O.C.G.A. § 53-12-246 (2019)

Annotations

JUDICIAL DECISIONS Dual role permitted. - O.C.G.A. § 53-12-246(b) expressly recognizes that

trustees may act in a dual role when the trust estate owns an interest in a corpo-

ration or business enterprise, as long as it is fair to the beneficiaries. Rollins v. Rollins, 294 Ga. 711, 755 S.E.2d 727 (2014). Sale of trust asset to a co-trustee through a straw man. - Because there were genuine issues as to whether trustees fraudulently concealed their breach of fiduciary duty in selling the principal trust asset to a co-trustee at a discount through a straw man in 1979, tolling the statute of limitations, and whether the beneficiaries exercised diligence in discovering the fraud, summary judgment was improper. Smith v. SunTrust Bank, 325 Ga. App. 531, 754 S.E.2d 117 (2014). Making offer to distribute contingent on immunity violated trustee’s fiduciary duty. - Trustee’s offer to execute the mandatory duty to distribute trust property contingent on immunity from liability for trustee actions violated the trustee’s fiduciary duties and was for the trustee’s sole benefit and possibly to the detriment of the beneficiaries. Callaway v. Willard, 351 Ga. App. 1, 830 S.E.2d 464 (2019), cert. denied, No. S19C1589, 2020 Ga. LEXIS 165 (Ga. 2020). No conflict of interest existed. - Trial court erred by awarding summary judgment to a beneficiary on the question of whether the trustee acted under a conflict of interest simply by serving as trustee of the marital trust while at the same time serving as co-chair of a university’s capital campaign committee to which a gift was made from trust assets because the trustee did not stand to gain any tangible benefit solely by being co-chair of the committee while concurrently serving as trustee of the marital trust. Hasty v. Castleberry, 293 Ga. 727, 749 S.E.2d 676 (2013). Trustee’s/executor’s powers did not entitle trustee to ignore purpose of

trust or commit waste. - Trial court erred in concluding that a widow’s considerable powers of control over two testamentary trusts as trustee and executor entitled her to summary judgment on two of the children’s/beneficiaries’ claims against the trust created for the purpose of supporting them during their lifetimes; she was required to diligently and in good faith ascertain whether they required support, and her powers over the assets did not entitle her to commit waste. Peterson v. Peterson, 303 Ga. 211, 811 S.E.2d 309 (2018). Fiduciary duty of co-trustee breached. - Trial court erred by finding that the decedent’s widow, who was also a co-trustee, did not owe the appellants, two sons of the decedent and the widow, a fiduciary duty when the widow exercised power of appointment under both the marital and by-pass trusts because the court found no law excusing the widow from the widow’s fiduciary duty under the trust, even if acting solely as a beneficiary under the trust, and prior appellate decisions had found that the primary purpose of the by-pass trust was to support both the widow and the decedent’s children. Peterson v. Peterson, 352 Ga. App. 675, 835 S.E.2d 651 (2019). Jury question as to whether duty breached. - Jury question was presented as to whether two trustees of their children’s trusts acted against the interests of the beneficiaries (their children) in bad faith by amending a partnership agreement to concentrate all voting power in themselves to the exclusion of the beneficiaries, who otherwise would have become partners when they turned 45. Likewise, the trustees as partners owed duties to the trusts as partners in the partnership. Rollins v. Rollins, 338 Ga. App. 308, 790 S.E.2d 157 (2016).