeathing all of their property to each other as the survivor in fee simple and at the death of the survivor, the residue of the estate was to be divided equally among husband's two children, David and Darrell, and wife's two children, Deana and Diane. After husband died in 2005, wife probated the 1980 will, became the executor, and conveyed husband's estate to herself. In November 2005, wife executed another will which could, at her death, leave 20% of the estate to appellant, Deana, and the residue to the children of Deana and Diane. Deana then obtained wife's power of attorney and conveyed all of her mother's real estate to her two children and to appellee, Diane's child. When wife died in 2008, Deana offered the 2005 will for probate and Diane filed a caveat and also sought to petition the 1980 will as the last will and testament. The court held that the trial court did not err when it applied the law in place before the 1998 probate code was adopted to determine whether husband and wife had a contract not to revoke the 1980 will; when it concluded that the 1980 will was joint and mutual and that husband and wife had an enforceable contract not to revoke the 1980 will; when it did not in fact find that the fee simple conveyance to wife was a marital trust; when it made no rulings as to whether wife's 2005 will was a contract, and as such, that issue could not be raised on appeal; and when the 1980 will specifically provided that the residue of the survivor's estate was to be divided equally among the four children. Accordingly, the court affirmed the trial court's order that the 1980 will would be specifically enforced by equity.