Court-approved settlement between guardian of the estate of the decedent and one of the decedent’s children precluded claim against the child for funds of the decedent that had benefited the child during decedent’s incapacity. The court also found that the child’s share of the estate should not be reduced by a lifetime gift of an interest in the decedent’s home, despite a letter stating that the gift was intended as a “forwarding of inheritance as well as an investment in the property,” because the property had been sold by the guardian and the child had received none of the proceeds of sale. The court therefore exercised its equitable discretion to order the estate divided among all of the children in equal shares. Tarquini Estate, 5 Fid. Rep. 3d 132 (O.C. Montgomery 2015) (Opinion by Ott, J.)
Parental rights of both mother and father terminated under 23 Pa.C.S. § 2511 when 11 year old child had been in foster care for more than six months, both parents failed to make progress in correcting the conditions that led to placement in foster care, and termination of parental rights will best serve the needs of the child by making him available for adoption. In re D.R.S.C., 5 Fid. Rep. 3d 122 (O.C. Chester 2015) (Opinion by Tunnell, J.)
A pre-1993 oral contract to make a will was found to have been established by the testimony of the beneficiary’s husband, brother, and nephew, and the beneficiary was found to have substantially performed her obligations under the contract when she was prevented from continuing to care for her father by her father’s own actions. Meyers Estate, 5 Fid. Rep. 3d 107 (O.C. Montgomery 2015) (Opinion by Murphy, J.), aff’d, No. 1063 EDA 2015 (Pa. Super. 2/17/16) (non-precedential).
[See 20 Pa.C.S. § 2701 for the evidence needed to establish a contract relating to inheritance entered into after December 16, 1992.]
Declaratory judgment was appropriate to hold that second spouse, who had not elected against will executed before her marriage to the decedent, was entitled to an intestate share of the decedent’s revocable trust which was also executed before marriage, and that the decedent’s residence was owned entirely by a trust of the deceased first spouse, the decedent having disclaimed his survivorship rights to half of the property following the first spouse’s death and then later conveyed his remaining one half interest to the trust. Kulig Trust, 5 Fid. Rep. 3d 93 (O.C. Bucks Co. 2014) (Memorandum opinion by Fritsch, J.), aff’d 131 A.3d 494, 2015 PA Super 271, No. 2891 EDA 2014 (12/24/2015), rev. and remanded 97 MAP 2016, (Pa. 12/19/2017).
I feel somewhat vindicated by a recent order of the Supreme Court, which confirms my opinion that In re Estate of Briskman, 808 A.2d 928, 2002 PA Super 287 (2002), was wrongly decided.
In Briskman, the Superior Court found that the objectant (my client) in a will contest did not have standing because the objectant was not a beneficiary under a previous will. The Superior Court was able to reach that conclusion, despite the fact that the proponent of the will had never raised the issue in the Orphans’ Court, only by concluding that the issue of standing in an appeal from the probate of a will by a party “aggrieved” under 20 Pa.C.S. § 908 was jurisdictional and could not be waived.
The Superior Court’s interpretation of § 908 conflicted with several decisions from the Supreme Court which held that statutes similar to § 908 are not jurisdictional in nature. See, e.g., Beers v. Unemployment Compensation Board of Review, 534 Pa. 605, 633 A.2d 1158 (1993); accord, Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). It also contradicted a well-developed body of law that the issue of standing cannot be raised sua sponte and is waived if not properly raised. Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 457 (Pa. Super. 1997).
However, the Supreme Court denied an appeal from the Superior Court decision in Briskman. No. 628 EAL 2002 (9/17/2002).
In a recent order in a different case, the Supreme Court allowed an appeal by one party on an issue arising out of a will contest, but disallowed an appeal by another party, stating that:
[R]espondent waived the issue of petitioner’s standing by failing to raise it in the Superior Court. See Pa.R.A.P. 302(a); In re Condemnation by Urban Redevelopment Authority of Pittsburgh, 913 A.2d 178, 181 n.6 (Pa. 2006) (noting standing in Pennsylvania is nonjurisdictional and therefore waivable (citation omitted)).
In re Estate of Isable Wilner, No. 390 MAL 2014 (11/26/2014).
[2/1/2016 Update: The Superior Court has issued an opinion holding that the issue of standing is waived unless raised in the lower court. The Briskman decision is not mentioned. In re: Estate of Schumacher, 2016 PA Super 17 (1/29/2016).]
The Disciplinary Board of the Supreme Court of Pennsylvania has announced that, for the 2015-2016 attorney registration year, the fee for returned checks will be $100, and the non-waivable late penalty will be $150 for attorneys who fail to register by July 31, with an additional $150 penalty for attorneys who fail to register by August 31. Notice of Collection Fee and Late Payment Penalty; 2015-2016 Registration Year, 45 Pa.B. 1500 (3/28/2015).
The Disciplinary Board has also published a list of the financial institutions that have been approved by the Supreme Court for the maintenance of fiduciary accounts of attorneys. Notice to Attorneys, 45 Pa.B. 1497 (3/29/2015).
The executor of a deceased trustee’s estate has sufficient standing to survive preliminary objections to a petition requesting records of charitable trusts when the executor has alleged (a) that the deceased trustee may have been entitled to compensation from the trusts and (b) that the trusts may have committed acts exposing the trustee’s estate to liability as a “foundation manager” under the Internal Revenue Code, but the Orphans’ Court on remand may limit discovery to records with “some tangible nexus” to the issues raised in the petition. In re: Raymond G. Perelman Charitable Remainder Unitrust, et al., 113 A.3d 296, 2015 PA Super 53, Nos. 151 EDA 2014, 155 EDA 2014, 162 EDA 2014, 163 EDA 2014, and 164 EDA 2014 (3/17/2015).
An order of an Orphans’ Court denying an injunction against a personal representative prohibiting a sale of real or personal property of the decedent is interlocutory and not a collateral order and so not subject to appeal. Estate of Virginia A. Cherry, 111 A.3d 1204, 2015 PA Super 52, No. 633 MDA 2014 (3/17/2015).
Not sure why this was necessary, but the Pa. Department of Revenue has issued a bulletin confirming that same-sex marriages will be recognized for inheritance tax and realty transfer tax purposes following the decision in Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014).
The bulletin also states that “Financial institutions shall treat joint accounts titled in the names of individuals in a same-sex marriage as accounts held by ‘husband’ and ‘wife.'” Not sure that the Dept. of Revenue has that kind of authority over financial institutions, but it’s still nice to know what they think.
Inheritance Tax Bulletin 2015-01; Realty Transfer Tax Bulletin 2015-01.
The court erred in division of wrongful death action damages and survival action damages, because Department of Public Welfare’s (DPW) medicare claim was against the estate instead of a personal injury lien (which would be against the wrongful death action). The Orphans’ Court corrected the error, denied additional legal fees for the estate’s representative contesting DPW’s objections and ordered the remaining balance of the estate distributed to DPW (which is now the Department of Human Services). Harrington Estate, 5 Fid.Rep.3d 65 (O.C. Mont.) (opinion by Ott, J.), app. dismissed, No. 1319 EDA 2015 (1/28/2016) (non-precedential).