A Strong Offense
A Stronger Defense
Georgia makes it easy to amend a trust if the settlor expressly reserves such a power: it needs to be in writing and signed by the settlor. In Strange v. Towns, the Georgia Court of Appeals showed us how leniently courts should interpret that power to amend.
Pauline Strange created an inter vivos trust naming herself as the initial trustee and three people, including her son Tony, as successor trustees. Years later, Pauline executed a “General Durable Financial Power of Attorney,” and in the power of attorney Pauline stated that she wanted Tony to be the “executor” of her estate and the trust. Pauline and Tony both signed the power of attorney.
This was good enough to amend Pauline’s trust because she reserved the right to amend in the trust instrument: “[t]he Settlor may at any time by duly executed written instrument alter or amend the Trust in any manner.” The power of attorney was in writing and signed by her. An amendment doesn’t even need to be notarized (though there was some debate whether Pauline imposed a notarization requirement by including the language “duly executed written instrument” in her reservation of the power to amend).
Settlors may want to consider imposing more stringent requirements when it comes to modification if there is family disharmony lurking. An un-notarized separate writing that dramatically changes the terms of a trust seems like good fodder for trust litigation.