Barry v. Barry

357 Ga.App. 479

851 S.E.2d 119

Cynthia S. BARRY

v.Thomas S. BARRY, III et al.

A20A0839

Court of Appeals of Georgia.

October 30, 2020

Blitch Law, James D. Blitch IV ; Cook & Tolley, Edward D. Tolley, Devin H. Smith, E. Spencer Tolley, for Appellant.

Eddy A. Corn ; James D. Tittle Jr. ; Daniel R. Duello, for Appellees.

Rickman, Judge.

Cynthia S. Barry filed a lawsuit purportedly to seek enforcement of the Last Will and Testament of Thomas A. Barry ("the Will"), her late father, and to seek an accounting of the Barry Living Trust ("the Trust"), of which both she and her siblings, Thomas S. Barry III and Pamela G. Berndsen, are the beneficiaries. Following an extensive evidentiary hearing, the trial court determined that Cynthia,¹ a Florida lawyer, was not actually seeking enforcement of the Will or an accounting of the Trust, but was instead engaging in vexatious litigation designed to contest the authority granted to her brother, Thomas, as personal representative of the estate and trustee of the Trust. The trial court concluded that in so doing, Cynthia invoked the in terrorem clauses contained in both the Will and the Trust and, consequently, forfeited her beneficial interests derived from both. Because the trial court's factual findings are fully supported by the record and the court did not err in determining that the in terrorem clauses were invoked, we affirm.

Upon appellate review of the trial court's ruling, we will defer to its factual findings and credibility determinations unless they are clearly erroneous. Fowler v. Cox , 264 Ga. App. 880, 882, 592 S.E.2d 510 (2003) ; see also OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule, meaning that the trial court's factual findings will not be disturbed if there is any evidence to support them. See id. at 882-883, 592 S.E.2d 510. We review the trial court's legal conclusions de novo. See generally Rose v. Waldrip , 316 Ga. App. 812, 815 (1), 730 S.E.2d 529 (2012).

The record evidence, which includes the documentary and testimonial evidence presented at the hearing and the trial court's factual findings with respect to that evidence, shows as follows. The parties’ father executed the Will in April 2012, and named Thomas as the personal representative of the estate. He and the parties’ mother, Lillian V. Barry, first created the Trust in February 1994, and executed the last amendment thereto in April 2012. The original Trust named both Thomas and Cynthia as successor co-trustees in the event of their deaths; in March 2011, however, their parents filed an amendment to the Trust removing Cynthia, leaving Thomas as the sole successor trustee.

On October 17, 2011, the parties’ mother died. Two weeks after their mother's death, Cynthia contacted the law firm retained by her father to assist with the Trust and inquired about declaring her father incompetent, noting that there was "much at stake."² She also demanded privileged communications between the firm and her father, to which she had no legal right. When the law firm declined to provide them, she threatened the firm with litigation by demanding a copy of its malpractice insurance coverage.³ The trial court declared Cynthia's actions "unethical, unprofessional[,] and by any standard[,] just plain wrong," and the court concluded that, even at that time, she "was trying to gain control of her father's estate."

On November 9, 2015, the parties’ father died. The very next day, Cynthia sent e-mails to both Thomas and Pamela, telling them to "Save your money." She also sent an e-mail message to her niece, Pamela's daughter, entitled "Your Mom: Brainwasher," and telling her, "Get ready to fight. You picked the wrong side." Cynthia admitted at the hearing that these messages were intended as threats of litigation.

Following their father's death, Thomas, as personal representative and trustee, prepared to distribute his father's property in accordance with the Will and Trust. The father dealt in precious metals, and the Will bequeathed the father's Perth Mint Certificates to his three children, to be equally divided among them, and placed the rest of his property, real and personal, into the Trust ("the Trust Estate"). The Trust, in turn, directed that the Trust Estate be divided into separate shares of equal market value and distributed equally among the three children. The relevant assets in the Trust Estate included the parents’ residence, a coin collection, Merrill Lynch stock, and personal belongings contained in the home.⁴

Significantly, the Trust provided that Thomas, as trustee, had the unfettered discretion to value and distribute the assets of the Trust Estate:

[Thomas] shall have the power to make any distribution or payment in kind or in cash or partly in kind and partly in cash and to cause any share to be composed of cash, property, or undivided interests in property different in kind from any other share, either pro rata or non pro rata, without regard to differences in the tax basis of such property and without the requirement of making any adjustment of the shares by reason of any action taken pursuant hereto.

Any division, allocation, apportionment or valuation of the property to distribute the assets to or among any of the trusts or beneficiaries shall be made by [Thomas], and the good faith determination of [Thomas] shall be binding and conclusive on all parties.

Thomas was granted the same authority with respect to the disposition of the stocks held in the Trust Estate:

[Thomas] shall have the power to acquire, grant or dispose of property, including puts, calls and options (including options on stock owned by the estate), for cash or on credit, including maintaining margin accounts with brokers, at public or private sale, upon such terms and conditions as the fiduciary may deem advisable; and to manage, develop, improve, exchange, partition, change the character of, abandon property or any interest therein, or otherwise deal with property.

At the time of his father's death, Thomas lived in Maine, and was the primary caregiver for his wife who had recently undergone a leg amputation.⁵ Because of the distance, he did not have immediate access to the assets or financial records of his father, and his father left no written inventory or prior accountings when he passed. Nevertheless, Thomas sent Cynthia a letter on December 22, 2015, informing her that he was beginning the process of gathering documentation in order to prepare a report on the Trust Estate. Thomas relied on Pamela, who had lived with and cared for their father for the last four years of his life, to locate and send him relevant documents and records. On January 27, 2016, less than 90 days after their father's passing, Thomas had prepared and provided to his siblings a preliminary accounting of all of the assets and liabilities of the Trust Estate, and informed them that he planned to offer the Will for probate "early next week."

Thomas then attempted to hire two different local lawyers in their father's small town for the purpose of offering the Will for probate. Cynthia, however, had already contacted each — but retained neither — and provided just enough information to preclude them from representing Thomas and/or the Estate without creating a conflict of interest. She then raised a conflict of interest with respect to their representation, which she refused to waive; each attorney then declined to assist Thomas. The trial court explicitly held that this was "a pre-emptive strike to preclude the limited number of [a]ttorneys available" from being able to work on Thomas's behalf.

Meanwhile, Cynthia filed the instant lawsuit on February 26, 2016, less than four months after their father's death. The complaint alleged that Thomas "refuse[d] to file the [W]ill" and "refused to provide adequate information about the specific assets and liabilities of the [Trust]." She sought affirmative injunctive relief requiring Thomas to file the Will; an equitable accounting of the Trust Estate; and affirmative injunctive relief prohibiting Thomas from making any distributions from the Trust Estate until the completion of the equitable accounting that she demanded.

Contrary to the allegations made in the complaint, the trial court concluded that Cynthia, not Thomas, "delayed the filing of the [W]ill," and noted that Thomas made "significant strides to obtain financial information and notify beneficiaries of progress" in the less than four months between their father's passing and the filing of the lawsuit, despite him living out of state, him being the primary caregiver for his wife, and it being the winter holiday season. Thomas had prepared the preliminary accounting, listing all of the Trust Estate's assets and liabilities, and assigned an approximated value for each. Additionally, he had obtained a new appraisal on the residence as of the date of his father's death;⁶ provided an inventory of their father's coin collection; provided information regarding the Merrill Lynch stocks; and contacted the life insurance and annuity companies with whom his father had accounts to inform them of his father's death, and provided information to the contractual beneficiaries on how to obtain payment under the policies.

Thomas also continued to supply Cynthia with information and documentation even after she filed the lawsuit, actively attempting to resolve the dispute without the need for court intervention.

Once he located a local attorney who would assist him in probating the Will, he attempted to distribute the Perth Mint Certificates equally between himself and his siblings in accordance with its terms. Doing so required the establishment of three separate accounts, one for each beneficiary. Despite Thomas having sent Cynthia the paperwork and information and instructing her to open the necessary account, Cynthia electively stalled the process, claiming she first "wanted ultimate resolution of the case."

Thomas also kept a detailed...