This appeal concerns a dispute over a trust in a will. Appellee Linda Faye Armstrong Martin’s deceased husband’s will established a “Residence Trust,” the assets of which consisted of the marital residence and a bank account.1 The trust bank account was to provide funds for expenses and maintenance of the residence, as well as provide payment for the trustee’s services; however, the trust bank account had been depleted prior to Mr. Martin’s death. Because of the lack of funds in the bank account, the initial trustee designated by the will refused to serve for fear of the liability associated with paying the expenses of the residence. The same concern prevented appellee from finding another trustee willing to serve as provided by the will. Appellee filed a petition to modify or terminate the trust, requesting the court to appoint a trustee related or subordinate to her and requesting termination or modification of the trust such that residence could be sold and the sale proceeds be divided equally among the beneficiaries, or the sale proceeds be used to buy a smaller house and the remaining proceeds be used for ongoing expenses. Appellant Michael Eugene Martin, one of the beneficiaries and decedent’s son, objected.
“OCGA § 53-12-153 allows a court to modify the terms of a trust if it is established by clear and convincing evidence that, owing to circumstances not known to or anticipated by the settlors, compliance would substantially impair the purposes of the trust.” Friedman v. Teplis , 268 Ga. 721 1 492 SE2d 885 1997. The trial court held it was not authorized under OCGA § 53-12-153 to modify or terminate the trust based on the depletion of the bank account since the decedent knew the account was depleted before his death. However, due to the unanticipated predicament of being unable to find an individual or entity willing to serve as trustee under these circumstances, the trial court held appellee could appoint “a corporate fiduciary or an individual other than someone related or subordinate to her” to serve as trustee.2 The trial court found that the equity in the home was a “liquid asset” within the meaning of Item V B of the will, supra n. 1, insofar as the equity could be converted into cash. Since decedent intended for his children to inherit the trust’s corpus should appellee die or cease living in the residence, the trial court noted access to the home’s equity by the trustee should be limited. Therefore, the trial court held that the trustee could convert no more than 30 of the equity in the residence into cash as compensation for the trustee’s services and as funding for expenses related to maintaining the residence.
