A person who has been adjudicated incapacitated is presumed to lack testamentary capacity and the burden is on the proponent of the will to provide clear and convincing evidence of testamentary capacity, or at least a lucid interval. Testimony of subscribing witness that the testator “seemed alert … like he knew what he was doing and why” was insufficient, and testimony of lawyer was discounted because she failed to take customary precautions to determine that testamentary capacity existed. Both the decedent’s will, which was also found to be the product of undue influence by the decedent’s caretaker, and individual retirement account beneficiary designation were therefore found to be invalid. In re: Estate of F. Harvey Whitten, Deceased, 11 Fid.Rep.3d 29 (Montgomery O.C. 2019).
Under the Pa. Structured Settlement Protection Act, 40 P.S. §§ 4001-4009, courts are required to supervise all aspects of settlements in which a minor is a party in interest, and an assignment of annuities issued as part of a structured settlement requires the approval of the court that approved the structured settlement. An order by the Orphans’ Court that approved the structured settlement for a minor to consolidate actions in other counties regarding the assignment of annuities issued as part of the settlement, and directing that all annuity payments be made to the court pending a determination of the validity of the assignments, was not an an injunction and was neither a final appealable order nor an appealable order regarding an injunction. Barber v. Stanko, 2021 PA Super 97 (5/14/2021), quashing appeal of, 11 Fid.Rep.3d 11 (Allegheny O.C. 2021).
York County has adopted new local Orphans’ Court rules. “Adoption of Local Rules of Orphans’ Court Procedure; 6721-0305” (4/19/2021), 51 Pa.B. 2488 (5/8/2021).
An award from the 9/11 Victim Compensation Fund was not payable to the surviving spouse, despite the language of 20 Pa.C.S. § 2102(2), because it was not payable under the act specified in that section, the Air Transportation Safety and System Stabilization Act, but under a later, different act. In Re: Estate of Richard A. Chennisi, 11 Fid.Rep.3d 22 (Chester O.C. 2021), reversed in part, affirmed in part, and remanded, 2022 PA Super 31, ___ A.3d ___ (2/18/2022).
The compensation of a lawyer who served as administrator of the estate, submitted a fee agreement to beneficiaries specifying compensation at an hourly rate, and kept hourly time records with specific descriptions of work was nevertheless reduced by more than half, from $11,165.65 to $5,165.65, when the amount originally billed was almost 75% of the estate and the estate was not complicated. Andrews Estate, 11 Fid.Rep.3d 15 (Monroe O.C. 2020).
The court that approved the original settlement of the litigation for a minor’s injuries had jurisdiction to issue an order under Pa.R.C.P. 213.1 to consolidate actions in other counties approving the sale of annuities held for the benefit of the minor, and it was not improper to order future annuity payments to be paid into court pending a proper adjudication of the issues. Barber v. Stanko, 11 Fid.Rep.3d 11 (Allegheny O.C. 2021), appeals quashed, 2021 PA Super 97 (5/14/2021).
Partial summary judgment was granted on the “substantial benefit” element of undue influence when the contested will left the entire estate to the proponent of the will (who was also the mother’s caretaker) despite the proponent’s claim that the additional funds were for her children’s educations. Gattegno Estate, 11 Fid.Rep.3d 2 (Allegheny O.C. 2021).
At the recommendation of the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association, the PBA Board of Governors has voted to oppose the adoption of Pa.O.C. Rule 10.7 that had been proposed by the Supreme Court Orphans’ Court Procedural Rules Committee for procedures before the Register of Wills under the Revised Uniform Fiduciary Access to Digital Assets Act and to support instead the adoption of a different Rule 10.7 proposed by the Section. “Recommendation and Report on The Proposal by the Orphans’ Court Procedural Rules Commmittee of the Supreme Court of Pennsylvania regarding New Rule 10.7 concerning Section 3908 of Pennsylvania’s Revised Uniform Fiduciary Access to Digital Assets Act (‘RUFADAA’), 20 Pa.C.S. Section 3908.”
Crawford County has rescinded all of its local Orphans’ Court rules on adoption. “Rescission of Local Rules Concerning Adoption Procedures; No. O.C. 2021-26,” (3/10/2021), 51 Pa.B. 2380 (5/1/2021).
In “IRS Publication 590-B and 10-Year RMDs,” it was reported that IRS Publication 590-B had caused concerns about the application of the new 10-year rule, because examples in the publication made it appear that beneficiaries of inherited individual retirement accounts (IRAs) would have to take required minimum distributions (RMDs) based on life expectancies during the 10 year period. That has not been the prevailing understanding of the 10-year rule, which most practitioners understood to require the entire account to be distributed before the end of the 10 year period but does not require any interim distributions.
According to the website MarketWatch, an unnamed IRS spokesman has said that the examples in IRS Publication 959-B are incorrect and the publication will be revised to show that beneficiaries have 10 years to withdraw from an IRA “in whatever fashion they’d like.”
[5/25/2021 Update: The IRS website now has an undated page titled “Revisions to the 2020 Publication 590-B” which confirms that the publication will be revised and be available for download “soon.” The example on page 12 will apparently be revised by changing the facts from the death of a father to the death of a brother who is not more than 10 older than the beneficiary. In that case, the beneficiary would be an eligible designated beneficiary and the 10 year rule would not apply.]