Agent under power of attorney who was appointed “to serve jointly” with co-agent, but who acted alone, is surcharged for unexplained or unaccounted for expenditures, for changing an IRA beneficiary to herself, which was inconsistent with the principal’s intent as expressed in her will, and for unauthorized purchases on the principal’s credit card, all of which were the result of self-dealing and failure to exercise common prudence in the exercise of her fiduciary duties. Nixon Power of Attorney, 7 Fid.Rep.3d 81 (O.C. Philadelphia Co. 2016).
Surviving “life partner” is not entitled to 0% spousal inheritance tax rate, despite years of continuous cohabitation, when there was no evidence that the parties had ever contracted to marry by exchanging verba in praesenti. Gessner Estate, 7 Fid.Rep.3d 72 (O.C. Chester Co. 2016).
Court does not have jurisdiction to enforce a family settlement agreement that settled an estate within the jurisdiction of a different county. Robinson v. Robinson, 7 Fid.Rep.3d 69 (O.C. Cumberland Co. 2016).
An irrevocable trust created by a husband and wife will be voided for fraud upon the petition of the wife when the wife was not involved in the planning of the trust or the selection of marital assets to be placed in the trust and the husband had purchased other properties with marital assets that were not known to the wife and omitted those properties from the assets included in the trust, while wife believed that the trust was intended to hold all of their marital assets. Passarelli Family Trust, 7 Fid.Rep.3d 63 (O.C. Chester Co. 2016), rev’d, Passarelli Family Trust, 2019 PA Super 95 (3/28/2019) (en banc), aff’d ___ A.3d ___, 71 MAP 2019 (Pa. 12/22/2020). (A previous decision of a three-judge Superior Court panel, 2017 PA Super 366 (11/16/2017), was withdrawn and en banc rearg. granted, 3150 EDA 2016 (1/12/18).)
The court lacks jurisdiction to determine incapacity when Pennsylvania is not the “home state” of the incapacitated person under the Uniform Adult Guardian and Protective Proceedings Jurisdictional Act (20 Pa.C.S. 5901 et seq.) and an agent under a power of attorney has objected to the court’s jurisdiction, because the agent is a person entitled to notice of the proceeding. Greco Estate, 7 Fid.Rep.3d 50 (O.C. Montgomery Co. 2016).
A change to an incapacitated person’s will was approved, the court exercising its power of substituted judgment, when the incapacitated person and her husband both had children from prior marriages, each had executed reciprocal wills each leaving their estates to the other with their estates divided in equal shares among the children of both spouses upon the death of the survivor, but the husband had changed his will after his wife had become incapacitated and his estate went only to his children when he predeceased his incapacitated wife, the court agreeing that the incapacitated wife would have wanted to disinherit her husband’s children. Navarra Estate, 7 Fid.Rep.3d 39 (O.C. Lawrence Co. 2016), aff’d, 2018 PA Super 84 (4/11/2018) (but vacated and remanded as to a deceased child for whom a personal representative was not substituted).
(For the earlier decision in which the court held that it had the power to substitute its judgment, see 6 Fid.Rep.3d 368.)
The forms in use in a firm should be easy to edit, and it should be easy to copy and paste language from one document to another, so lawyers responsible for creating or maintaining will and trust (and other estate planning) forms should try to make the pieces of the wills and trusts as interchangeable as possible. Making the language, structure, and format of documents consistent will make it easier for lawyers, paralegals, and secretaries (or a computerized drafting system) to assemble different pieces into a coherent document.
Here are some suggestions for easier document drafting:
- Write revocable and irrevocable trusts in the first person (the settlor or grantor being “I”) rather than using third-person references to “the settlor” or “the grantor.” In that way, the same language can be used for similar provisions of both wills and trusts, such as trusts for the children of the settlor/testator.
- Adopt standard document formatting for all forms of wills, trusts, and other estate planning forms. Maintaining similar styles for paragraph numbering, paragraph headers, page numbering, acknowledgments, jurats, signature lines, and other mechanical parts of the document will greatly simplify the design and the maintenance of forms, as well as cutting-and-pasting between forms.
- Eliminate differences in number and gender whenever possible. Consider these possible changes.
- Use “executors” (or “trustees” or “agents”) regardless of whether two fiduciaries are named to serve together initially, or only one fiduciary is named initially and others are named as successors. As long as possible successors exist, and the provisions of the document apply to both the initial appointees and the successors, references to “the executors” or “the trustees” can refer to all of the fiduciaries who might serve, will be grammatically and semantically correct, and will greatly simplify the choices in drafting and modifying the documents for different factual situations. For example, by using “executors” consistently, you can regularly use “they” and “their,” as well as plural forms of verbs, without needing to make changes throughout a document based on the number of fiduciaries initially named.
- Use gender-neutral terms, such as “child” or beneficiary,” to refer to the beneficiaries of a trust, instead of “son” or “daughter.” (However, do not use “spouse” instead of “husband” or “wife.”) (Question: What term should be used to apply to the spouse when the spouses are the same sex? Should the will of a man who is married to a man refer to the spouse as a “husband,” “partner,” or “spouse”?)
- Eliminate personal pronouns wherever possible, substituting possessive forms when needed. For example, if trust provisions always refer to “the child” and “the child’s” (instead of “his or her”), there is no need to worry about what to do when the client has four daughters and no sons. Similarly, use possessives to refer to the spouse, instead of “his or her.” If done correctly, the substitution of “husband” or “wife” for “spouse” will also change “my spouse’s income” to “my wife’s income” or “my husband’s income.”
- Use “testator” and “executor” to refer to both men and women. The Latin feminine forms (“testatrix” and “executrix”) are archaic and rarely are seen outside of clumsy documents written by lawyers who are scared to change anything found in a form book. Statutes are almost always gender-neutral, and even judges rarely use the feminine Latin forms.
The Supreme Court has held that 23 Pa.C.S. § 2313(a), which requires the appointment of counsel for children involved in contested involuntary termination of parental rights, is not satisfied by the appointment of a guardian ad litem who is also an attorney, because the guardian ad litem is required to consider the best interests of the children as well as the legal interests of the children. In Re: Adoption of L.B.M., No 84 MAP 2016 (Pa. 3/28/2017), rev’g No. 1834 MDA 2015 (Pa. Super. 5/31/2016).
An appeal from a denial of an injunction may be dismissed as moot when the construction sought to be enjoined has been completed. In Re: Wissahickon Playground, No. 2492 C.D. 2015 (Cmwlth. 3/28/2017) (opinion not reported), aff’ng No. 265 IP of 2015 (Philadelphia O.C. 2/3/2016).
Crawford County has adopted new Orphans’ Court Rules, to be effective 30 days after publication in the Pennsylvania Bulletin. “Adoption of Local Orphans’ Court Rules; O.C. 2017-17” (3/6/2017), 47 Pa.B. 1738 (3/25/2017).