O.C.G.A. § 53-12-302 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-12-192 of the 1991 Trust Act are included in the annotations for this Code section. Attorney’s fees. - When a bank was liable to the beneficiaries of a trust for breach of fiduciary duty for not investing the trust’s assets in treasury bills, former O.C.G.A. § 53-12-193 (see O.C.G.A. § 53-12-302) did not require the trial court to award or even consider awarding attorney’s fees to the beneficiaries because no bad faith was shown. Wachovia Bank of Ga., N.A. v. Namik, 275 Ga. App. 229, 620 S.E.2d 470 (2005) (decided under former O.C.G.A. § 53-12-193). Because no verdict form presented the jury with the question of whether the siblings who sold their deceased mother’s farm to another sibling had breached a fiduciary duty, a trial court erred in granting attorney’s fees to the other siblings who sued over the purchase, as an award of fees under former O.C.G.A. § 53-12-193 (see O.C.G.A. § 53-12-302) required a finding of a breach of trust; fraud, as only one of the potential theories that was sued upon, could have been found by the jury without finding that there was also a breach of trust. Bloodworth v. Bloodworth,

277 Ga. App. 387, 626 S.E.2d 589 (2006) (decided under former O.C.G.A. § 53-12-193). Trust beneficiaries were not entitled to attorney’s fees pursuant to former O.C.G.A. § 53-12-193 (see O.C.G.A. § 53-12-302) or O.C.G.A. § 13-6-11, on the basis of bad faith, because the trustee’s actions in failing to lease the trust property or otherwise generate income while debt for property taxes, insurance, and utilities continued to increase, although unreasonable, were not conclusively established to be in bad faith. Davis v. Walker, 288 Ga. App. 820, 655 S.E.2d 634 (2007) (decided under former O.C.G.A. § 53-12-193). Personal representative wrongfully tried to have the estate’s primary asset, a house, conveyed to the personal representative. As the beneficiary’s petition for the personal representative’s removal was premised on the latter’s breach of fiduciary duty, under former O.C.G.A. § 53-12-193 (see O.C.G.A. § 53-12-302), the beneficiary was properly awarded appellate expenses, including attorney fees, incurred in defending the appeals of that removal. In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008) (decided under former O.C.G.A. § 53-12-193).

Even assuming that the trustee admitted to multiple breaches of the trustee’s fiduciary duties as trustee during an evidentiary hearing and an interim award of attorney fees was an equitable sanction for the trustee’s misconduct, such fees could not be awarded because there had not been a judgment in the son’s favor on the merits of the son’s breach-of-trust claim. Kemp v. Kemp, 337 Ga. App. 627, 788 S.E.2d 517 (2016). Compensatory damages for lost rent. - Personal representative’s wrongful conveyance of the estate’s primary asset, a house, to the personal representative was a breach of fiduciary duty. The beneficiary’s evidence of the house’s rental value authorized the award to the beneficiary of compensatory damages for lost rent under O.C.G.A. § 53-7-54 and former O.C.G.A. § 53-12-193 (see O.C.G.A. § 53-12-302). In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008) (decided under former O.C.G.A. § 53-12-193). General and punitive damages awarded. - Personal representative’s wrongful conveyance of the estate’s primary asset, a house, to the personal representative was both a breach of fiduciary

duty and fraud entitling the beneficiary to general and punitive damages. In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008) (decided under former O.C.G.A. § 53-12-193). Interest. - It was not error to award trust beneficiaries interest from the date of encroachment for the trustee’s breach of the trustee’s fiduciary duty to the beneficiaries under a trust’s encroachment provision by making distributions to a co-trustee because: (1) O.C.G.A. § 5312-302(a)(1) and (3) said the trustee was liable for interest; and (2) under O.C.G.A. § 53-12-302(b), a trustee was liable for interest from the date of a breach. Reliance Trust Co. v. Candler, 315 Ga. App. 495, 726 S.E.2d 636 (2012). Appellate court erred by affirming an award of prejudgment interest to the remainder beneficiaries in a breach of trust action because under O.C.G.A. § 5312-302(a)(3), the amount that would have reasonably accrued to them if there had been no breach was the amount they were awarded in actual damages and they were not entitled to interest under the terms of the trust instrument. Reliance Trust Co. v. Candler, 294 Ga. 15, 751 S.E.2d 47 (2013).