Brett Kincaid v. Michael D. Foley, Member of the Advisory Committee Fund C Created Under the Trust Agreement of Garvice D. Kincaid, Dated February 26, 1964, as Amended

RENDERED: JUNE 27, 2025; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0205-MR BRETT KINCAID; KEVIN KINCAID, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, CHANCE KINCAID; DREW KINCAID, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, RONAN KINCAID; BROOKE KINCAID; BRYCE KINCAID; AND CIERRA KINCAID COLLINS, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, NOVALEI RAYA COLLINS, SKYLA ARI COLLINS, AND DAVINA REIGN COLLINS APPELLANTS APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCY A. VANMETER, JUDGE ACTION NO. 20-CI-02467 MICHAEL D. FOLEY, MEMBER OF THE ADVISORY COMMITTEE OF FUND C CREATED UNDER THE TRUST AGREEMENT OF GARVICE D. KINCAID, DECEASED, DATED FEBRUARY 26, 1964, AS AMENDED; AMELIE LARSON, MEMBER OF THE ADVISORY COMMITTEE OF FUND C CREATED UNDER THE TRUST AGREEMENT OF GARVICE D. KINCAID, DECEASED, DATED FEBRUARY 26, 1964, AS AMENDED; BARTON T. ROGERS, MEMBER OF THE ADVISORY COMMITTEE OF FUND C CREATED UNDER THE TRUST AGREEMENT OF GARVICE D. KINCAID, DECEASED, DATED FEBRUARY 26, 1964, AS AMENDED; LISA S. GRANT, MEMBER OF THE ADVISORY COMMITTEE OF FUND C CREATED UNDER THE TRUST AGREEMENT OF GARVICE D. KINCAID, DECEASED, DATED FEBRUARY 26, 1964, AS AMENDED; CENTRAL BANK & TRUST COMPANY, AS TRUSTEE OF FUND C CREATED UNDER THE TRUST AGREEMENT OF GARVICE D. KINCAID, DECEASED, DATED FEBRUARY 26, 1964, AS AMENDED; AND UNBORN BENEFICIARIES OF FUND C CREATED UNDER THE TRUST AGREEMENT OF GARVICE D. KINCAID, DECEASED, DATED FEBRUARY 26, 1964, AS AMENDED APPELLEES OPINION REVERSING ** ** ** ** ** BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Brett Kincaid; Kevin Kincaid, individually and on behalf of his minor child, Chance Kincaid; Drew Kincaid, individually and on behalf of his minor child, Ronan Kincaid; Brooke Kincaid; Bryce Kincaid; and Cierra Kincaid -2- Collins, individually and on behalf of her minor children, Novalei Raya Collins, Skyla Ari Collins, and Davina Reign Collins; appellants, bring this appeal from a January 18, 2024, Final Judgment of the Fayette Circuit Court, holding that the Advisory Committee of Fund C could direct the Trustee, Central Bank & Trust Company, to sell over the term of four years 80 percent of Central Bancshares stock held in trust by Fund C. For the reasons stated, we reverse. The controversy between the parties centers upon whether shares of Central Bancshares stock held in trust by Fund C may be sold by the Trustee, Central Bank & Trust Company, upon the direction of the Advisory Committee to Fund C even though such sale was unanimously opposed by Eligible Beneficiaries of Fund C.1 Upon consideration of the Trust Agreement, amendment thereto, and Kentucky law, we are of the opinion that the direction of the Eligible Beneficiaries was binding and that the circuit court erred by concluding that the Trustee could sell 80 percent of Central Bancshares stock over a four-year period. FACTS The facts underlying this case are both voluminous and complicated; consequently, we will recite only those facts relevant to this appeal. The trust at issue was established by Garvice Kincaid through execution of a Trust Agreement 1 Eligible Beneficiaries are the adult beneficiaries of Fund C other than Jane Kincaid, Joan Kincaid, or the Kincaid Foundation, Inc. Paragraph 10 of the 2007 Settlement Agreement. -3- in 1964; it created three separate funds – Fund A, Fund B, and Fund C. Under the terms of the Trust Agreement, an Advisory Committee was also created to instruct the Trustee, Central Bank & Trust Company, as to management of the trust and distribution of trust assets. Of particular import herein, the trust held the controlling interest in Central Bank & Trust Company (Central Bank) in the form of Central Bancshares Inc. stock.2 Upon the passing of Garvice’s wife, the beneficiaries of Fund A and Fund B were Garvice’s two daughters, Joan and Jane, and the beneficiaries of Fund C were Joan, Jane, and Jane’s children, Brett Kincaid and Kevin Kincaid. In 2007, the Advisory Committee, which included Joan and Jane, proposed a transfer of assets from Fund C to Fund A and to Fund B and also sought court approval to do so; however, Brett and Kevin opposed the transfer of assets. Eventually, the parties entered into a 2007 Settlement Agreement. Under the 2007 Settlement Agreement, 124,967 shares of Central Bancshares stock were transferred from Fund C to Fund A and to Fund B, while Fund C retained 50,000 shares of Central Bancshares stock. U