O.C.G.A.
O.C.G.A.

O.C.G.A. § 53-12-23 (2019)

Capacity of settlor

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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A person has capacity to create an inter vivos trust to the extent that such person has legal capacity to transfer title to property inter vivos. A person has capacity to create a testamentary trust to the extent that such person has legal capacity to devise or bequeath property by will.

History

Code 1981, § 53-12-23, enacted by Ga. L. 2010, p. 579, § 1/SB 131.

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-12-22 of the 1991 Trust Act are included in the annotations for this Code section.

Cited in Hayes v. Clark, 242 Ga. App. 411, 530 S.E.2d 38 (2000).

Notes of Decisions
Cited in 7 cases (2 in the last 5 years), 1985–2025 · leading case: Rector of Christ Church v. Bishop of Episcopal Diocese of Georgia, Inc., 718 S.E.2d 237 (Ga. 2011).
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Rector of Christ Church v. Bishop of Episcopal Diocese of Georgia, Inc., 718 S.E.2d 237 (Ga. 2011). · cites it 4× “" • OCGA § 53-12-23—"A person has capacity to create an inter vivos trust to the extent that such person has legal capacity to transfer title to property inter vivos.”
Mullis v. Welch Et Al., 815 S.E.2d 282 (Ga. Ct. App. 2018). · cites it 2× “" OCGA § 53-12-23. "A deed may be deemed invalid and cancelled in equity on the ground of mental incapacity if the grantor is shown to be entirely without understanding of the deed at the time of execution.”
Fowler v. Montgomery, 326 S.E.2d 765 (Ga. 1985). · cites it 4× “OCGA § 53-12-23. Appellee offered no writing.”
Smeltzer v. Bank of Fitzgerald, 386 S.E.2d 406 (Ga. Ct. App. 1989). · cites it 2× “Although OCGA § 9-11-17 (a) provides that *749 trustee of an express trust .”
Suzanne Giller v. Robert Slosberg (Ga. Ct. App. 2021). · cites it 2× “” OCGA § 53-12-23. 2 Here the verdict is an authoritative determination that the grantor lacked the capacity to create a trust.”
Leigh Keng v. Susie Chang Keng (Ga. Ct. App. 2025). · cites it 2× “” OCGA § 53-12-23. A [trust] may be deemed invalid and cancelled in equity on the ground of mental incapacity if the grantor is shown to be entirely without understanding of the [trust] at the time of execution.”
Head v. Wachovia Bank of Georgia, N.A., 88 S.W.3d 180 (Tenn. Ct. App. 2002). “Frazer’s direction and handle her account in the manner requested by her. This duty was not breached and, based on undisputed evidence, performed by all Defendants to the satisfaction of Ms.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.