Heirs Who Had Renounced Right to Serve as Personal Representatives Were Not Indispensible Parties to Removal of Administrator

Posted on by June 8, 2024

A failure to give notice to an indispensible party deprives a court of jurisdiction, but the other heirs of the estate were not indispensible parties to an action to remove an administrator of an estate because the other heirs had renounced their rights to serve as personal representatives, and so the failure to give them notice did not deprive the court of jurisdiction. In re: Estate of Dorothy A. Anderson, ___ A.3d ___, 2024 PA Super 117 (Pa. Super. 6/5/2024).

[DBE Comment: This opinion may muddle the difference between the power to remove a personal representative, which lies in the Orphans’ Court, and the power to appoint a successor personal representative, which lies with the Register of Wills.]

Former Spouse Retained No Interest in Residence under Divorce Agreement

Posted on by June 2, 2024

The decedent’s former spouse was not a co-owner as a tenant in common, and had no ownership interests in the residence that had been purchased by the decedent and the spouse during their marriage, because they had divorced and their settlement agreement provided that the residence was to be transferred to the decedent by the spouse even though the transfer was never made. The refinancing of the mortgage on the property by the decedent was not a modification or novation of the agreement even though the spouse signed the mortgage because the decedent was the only one personally liable for the mortgage note. In re: Estate of Richard A. Martin, Deceased, 963 WDA 2023 (Pa. Super. 5/21/2024), (non-precedential).

Lack of Evidence of Personal Property Taken

Posted on by June 2, 2024

The executor of the decedent’s estate brought an action in the Orphans’ Court to recover the value of property alleged to have belonged to the decedent from a person who had lived with the decedent, but the court properly granted summary judgment when the executor was unable to produce any evidence of the identity, nature, or value of the property alleged to have been taken by the respondent even after discovery against the respondent. Marvin Samuels, Deceased, 2491 EDA 2023 (Pa. Super. 5/21/2024), (non-precedential).

Denial of Expanded Intervention Was Abuse of Discretion

Posted on by May 17, 2024

The intervenors were initially allowed to join in the litigation only for the purpose of determining whether the person with whom they had reached a settlement agreement was validly serving as the trustee of the trust, and it was an abuse of discretion for the Orphans’ Court to deny them expanded intervention when the litigation now includes disputes over both the ownership of the rights purchased by the intervenors and the distribution of the funds that were paid to the trust by the intervenors, which the intervenors might now claim if the trust did not own the rights that the intervenors purchased. In re: Dille Family Trust, 1326 WDA 2022 (Pa. Super. 5/16/2024) (non-precedential).

[For other decisions involving 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), “Contempt Affirmed over Situs Dispute,” summarizing 853 WDA 2021 (Pa. Super. 9/11/2023) (non-precedential), and “Situs of Trust Was Not Effectively Changed by Beneficiaries,” summarizing  26 WDA 2023 (Pa. Super. 5/16/2024) (non-precedential).]

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.