trust and estate litigation

Transferring Guardianships: What you need to know.

June 11, 2019 by Isaac J. Jean-Pierre, Esq.

By Isaac J. Jean-Pierre, Esquire-

A guardian is often an individual appointed by a court to make key decisions regarding another person’s physical welfare and/or finances. In the context of guardianships, the person who is subject to the decision-making authority of a guardian is often referred to as an incapacitated person, and it is not uncommon that the guardian bears additional responsibilities in addition to promoting the welfare of the incapacitated person.

Depending on the circumstances of the guardian’s work or family situation, and depending on where the incapacitated person is physically located, it may be appropriate to consider what tools are available to a guardian who crosses state lines on a permanent basis after receiving a guardianship appointment in Pennsylvania.

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the “Act”),[1] which has been adopted in Pennsylvania, provides for the transfer of guardianship to and from the state in which the guardianship was originally provided. For the purposes of this article, we will assume that a guardian appointed in Pennsylvania has encountered a circumstance that requires the guardian to move to another state with the incapacitated person.

When a guardian appointed in Pennsylvania wishes to transfer their guardianship to another state, a petition must be filed with the local Orphans’ Court, seeking a transfer of the guardianship. After providing notice to the required parties, and a hearing, the Orphans’ Court in Pennsylvania will enter a provisional order directing the guardian to seek guardianship in the destination state. Under the Act, the Orphans’ Court must find that the: (1) incapacitated person is physically present in or is reasonably expected to move permanently to the other state; (2) an objection to the transfer has not been made; and (3) plans for care and services for the incapacitated person in the other state are reasonable and sufficient. After the court in the destination state confirms the guardianship transfer, the Orphans’ Court in Pennsylvania will issue a final order confirming the transfer to the destination state.

The total length of the guardianship transfer process will likely be dependent on various factors, but a guardian considering a transfer should consult with legal counsel to ensure as smooth of a transition as possible, especially where the facts of each circumstance could dictate a different result.

Isaac J. Jean-Pierre is an attorney in MacElree Harvey’s Litigation Department in the West Chester office. Licensed to practice in Pennsylvania, Isaac focuses his practice in the areas of commercial litigation, trust & estate litigation, and banking and finance litigation.

To learn more about Isaac’s practice, contact him by phone at (610) 840-0273 or email at [email protected].

[1] 20 Pa.C.S. § 5901, et seq.

What is a “No-Contest” clause, and why is it important?

April 8, 2019 by Isaac J. Jean-Pierre, Esq.

By Isaac J. Jean-Pierre, Esquire-

If a decedent passes away and had a valid will, there is a chance that the will contains a “no-contest” clause, which is also known as an “in terrorem” clause.

These clauses are set in place as a penalty to discourage a beneficiary from contesting the provisions of a decedent’s will. Specifically, these clauses will provide that if any beneficiary contests the will, in whole or in part, the beneficiary forfeits any gift the beneficiary would otherwise receive under the provisions of the will.

For example, let’s say you are a beneficiary under a will, and the will provides that you were supposed to receive $50,000.00, and your sibling receives $100,000.00. That may or may not sit well with you. If you are of the latter group, you may choose to challenge the will under a variety of theories in an attempt to ensure that you receive an equal share. If the will contains a “no-contest” or “in terrorem” clause, however, you could forfeit your $50,000.00 if you chose to contest the will.

While courts are generally reluctant to enforce forfeitures pursuant to a “no-contest” clause,[1] these clauses have been held to be valid as a matter of Pennsylvania law. Moreover, because the “no-contest” provision generally protects estates from costly, time-consuming litigation, these clauses are favored on public policy grounds.[2] However, when there is probable cause to challenge the will, these clauses will be deemed unenforceable.[3] In the context of “no-contest” provisions, probable cause has been defined as a reasonable ground of suspicion supported by circumstances sufficient to warrant a belief that some wrongdoing has occurred.[4]

In any event, a beneficiary of a decedent’s estate is well-advised to seek the assistance of counsel to: (1) determine the existence of a “no-contest” clause within a decedent’s will and (2) if the clause is present, whether there is, in fact, probable cause to challenge a will and deem the “no-contest” provision unenforceable.

To learn more about Isaac’s practice, contact him by phone at (610) 840-0273 or email at [email protected].

[1] In re Davis’ Estate, 118 A. 645 (Pa. 1922); Stanton v. City of Pittsburgh, 101 A. 822 (Pa. 1917); In re McCrea’s Estate, 21 Pa. D. & C.2d 305, 307 (Pa. Orph. 1960).

[2] In re Estate of Simpson, 595 A.2d 94, 100 (Pa. Super. 1991).

[3] 20 Pa.C.S. § 2521.

[4] In re McMillin’s Estate, 15 Pa. D. & C.2d 789, 795 (Pa. Orph. 1959).

John McKenna to Present CLE for the Chester County Bar Association

December 6, 2018 by MacElree Harvey, Ltd.

On Monday, December 10, Attorney John F. McKenna will be a featured panelist for the Chester County Bar Association CLE: “Mediate This: Experienced Mediators Role Play a Real Life Dispute”. This program will address multiple issues that arise in mediation through the mechanism of a skit which will take attendees through a mock mediation.

When: Monday, December 10, 2018, from 9 – 11 am

Where: Chester County Bar Association

Click here for more information.

John McKenna is an experienced attorney who chairs MacElree Harvey’s Trust and Estates Litigation practice group. John represents clients in all estate and trust matters, complex guardianships, will contests, trust termination and modifications, corporate disputes, contract interpretation, real estate disputes, consumer protection, and broker liability litigation. John’s practice also includes private mediation. He has been appointed a Special Master by the Court to hear discovery issues and partition matters.

To schedule a consultation with John, call (610) 840-0215 or email [email protected].

The Payment of Attorneys Fees in Trust and Estate Litigation

November 12, 2018 by Robert A. Burke, Esq. Leave a Comment

Litigation is expensive. A common issue that comes up in Trust and Estate Litigation is the issue of who should pay for attorneys’ fees relating to the administration of a Trust or Estate. More importantly, who should pay for attorneys’ fees where litigation is necessary to preserve the assets of the Estate or where it is necessary for a beneficiary to challenge the Trustee or Executor.

In this Country, Courts will typically follow the “American Rule”. Under that rule, a litigant cannot recover counsel fees from an adverse party. The exception to the “American Rule” is where there is express statutory authorization, a clear agreement of the parties, or some other established exception to the “American Rule”.[1]

Many States, such as Pennsylvania, have laws that permit the award of counsel fees to a prevailing party where it is found that the other party acted in an arbitrary, vexatious, or bad faith manner. Stated plainly, a Court may award attorneys’ fees against a party where the Court finds that the party was acting in an unreasonable manner or was litigating a matter purely for the purpose of annoyance.[2]

In Estate and Trust Litigation, the Courts in Pennsylvania will, in many cases, defer to the “American Rule”. However, where a Trust or Estate is at issue, and the Court finds that the party seeking fees was protecting the assets of the Trust or the Estate, the Court may award attorneys’ fees.

For example, in the case of a Guardian or Trustee where there is an incapacitated person, the Courts may permit the Estate to reimburse the Guardian or Trustee where there is a determination that the actions were done for the benefit of the Estate and/or the incapacitated person.[3] Regrettably, Pennsylvania has limited case precedent that addresses this issue directly. Other Courts have ruled that a Trustee or Guardian of an incapacitated person should be reimbursed for legal fees from the Trust where a Guardian took steps to protect the Trust or protect the incapacitated person’s rights.[4]

Robert Burke is a Partner in MacElree Harvey’s Litigation Department. He frequently handles Estate and Trust Litigation matters in Pennsylvania and New Jersey Courts.

If you would like to schedule a consultation with Robert Burke, please call (610) 840-0211 or email [email protected].

[1] Trizechahn Gateway, LLC v. Titus, 996 A.2d 474, 482-83 (Pa. 2009).

[2] Miller v. Nelson, 768 A.2d 858, 862 (Pa. Super. 2011).

[3] In Re: Damario’s Estate, 412 A.2d 842, 845 (Pa. 1990).

[4] In Re: Shirley L., 45 N.Y.S. 3d 541 (N.Y. App. Div. 2d Dept. 2017) and In Re: Conservatorship of J.R., 252 P.3d 163 (Mont. 2011).

Transferring Guardianships: What you need to know.

What is a “No-Contest” clause, and why is it important?

John McKenna to Present CLE for the Chester County Bar Association

The Payment of Attorneys Fees in Trust and Estate Litigation

LEGAL SERVICES

ABOUT US

NEWS & INSIGHTS

OFFICES

Centreville, DE

Hockessin, DE

Kennett Square, PA

West Chester, PA

trust and estate litigation

Footer