- 54 - procedures or requirements to be observed in the event of refusal by the initial named trustee to accept the trust. In contrast, Ga. Code Ann. section 53-12-6 (1997) mandates that “A trust shall never fail for the want of a trustee.” Longstanding judicial precedent then provides that the State courts are empowered to appoint a trustee, see Prince v. Barrow, 48 S.E. 412, 418 (Ga. 1904), and Ga. Code Ann. section 53-12-170(c) (1997) permits the courts to do so on the petition of an interested person. Since the will here does not purport to restrict judicial authority, and in fact seems to recognize that such exists with the statement regarding “Any successor Executor or Trustee appointed as herein provided, or appointed according to law”, we see no reason to question the actions of the Probate Court in appointing Mrs. Lassiter as trustee. Second, because testator intent is referenced by both parties in a variety of contexts, we mention its role in this litigation. On one hand, it is axiomatic that construction of a will is to be based on the intent of the testator as can be ascertained therein. See Ga. Code Ann. sec. 53-2-91 (1997). It is equally clear in the case at bar that Mr. Lassiter did not contemplate the qualification of the Item V trust for a QTIP election, since section 2056(b)(7), which created the election, had not yet been enacted. On the other hand, however, disclaimers, which by their very nature operate to modify aPage: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
Last modified: May 25, 2011