J-A19027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF FRANCES M. SORIUS, : IN THE SUPERIOR COURT OF DECEASED : PENNSYLVANIA : : APPEAL OF: JOSEPH FAY & : MATTHEW SHAY, OBJECTANTS : : : : No. 3659 EDA 2016
Appeal from the Order November 10, 2016 In the Court of Common Pleas of Philadelphia County Orphans’ Court at No.: No. 1572 IV of 2012
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 07, 2017
Joseph Fay and Matthew Shay (“Appellants”) appeal from the Order
entered in the Court of Common Pleas of Philadelphia County Orphans’ Court
on November 10, 2016, which denied their objections to the first and partial
accounting of the Estate of Frances M. Sorius (“the Estate”) and the 1998
Frances M. Sorius Living Trust (“1998 Trust”). After careful review, we
affirm on the basis of the trial court’s March 28, 2017 Opinion.
We adopt the facts as set forth in the trial court’s March 28, 2017
Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, filed 3/28/17, at 2-7.
In summary, the decedent, Frances M. Sorius (“Sorius”), created a Trust on
February 23, 1998 (“1998 Trust”). On the same date, Sorius created a Will
(“1998 Will”). On December 11, 2002, Sorius created a second Trust (“2002
Trust”), which did not alter, amend, rescind, or reference the prior 1998
Trust. J-A19027-17
In 2007, Sorius hired Stephen H. Green, Esquire (“Attorney Green”) to
make changes to her estate planning documents. Sorius provided a copy of
the 1998 Will, the 1998 Trust, and written instructions regarding her desired
changes. Sorius did not provide Attorney Green with a copy of the 2002
Trust. Following Sorius’ written instructions, Attorney Green prepared a
Codicil to Sorius’ 1998 Will, a power of attorney, and Amendments to the
1998 Trust.1 Sorius reviewed all of the estate planning documents before
executing them with Attorney Green. Sorius continued to manage the Trusts
separately. According to the trial court, there were “[n]o allegations of
undue influence, lack of capacity, testamentary or otherwise, confidential
relationship[,] or duress . . . with respect to [] Sorius’ actions.” Trial Court
Opinion at 4.
Sorius died testate on November 29, 2010. Sorius’ Will and Codicil
were admitted to probate, and Attorney Green was appointed Executor of
the Estate and became Trustee of the 1998 Trust.2 Attorney Green
transferred and retitled some of the assets held by the 2002 Trust to the
____________________________________________
1 Sorius’ 2007 Amendments to the 1998 Trust removed Sandra Hagerty and Robert Soris, Sorius’ niece and nephew respectively, as residuary beneficiaries, included Appellants, self-described caretaking friends of Sorius, and Attorney Green among new residuary beneficiaries, provided conditional bequests to Appellants, among others, and mentioned specific items that were not included in the 1998 Trust at that time. 2 Hagerty and Soris were Trustees and residuary beneficiaries of the 2002 Trust.
-2- J-A19027-17
1998 Trust, including a checking account, Abington Bancorp stock, a Merrill
Lynch account, and Vanguard shares.
Attorney Green filed the first and partial accounting of the 1998 Trust
and the Estate on December 24, 2012. Appellants, through counsel, filed
objections claiming, inter alia, that Sorius intended the 2007 Amendments to
apply to both the 1998 Trust and the 2002 Trust. Appellants argued that all
of Sorius’ assets should be included in the 1998 Trust and distributed
accordingly. Attorney Green took no position regarding the allocation of
assets and expenses between the two Trusts, or the effect of the 2007
Amendments, i.e., whether the 2007 Amendments applied to both Trusts or
only the 1998 Trust.
Hagerty and Soris also filed Objections, asserting that Attorney Green
improperly commingled assets from the 1998 Trust, the 2002 Trust, and the
Estate, and failed to allocate assets properly. Following a trial on November
5, 2014, the trial court held the matters under advisement and ordered
briefing on several issues.
On June 30, 2016, the trial court issued Adjudications regarding the
Trustee’s Account and the Executor’s Account. Relevant to this appeal, the
trial court concluded that the 2007 Amendments only applied to the 1998
Trust and that Appellants had failed to show by clear and convincing
evidence that Sorius made a mistake with the 2007 Amendments. Thus, the
trial court refused to reform the unambiguous 2007 Amendments to apply to
-3- J-A19027-17
the entire estate plan. The trial court also ordered Attorney Green to rectify
and reverse his improper transfers of assets.3 The trial court denied
Appellants’ Objections to the Adjudication of the 1998 Trust Account and the
Estate Account on November 10, 2016.
Appellants filed a timely Notice of Appeal. Appellants and the trial
court complied with Pa.R.A.P. 1925.
Appellants present three interrelated issues for our review:
1. Where there is clear and convincing evidence of a mistake that affects the decedent’s intent as expressed in certain amendments to a trust instrument, should the court reform the amendments pursuant to 20 Pa.C.S.[] § 7740.5 even if the amendments are clear on their face and contain no ambiguities?
2. Where the evidence demonstrates the decedent and her scrivener–attorney confused the composition of both decedent’s personally held property and the property held by two trusts previously created by decedent, is there clear and convincing evidence that both decedent and the scrivener made a mistake sufficient to require reformation pursuant to 20 Pa.C.S.[] § 7740.5?
3. Where the evidence shows the decedent’s clear intent was to devise certain assets to Appellants, should the Court ensure that her intent is followed by reformation of the amendments?
Appellants’ Brief at 4. ____________________________________________
3 Notably, the trial court concluded that Attorney Green acted as Trustee de son tort of the 2002 Trust. Derived from Law French, a trustee de son tort is “[s]omeone who, without legal authority, administers a living person’s property to the detriment of the property owner.” Black’s Law Dictionary (10th ed. 2014). The phrase de son tort is also and more commonly used in Pennsylvania case law when referring to executors de son tort and appears in published cases by our Supreme Court dating back to at least 1821. See Nass v. Vanswearingen, 7 Serg. & Rawle 192 (Pa. 1821).
-4- J-A19027-17
“When reviewing a decree entered by the Orphans’ Court, this Court
must determine whether the record is free from legal error and the court’s
factual findings are supported by the evidence.” In re Fiedler, 132 A.3d
1010, 1018 (Pa. Super. 2016) (citations and quotation omitted). “Because
the Orphans’ Court sits as the fact-finder, it determines the credibility of the
witnesses and, on review, we will not reverse its credibility determinations
absent an abuse of that discretion.” Id. (citation and quotation omitted).
However, we are not required to give the same deference to any resulting
legal conclusions. Id. “The Orphans’ Court decision will not be reversed
unless there has been an abuse of discretion or a fundamental error in
applying the correct principles of law.” Id. (citation and quotation marks
omitted).
Appellant’s issues raise questions of law regarding the reformation of
mistakes in a trust instrument.
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J-A19027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF FRANCES M. SORIUS, : IN THE SUPERIOR COURT OF DECEASED : PENNSYLVANIA : : APPEAL OF: JOSEPH FAY & : MATTHEW SHAY, OBJECTANTS : : : : No. 3659 EDA 2016
Appeal from the Order November 10, 2016 In the Court of Common Pleas of Philadelphia County Orphans’ Court at No.: No. 1572 IV of 2012
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 07, 2017
Joseph Fay and Matthew Shay (“Appellants”) appeal from the Order
entered in the Court of Common Pleas of Philadelphia County Orphans’ Court
on November 10, 2016, which denied their objections to the first and partial
accounting of the Estate of Frances M. Sorius (“the Estate”) and the 1998
Frances M. Sorius Living Trust (“1998 Trust”). After careful review, we
affirm on the basis of the trial court’s March 28, 2017 Opinion.
We adopt the facts as set forth in the trial court’s March 28, 2017
Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, filed 3/28/17, at 2-7.
In summary, the decedent, Frances M. Sorius (“Sorius”), created a Trust on
February 23, 1998 (“1998 Trust”). On the same date, Sorius created a Will
(“1998 Will”). On December 11, 2002, Sorius created a second Trust (“2002
Trust”), which did not alter, amend, rescind, or reference the prior 1998
Trust. J-A19027-17
In 2007, Sorius hired Stephen H. Green, Esquire (“Attorney Green”) to
make changes to her estate planning documents. Sorius provided a copy of
the 1998 Will, the 1998 Trust, and written instructions regarding her desired
changes. Sorius did not provide Attorney Green with a copy of the 2002
Trust. Following Sorius’ written instructions, Attorney Green prepared a
Codicil to Sorius’ 1998 Will, a power of attorney, and Amendments to the
1998 Trust.1 Sorius reviewed all of the estate planning documents before
executing them with Attorney Green. Sorius continued to manage the Trusts
separately. According to the trial court, there were “[n]o allegations of
undue influence, lack of capacity, testamentary or otherwise, confidential
relationship[,] or duress . . . with respect to [] Sorius’ actions.” Trial Court
Opinion at 4.
Sorius died testate on November 29, 2010. Sorius’ Will and Codicil
were admitted to probate, and Attorney Green was appointed Executor of
the Estate and became Trustee of the 1998 Trust.2 Attorney Green
transferred and retitled some of the assets held by the 2002 Trust to the
____________________________________________
1 Sorius’ 2007 Amendments to the 1998 Trust removed Sandra Hagerty and Robert Soris, Sorius’ niece and nephew respectively, as residuary beneficiaries, included Appellants, self-described caretaking friends of Sorius, and Attorney Green among new residuary beneficiaries, provided conditional bequests to Appellants, among others, and mentioned specific items that were not included in the 1998 Trust at that time. 2 Hagerty and Soris were Trustees and residuary beneficiaries of the 2002 Trust.
-2- J-A19027-17
1998 Trust, including a checking account, Abington Bancorp stock, a Merrill
Lynch account, and Vanguard shares.
Attorney Green filed the first and partial accounting of the 1998 Trust
and the Estate on December 24, 2012. Appellants, through counsel, filed
objections claiming, inter alia, that Sorius intended the 2007 Amendments to
apply to both the 1998 Trust and the 2002 Trust. Appellants argued that all
of Sorius’ assets should be included in the 1998 Trust and distributed
accordingly. Attorney Green took no position regarding the allocation of
assets and expenses between the two Trusts, or the effect of the 2007
Amendments, i.e., whether the 2007 Amendments applied to both Trusts or
only the 1998 Trust.
Hagerty and Soris also filed Objections, asserting that Attorney Green
improperly commingled assets from the 1998 Trust, the 2002 Trust, and the
Estate, and failed to allocate assets properly. Following a trial on November
5, 2014, the trial court held the matters under advisement and ordered
briefing on several issues.
On June 30, 2016, the trial court issued Adjudications regarding the
Trustee’s Account and the Executor’s Account. Relevant to this appeal, the
trial court concluded that the 2007 Amendments only applied to the 1998
Trust and that Appellants had failed to show by clear and convincing
evidence that Sorius made a mistake with the 2007 Amendments. Thus, the
trial court refused to reform the unambiguous 2007 Amendments to apply to
-3- J-A19027-17
the entire estate plan. The trial court also ordered Attorney Green to rectify
and reverse his improper transfers of assets.3 The trial court denied
Appellants’ Objections to the Adjudication of the 1998 Trust Account and the
Estate Account on November 10, 2016.
Appellants filed a timely Notice of Appeal. Appellants and the trial
court complied with Pa.R.A.P. 1925.
Appellants present three interrelated issues for our review:
1. Where there is clear and convincing evidence of a mistake that affects the decedent’s intent as expressed in certain amendments to a trust instrument, should the court reform the amendments pursuant to 20 Pa.C.S.[] § 7740.5 even if the amendments are clear on their face and contain no ambiguities?
2. Where the evidence demonstrates the decedent and her scrivener–attorney confused the composition of both decedent’s personally held property and the property held by two trusts previously created by decedent, is there clear and convincing evidence that both decedent and the scrivener made a mistake sufficient to require reformation pursuant to 20 Pa.C.S.[] § 7740.5?
3. Where the evidence shows the decedent’s clear intent was to devise certain assets to Appellants, should the Court ensure that her intent is followed by reformation of the amendments?
Appellants’ Brief at 4. ____________________________________________
3 Notably, the trial court concluded that Attorney Green acted as Trustee de son tort of the 2002 Trust. Derived from Law French, a trustee de son tort is “[s]omeone who, without legal authority, administers a living person’s property to the detriment of the property owner.” Black’s Law Dictionary (10th ed. 2014). The phrase de son tort is also and more commonly used in Pennsylvania case law when referring to executors de son tort and appears in published cases by our Supreme Court dating back to at least 1821. See Nass v. Vanswearingen, 7 Serg. & Rawle 192 (Pa. 1821).
-4- J-A19027-17
“When reviewing a decree entered by the Orphans’ Court, this Court
must determine whether the record is free from legal error and the court’s
factual findings are supported by the evidence.” In re Fiedler, 132 A.3d
1010, 1018 (Pa. Super. 2016) (citations and quotation omitted). “Because
the Orphans’ Court sits as the fact-finder, it determines the credibility of the
witnesses and, on review, we will not reverse its credibility determinations
absent an abuse of that discretion.” Id. (citation and quotation omitted).
However, we are not required to give the same deference to any resulting
legal conclusions. Id. “The Orphans’ Court decision will not be reversed
unless there has been an abuse of discretion or a fundamental error in
applying the correct principles of law.” Id. (citation and quotation marks
omitted).
Appellant’s issues raise questions of law regarding the reformation of
mistakes in a trust instrument. This Court’s standard of review of questions
of law is de novo, and the scope of review is plenary; thus, we review the
entire record in making our determination. Id.
“[A] claim against a decedent’s estate can be established and proved
only by evidence which is clear, direct, precise[,] and convincing.” Estate
of Allen, 412 A.2d 833, 836 (Pa. 1980) (citation and quotation marks
omitted). “The court may reform a trust instrument, even if unambiguous,
to conform to the settlor’s probable intention if it is proved by clear and
convincing evidence that the settlor’s intent as expressed in the trust
-5- J-A19027-17
instrument was affected by a mistake of fact or law, whether in expression
or inducement.” 20 Pa.C.S. § 7740.5 (entitled “Reformation to correct
mistakes”). “The court may provide that the modification have retroactive
effect.” Id.
The Honorable Matthew D. Carrafiello has authored a comprehensive,
thorough, and well-reasoned Pa.R.A.P. 1925(a) Opinion, with references to
relevant facts of record and to relevant case law. The record is free of legal
error and the evidence supports the court’s factual findings. After a careful
review of the parties’ arguments and the record, we discern no abuse of
discretion or error of law and we affirm on the basis of that Opinion. See
Trial Court Opinion, filed 3/28/17, at 10-23 (concluding: (1) Sorius’
unambiguous 2007 Amendments applied only to the 1998 Trust because,
inter alia, the document was “distinctly titled as amendments to the 1998
Trust in bold letters[;]” (2) Appellants failed to prove a mistake of fact or
law under 20 Pa.C.S. § 7740.5 by clear and convincing evidence because
Sorius, an astute woman with diversified assets and investments, managed
each Trust account by moving property and funds into and out of each Trust,
including after the 2007 Amendments; (3) Attorney Green’s testimony that
he did not know about the 2002 Trust until after Sorius’ death “was not
credible based on his involvement with transfer of title to the real estate in
2008 and his actions as agent under power of attorney[;]” (4) reforming the
2007 Amendment to apply also to the 2002 Trust would effectively remove
-6- J-A19027-17
Sorius’ niece and nephew as residuary beneficiaries of the 2002 Trust and
change Sorius’ entire estate plan, which the trial court determined would be
inconsistent with Sorius’ intent; and (5) Appellants thus failed to meet their
burden to prove a mistake by clear and convincing evidence).
The parties are directed to attach a copy of the trial court’s March 28,
2017 Pa.R.A.P. 1925(a) Opinion to all future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/7/2017
-7- Circulated 08/28/2017 10:51 AM