A 1954 letter from the corporate trustee stating that its compensation would be 5% of income was a fee agreement binding the trustee, and the trustee did not provide sufficient evidence that additional compensation should be allowed under 20 Pa.C.S. § 7768(b). The letter did not limit principal commissions, and the trial court did not abuse its discretion in allowing an interim principal commission. Trust under Deed of Wallace F. Ott, 2021 PA Super 203 (10/12/2021), aff’g 10 Fid.Rep.3d 281 (Philadelphia O.C. 2020).
Addressing a series of inter-related in limine motions and motions for summary judgment, the court held that: Although a party with an interest adverse to the estate may be barred from testifying under the Dead Man’s Act, the spouse of the adverse party is not barred. When more than one party is interested in the same series of transaction, each is barred from testifying in support of their own claim but may testify in support of other claimants if the testimony does not inherently support their own claim. If a claimant is allowed to testify in this way, the cross-examination of the claimant is not a waiver of the Dead Man’s Act. Testimony that a claimant had performed services for which the disputed transfers might have been compensation was allowed even though it was inconsistent with the claims of inter vivos gifts because it was relevant to refute other claims. The admissible evidence was insufficient to allow an interested party to testify who was otherwise barred by the Dead Man’s Act. Dead Man’s Act was not waived by the inclusion of a police report in a motion for summary judgment when the report was hearsay and so inadmissible. A good faith waiver of interests in the estate may make a witness competent to testify. Estate of Leland W. Benson, Jr., 11 Fid.Rep.3d (Lycoming O.C. 2021).
A motion to allow the deposition of possible witnesses that was made seven months after the witnesses were identified in supplemental answers to interrogatories, five months after the close of discovery, a month after receiving the other party’s pretrial memorandum, and only two months before the scheduled trial date was denied as untimely. Estate of Leland W. Benson, Jr., 11 Fid.Rep.3d 227 (Lycoming O.C. 2021).
When a will has no provisions for the resignation of, or successors to, a testamentary trustee, 20 Pa.C.S. §§ 7765(a.1(e) and 7764(c)(2) allow the beneficiaries to accept the resignation of the corporate trustee, and allow the qualified beneficiaries to appoint a successor corporate trustee, through a nonjudicial settlement agreement. Estate of Martin L. Early, 11 Fid.Rep.3d 224 (Montgomery O.C. 2021).
When a testator divorces, then remarries the former spouse, and then dies without changing the will from the first marriage, the surviving spouse is entitled to an intestate share under 20 Pa.C.S. § 2507(3). In re: Estate of Tom D. Thumma, 11 Fid.Rep.3d 217, 70 Cumb. 206 (Cumberland O.C. 2021).
A beneficiary who is entitled to an annuity of $2,400 each year for life from a trust of about $73 million had standing to object to transactions of the trustee alleged to be breaches of fiduciary duties, as well as to retroactive and prospective changes in trustee compensation, without the beneficiary needing to show that she has suffered, or will suffer, a monetary loss. Trust under Will of Augustus T. Ashton, Deceased, Dated January 20, 1950, ___ Pa. ___, 260 A.3d 81, 36 EAP 2020 (Pa. 10/4/2021), (with concurrence by Wecht, J.), rev’g in part, 233 A.3d 869, 2020 PA Super 130 (6/3/2020), and aff’g in part, 9 Fid.Rep.3d 151, No. 1039 ST of 1952 (Philadelphia O.C. 2/25/2019).
The Supreme Court has adopted a new Rule of Evidence 413 that would allow evidence of immigration status to be used only if relevant to an element of an action or defense, or to a party’s or witness’s motive. “Order Approving the Adoption of Pennsylvania Rule of Evidence 413; No. 878 Supreme Court Rules Doc.” (8/1/2021), 51 Pa.B. 5192 (8/21/2021).
The Supreme Court Committee on Rules of Evidence had proposed this new rule in September of 2020.
[Note: The order adopting the new rule was republished at 51 Pa.B. 6140 (9/25/2021) because the original publication assigned the rule to the wrong title of the Pa. Code.]
If you’ve noticed there have not been email updates in a while, thank you. It’s nice to be missed.
The problem I was having is that the emails were starting to be treated as spam by some email servers, which was causing problems for my email host. It took me a while, but I’ve finally reconfiguring the system to use a different email host for these emails, which should eliminate the problem going forward.
You will therefore find that today’s email update will be longer than usual, and will include twenty of the twenty-three new postings made in the last two months. The three postings that could not be included in today’s email are are reports on New Adoption Rules, Revised Ethics Rules on Discrimination, and an opinion on Evaluating Testimony of Witnesses.
My apologies for the delay in sending you these updates.
Dan Evans
The Register of Wills did not abuse her discretion or commit an error of law in denying letters of administration to a principal creditor of the estate when the creditor had an ownership interest in property owned by the decedent which created a conflict of interest with other creditors and failed to disclose that interest, creating reasonable doubts about the ability of the petitioner to competently administer the estate and constituting “good cause” not to appoint him. Schwartz Estate, 11 Fid.Rep.3d 210 (Bucks O.C. 2021), aff’d, 275 A.3d 1032, 2022 PA Super 80 (5/5/2022).
The incapacitated person’s son, who was nominated to be her guardian in her durable power of attorney, but the son had neglected and abused his mother, had failed to cooperate in making arrangements for her care, was more interested in preserving his mother’s home for himself than in qualifying her for Medicaid benefits, and had criminal convictions for both assault and murder, so good cause existed not to appoint him as her guardian. The court also rejected the son’s allegations of various procedural errors. Gladys DeAngelo, an Incapacitated Person, 11 Fid.Rep.3d 181 (Chester O.C. 2020), appeal dism’d, 3466 EDA 2019 (Pa. Super. 7/24/2020) (appeal was moot following the death of the incapacitated person).