dissenting.
I respectfully dissent to the majority’s reversal of the judgment of the trial court modifying the trust pursuant to OCGA § 53-12-153.
The majority relies in part on the apparent absence of precedent from any state authorizing the use of judicial modification to disinherit a named beneficiary based on alleged instances of misconduct. However, unlike the traditional rule in most states precluding any deviation from the distributive provisions of a trust, the Georgia statute “is not . . . limited to administrative terms.” Comment to OCGA § 53-12-153. See also Restatement (Third) of Trusts § 66 reporter’s notes on cmt. b (2003). The particular misconduct alleged in this case can certainly be described as extraordinary. I believe that the trial court was authorized to find by clear and convincing evidence that appellant shot and repeatedly stabbed the very person whose death would trigger the distribution to him of $400,000 in Trust property. Under Georgia law, if Mrs. Smith had not managed to survive the attack or if Appellant had conspired with another to kill her, the trial court’s modification would have been mandatory. OCGA § 53-1-5. See also OCGA § 33-25-13. The circumstances would, in effect, have been considered extraordinary as a matter of law. Although Georgia law does not mandate modification of the Trust as a result of the assault and serious injury of Mrs. Smith, those circumstances are nearly as grievous as felonious homicide or conspiracy to kill, and the trial court’s decision to modify the Trust cannot be overturned absent an abuse of discretion. Friedman v. Teplis, 268 Ga. 721, 723 (2), (3) (492 SE2d 885) (1997).
“[T]he courts have recognized a variety of ‘unanticipated cir*838cumstances’ that may support modification, including a change in tax or other laws [cits.] and a settlor’s mistaken view regarding the effect of tax laws. [Cit.]” Friedman v. Teplis, supra at 722 (1). If those types of circumstances justify modification, then surely modification is permissible where a beneficiary assaults and severely injures the settlor’s wife, whose death would cause distribution of the trust property. That occurrence could not have been anticipated by Settlor when he established the Trust, at which time Appellant was seven years old. Likewise, it cannot be said that Settlor anticipated the severe attack on Mrs. Smith merely because he specifically provided for beneficiaries suffering from disability and there is evidence that Appellant is mentally incompetent. Even assuming that circumstances after establishment of the Trust and prior to Settlor’s death are relevant, the mere fact that Settlor supported Appellant by hiring an attorney when he was charged with nonviolent crimes does not necessarily show that Settlor anticipated an assault on Mrs. Smith. The trial court did not abuse its discretion in finding “by clear and convincing evidence that [Appellant’s] assault on his grandmother is a circumstance that was unanticipated by [Settlor].” With respect to that issue, this Court has observed that “no hard and fast rules exist; rather, the most important issue for the trial court is whether the denial of the modification will impair the purpose of the trust. [Cit.]” Friedman v. Teplis, supra. Thus, I now turn to a consideration of this latter issue.
Initially I observe that modification of the trust would not frustrate its purpose to provide for Settlor’s lineal descendants per stirpes, by eliminating not only Appellant, but also his unborn descendants, from receipt of Trust property. To the contrary, the trial court’s treatment of Appellant as predeceased is narrowly tailored to prevent him from receiving a distribution of Trust property and does not affect any of his potential descendants. See Linkous v. Candler, 270 Ga. 284 (508 SE2d 657) (1998) (despite renunciation of all life interests, thereby requiring the renounced property to pass as if the renouncing persons were predeceased, class of remaindermen is still not ascertained until the death of the life beneficiaries). If Appellant has any children before Mrs. Smith dies, they will take under the Trust as modified. If he has any children after she dies, they would not take under the Trust either with or without the modification, because only descendants living at the time of Mrs. Smith’s death will be eligible to participate in the distribution. Contrary to Appellant’s contention, because the trial court’s modification did not impair the interests of any unborn children or grandchildren of Appellant, appointment of a guardian ad litem was not necessary. Compare Friedman v. Teplis, supra at 723 (3) (where the modification sought would have altered the time at which the trust property *839would be distributed).
Decided March 1, 2010 Reconsideration denied March 29, 2010. Chandler, Britt, Jay & Beck, Walter M. Britt, Luther H. Beck, Jr., for appellant. Alston & Bird, Nowell D. Berreth, Jay D. Bennett, Andersen, Davidson & Tate, Ethel D. Andersen, for appellee.Moreover, the Trust provides for the descendants of both Mrs. Smith and Settlor, and therefore benefits Mrs. Smith by relieving her of the full burden of that undertaking. Thus, denial of modification would undermine this purpose of the Trust by providing Appellant with a continuing financial incentive to hasten the death of his grandmother and by placing her in fear thereof. Therefore, the trial court did not abuse its discretion in finding, by clear and convincing evidence, that “the purpose of the Trust would be substantially impaired if [Appellant] were permitted to receive benefits from this Trust.”
Accordingly, I submit that the trial court did not err in modifying the terms of the Trust and entering judgment in favor of Appellee. The majority incorrectly rules otherwise.