It was not an abuse of discretion or an error of law for the Orphans’ Court to allow a late spousal election under 20 Pa.C.S. § 2210 by the guardian of an incapacitated spouse when the COVID-19 pandemic struck between the date of death and the six month filing deadline, the estate was not harmed by the delay, all parties were aware that the guardian intended to make the election, and inequities and gross injustice would otherwise result. In re: Estate of Terri Garbutt, 616 EDA 2022 (Pa. Super. 2/27/2023) (non-precedential), aff’g Garbutt Estate, 1 Fid.Rep.4th 29 (Chester O.C. 2022). [Updated on 6/5/2023 to add citation to the O.C. opinion.]
The Orphans’ Court had the power to set aside a conveyance of real estate by the executor after his removal from office as a remedy for self-dealing, and not a surcharge, and under the doctrine of “the law of the case,” the appellate court would not reconsider its holding in a prior appeal that the executor had engaged in self-dealing. In re: Estate of Angela DiMatteo, 363 WDA 2022 (Pa. Super. 2/22/2023), (non-precedential).
[For a related decision in the same case, see “Executor’s Transferto Wife Voided as Self-Dealing.”]
Wife in divorce action died on the same day the decree of divorce was entered, and the family court later issued a final order for the equitable division of marital property. The family court, and not the Orphans’ Court, had jurisdiction to order the executor to sell and transfer assets in accordance with the order for equitable division and to impose sanctions on the executor for failing to comply with that order. Tomasetti v. Suarez, 1004 EDA 2022 (Pa. Super. 2/22/2023), (non-precedential).
By distributing some trusts years before and adding the assets of those trusts to other trusts, the trustee waived claims for commissions payable from those trusts, as well as attorneys’ fees incurred later. The trustee also failed to provide clear and persuasive evidence of the amount of work involved in serving as trustee, and did not present hourly records or other support for the claims for substantial commissions, and so the claimed compensation was reduced. Legal fees charged to prepare accounts that were inaccurate and had to be withdrawn were not approved. Legal fees also not allowed for disputes that arose out of errors by the trustee and his counsel, and the resulting litigation was unnecessary and needlessly complex. Cassalia Trusts, 12 Fid.Rep.3d 562 (Montgomery O.C. 2022), on appeal, 666 EDA 2023 (Pa. Super.) (consolidated with 667-672 EDA 2023). (The Pa.R.A.P. 1925(a) opinion is Cassalia Trusts (No. 2), 1 Fid.Rep.4th 63 (Montgomery O.C. 2023).).
Petition for temporary injunction against the funeral and burial of the decedent’s father was denied for lack of jurisdiction when the decedent did not reside in Pennsylvania and was to be buried in another county, the only connection to Montgomery County being the location of the funeral home making the burial arrangements. The petitioner also failed to demonstrate immediate and irreparable harm, because it was alleged that preservation of the body was needed for an autopsy but there no showing of a need for an autopsy or what would be learned that could not be learned from medical records, or from a later autopsy. Gilbert Estate, 12 Fid.Rep.3d 556 (Montgomery O.C. 2022). (The same opinion was also published at 2 Fid.Rep.4th 390.)
The Supreme Court has adopted new Pa.R.O.C.P. 1.22, which provides that “Citation of authorities in matters subject to these rules shall be in accordance with Pa.R.A.P. 126.” “In re: Order Adopting Rule 1.22 of the Pennsylvania Rules of Orphans’ Court Procedure, No. 936 Supreme Court Rules Docket” (2/13/2023), 53 Pa.B. 1052 (2/25/2023). (Rule 1.22 was “attached” to the order, but is a separate document on the AOPC server.)
Pa.R.A.P. 126(b)(2) states that “Non-precedential decisions as defined in (b)(1) may be cited for their persuasive value.” “Non-precedential decision” is defined by (b)(1) to include an unpublished non-precedential memorandum decision of the Superior Court filed after May 1, 2019.
An Adoption Report of multiple rules committees, including the Orphans’ Court rules committee, was also docketed.
The new rule will be effective April 1, 2023.
[DBE Comment: I have not regularly reported opinions of the Superior Court labeled “non-precedential” because I took the Superior Court at its word and thought that the opinions were non-precedential. But it now appears that non-precedential decisions are semi-precedential. So I will be reporting non-precedential opinions in the future.]
The Superior Court has affirmed the dismissal of a petition to remove a corporate trustee, finding that the allegations of the petition were not grounds for removal under 20 Pa.C.S. § 7766(b). Specifically, neither changes in staffing by the trustee, nor beginning to require beneficiaries to supply financial information to request discretionary distributions. nor incurring more than $30,000 in legal fees of outside counsel who wrote a “condescending an inappropriate letter” were a “serious breach of trust,’ under § 7766(b)(1), two disagreements between the individual and corporate trustees were not a “lack of cooperation” under § 7766(b)(2), the failure to make regular distributions of income was not a failure to “effectively administer the trust” under § 7766(b)(3) when the trust provided for discretionary distributions, and the staffing changes were not a substantial “change of circumstances” under § 7766(b)(4). In re: Amended and Restated Deed of Trust of Margaret M. Holdship, 288 A.3d 919, 2023 PA Super 11 (1/19/2023), aff’g, 1 Fid.Rep.4th 59 (Allegheny O.C. 2022).
Lackawanna County has adopted a new Lacka.Co.R.C.P. 175 for the use of “Advanced Communication Technology” (e.g., videoconferencing), and has amended Rule 208.3(a) on motion procedure, both of which may affect Orphans’ Court practice. “Adoption of Lacka.Co.R.C.P. 175 and Amendments to Lacka.Co.R.C.P. 208.3(a), 211(c), 214(e), 214.2(a) and (c), 1028(c), 1034(a), 1035.2(a) and 4000.1(a) Governing the Use of Advanced Communication Technology (ACT) in Civil Proceedings; No. 23 CV 1” (1/12/2023), 53 Pa.B. 611 (1/28/2023).
[Note: The Orphans’ Court Procedural Rules Committee has proposed a new Pa.R.O.C.P. 1.20 that would allow the Orphans’ Court to conduct proceedings using “advanced communication technology.” See “Proposed Adoption of Pa.R.O.C.P. 1.20,” 51 Pa.B. 7442 (12/4/2021).]
Somerset County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 9, 2023. “Administrative Order; Administrative Order 1 of 2023″ (1/5/2023), 53 Pa.B. 608 (1/28/2023).
York County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 1, 2023. “Increase in Fees for Court-Appointed Guardian of Medicaid Recipient Incapacitated Persons; No. 6723-0115” (1/12/2023), 53 Pa.B. 610 (1/28/2023).