Re: Trust Under Deed of D. Kulig Apl of Budke, C. ( 2017 )

[J-48-2017][M.O. – Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: TRUST UNDER DEED OF DAVID : No. 97 MAP 2016
P. KULIG DATED JANUARY 12, 2001 :
: Appeal from the Order of the Superior
: Court at No. 2891 EDA 2014, dated
: 12/24/15, reconsideration denied
: 2/23/16, affirming the Decree of the
: Court of Common Pleas of Bucks
APPEAL OF: CARRIE C. BUDKE AND : County, Orphan’s Court Division, at No.
JAMES H. KULIG : 2013-0170 dated 9/12/14
:
:
: ARGUED: May 10, 2017
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: December 19, 2017
I agree, in substantive part, with the analyses and conclusions of the orphan’s
court and the Superior Court, namely that, with respect to Section 7710.2 of the
Probate, Estates and Fiduciaries Code, see 20 Pa.C.S. §7710.2, the enactment of this
model law provision plainly reflects the Legislature’ intention for inter vivos trusts to be
construed the same as testamentary trusts, including the protections for pretermitted
spouses pursuant to Section 2507(3), see id. §2507(3).
To the degree that Section 7710.2 may be viewed as ambiguous, as the majority
concludes, see Majority Opinion, slip op. at 18, resort to the commentary is appropriate
to determine the intention of the General Assembly. See 1 Pa.C.S. §1939 (“Use of
comments and reports”); accord 20 Pa.C.S., Ch. 77, Refs & Annos, Jt. St. Govt. Comm.
Comment--2005 (“These comments may be used in determining the intent of the
General Assembly. See 1 Pa.C.S. §1939 and In re Martin's Estate, 365 Pa. 280, 74
A.2d 120 (1950).”). In this respect, the comments to Section 7710.2 are clear regarding
the application of the pretermitted spousal provision in the inter vivos trust context:
“This section imports 20 Pa.C.S. [§]2507 . . ..” 20 Pa.C.S. §7710.2, Jt. St. Govt. Comm.
Comment--2005. The Uniform Law Comment provides additional context, explaining
the rationale supporting the adoption of this provision, i.e., that the “revocable trust is
used primarily as a will substitute, with its key provision being the determination of the
persons to receive the trust property upon the settlor’s death.” Id., Uniform Law
Comment (emphasis added); see also Danielle J. Halachoff, Comment, No Child Left
Behind: Extending Ohio's Pretermitted Heir Statute to Revocable Trusts, 50 AKRON L.
REV. 605, 623 (2016) (“Because revocable trusts are functionally equivalent to wills . . .,
the basis for inconsistent treatment of wills and revocable trusts is lacking.” (footnotes
omitted)).
Given this commentary-incorporated reasoning and the express cross-reference
to the pretermitted spousal section, I remain unpersuaded that the Legislature was
required to enact a point-by-point codification of all the rules of construction it sought to
apply to inter vivos trusts, rather than proceed via the broad provision of Section 7710.2.
Compare Majority Opinion, slip op. at 24 (“[T]he fact that the legislature declined
expressly to identify the effect that Wife imputes to Section 7710.2 provides powerful
evidence that the General Assembly did not intend it.”), with 20 Pa.C.S. §7710.2,
Uniform Law Comment (“Instead of enacting this section, a jurisdiction . . . may wish to
enact detailed rules on the construction of trusts . . ..” (emphasis added)). Accordingly, I
respectfully dissent.
Justice Baer joins this dissenting opinion.
[J-48-2017][M.O. – Wecht, J.] - 2