The Superior Court has held that an incapacitated person can be represented in a divorce action only by a court-appointed guardian or guardian ad litem, and that an agent under a durable power of attorney cannot prosecute or defend a divorce action on behalf of an incapacitated principal. Berry v. Berry, 2018 PA Super 276, 197 A. 3d 788 (2018).
Change of beneficiary form that referred to original annuity contract and was submitted to the insurance company after the contract had matured and been converted to a supplemental annuity contract was insufficient to change the beneficiary of the supplemental contract because the decedent was not in substantial compliance with the terms of the contract after the decedent was notified that the change of beneficiary was ineffective and took no further action for more than three and a half years. Estate of Albert R. Pepe, 9 Fid.Rep.3d 67, No. 112 DE of 2018 (Philadelphia O.C. 9/10/2018).
When trust document grants the beneficiary the power to remove and replace a corporate trustee “for any reason whatsoever” with court approval, the beneficiary did not need to allege or show any cause for removal provided by 20 Pa.C.S. § 7766, which is not among the mandatory provisions listed in § 7705(b), and so the provisions of the trust document control under § 7705(a). Trust under Agreement of Taylor, 640 Pa. 629 (2017) was distinquished. Partricia Sankey Special Needs Trust, 9 Fid.Rep.3d 49, No. 1896 of 2014 (Philadelphia O.C. 8/29/2018).
Will contest alleging lack of testamentary capacity and undue influence was subject to nonsuit when proponent of will introduced self-proving will that had been admitted to probate and objectant failed to call any witnesses, offering only medical records that were not authenticated and inadmissable. Marinucci Will, 9 Fid.Rep.3d 95, No. 1239 AP of 2017 (Philadelphia O.C. 8/28/2018).
Guardian of the estate of an incapacitated person was surcharged for unexplained discrepancies in her account showing funds were missing, for an act of self-dealing by payment to an entity owned by the guardian’s husband, and for a payment allegedly for repairs to properties four months after they were sold, as well as for compensation paid to the guardian while she was mismanaging the estate. Estate of Estelle Segal, 9 Fid.Rep.3d 38, No. 658IC of 2016 (Philadelphia O.C. 9/10/2018), on appeal, 3041 EDA 2018 (Pa. Super.).
Decree of the Orphans’ Court granting the petition of the agent for the incapacitated executor named in the will, and directing the Register of Wills to grant letters of administration c.t.a. to the agent, was vacated when it appeared that the Orphans’ Court did not have subject matter jurisdiction because the Register had not yet probated the will or issued any letters testamentary, so there was no determination by the Register to appeal to the Orphans’ Court, and the initial determination of the proper party to whom letters should be granted remained with the Register. Huber Estate, 2018 PA Super 272 (10/5/2018).
The niece of the decedent who acted as the decedent’s health care agent and was the sole emergency contact listed for the decedent in the hospital’s medical records, and who also prepared the will for the decedent to sign which named the niece as sole beneficiary, was in a confidential relationship with the decedent for purposes of proving undue influence. The testimony of the decedent’s physician that he was suffering from “persistent confusion, forgetfulness, and disorientation” was sufficient evidence of a weakened intellect. Laughman Estate, 8 Fid.Rep.3d 242 (Adams Co. O.C. 2018), aff’d, 555 MDA 2018 (Super. Ct. 10/10/2018).
Requests by the executors to the surviving spouse for bank statements and life insurance information that were needed for estate administration did not constitute discovery waiving the Dead Man’s Act (42 Pa.C.S. § 5930), and so the surviving spouse was barred from testifying about the validity her prenuptial agreement with the decedent, which prohibited her from electing against the will. Hipp, Sr. Estate, 8 Fid.Rep.3d 233 (Chester O.C. 2018)
Below is an overview/explanation from Webcalculators.
For an article addressing the pros and cons of the election, and drafting to allow disclaimers of interests that would prevent the treatment of a trust as a sole use trust, see “‘Sole Use Trusts’ and Disclaimers.”
The wife of the decedent and executor of his estate, who had asserted attorney-client privilege during discovery, could not then waive the privilege at trial unless the opposing litigants could first conduct discovery regarding the communications for which the privilege had previously been claimed. Gregury v. Greguras, 2018 PA Super 261 (9/20/2018) (en banc).