Estate of: Winfield Lasser, Appeal of: Trembley, J ( 2021 )

J-A13031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: JAN TAREN TREMBLEY, : IN THE SUPERIOR COURT OF
AGENT FOR WINFIELD SCOTT : PENNSYLVANIA
LASSER UNDER DURABLE GENERAL :
POWER OF ATTORNEY :
:
:
APPEAL OF: JAN TAREN TREMBLEY :
:
: No. 1690 EDA 2020
Appeal from the Order Entered August 26, 2020
In the Court of Common Pleas of Chester County Orphans' Court at
No(s): No. 1519-1119
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: July 8, 2021
Appellant, Jan Taren Trembley, appeals from the August 26, 2020, order
entered in the Court of Common Pleas of Chester County, Orphans’ Court,
denying the petition for attorney’s fees and expenses, and making final the
June 8, 2020, order granting, in part, and denying, in part, the Petition for
Citation to Void the Beneficiary Designation and to Reinstate the Status Quo
filed by Alexandra Archbold, William Lasser, and Gwendolen Lasser. After a
careful review, we affirm.
The Orphans’ Court has exhaustively set forth the relevant facts and
procedural history underlying this matter as follows:
1. Winfield Scott Lasser (“Scott” or “decedent”) was married
previously to Cassandra K. Archbold [(“Cassandra”)], his second
wife. To them were born three children, Petitioners Alexandra
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* Former Justice specially assigned to the Superior Court.
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Archbold, William Lasser, and Gwendolen Lasser (collectively the
“Children”).
2. When this marriage broke up, Scott and Cassandra entered
into a Property Settlement Agreement (“PSA”).
3. Paragraph 13 of the PSA specifies that:
The parties have agreed that Husband [(Scott)] shall
pay for all tuition and expenses for his three children
to attend a four (4) year University such as the
University of Virginia or the University of North
Carolina.
4. The PSA was executed on September 18, 2001[,] when the
[C]hildren were ages 6, 5[,] and 2, respectively.
5. Some years later, Scott was married for the third time to
Jan Taren Trembley (“Jan”), who is the [Appellant] in this case.
6. Scott and Jan entered into a Prenuptial Agreement dated
June 4, 2009.
7. Scott’s assets, listed as Schedule B to the Prenuptial
Agreement, indicate that he possessed:
401(k) $60,000.00
IRA $1,000.00
Life Insurance through work $95,000.00
8. Paragraph 3 of the Prenuptial Agreement states that Jan
owns residential property located at *** Candytuft Lane, East
Goshen, West Chester, PA, titled in her name alone. Other assets
of hers [were] listed on Schedule A. Those assets total almost $1
million.
9. Paragraph 4 of the Prenuptial Agreement states that:
The parties recognize at the time of their intended
nuptials that Scott is obligated by Court order to
pay child support and college tuition for his children
of a prior union. His ability to contribute to the marital
household for some time is restricted. Accordingly, it
is Scott’s desire to designate Jan as the beneficiary
of his employment retirement benefits at DeLage
Landen Financial Services in the event of his death
and as consideration for her contribution to the
household.
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10. Scott had previously gone through bankruptcy and
eventually lost his job at DeLage Landen.
11. When Scott was terminated by DeLage Landen, his
retirement benefits were rolled over into one or more Vanguard
individual retirement (“IRA”) accounts.
12. No evidence was presented as to what happened to his life
insurance.
13. His finances were precarious. His retirement benefits were
his major asset, the only asset that could possibly fund his
children’s college expenses.
14. Daughter, Alexandra Archbold, attended Elizabethtown
College from 2013 to 2017. Scott paid for her freshman year. Jan
sent Alexandra approximately $10,000 shortly after Scott’s
demise.
15. Alexandra needs four (4) more credits to graduate. The
amount of her student loans approaches $80,000.
16. Gwendolen Lasser started at Ursinus College in August of
2016. Scott paid for her first year.
17. William [Lasser] attended Lock Haven University for two (2)
years from 2013 to 2015, as well as Delaware Community College.
He owes about $15,000 to Lock Haven University. He is not
currently in school. He testified that he was not likely to pursue
any further college education.
18. Scott was diagnosed with ALS.
19. Scott and Jan met with attorney Lisa Hall, Esquire in 2014
to discuss estate plans.
20. However, it was not until Scott’s illness had progressed that
they followed up with her in 2017 when Scott was in the hospital.
As a result of these meetings, Ms. Hall prepared, and decedent
signed, a Will and a General Power of Attorney. Both documents
are dated June 13, 2017.
21. The very last paragraph of the Will, ¶12, states:
My children, ALEXANDER LASSER, WILLIAM
LASSER[,] and GWENDOLEN LASSER are intentionally
not named as Primary Beneficiaries under my Will not
for the lack of love for them, but because I have
specifically provided for my children via a certain
beneficiary directed account.
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22. Alexandra Archbold testified that her father set aside
$210,000 in IRA accounts for the educational expenses of her and
her siblings. This testimony was not disputed in any way.
23. Ms. Hall went over the Power of Attorney and Will with Scott
alone. She testified that she goes through such documents closely
with her clients. She reminded him that powers of attorney are
“powerful documents.”
24. She satisfied herself that Scott understood, despite obvious
physical debility, what assets he had, the objects of his bounty,
and the import of the documents.
25. The [C]hildren contend, however, that by the date of the
Will, Scott was insentient. They testified about their interactions
with him around the time in question.
26. As the months went by, Scott became increasingly
debilitated. He had great difficulty speaking. He was confined to
a wheelchair until such time as he could no longer use that.
27. As Scott continued to worsen, Jan continued to work every
day 5:30 a.m. to 7:00 p.m. in June, July, August, and September,
through the date of [Scott’s] death. She hired health aides to
attend to Scott at home around the clock.
28. The [Children] contend that this constituted an excessive
use by Jan of Scott’s money for his care.
29. As of August 2017 the retirement funds were still at
Vanguard. Vanguard would not process Jan’s request to be named
as the beneficiary.
30. Instead, after two (2) meetings, the Philadelphia office of
Schwab agreed and began to process Jan’s request through the
use of her power of attorney.
31. At the time of Scott’s death, Schwab had completed only a
partial transfer of the assets; the stock and mutual funds did not
come over until a few days after Scott died.
32. Jan eventually received the $210,000 of retirement benefits.
33. She put $130,000 of the funds into her Wells Fargo account
to reimburse herself for the expenses of Scott’s care and final
illness.
34. The remaining $80,000 was used to defray funeral costs and
some other expenses. She paid for attorneys’ fees out of her own
pocket in the amount of $9,000 because there was no money left
in the estate.
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35. [Jan] also used the proceeds that were intended for the
[Children] to install new gutters on her house and new exterior
lighting, as well as major plumbing work, which has all inured to
her own personal benefit.
36. Jan testified that she understood she was to pay for Scott’s
care and his funeral expenses and, if need be, her own assets,
even her house, could be used to pay for his expenses[.]
37. The evidence established that Jan had sufficient personal
assets to pay for the expenses listed in Exhibit P-8 (which includes
those expenses broken down into Exhibits R-5, R-6, R-7 and R-
8), including the following:
a. Money she inherited from her mother and about
which she testified; and
b. A home located at **** Candytuft Lane, West
Chester, PA, which she purchased in 2009 for
$485,000[.]
38. As for her Candytuft Lane home, [Jan] refinanced to a
fifteen (15) year mortgage in 2016, and the current balance on
the mortgage is approximately $260,000, leaving at least
$225,000 in equity.
39. On August 23, 2017, Jan gave $10,000 of her separate
funds to Gwendolen and $10,000 of her separate funds to William.
Insofar as these are included in the amount Jan “spent”
($104,009.94), she is seeking reimbursement.
40. Jan claims to have paid the following expenses with the
retirement account proceeds:
a. $27,930 in federal and state taxes;
b. $16,017.85 in estate legal expenses;
c. $496.75 in estate filing and advertising expenses;
d. $20,043 in funeral and burial expenses;
e. $31,979.15 in miscellaneous expenses (total of
Exhibit R-5 and R-6, less the $20,000 paid to
William Lasser and Gwendolen Lasser in August
2017);
f. $94,448.37 in health aide expenses, prior to
Scott’s death; and
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g. $13,800 in health aide expenses, after, Scott’s
death, which by definition were expenses to care
for and assist Jan rather than to care for Scott.
41. [Jan] paid in excess of $108,248.37 to health care aides for
services between June 2017 and March 2018 (including six
months after [Scott] had passed away).
42. All of the checks to health care aides were written out by
Rachel Brodman Ortega, who was the primary health aide.
43. [Jan] allowed Rachel Brodman Ortega to fill out the checks
to all of the health care aides, without maintaining any records of
the hours that were worked by each aide.
44. [Jan] testified that all of the health aides were paid $25 per
hour, and sometimes more (but she could not say who was paid
more, when they were paid more, or how much more they were
paid); however, [Jan] has no records or timesheets that would
reflect the hours worked by any of the health aides. Moreover,
although [Jan] testified that at times she paid more than $25 per
hour to the health care aides, all of the checks in Exhibit P-9 are
in amounts that are multiples of $25.
45. Although [Jan] testified that Rachel Brodman Ortega kept
track of the aides[’] hours, that [Jan] reviewed the records before
signing the checks, and that [Jan] somehow knew how long the
aides were present and work[ed] each day, [Jan] admitted that
she worked five days a week in Philadelphia—throughout [Scott’s]
entire last illness including May 2017 through his death in
September 2017 and beyond-and left home every day at 5:30 AM
and would not return home until 7:00 PM each day.
46. One aide, Patricia Keller, was paid $32,100 between July 3
and September 12, 2017, which equates to 1,284 hours at $25
per hour in approximately two and one-half months. The total
number of hours that exist in two and one-half months—counting
24 hours pers day—is 1,800. Moreover, during the month of
August 2017, Ms. Keller was paid the equivalent of…644 hours,
even though August only has 744 total hours in the month (31
days times 24 hours), and even though [Jan] testified that Ms.
Keller went to Pittsburgh for periods of time during August 2017.
47. For certain periods of time, Rachel Brodman Ortega filled
out checks payable to her mother, Naomi Brodman, rather than
herself as the actual service provider.
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48. Another aide, Anthony Mosely, was paid $17,425 between
June 30, 2017[,] and October 19, 2017, which equates to 697
hours at $25 per hour during that time period.
49. Another aide, James Shanahan, was paid $11,950 during
July to October 2017, which equates to 478 hours at $25 per hour
during that time period, even though he had been providing
service as a volunteer initially.
50. Another aide, Karen Duda, was paid $7,075 between July
14 and October 13, 2017, which equates to 283 hours during that
time period.
51. Rachel Brodman Ortega’s handwriting appears on checks
made payable to John Egan, who was not identified as [a] health
care aide.
52. [Jan] admitted that health care aides were paid for
simultaneously sleeping on the couch and for four (4) of them
simultaneously gathering outside of the hospital before or after
visiting Scott there.
53. As set forth on Exhibit P-9, between August 4 and August
10, 2017, [Jan] paid five (5) separate health aides a total of
$23,375, which equates to…935 hours at $25 per hour for six (6)
days. This amount of hours in 6 days is not even possible—five
aides working 24 hours a day for 6 straight days would “only” work
720 hours.
54. [Jan] claims she paid health aides $25 per hour to attend
bereavement counseling sessions in her stead so that she could
go to work every day, when those bereavement classes were
intended to help her cope with the passing of Scott.
55. On May 22, 2019, [the Children] filed their Petition for
Citation to Void the Beneficiary Designation and to Reinstate the
Status Quo seeking to surcharge [Jan] and to require her to file
an account.1
1 [Jan] filed preliminary objections to the Petition for Citation. She
argued therein that [the Children] (1) lacked standing and (2) their
claims were untimely and barred by the statute of limitations. On
September 4, 2019, the court disposed of the preliminary objections,
overruling the same. The [parties] did not bring forth any new evidence
that would warrant a change in the court’s decision.
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Orphans’ Court Opinion, filed 6/8/20, at 1-10 (citations to record omitted)
(bold and italics in original).
Jan filed an answer to the Children’s Petition for Citation, and on March
12, 2010, the Orphans’ Court held a hearing, at which Cassandra (Scott’s
second wife), Jan, and the three Children (Alexandra, William, and
Gwendolen) testified.
Following the hearing, on June 8, 2020, the Orphans’ Court filed an
opinion and order, which granted, in part, and denied, in part, the Children’s
petition. In its opinion, the Orphan’s Court made the following “Conclusions
of Law”:
1. Jan Trembley did not exercise undue influence upon
decedent.
2. Decedent had the requisite mental capacity to execute the
Will and Power of Attorney.
3. Decedent’s Will and Power of Attorney are valid documents.
4. However, [Jan’s] exercise of the Power of Attorney to
change the beneficiary of the directed retirement account is
invalid.
5. The retirement benefits were the subject of a contract and
court order and the exercise of the authority was prohibited
thereby.
6. [Jan] breached her duty owed to decedent and her duty
under the Power of Attorney.
7. The [C]hildren do not owe her $10,000.
8. [Jan] did not act in good faith to preserve [decedent’s]
estate plan.
9. To the extent no funds remained in decedent’s estate upon
his death, [Jan] was personally responsible to pay for all of [the]
funeral, burial, legal, health care, and other related costs and
expenses reflected in Exhibit P-8.
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10. All of the expenses that [Jan] paid with the proceeds of the
retirement account were expenses of the estate or the personal
responsibility of [Jan] as spouse, and none should have been paid
with the proceeds of the retirement account.
11. To the extent that the Estate’s proceeds or [Jan’s] personal
assets were insufficient to pay for the expenses that are set forth
in Exhibit P-8, those insufficiencies were partly the result of [Jan’s]
conduct.
12. Much of what [Jan] claims to have spent money on was
wasteful, excessive, and in many instances not for [decedent’s]
care.
13. [Jan’s] waste included using retirement proceeds to pay for
her own personal care after decedent’s passing.
14. [Jan] breached her duty to select and monitor the primary
health care aide, Rachel Brodman Ortega, and the other health
care aides that were paid with the proceeds of the beneficiary
directed retirement account.
15. [Jan] paid grossly excessive and often duplicative fees to
health care aides.
16. [Jan] did not prove any defense to her breach of duty.
***
19. [Jan] will be surcharged in the amount of $210,492.44,
which is the total value of the proceeds that were in [decedent’s]
beneficiary directed IRA on the date of his death and which [Jan]
took for herself.
20. The beneficiary designation changes made on September
18, 2017, and September 20, 2017, on Schwab IRA account
number **** shall be reversed thereby reinstating the status quo
existing immediately before the beneficiary change.
21. Petitioners Alexandra Archbold, William Lasser, and
Gwendolen Lasser shall each be designated one-third (1/3)
beneficiaries of decedent’s IRA.
***
24. [The Children’s] request that the court order an account of
the agent under 20 Pa.C.S.A. § 5601.3(b)(4) is denied.
25. [The Children] take nothing under the Will because [Jan]
survived the decedent by thirty (30) days.
26. An account is not necessary or useful in this case.
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27. With [Jan’s] disgorgement of the $210,492.44, the gross
amount of the retirement benefits, [the Children] will be made
whole. They would not have received anything in addition, even
had there been no beneficiary change.
Id. at 19-23.
Thus, the Orphans’ Court ordered the following:
1. [The Children’s] request for reversal of the beneficiary
designations to the status quo immediately before the change
made by [Jan] is GRANTED;
2. Jan shall redistribute the retirement proceeds in an amount
not less than $210,492.44, in equal one-third (1/3) shares to
Alexandra Archbold, William Lasser, and Gwendolen Lasser within
thirty (30) days of the date of this order.
3. [The Children’s] request for an accounting from [Jan] is
DENIED. It is further ORDERED that [the Children] may submit a
petition for award of counsel fees within thirty (30) days of the
above date. Any response by [Jan] shall be filed within thirty (30)
days of the filing of the fee request. The court will decide on the
papers whether and to what extent an award of fees is warranted.
To avoid confusion, that future decision—not this one—will be the
final order for purposes of any appeal to a higher court.
Orphans’ Court Order, filed 6/8/20, at 1-2.
On July 7, 2020, the Children filed a petition for attorneys’ fees and
expenses, and Jan filed a response in opposition thereto. On August 26, 2020,
the Orphans Court filed a “Final Order.” Therein, the Orphans’ Court denied
the Children’s petition for attorneys’ fees and expenses.
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On September 9, 2020, Jan filed a motion for reconsideration, as well
as a notice of appeal.1 On September 22, 2020, the Orphans’ Court denied
Jan’s motion for reconsideration. All Pa.R.A.P. 1925 requirements have been
met.
On appeal, Jan sets forth the following issues in her “Statement of the
Questions Involved” (verbatim):
1. Whether the retirement funds in question were actually the
property of the Appellant and not the Decedent.
2. Whether Appellant, Jan Taren Trembley, was personally
responsible for all of the medical bills and expenses of the
Decedent, Winfield Scott Lasser, pursuant to the Doctrine of
Necessaries as applied in Swidzinski v. Schultz, 340 Pa.Super.
422, 493 A.2d 93 (1985), and which is presently codified in 23
Pa.C.S.A. § 4102, when the Decedent had assets in his name.
3. Whether Appellant had authority to change the beneficiaries
of the Decedent’s retirement funds.
4. Whether the Court below should have evaluated the
individual expenses incurred by Appellant, as opposed to rejecting
all of them.
Jan’s Brief at 7-8 (Orphans’ Court holdings and suggested answers omitted).
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1 We note that Pennsylvania Orphans’ Court Rule 8.1 prohibits a party from
filing a post-trial motion or exception to any order or decree of court. See
Pa.O.C.R. 8.1. The Rules permit a party to file a motion for reconsideration
of a final order. See Pa.O.C.R. 8.2. The Orphans’ Court may consider a
motion for reconsideration only if the motion is filed within thirty days of the
entry of the disputed order; the mere filing of a motion for reconsideration,
however, is insufficient to toll the appeal period. See PNC Bank, N.A. v.
Unknown Heirs, 929 A.2d 219 (Pa.Super. 2007); 42 Pa.C.S.A. § 5505.
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Initially, we note “[o]ur standard of review of the findings of an orphans’
court is deferential.” In re Ware, 814 A.2d 725, 731 (Pa.Super. 2002)
(citation omitted). “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 Estate of
Rosser, 821 A.2d 615, 618 (Pa.Super. 2003) (citation 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.” Ware, 814 A.2d at 731. “The test to be
applied is not whether we, the reviewing court, would have reached the same
result, but whether a judicial mind, after considering the evidence as a whole,
could reasonably have reached the same conclusion.” In re Gumpher, 840
A.2d 318, 321 (Pa.Super. 2003) (citations omitted).
In her first issue, Jan contends the Orphans’ Court erred in failing to
award the funds in question to her since the funds were her property and not
the property of decedent. In this vein, Jan suggests “[i]t is clear that the
funds in question were the property of [Jan], and Decedent could not
unilaterally terminate the interest of [Jan] or gift the funds to [the Children].”
Jan’s Brief at 22-23.
We find this issue to be waived. Jan’s two page “argument” pertaining
to this issue contains no relevant authority and minimal analysis. See Jan’s
Brief at 21-23. “The Rules of Appellate Procedure state unequivocally that
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each question an appellant raises is to be supported by discussion and analysis
of pertinent authority.” Eichman v. McKeon, 824 A.2d 305, 319 (Pa.Super.
2003) (citations omitted). See Pa.R.A.P. 2119 (setting forth requirements for
the argument portion of appellate briefs).
Here, Jan summarily posits that “she believes that the Prenuptial
Agreement is superior to the Property Settlement Agreement.” Jan’s Brief at
22. Also, as the Children note in their appellate brief, Jan baldly contends,
without citation to any authority, that she has an “ownership interest in these
funds.” Jan’s Brief at 22; The Children’s Brief at 20. Thus, in light of Jan’s
failure to develop the issue properly, we decline to address the issue further.2
See Branch Banking and Trust v. Gesiorski, 904 A.2d 939 (Pa.Super.
2006) (holding failure to develop issue in appellate brief in any meaningful
fashion results in waiver of the issue).
In her next issue, Jan contends the Orphans’ Court erred in concluding
she was personally responsible for the expenses related to the decedent’s final
illness. In this vein, she contends the Orphans’ Court erred in relying upon
the Doctrine of Necessaries as codified in 23 Pa.C.S.A. § 4102, as well as
Swidzinski v. Schultz, 493 A.2d 93 (Pa.Super. 1985). Specifically, Jan
contends the Orphans’ Court’s reliance upon these authorities was improper
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2 In any event, as discussed infra, we conclude the Orphans’ Court thoroughly
examined the PSA, the prenuptial agreement, the Will, and the Power of
Attorney, as well as the applicable portion of the statute related to a Power of
Attorney, 20 Pa.C.S.A. § 5601.4.
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since the decedent “had sufficient assets to pay for his care” and “[n]o suit
was ever instituted against the Decedent or his Estate for payment by the
Decedent’s medical provider.” Jan’s Brief at 24.
In Swidzinski, supra, this Court held that where a deceased spouse’s
estate is insufficient to pay for the spouse’s funeral expenses, the surviving
spouse shall be charged with the insufficiency as it is the spouse’s burden
arising out of the marital relationship.
Further, 23 Pa.C.S.A. § 4102 provides:
§ 4102. Proceedings in case of debts contracted for
necessaries
In all cases where debts are contracted for necessaries by either
spouse for the support and maintenance of the family, it shall be
lawful for the creditor in this case to institute suit against the
husband and wife for the price of such necessaries and, after
obtaining a judgment, have an execution against the spouse
contracting the debt alone; and, if no property of that spouse is
found, execution may be levied upon and satisfied out of the
separate property of the other spouse.
23 Pa.C.S.A. § 4102 (bold in original).
In the case sub judice, the Orphans’ Court relevantly reasoned as
follows:
[Jan] testified that the $210,482.00 in retirement funds that
were to go to the [C]hildren “were not paid to them because all
had been dispersed.” However, an agent, as a fiduciary of the
principal, must exercise her powers for the benefit of the principal.
20 Pa.C.S.A. § 5601(e)(1). That did not occur in this case.
This Estate is essentially insolvent, as was Scott at the end
of his life. As a result, Jan paid the funeral costs, the inheritance
taxes, and a number of other administrative costs out of her
pocket. For this, she seeks reimbursement.
***
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[Jan] is the Executrix as well as the residuary legatee.
Although the residuary legatee, she gets paid last, after creditors.
Jan…testified at trial that she understood she was to pay for
Scott’s care and funeral. She agreed that she had some assets of
her own that could be used to pay for his expenses such as her
house and, in fact, she paid for the funeral ($20,000) and other
expenses such as the attorney’s bills because there was no money
in the Estate. She is correct—these were her personal obligations.
She cannot get them back from the Estate.
In Swidzinski, [supra,] the [appellate] court explained the
common law [D]octrine of [N]ecessaries and held that “where a
deceased husband’s estate is insufficient to pay his funeral
expenses, those expenses, to the extent of the insufficiency, shall
be charged to his surviving wife, as her share in the burdens
arising out of the marital relationship.”
The same must be true of the expenses of the final illness,
and the necessaries of the deceased spouse. In Pennsylvania, a
contract creditor may institute suit against a husband and wife for
the price of necessaries and, after obtaining a judgment, have an
execution against the contracting spouse alone. If no property of
the contracting spouse is found, execution may be levied on, and
satisfied out, of the separate property of the other spouse. 23
Pa.C.S.A. § 4102.
Finally, the evidence at trial revealed several questionable
estate expenses paid by [Jan]. These included expenses for the
installation of flood lights at her home, the addition of a toilet, and
post-mortem expenses for aides including “grief therapy.” These
items are improper estate expenditures and the sums paid have
to be returned to the Estate by [Jan].
Orphans’ Court Opinion, filed 6/8/20, at 15-19.
Initially, we note the Orphans’ Court’s factual findings, particularly as it
relates to the fact the decedent and his estate were insolvent, and Jan had
personal assets of her own, are supported by the record. Thus, we are bound
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Further, to the extent the Orphans’ Court utilized the common law
Doctrine of Necessaries, as codified in Section 4102, and Swidzinski, supra,in determining that Jan was not entitled to take non-estate assets, such as
the subject IRA, to pay for the decedent’s funeral expenses, as well as
expenses related to Scott’s final illness, we find no error.
Jan contends Section 4102 is inapplicable to this matter since no creditor
instituted suit against the decedent or his estate. See Jan’s Brief at 24.
However, the Orphans’ Court determined that Jan improperly paid creditors,
at least in part, from the IRA funds, which should have been dispersed to the
Children. See Orphans’ Court Opinion, filed 6/8/20. Accordingly, it was Jan’s
own improper use of the IRA that eliminated the creditors, who, in light of the
insolvency of the decedent and his estate, could have sought payment from
her. See 23 Pa.C.S.A. § 4102. In any event, the Orphans’ Court cited to
Swidzinski and Section 4102 for the general proposition that, when an estate
is insolvent, as in this case, the funeral and final illness expenses are
obligations of the surviving spouse. We find no error of law in this regard.
In re Estate of Rosser, supra (holding we must determine if the record is
free from legal error).
In her next issue, Jan contends the Orphans’ Court erred in holding that
Jan did not have the authority to change the beneficiary designation of the
decedent’s retirement funds from the Children to her. In this regard, she
contends the Orphans’ Court erred in its application of 20 Pa.C.S.A. § 5601.4
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in that she demonstrated her exercise of authority under the Power of Attorney
was “not otherwise prohibited by another agreement or instrument to which
the authority or property is subject.”3 Jan’s Brief at 27.
Here, the Orphans’ Court relevantly indicated the following:
[20 Pa.C.S.A. §] 5603(q) of the [Power of Attorney]
Act…reads:
(q) Power to Engage in Retirement Plan
Transactions—A power to “engage in retirement plan
transactions” shall mean that the agent may
contribute to, withdraw from and deposit funds in any
type of retirement plan (including, but not limited to,
any tax qualified or non-qualified pension, profit
sharing, stock bonus, employee savings and
retirement plan, deferred compensation plan or
individual retirement account), select and change
payment options for the principal, make roll-over
contributions from any retirement plan to other
retirement plans and, in general, exercise all powers
with respect to retirement plans that the principal
could, if present, provided, however, that the agent
shall have no power to create or change a beneficiary
designation unless authorized in accordance with §
5601.4.
(emphasis added).
Section 5601.4 provides:
§ 5601.4. Authority that Requires Specific and
General Grant of Authority
(a) General rule.--An agent under a power of
attorney may do the following on behalf of the
principal or with the principal’s property only if the
power of attorney expressly grants the agent the
authority and exercise of the authority is not
otherwise prohibited by another agreement or
____________________________________________
3 Aside from quoting a portion of 20 Pa.C.S.A. § 5601.4, Jan has presented no
pertinent authority in support of this issue. See Jan’s Brief at 27-29.
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instrument to which the authority or property is
subject:. . .
(4) Create or change a beneficiary designation.
[20 Pa.C.S.A. § 5601.4(a)(4)] (emphasis added).
Consequently, to determine whether in this case the change
of beneficiaries on Scott’s retirement account was [proper], we
must inquire whether the exercise of the authority is “not
otherwise prohibited by another agreement or instrument to which
the authority or property is subject.”
Scott and Jan certainly were aware that there was an order
of court founded upon his written promise obligating Scott to pay
child support and college tuition for his children. This is equivalent
to “another agreement or instrument…to which the…property is
subject.” They had no doubt that this obligation was linked to his
employment retirement benefits then at DeLage Landen Financial
Services. The connection between the retirement benefits and
that obligation was also manifested at the end of the Will.
Paragraph 12, as mentioned, states “my children, ALEXANDRA
LASSER, WILLIAM LASSER, AND GWENDOLEN LASSER are
intentionally not named as primary beneficiaries under my Will not
for lack of love for them but because I have specifically provided
for my children via a certain beneficiary directed account.” (Exhibit
P-4). And as of the date of the Will, he had indeed done so.
Scott and Jan both recognized this obligation, which was the
subject of a contract and court order, throughout their marriage.
They even effected some additional tuition payments just before
Scott’s passing. Jan cannot now be heard to say that she could
use the power of attorney to place herself as the beneficiary, as it
would be prohibited by extant agreements or instruments to which
the property was subject, as she very well knew.
It is true that Scott stated it to be his “desire” to designate
Jan as the beneficiary of his retirement benefits. He did not direct
that to occur nor did he make any effort himself, while he could,
to make such a change. The word “desire” is understood
ordinarily as a precatory word—a “wish” instead of a “mandate.”
Our courts have said:
When precatory words are used merely for the
purpose of advising or influencing or expressive of a
wish or desire that the legatee make a certain use of
the testator’s bounty, they are not obligatory upon
that to whom they are addressed; but when used to
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express his manifest intention to control or direct,
they are mandatory, and will be so construed in saying
what effect is to be given to them…
In re: Estate of Mumma, 125 A.3d 1205, 1213 (Pa.Super. 2015)
[(citation omitted)].
“The test is whether the precatory expression was used in a
mandatory sense, though couched in a mild, polite, courteous
command, or only as a suggestion or wish, falling short of binding
of compulsory direction.” In re: Estate of Pearson, 442 Pa. 172,
275 A.2d 336, 339 (1971). In Mumma, the [Superior] Court
agreed with the Orphans’ Court’s determination that the
decedent’s expressed “desire,” that businesses remain in the
family, was mere precatory language—a wish instead of a
mandate. The context is different here, but the result is the same.
The desire was based on a hope that never materialized, that is
that Scott would have sufficient finances to leave Jan something
at the time of his passing. There was testimony that Scott did not
believe he would live as long as he did.
By comparison, Scott used the word “shall” when dealing
with the subject of college education. The 2001 PSA states:
13. College Funds. The parties have agreed that
Husband shall pay for tuition and expenses.
(Exhibit P-1) (emphasis added).
Jan has no comparable agreement or instrument concerning
the subject property. Her exercise of the power of attorney to
change the beneficiary designation to her was invalid and is of no
force in effect.
Orphans’ Court Opinion, filed 6/8/20, at 12-15 (emphasis in original).
We conclude the Orphans’ Court’s factual findings are supported by the
record and there is no error of law. See In re Estate of Rosser, supra.Contrary to Jan’s contention, the Orphans’ Court properly interpreted the
property settlement agreement between Cassandra and Scott as expressly
providing that Scott would pay for the Children’s college tuition and, to this
end, Scott named the Children as beneficiaries of the IRA. Thus, as the
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Orphans’ Court held, 20 Pa.C.S.A. § 5601.4 precluded Jan, as power of
attorney, from changing the beneficiary designation of the IRA since exercise
of such authority is prohibited by another agreement to which the property is
subject (the property settlement agreement).
In her final issue, Jan contends the Orphans’ Court erred in failing to
evaluate all of the individual expenses incurred by Jan, as opposed to
summarily rejecting them, in determining that Jan’s use of the IRA proceeds
was improper. She contends she is entitled to “reimbursement” for some of
the expenses.
Jan premises her argument that she is entitled to “reimbursement” upon
the following:
The Court below relied upon the Doctrine of Necessaries as
the basis for its decision. As mentioned above, the Doctrine of
Necessaries is inapplicable in the instant action.
***
Instead of granting [Jan] reimbursement for the reasonable
expenses paid for care, materials and modification to her
residence, the Court below required [Jan] to pay all of the
expenses for Decedent, relying upon the Doctrine of Necessaries.
Jan’s Brief at 30.
As indicated supra, we find no merit to Jan’s contention that the
Orphans’ Court improperly relied upon the Doctrine of Necessaries. Jan
attempts to re-hash this argument, and thus, we decline to address it further.
For all of the forgoing reasons, we affirm.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/21
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