The Orphans’ Court Procedural Rules Committee has proposed amendments to Pa.R.O.C.P. Ch. 15, “Adoptions,” to comply with the federal Indian Child Welfare Act and its regulations. “Proposed Amendment of Pa.R.O.C.P. 15.2, 15.3, 15.7, 15.8, 15.9, 15.10, and 15.13,” 53 Pa.B. 5113 (8/19/2023).
The sister of the decedent, who was the decedent’s sole intestate heir but whose only interest under the previous will of the decedent (from 1987) was as an executor, had no standing to appeal from the probate of the decedent’s 2019 will under 20 Pa.C.S. § 908(a), the possibility of the prior will being held invalid being “too remote and speculative to confer standing.” In re: Estate of Mary Ellen Netzel, 984 WDA 2022 (Pa. Super. 8/11/2023) (non-precedential), aff’g, 1 Fid.Rep.4th 223 (Allegheny O.C. 2022) (see “Niece Not Named in Prior Wills Did Not Have Standing to Contest Later Will“).
The Appellate Court Procedural Rules Committee has proposed changes to the Rules of Appellate Procedure that would require the notice of appeal in an appeal from the Orphans’ Court to specifically state that it is an Orphans’ Court appeal, which is defined as an appeal under Pa.R.A.P. 342. According to the committee, the amendments are intended to reflect the operation of Pa.R.O.C.P. 4.6, which is similar to Pa.R.Civ.P. 236 and establishes the date of entry of an adjudication or decree in the Orphans’ Court. “Proposed Amendment of Pa.R.A.P. 102 and 904,” 53 Pa.B. 4962 (8/12/2023).
On remand from the Supreme Court, the Superior Court has held that, even if the settlor and beneficiaries could modify an irrevocable trust to allow the beneficiaries to remove and replace trustees, the modification might still be void for undue influence by the beneficiaries over the settlor. For an inter vivos transaction, only a confidential relationship needs to be shown in order to create a presumption of undue influence, not weakened intellect or substantial benefit, and allegations that children of the settlor conducted an “escalating pattern of direct contact” and “exploited” their positions as “beloved children” were sufficient to survive a motion for summary judgment. Finally, it was error for the Orphans’ Court to sua sponte raise the issue of the standing of the executor of the settlor’s estate when the parties had waived the issue by not raising it. Trust under Deed of Walter R. Garrison, 2023 PA Super 151, ___ A.3d ___ (8/8/2023), affirming in part, vacating in part, and remanding 10 Fid.Rep.3d 189 (Montgomery O.C. 2020), after remand by ___ Pa. ___, 288 A.3d 866 (2023).
[DBE Comment: The conclusion that children might have a “confidential relationship” with a parent merely because they are loved by the parent would seem to open up new opportunities for intra-family litigation.]
Although trustees may employ legal counsel to advise them about discretionary distributions, and to negotiate settlements with beneficiaries, the requested legal fees were largely denied because they were excessive, imprudent, and disproportionate to the value of the trust. Mandell Trust, 12 Fid.Rep.3d 463 (Montgomery O.C. 2022)
For many years, Registers of Wills and Clerks of the Orphans’ Courts have been collecting fees usually designated as “JCP” fees for the Judicial Computerization Project (funded by the “Judicial Computer System Augmentation Account” established by Subchapter C of 42 Pa.C.S. Ch. 37), but sometimes designated “JCP/ATJ” because part of the fees are deposited to the “Access to Justice Account” established by the Access to Justice Act, 42 Pa.C.S. Ch. 49. These fees have been collected by the Register with the other fees for the filing of a petition for the probate of a will or the grant of letters, and by the Clerks of Orphans’ Courts for the initiation of any “civil action or legal proceeding.”
Section 35 of the Act of July 11, 2022, P.L. 540, No. 54, amended the Fiscal Code (Act of April 9, 1929, P.L. 343, No. 176) to add surcharges of $10.00 and $11.25 to the fees of $19.00 that had previously been collected, so that the total JCP fees were $40.25. See subsections (b)(3) and (c)(1)(iv) of section 1795.1-E of the Fiscal Code, as amended.
However, those new fees were expressly temporary, and expired on July 31, 2023.
Because the temporary surcharge of $21.25 has expired, the correct JCP fee should be $19.00 and not $40.25. However, it is not yet clear that Registers or Clerks have changed their filing fee practices, perhaps out of fear that the legislature has not yet completed its budget and the temporary surcharges might be reimposed retroactively.
A search of pending legislation failed to turn up any bill that would amend the relevant section of the Fiscal Code to reimpose a surcharge on filing fees. House Bill 611, PN 1811, which has passed both houses and has been signed in the House but not the Senate, makes an appropriation from the Judicial Computer System Augmentation Account but makes no changes to the funding of that account.
The beneficiaries of certificates of deposits which were originally alleged to be “in trust for” accounts, and which had been held to give them standing to challenge actions of decedent’s agents who removed the beneficiary designations before the decedent’s death, continued to have standing even though the accounts were later found to be joint accounts, because both types of accounts are testamentary in nature and the beneficiaries had the same interest in litigating the breach of fiduciary duty by the agents acting under a durable power of attorney. Rellick v. Rellick-Smith, 630 WDA 2022 (Pa. Super. 5/17/2023) (non-precedential). (For an earlier opinion in this case, first addressing the issue of standing, see Rellick v. Rellick-Smith, 147 A.3d 897, 2016 PA Super 184 (Pa.Super. 8/22/2016).)
The Orphans’ Court had addressed the argument that the alleged incapacity person had established an adequate support system, so that there was a less restrictive alternative and the appointments of a guardian of the estate and a partial guardian of the person were not necessary, and the findings of the court were fully supported by the record and so were affirmed. In the Matter of: Estate of W.K.B., 1459 MDA 2022 (Pa. Super. 7/17/2023) (non-precedential; the court adopted the opinion of the Orphans’ Court as its own, but did not quote from it or attach it).
The testimony of two doctors who diagnosed the decedent as suffering from dementia before and after she executed a “gifting agreement” transferring valuable coins to her son was sufficient to establish weakened intellect, and the testimony of the son showed that the decedent relied on him to driver her twice a week to visit relatives, and entrusted him with her engagement ring and her will, established that the son had a confidential relationship with his mother. The presumption of undue influence was not rebutted by the testimony of the lawyer who prepared and supervised the execution of the gifting agreement because the court was within its discretion in not finding the testimony credible when the lawyer had a professional relationship with the son and his testimony about the lucidity of the decedent was inconsistent with by the medical testimony. In re: Estate of Alvena T. Miller, 1666 MDA 2022 (Pa. Super. 7/25/2023) (non-precedential).
Claim of undue influence was properly rejected when Orphans’ Court found that the decedent did not suffer from a weakened intellect and the alleged influencer did not have a confidential relationship with the decedent. Summary judgment on lack of testamentary capacity was proper when evidence of brain injury showed decreased mental acuity but nothing to support findings that the decedent was unaware of the natural objects of his bounty, the composition of his estate, or what he wanted done with his estate. FInally, the court had the discretion to reject the settlement agreement when it provided no direct benefit for the grandchildren who were the primary beneficiaries under the will. In re: Estate of Michael E. Lehman, 341 MDA 2022 (Pa. Super. 7/24/2023) (non-precedential).