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Peterson v. Peterson - 303 Ga. 211, 811 S.E.2d 309 (2018)


To prevail at summary judgment under O.C.G.A. § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. O.C.G.A. § 9-11-56(c). A defendant may do this by either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims.


Charles Hugh Peterson died testate in 1994. Item 5 of his will created a marital trust for Mary, Charles’ wife, while Item 6 created a bypass trust for Mary and their three sons, Alex, David and Calhoun Peterson. Mary and her three sons were all named as co-executors and co-trustees of the will and trusts. While all four were first appointed co-executors, David later resigned as an executor. Item 5 of the will provided that all of the income from the marital trust goes to Mary for her life and that Mary has the power at any time and from time to time to direct the Trustees to turn over any part of the property in the trust to Mary or to or among such of Charles’ descendants or spouses of such descendants. Thereafter, brothers Alex and David instituted an action against their mother and brother, alleging that Mary and Calhoun have made all the decisions under the will and trusts without consulting them. According to Alex and David, Mary and Calhoun had breached their duties as executors of the will and as trustees of a bypass trust created by that will. In May 2016, Mary moved for summary judgment on all these claims. In November 2016, the superior court granted summary judgment to Mary, and Alex and David have subsequently appealed the ruling.


Did the trial court err in granting summary judgment in favor of a widow, thereby rejecting the beneficiaries’ contentions that the widow had breached her duties as executor of the will and as a trustee of a bypass trust created by the will?




The Court determined that the trial court erred in concluding that the Mary’s powers of control entitled her to summary judgment on Alex and David’s claims against the trust. According to the Court, although Mary had considerable powers under both trusts, she and the other trustees were required to diligently and in good faith investigate whether the children required support before deciding not to make payments to them. The Court further opined that Mary’s right to direct that property be turned over to her or a descendant by a written instrument did not diminish her duty as an executor and trustee not to waste property of the estate or trusts while that property remained a part of the estate or trust.

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