The denial of disqualification of counsel representing multiple beneficiaries is not an appealable order under the collateral order doctrine even when there is alleged to be a non-waivable conflict of interest among the beneficiaries when the counsel did not previously represent other parties and there is no other allegation of irreparable harm. In re: Shirley Weingberg Revocable Trust, 940 WDA 2022 (Pa. Super. 11/2/2023) (non-precedential). (In a concurring opinion, Justice Bowes concluded that the appeal was frivolous and a proper subject of an award of legal fees.)
When a trust has given the surviving spouse an unlimited right to withdraw principal and a later amendment gives the spouse the right to withdraw the greater of $5,000 or 5% of the trust principal, the amendment demonstrates the intention of the settlor to limit the right of withdrawal and the original right of unlimited withdrawal is superseded and replaced. O’Sheill Trust, 1 Fid.Rep.4th 99 (Warren O.C. 2022), and O’Sheill Trust (No. 2), 1 Fid.Rep.4th 107 (Warren O.C. 2022), aff’d 555 WDA 2022 (Pa. Super. 1/23/2023).
Voiding an act of self-dealing by an executor, and not surcharge, is a proper remedy when the recipient of the transfer of estate property is the executor’s wife and she is complicit, and the transfer cannot be justified as an exchange for a claim against the estate when the claim represents a conflict of interest and was for less than the appraised value of the property. DiMatteo Estate, 1 Fid.Rep.4th 97 (Allegheny O.C. 2022), aff’d 362 WDA 2022 (Pa. Super. 1/27/2023) (non-precedential).
[For a related decision in the same case, see “Conveyance of Real Estate Set Aside for Self-Dealing.”]
Executor was removed who failed to probate will for five years and then failed to make any distribution of the estate for nine years, failing to give notices of estate administration, failing to advertise the grant of letters, failing to collect all of the assets of the estate, selling two parcels of real estate without advising the beneficiaries or establishing a separate estate account, and commingling the proceeds of sale with his personal assets. Estate of Karn, 1 Fid.Rep.4th 92 (Allegheny O.C. 2021), aff’d 647 WDA 2021 (Pa. Super. 11/18/2021) (non-precedential).
It was a breach of fiduciary duty for the trustee to fail to ensure legal fees were reasonable and failing to review and question the fees charged, which were excessive in relation to the value of the trust (almost one third of the value of the trust), the hourly rates that were charged exceeded the rates charged by other lawyers with similar skill and experience, the legal services included preparation of a “form template” petition for a “vanilla” adjudication, attorney time was spent at a deposition to which the trustee was not directly related, and the invoices included duplicate billing for different lawyers performing the same tasks in violation of the fee agreement, and so a surcharge of the trustee was warranted. Vaccarello Trust, 1 Fid.Rep.4th 77 (Montgomery O.C. 2022).
It was not an abuse of discretion for the Orphans’ Court to dismiss the incapacitated person’s petition to reconsider or modify the original adjudication of incapacity without a hearing when the petition merely alleged that the incapacitated person “no longer exhibits the behavior pattern” that led to the original petition without any allegation of any evidence that what was found to be a permanent short-term memory impairment that was unlikely to change had actually changed. The Superior Court also affirmed the denial of a change of guardian, the denial of a declaratory judgment as to testamentary capacity, and the denial of legal fees for counsel engaged by the incapacitated person. In re: Guardianship of H.T., 1675 MDA 2022 (Pa. Super. 10/18/2023) (non-precedential).
A revocable trust was a “living trust” and so exempt from realty transfer tax even though the trust document originally allowed distributions to persons other than a settlor if a settlor became incapacitated because a retroactive modification of the trust under 20 Pa.C.S. § 7740.6 to carry out the settlors’ tax objections was approved by the court and the modification was effective even though the petition was filed after the realty was transferred and even though the Commonwealth was not a party to the modification proceeding. Ebersole v. Commonwealth, ___ A.3d ___, 360 F.R. 2020 (Cmwlth. 10/10/2023).
The Administrative Office of the Pennsylvania Courts has announced that, beginning on Monday, October 2, 2023, appellate briefs that have been filed for cases in the Supreme, Superior, and Commonwealth Courts will be available for viewing through the UJS Web Portal (https://ujsportal.pacourts.us).
This “Appellate Briefs” feature will be located under the PACFile menu. Pursuant to Supreme Court order “Limited Pilot Program for Remote Access to Images of Briefs in PACFile; No. 597 Judicial Administration Docket” (9/28/2023), 53 Pa.B. 6469 (10/14/2023), and Pa.R.A.P. 125, this feature will initially operate as a pilot program, and will be available only to attorneys who (a) are active members of the Pennsylvania Bar or emeritus attorneys performing pro bono services and (b) have an active account to use the PACFile system.
For more information on the use of this feature, see the UJS Web Portal’s Help site: Appellate Briefs (pacourts.us).
When one spouse has filed for divorce, alleging that the marriage is irretrievably broken, and the other spouse fails to file an answer and dies before any judgment is entered, the grounds for divorce have not been established within the meaning 23 Pa.C.S. § 3323(g)(3) if no affidavit has been filed that complies with section 23 Pa.C.S. § 3301(d), and judicial estoppel does not apply even though a petition for special relief alleged that “grounds here have been established” because the petition did not allege facts necessary to 3301(d), so the divorce action was discontinued and the rights of the parties were to be determined under the Probate, Estates and Fiduciaries Code. Shell v. Estate of Shell, 2023 PA Super 295, ___ A.3d ___ (10/3/2023).
When the settlor of the trust transferred a residence to a trust for the benefit her son and daughter-in-law, who were also trustees, and there was an unwritten “understanding” that the trustees/beneficiaries would pay the mortgage, and did pay the mortgage for many years, the late charges on the mortgage were not debts of the trust but of the surviving trustee/beneficiary. Although the trustees had the power to mortgage the trust property, the son as beneficiary was denied the power to transfer or mortgage his interests in the trust, and so the son’s taking an additional mortgage against the property was improper, and the surviving trustee was prohibited from using trust funds to pay the second mortgage and was properly surcharged for those payments even though she herself did not benefit from the second mortgage. Attorneys’ fees of the trustees were properly denied when the trustees failed to meet their burden of proof to show which fees were incurred in administering the trust and which fees related to their breach of trust. In re: Sletten Family Trust, 2023 PA Super 186, ___ A.3d ___ (9/27/2023).