Baker v. Merrill Lynch Trust Co. - Georgia Court of Appeals orders trial court to consider evidence and circumstance of will signing
Posted: July 5th, 2007 by Gaslowitz Frankel LLCIn Baker v. Merrill Lynch Trust Co.,1 the court was called upon to construe a trust created by the Will of Margaret L. Scarborough, which directed that a significant portion of her assets be distributed to “The Margaret Owen and Paula Scarborough Foundation, Inc.” Although the Will specified that this foundation would be established during Ms. Scarborough’s lifetime, Ms. Scarborough died before the foundation was created.The executor of Ms. Scarborough’s estate petitioned the court to construe the Will as having a charitable purpose that could not be effected so that, under the Cy-près doctrine, the funds in question could be distributed to another charitable purpose, rather than reverting to Ms. Scarborough’s heirs at law. The trial court ruled that the will was not ambiguous in stating a charitable intent and thus permitted the executor of Ms. Scarborough’s estate to redirect the funds at issue to another charitable purpose.On appeal, the Court held that the Will’s use of the term “foundation” was ambiguous, as foundations are capable of being either non-profit entities or for-profit entities. Accordingly, under Georgia law, the trial court was required to consider evidence of the circumstances surrounding Ms. Scarborough at the time she signed the Will as a means of determining Ms. Scarborough’s true intent.
1 Baker v. Merrill Lynch Trust Co., __ S.E.2d __, __ Ga. App. __, 2007 WL 1933135 (July 5, 2007).
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