Smith v. Hallum

No clear and convincing evidence showed that modification of an irrevocable trust was warranted by a beneficiary's alleged attempt to kill the settlor's wife.

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This case involves the equitable modification of a trust pursuant to OCGA § 53-12-153. The trust in issue is the J.D. Smith Irrevocable Trust created in 1990 by John Dewey Smith “Settlor”. As OCGA § 53-12-153 mandates, modification is warranted only where it is established by clear and convincing evidence that, “owing to circumstances not known to or anticipated by the settlor, compliance would defeat or substantially impair the accomplishment of the purposes of the trust.” Id. Because the trial court abused its discretion in concluding that appellee Judith Hallum, in her capacity as trustee, carried her burden of showing by clear and convincing evidence that modification of the J.D. Smith Irrevocable Trust “Trust” was warranted, we reverse. “The cardinal rule in construing a trust instrument . . . is to discern the intent of the settlor and to effectuate that intent within the language used and within what the law will permit. Cits.” Miller v. Walker , 270 Ga. 811, 815 514 SE2d 22 1999. The trial court found, and appellee admitted in verified pleadings, that Settlor established the Trust for the purpose of providing for his descendants when he and his wife are no longer living. The Trust’s sole asset is a life insurance policy in the face amount of $800,000 on the joint lives of Settlor and his wife, Inez Smith. It is uncontroverted that appellant Alden Smith, as the son of Settlor’s only child, is a descendant of Settlor.1

Settlor died in 2003; Inez Smith is still alive. In October 2004, Inez Smith survived an attack in her home during which she was shot and also stabbed over 20 times. Appellant has been charged with aggravated assault, aggravated battery and other offenses in connection with the attack. However, those charges remain pending and issues regarding appellant’s competency to stand trial on those charges have not been resolved.

Smith v. Hallum

No clear and convincing evidence showed that modification of an irrevocable trust was warranted by a beneficiary's alleged attempt to kill the settlor's wife.

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