Situs of Trust Was Not Effectively Changed by Beneficiaries

Posted on by May 17, 2024

The attempt by the beneficiaries to change the situs of a trust which was the subject of litigation was properly disregarded by the Orphans’ Court, even though the trust document specifically allowed the beneficiaries to change the situs, because under 20 Pa.C.S. § 7705(b)(13) the power of the court to “exercise jurisdiction as may be necessary in the interests of justice” prevails over the trust document when the beneficiaries were attempting to transfer the situs to a state that had previously held it did not have jurisdiction over the trust (and would not have jurisdiction over the trustee), making court supervision of the trust impossible, and because the beneficiaries acted with “unclean hands.” In re: Dille Family Trust, 26 WDA 2023 (Pa. Super. 5/16/2024) (non-precedential).

[For previous decisions involving the situs and trusteeship of this trust, see “Choice of Law for Administration of Trust,” summarizing  96 WDA 2022 and 97 WDA 2022 (Pa. Super. 9/19/2023) (non-precedential), and “Contempt Affirmed over Situs Dispute,” summarizing 853 WDA 2021 (Pa. Super. 9/11/2023) (non-precedential). Another later opinion involving this trust is “Denial of Expanded Intervention Was Abuse of Discretion,” summarizing 1326 WDA 2022 (Pa. Super. 5/16/2024) (non-precedential).]

Removal of Trustee Was Moot, and Injunction Was Abuse of Discretion

Posted on by May 20, 2024

The death of the trustee during the appeal of her removal made the appeal moot. The order of the court prohibiting other persons from transferring or dissipating assets was an injunction issued sua sponte and was an abuse of discretion in the absence of findings on any of the six factors required for a preliminary injunction. In re: Trust Agreement of James Castelli dated October 9, 1985, 155 WDA 2021 (Pa. Super. 5/16/2024) (non-precedential).

Notice Required for Auditor’s Report

Posted on by May 17, 2024

It was reversible error for the Orphans’ Court to adopt the report of the auditor of the account of the guardian of the estate of the decedent without first giving the parties notice of the filing of the report, as required by Pa.R.O.C.P. 9.6. Even though there was no local rule for giving notice or filing objections to the account, the parties still had the right to notice and the right to file objections or exceptions to the report. In re: Lawrence F. Walker, 1141 WDA 2023 (Pa. Super. 5/15/2024) (non-precedential).

Claim for Liquidated Totten Trust Denied

Posted on by May 12, 2024

The power of the decedent’s agent to “engage in banking and financial transactions” included the power to liquidate certificates of deposit that were “Totten trusts” with beneficiary designations in favor of the appellant, and the appellant failed to adequately develop the argument that the liquidation and transfer of the funds into an account in the name of the decedent without any beneficiary designation was a violation of 20 Pa.C.S. § 5601.3, so the decree of the Orphans’ Court denying the claims of the appellant was affirmed. In re: Estate of Willard Charles Gritser, Deceased, 741 WEA 2023 (Pa. Super. 5/7/2024) (non-precedential).

Email List Discussions May Require Client Consent

Posted on by May 12, 2024

The Standing Committee on Ethics and Professional Responsibility of the American Bar Association has published Formal Opinion 511 (5/8/2024), which concludes that ABA Model Rule of Professional Conduct 1.6 (on confidentiality) prohibits a lawyer from posting questions or comments on a “listserv” (an automated email list for sharing information and discussions among lawyers) without the client’s informed consent, even if the question or comment is hypothetical or abstract, if there is a “reasonable likelihood” that the question or comment would lead to the disclosure of information about the identity of the client or the client’s situation.

DBE Comment: The opinion states that a lawyer may not disclose even publicly available information, such as transcripts of proceedings. This leads to the somewhat paradoxical conclusion that the likelihood of disclosing client information is higher, and so the likelihood of violating Rule 1.6 is higher, when that information is already part of a public record.

For example, if a lawyer posts a question on an email list about a litigation matter, it may be possible to search public records for active cases in which the lawyer has entered an appearance and so figure out the client’s identity. Furthermore, the combination of public pleadings and the information in the lawyer’s question would provide greater insights into the identifiable client’s situation. By contrast, an abstract question about an estate planning issue related to a living client might be impossible link to any particular client through any publicly available information.

However, because of the uncertainties of determining the “reasonable likelihood” of disclosing client information, it would seem to be best practice not to raise any questions relating to a particular client without the client’s informed consent.

Amendments to Rule 5.50 for Small Estate Petitions

Posted on by May 17, 2024

The Supreme Court has amended Pa.R.O.C.P. 5.50, “Settlement of Small Estates by Petition,” to accommodate situations in which the original will has been lodged with the Register or a copy of a will is being admitted to probate, and situations in which it is not yet possible to file an inheritance tax return or pay the full amount of inheritance tax. The rule has also been amended to specify the manner of service of notice of the petition. The amendment is effective on July 1, 2024. “Order Amending Rule 5.50 of the Pennsylvania Rules of Orphans’ Court Procedure,” No. 895 S.C. Rules Doc. (5/2/2024), 54 Pa.B. 2735 (5/18/2024) (report of the Orphans’ Court Procedural Rules Committee is included with the order).

Debt Based on Oral Contract Not Barred by Statute of Limitations

Posted on by April 28, 2024

The decedent’s former wife and her sister had lent large amounts of money to the decedent for his support, and there were written communications sufficient to show an oral contract for enforceable claims against the decedent which were not barred by the four year statute of limitations because the statute did not begin to run until a demand for payment was made. In re: Estate of Fred Gitterman, Deceased, 1647 EDA 2023 (Pa. Super. 4/3/2024) (non-precedential).

Ninety Percent Reduction of Legal Fees

Posted on by April 28, 2024

The Orphans’ Court awarded legal fees to an executor against a beneficiary who had impeded the executor in his attempts to recover property of the decedent in the possession of the beneficiary, but the court allowed only about ten percent of the legal fees claimed by the executor. The Superior Court found that the Orphans’ Court judge had presided over the entire dispute, and had considered all of the LaRocca factors in determining reasonable legal fees, and so found no abuse of discretion. In re: Estate of Owen Eugene Meals, Sr., 394 MDA 2023 (Pa. Super. 4/22/2024) (non-precedential).