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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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         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.



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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


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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).



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      “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


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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


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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




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