J-A18015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: TRUST OF ALBERT F. QUINN            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: GERALD QUINN                    :   No. 1762 WDA 2018

              Appeal from the Order Entered November 15, 2018
     In the Court of Common Pleas of Armstrong County Orphans’ Court at
                            No(s): No. 03-08-026


    IN RE: TRUST OF ALBERT F. QUINN            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: SARAH Q. JOHNSTON               :
    AND LINDA QUINN                            :   No. 2 WDA 2019

              Appeal from the Order Entered November 15, 2018
     In the Court of Common Pleas of Armstrong County Orphans’ Court at
                            No(s): No. 03-08-026

BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED JANUARY 24, 2020

       These consolidated cross-appeals follow the determination of the

orphans’ court that overruled the objections of Gerald Quinn to the account of

the Trust of his father, Albert F. Quinn, but granted in part Gerald’s1 request

for attorney fees. Specifically, Gerald contends, inter alia, that the orphans’

court erred in holding that the actions of his siblings, Randall Quinn (now

deceased) and Sarah Johnston, did not violate the Trust’s no-contest clause,

and that Randall’s widow Linda Quinn is not disinherited as a result of Randall’s


____________________________________________


1 As most of the people involved in this appeal share the same surname, we
refer to them by their first names for the sake of clarity and convenience.
J-A18015-19


conduct.   In their cross-appeal, Sarah and Linda (collectively “Appellees”)

challenge the award of attorney fees to Gerald. As we agree with Gerald that

Randall and Sarah violated the no-contest clause, and that Linda is not entitled

to Randall’s share of the Trust distribution, we vacate the order and remand

for proceedings consistent with this memorandum.

      The background of this case is as follows, based upon the findings of

fact of the orphans’ court. In November 2001, Albert created the Trust, which

was a revocable living trust that became irrevocable upon Albert’s death. The

instrument made Albert the first trustee of the Trust, and named Randall as

the first successor trustee following Albert’s death. During Albert’s lifetime,

he retained full right to direct distribution of any or all of the Trust’s income

or principal as he saw fit. Quinn Living Trust, 11/19/01, at 4-1. Albert was

permitted to add assets to the Trust from time to time but to retain possession

of them.   Id. at 4-3.    Albert’s will, executed the same day as the Trust

instrument, directed that after his death, his residuary estate be distributed

to the Trust. Albert expressly indicated the point of the Trust was to avoid

having his assets probated. Id. at 11-10.

      Randall, Sarah, and Gerald are the named beneficiaries, with each

designated by name to receive a distribution of one-third of the Trust.

Specifically, the trust instrument provided that none of the three beneficiaries

was to receive any distributions of trust income. Rather, all net income from

each beneficiary’s share was to be added to the trust principal which, in turn,


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was to be “immediately” paid by the successor trustee to or for the benefit of

each beneficiary “free of trust.” Quinn Living Trust, 11/19/01, at 8-1 − 8-3.

      At the time Albert executed the Trust, Randall was married to Linda, and

the couple had no children. Sarah, who was not married, had three daughters.

Gerald was unmarried and had no children. The trust instrument provided

that if Randall died before distribution, his share was to go to Linda, if she was

still living; otherwise, Randall’s share would lapse. Sarah’s share was to be

distributed to her descendants if she predeceased the Trust distribution, or

would lapse if she had none living at that time. In the event that Gerald died

prior to trust distribution, his share was to lapse. Lapsed shares were to be

reallocated among the remaining beneficiaries.

      Notable for purposes of this appeal, the Trust instrument also contains

a no-contest clause, which provides as follows, in relevant part:

      If any . . . beneficiary under my Trust . . . directly or indirectly . . .
      does any of the following, then in that event I specifically disinherit
      each such person, and all such legacies, bequests, devises and
      interests given to that person under my Trust or any amendment
      to it . . . shall be forfeited and shall be distributed as provided
      elsewhere herein as though he or she had predeceased me
      without issue:

            ....

            g.     in any other manner contests my Trust or any
                   amendment to it executed by me, or in any other
                   manner, attacks or seeks to impair or invalidate any
                   of its provisions;

            h.     conspires with or voluntarily assists               anyone
                   attempting to do any of the above acts.


                                        -3-
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        Expenses to resist any above contest or other attack of any nature
        upon any provision of my Trust or any amendment to it shall be
        paid from the trusts created hereunder as expenses of
        administration.

              ....

        If any person or entity, singularly or in conjunction with any other
        person or entity, directly or indirectly, in any court, contests the
        validity of my Trust Agreement, including any amendments
        thereto, then the right of that person or entity to take any interest
        in my Trust Estate or to act in any fiduciary capacity shall cease,
        and the demise of that person (and his or her descendants) or
        entity shall be deemed to have occurred prior to my death, as
        applicable.

Quinn Living Trust, 11/19/01, at 12-3 − 12-5.

        Albert died in November 2007. Randall became trustee and opted to

administer the trust without the assistance of legal counsel.2          Sarah and

Gerald disagreed among themselves concerning the distribution of some Trust

assets, in particular the Quinn family farm (“the Farm”).       Sarah maintained

that Albert had desired that the Farm ultimately go to Sarah’s daughters, who

had a particular emotional attachment to it. However, the Trust instrument

contained no such provision. Rather, the trustee was expressly empowered

____________________________________________


2   Randall explained his antipathy for attorneys to Gerald as follows:

        I’m not going to get a lawyer. Any small town where there is one
        lawyer, he starves to death. In a town with two lawyers, they
        both do well. You seem to want to become the dupe of the legal
        system. . . . Don’t you think you have enough smarts to argue
        your own case?

N.T. Hearing, 3/13/18, at 52-53, Exhibit 7.



                                           -4-
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“to make any distribution or payment in kind or in cash, or partly in kind and

partly in cash, and to cause any share to be composed of cash, property or

undivided interests in property different in kind from any other share . . . .” 3

Quinn Living Trust, 11/19/01, at 11-5.

       When apprised of Sarah and Gerald’s disagreement about the

disposition of the Farm, Randall initially took the position that the Trust

language did not support Sarah’s position.        Randall advised Sarah that,

whatever intentions their parents may have expressed elsewhere, the Trust

document did not indicate that her daughters were to ultimately inherit the

Farm; rather, it provided that Gerald owns one-third and “can take his portion

and do whatever he wants with it[.]” N.T. Hearing, 3/13/18, at 23, Exhibit 3.

“After several years of attempted negotiations, during which the several

beneficiaries employed the services of a mediator and discussed several

possibilities for dividing the Farm, no agreement was reached. During and

after this period, the relationships among the beneficiaries degenerated.”

Orphans’ Court Opinion, 11/15/18, at 5 (paragraph numbers and breaks

omitted).

             As the dispute among the three beneficiaries intensified,
       Randall became less sympathetic with Gerald’s position and began
       to pressure him into either agreeing with Sarah’s position or to
       some other form of settlement. This included attempts by Randall
____________________________________________


3 One unfortunate result of his Randall’s eschewing trained legal assistance
was his failure to appreciate the extent of his authority as the successor
trustee to make these decisions rather than force a consensus among the
beneficiaries as to the distribution.

                                           -5-
J-A18015-19


       to make Gerald’s participation in Trust administration increasingly
       difficult and expensive, described in his own words as playing legal
       “hard ball.”

Id. For example, Randall informed Gerald: “Because you are being a shit over

this and trying to deny our parents’ fondest dreams, my plan is to make it

increasingly uncomfortable for you. I will deny you everything I can think of.

([A]nd I can think of a lot of things[.])” N.T. Hearing, 3/13/18, at Exhibit 4.

Randall openly stated to Gerald:

       I am going to wait until you sue me then I’m going to counter sue
       with a series of lawsuits that will be meant to beggar you.

       You can look at that as a threat or a promise.

       I have been purposely dragging my feet hoping that you will
       (somehow) come to your senses.

N.T. Hearing, 3/13/18, at Exhibit 7.4

____________________________________________


4 Randall, operating as he was without legal training or counsel, erroneously
believed that the Trust instrument permitted him to keep the Farm within the
Trust for as long as twenty-one years despite the provision for immediate
distribution of Trust assets. See N.T. Hearing, 3/13/18, at Exhibit 10 (“Article
Twelve, Section 2 of the Trust clearly states that I am not bound by the Trust
to divide the real estate for up to twenty-one years.”). In actuality, that
provision addresses the Rule Against Perpetuities, stating as follows:

       Section 2.           The Rule Against Perpetuities

       Notwithstanding any other provision of my Trust Agreement;
       unless sooner terminated or vested in accordance with other
       provisions of my Trust Agreement, all interests not otherwise
       vested, including, but not limited to, all trusts and powers of
       appointment created hereunder, shall terminate: (i) one day prior
       to twenty-one (21) years after the death of the last survivor of
       the group composed of me, those beneficiaries described herein



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       Ultimately, Gerald involved the orphans’ court in the dispute through a

petition for the filing of an account. Gerald requested that the court issue a

rule to show cause why Randall should not be required to file an accounting

for the trust administration from the time of Albert’s death in 2007 through

November 2010. In response, Randall filed a rejoinder to Gerald’s petition

wherein he,      inter alia, declined to admit that Gerald is Albert’s son, and

instead requested that the court require Gerald to provide a DNA sample and

hold the proceedings in abeyance until Gerald proved he was Albert’s son.

See Rejoinder to Petition, 2/11/19, at 2.

       In October 2011, nearly four years after Albert’s death, Randall filed a

motion to exclude Gerald as a beneficiary of the Trust, citing Gerald’s request

for an accounting as a violation of the Trust’s no-contest clause because

Gerald “in essence was attempting to force an in-kind distribution of the real

estate in the Trust.”       Orphans’ Court Opinion, 11/15/18, at 7.      Randall

requested at one point that the court exclude Gerald and his heirs from



____________________________________________


       and my lineal descendants living on the date of my death or (ii) if
       longer, such period as may be authorized under the laws of the
       state identified in the Governing State Law Section of this Article.
       At that time, distribution of all principal and all accrued,
       accumulated and undistributed income shall be made to the
       persons (or their representatives as authorized herein) then
       entitled to distributions of income or principal and in the manner
       and proportions herein stated irrespective of their then attained
       ages.

Quinn Living Trust, 11/19/01, at 12-1.

                                           -7-
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receiving any real property from the Trust, and at another that Gerald be

excluded as a beneficiary entirely. Motion to Exclude, 10/3/11, at 3.

      Sarah supported Randall in pursuing this course of action. See N.T.

3/13/18, at 117. Sarah, an English teacher, proofread and suggested edits

for Randall’s drafts, including the motion to exclude and the motion for

summary judgment.      See id. at 118-22.     Sarah and Randall engaged in

communications in which they discussed how the Farm would be handled if

Gerald’s share lapsed. Orphans’ Court Opinion, 11/15/18, at 9.

      Randall moved for summary judgment on the exclusion motion.

However, before the Court disposed of the motion, Randall filed in April 2012

a proposed disposition of the Trust, wherein he suggested that all of the

remaining Trust assets be liquidated, and the resultant funds distributed in

equal shares to the three beneficiaries. Shortly thereafter, Randall resigned

as trustee.

      Sarah became the successor trustee, and, in June 2012, withdrew the

requests that Gerald take a DNA test and be excluded for violation of the no-

contest clause. The orphans’ court entered orders dismissing those motions

and appointing Roger T. Mechling, Esquire as successor trustee upon the

consent of Sarah and Gerald. Randall died on October 25, 2012.

      Ultimately, Attorney Mechling liquidated most of the Trust assets and

filed an amended final account on December 2, 2015. Therein, he proposed

to distribute one-third of the resultant cash, bonds, and oil, gas, and mineral


                                     -8-
J-A18015-19


rights each to Linda, Sarah, and Gerald.          Gerald filed exceptions and

objections to the account, contending that Randall, Linda, and Sarah violated

the Trust’s no-contest clause by “contest[ing] the directives of the Trust and

otherwise act[ing] in violation of the No-Contest Clause generally and

specifically. . . .”   Exceptions and Objections, 1/6/16, at 2, 4.   As specific

instances of violations, Gerald cited Randall’s DNA motion, Randall’s motion

to exclude, and Sarah’s support/conspiring with Randall in pursing those

filings. Id. at 3, 4. Gerald also sought reimbursement of attorney fees and

costs from the Trust. Id. at 5-7.

      Following additional litigation in which the parties responded and

objected to each other’s filings, the orphans’ court held a hearing on the

exceptions on March 13, 2018, at which Gerald, Sarah, and Linda testified.

Thereafter, the parties filed post-hearing briefs and proposed findings of fact.

      On November 15, 2018, the orphans’ court overruled Gerald’s

exceptions and objections except for his request for attorney fees.          The

orphans’ court concluded that Randall’s DNA motion and motion to exclude

Gerald as a Trust beneficiary lacked any basis in law or fact, and that Randall’s

conduct was vexatious and arguably in breach of his fiduciary duties as

Trustee.   See Orphans’ Court Opinion, 11/15/18, at 14-17. However, the

orphans’ court found that Randall’s intent was to force Gerald to agree to the

distribution proposed by Sarah and Randall, not to impair or invalidate the

provisions of the Trust granting Gerald one-third of the assets.        See id.


                                       -9-
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Accordingly, the court found no violation of the no-contest clause by Randall.

The orphans’ court further held that, even if Randall did violate the no-contest

clause, (1) Linda is still entitled to Randall’s share, and (2) Gerald failed to

prove that the assistance Sarah supplied to Randall’s pursuit of his motions

rose to the level of conspiring with Randall to violate the no-contest clause.

Nonetheless, the court awarded Gerald a portion of the requested attorney

fees, not under the terms of the Trust, but based upon 42 Pa.C.S. § 2503(7),

which allows a court to award attorney fees for defense of vexatious conduct.

Orphans’ Court Opinion, 11/15/18, at 19-20.

      The parties timely filed their respective appeal and cross-appeal

following the entry of the November 15, 2018 order.     Thereafter, the parties

and the orphans’ court complied with Pa.R.A.P. 1925. This Court consolidated

the appeals sua sponte, the parties filed their briefs, and the case was heard

at oral argument. As such, the matter is ripe for our decision.

      Gerald presents this Court with the following issues, which we have re-

ordered for ease of disposition:

            1.     Whether the [orphans’] court erred by finding that
      Randall . . . did not violate the Trust’s [no contest] clause when
      Randall engaged in vexatious conduct against Gerald . . . by filing
      multiple motions without probable cause in order to have the
      [orphans’] court declare that Gerald was disinherited and
      prohibited from receiving anything from the Trust, with the
      [orphans’] court eventually dismissing those motions with
      prejudice.

            2.    Whether the [orphans’] court erred when it
      interpreted the provisions of the Trust so as to find that even if
      Randall would be disinherited from the Trust for a violation of the

                                     - 10 -
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      Trust’s [no-contest] clause, Randall’s share of the Trust’s assets
      would go to Linda, Randall’s wife, when such an interpretation lifts
      the Trust’s general terms over the Trust’s specific language
      applicable to this situation, makes the [no contest] clause
      meaningless, and otherwise goes against the express language of
      the Trust.

             3.     Whether the [orphans’] court erred by finding that
      Sarah . . . did not violate the Trust’s [no contest] clause when she
      aided and conspired with Randall to disinherit Gerald by editing
      and making suggestions regarding the improper motions Randall
      filed to disinherit Gerald.

             4.     The [orphans’] court erred by refusing to award
      Gerald all of his attorney fees in this matter because should this
      Court agree that Randall and Sarah did violate the [no contest]
      clause, then, pursuant to the language of the Trust, Gerald is due
      all of his attorney fees because he was acting to resist an attack
      on the directives of the Trust by Randall and Sarah as set forth
      herein.

Gerald’s brief at 5-6.    Sarah and Linda present one question: “Did the

[orphans’ c]ourt err in awarding Gerald any attorney’s fees, given the

circumstances of the case[?]” Appellees’ brief at 2.

      We begin our consideration of these questions with an examination of

the applicable law.

      The findings of a judge of the orphans’ court division, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate court
      in the absence of an abuse of discretion or a lack of evidentiary
      support. . . . In reviewing the orphans’ court’s findings, our task
      is to ensure that the record is free from legal error and to
      determine if the orphans’ court’s findings are supported by
      competent and adequate evidence and are not predicated upon
      capricious disbelief of competent and credible evidence.

In re Jackson, 174 A.3d 14, 23 (Pa.Super. 2017) (internal quotation marks

and unnecessary capitalization omitted). However, the interpretation of wills

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and trust instruments is a question of law for which our standard of review is

de novo and our scope of review is plenary. See id. at 29.

      “When interpreting a trust agreement, the intent of the settlor is

paramount, and if that intent is not contrary to law, it must prevail.” In re

Cohen, 188 A.3d 1208, 1214 (Pa.Super. 2018).           The settlor’s intent is

determined from an examination of the following: “(a) all the language

contained in the four corners of the instrument; (b) the distribution scheme;

(c) the circumstances surrounding the testator or settlor at the time the will

was made or the trust was created; and (d) the existing facts.” Id. (cleaned

up). This Court must “give effect, to the extent possible, to all words and

clauses in the trust document.” In re Estate of Loucks, 148 A.3d 780, 782

(Pa.Super. 2016).    “However great the temptation is to supply terms in

accordance with what the settlor presumably would have provided had the

omission been called to his attention, the court is without power to reform an

unambiguous instrument.” In re Ins. Tr. Agreement of Sawders, 201 A.3d

192, 197 (Pa.Super. 2018).

      “Because no contest clauses protect estates from costly, time

consuming and vexatious litigation; and serve to minimize family bickering

concerning the competency and capacity of the testator, as well as the

amounts bequeathed, they are favored by public policy.” In re Estate of

Simpson, 595 A.2d 94, 100 (Pa.Super. 1991) (internal quotation marks

omitted). Provisions penalizing a person for contesting a trust are enforceable


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only if the person lacked probable cause to institute the contest. 20 Pa.C.S.

§ 2521. As noted above, the orphans’ court in the case sub judice determined

that Randall lacked probable cause to file his DNA request or the motion to

exclude. See Orphans’ Court Opinion, 11/15/18, at 14-17. However, it held

that Randall’s filings did not violate the no-contest clause because Randall

sought to force Gerald to agree as to the disposition of the Farm, not to deprive

Gerald of his one-third share of the Trust assets. See id.

      Gerald argues that Randall’s vexatious conduct constitutes a violation of

the no-contest clause because “Randall was attempting to alter the

distribution scheme of the Trust . . . in an attempt to force Gerald to agree to

what Randall wanted the Trust to provide instead of what it actually did

provide.” Gerald’s brief at 33. In addition, Gerald contends that Randall’s

motion to exclude “specifically and unequivocally sought to disinherit Gerald”

and the orphans’ court should not have ignored Randall’s prayer for relief in

favor of its belief that “Randall didn’t really want what he explicitly said he

wanted[.]”   Id. at 37.   Further, in responding to Randall’s motion back in

2011, Gerald advised the court that all he was asking was for Randall to do

his job as Trustee pursuant to Article Eight, Section One of the Trust

instrument: “My Trustee shall immediately pay or apply to the benefit of such

beneficiary all principal from such beneficiary’s trust share free of trust.”

Answer to Motion to Exclude, 10/25/2011, at ¶ 3.




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      We agree with Gerald that the court erred in holding that Randall did

not violate the no-contest clause. Again, the language of Albert’s no-contest

clause is as follows:

      If any . . . beneficiary under my Trust . . . directly or indirectly . . .
      does any of the following, then in that event I specifically disinherit
      each such person, and all such legacies, bequests, devises and
      interests given to that person under my Trust or any amendment
      to it . . . shall be forfeited and shall be distributed as provided
      elsewhere herein as though he or she had predeceased me
      without issue:

            ....

            g.     in any other manner contests my Trust or any
                   amendment to it executed by me, or in any other
                   manner, attacks or seeks to impair or invalidate
                   any of its provisions;

            h.     conspires with or voluntarily assists               anyone
                   attempting to do any of the above acts.

      Expenses to resist any above contest or other attack of any nature
      upon any provision of my Trust or any amendment to it shall be
      paid from the trusts created hereunder as expenses of
      administration.

            ....

      If any person or entity, singularly or in conjunction with any other
      person or entity, directly or indirectly, in any court, contests the
      validity of my Trust Agreement, including any amendments
      thereto, then the right of that person or entity to take any
      interest in my Trust Estate or to act in any fiduciary capacity
      shall cease, and the demise of that person (and his or her
      descendants) or entity shall be deemed to have occurred prior to
      my death, as applicable.

Quinn Living Trust, 11/19/01, at 12-3 − 12-5 (emphases added).




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      The Trust instrument unambiguously prohibited, upon pain of forfeiture,

any beneficiary from acting in any manner to impair any of the Trust’s

provisions.     The Trust’s provisions stated that Gerald was entitled to

distribution of one-third of the principal of the Trust “immediately . . . free of

trust.” Id. at 8-3. The evidence accepted by the orphans’ court establishes,

by Randall’s own words, that, knowing full well that Gerald had the right under

the Trust documents to do as he pleased with his one-third, Randall boldly

and unabashedly acted to impair those provisions by calculated, systematic

delay, to force Gerald to agree with a disposition of the Farm that was not

included in the Trust instrument. The orphans’ court fully acknowledged that

Randall’s conduct was so inappropriate as to be vexatious. As this is precisely

the type of conduct that Albert sought to prevent by including the no-contest

clause, the orphans’ court erred as a matter of law in failing to hold that

Randall triggered the clause to disinherit himself.

      Moreover, regardless of the subjective intent Randall harbored in filing

his motion to exclude, it is objectively beyond question that Randall asked the

orphans’ court to disinherit Gerald without having any basis in law or fact to

support that Motion. The no-contest clause forbids all attacks upon the Trust

provisions unsupported by probable cause, not just ones that were undertaken

in earnest. It is beyond dispute that, in his motion to exclude, Randall asked

the court, without probable cause, to invalidate the provisions of the Trust




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pertaining to Gerald’s one-third share. As such, the orphans’ court erred in

holding that Randall did not violate the no-contest clause.

      Gerald next argues that the orphans’ court erred in finding that Sarah

did not violate the no-contest clause by conspiring with Randall to impair the

Trust’s provisions for Gerald’s share. Pointing to Sarah’s assistance detailed

above, Gerald maintains that she also forfeited her share pursuant to the

conspiracy portion of the clause and this Court’s decision in In re Estate of

Simpson, supra. We again agree with Gerald.

      Randall had no reason to interfere with the distribution of the Trust

according to its terms but for Sarah’s insistence that her daughters ultimately

inherit the Farm. Indeed, the orphans’ court specifically noted that Randall

originally agreed with Gerald, but Sarah convinced Randall to proceed contrary

to the terms of the Trust.    By assisting Randall in his vexatious course of

conduct for the benefit of her children, at all times aware that the actions were

not supported by the language of the Trust instrument, Sarah is just as

culpable as Randall of seeking to impair the provisions of the Trust.

      We reached a similar result in In re Estate of Simpson, supra. In

that case, James brought an unfounded undue influence challenge to his

grandmother’s will. Two of his siblings, Denise and Mark, did not officially join

the will contest, but assisted James by discussing the contest, deciding who

would file it, retaining counsel, and thwarting attempts at negotiating a

resolution.   This Court recognized such conduct as “a collaborative effort


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among James, Mark and Denise” to contest the will. Id. at 100. Therefore,

we held that Mark and Denise also forfeited their shares for aiding in the

contest, explaining that

      such a rule is beneficial for two reasons. First, the rule honors the
      idea that the will is to be construed so as to promote the intentions
      of the testator. Second, the rule promotes the favorable public
      policy of limiting costly, time-consuming litigation against the
      estate when such litigation is not founded upon probable cause
      but rather upon disappointment over amount received.

Id.

      Sarah was disappointed that the Trust did not provide that her

daughters would ultimately own the Farm, which she believed was her parents’

desire.   The record unequivocally demonstrates that Sarah not only aided

Randall in his efforts to impair the immediate distribution provision in the

Trust, but convinced Randall to do so despite his initial instincts to the

contrary. To allow Sarah to avoid application of the no-clause because she

did not file or sign any of the motions ignores the portion of the no-contest

clause that prohibits a beneficiary from voluntarily assisting anyone in

violating the clause, and is contrary to our precedent. Thus, we hold that the

orphans’ court erred in failing to apply the no-contest clause to forfeit Sarah’s

share of the Trust.

      We next consider Gerald’s contention that the orphans’ court erred in

opining that, even if Randall did violate the no-contest clause, Linda is entitled

to Randall’s share of the Trust principal. Gerald argues that this holding both

is contrary to “the beneficiary scheme of the Trust[,]” and leads to the absurd

                                     - 17 -
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result of allowing Randall to violate the clause without suffering any adverse

consequences. Gerald’s brief at 43-44.

       Pursuant to the no-contest clause, the Trust share of a beneficiary who

violates the clause “shall be forfeited and shall be distributed as provided

elsewhere herein as though he or she had predeceased me without issue[.]”

Quinn Living Trust, 11/19/01, at 12-3. The clause further provides that if any

person contests the Trust, “the right of that person or entity to take any

interest in my Trust . . . shall cease, and the demise of that person (and his

or her descendants) or entity shall be deemed to have occurred prior to my

death.” Id. at 12-5.

       The orphans’ court ruled that the Trust instrument was ambiguous, and

that operation of the no-contest clause did not serve to disinherit Linda

because, even if Randall were treated as having predeceased Albert without

issue, Linda would take Randall’s share under Article Eight, Section 1(a)(3),

as she is not a descendent or issue of Randall. 5      Orphans’ Court Opinion,

11/15/18, at 17-18. We cannot agree.

____________________________________________


5   That section provides that if Randall “should die prior to the time that a
distribution is directed to be made, [Randall’s] interest in the balance of the
trust share shall be distributed to his spouse, LINDA QUINN, if then living; or,
if not, such beneficiary's interest in the trust share shall lapse.” Quinn Living
Trust, 11/19/01, at 8-2. In contrast, the provision for Sarah indicates that if
she should die prior to distribution, her interest “shall lapse and my Trustee
shall distribute the balance of the trust share to such beneficiary's then living
descendants, per stirpes. If such beneficiary has no then living descendants,
such beneficiary's trust share shall lapse.” Id. Gerald’s provision indicates



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       First, viewing the Trust instrument as a whole, Albert’s plan for the

disposition of his assets is clear: he wished for each of his children to receive

one-third of the Trust principal upon his death, with exceptions for incapacity

and other contingencies. If any of the children who had an heir known to

Albert predeceased distribution of the Trust assets, that child’s heir or heirs

would receive the deceased child’s share.          Otherwise, the deceased child’s

share was to be divided among the remaining children. For example, while

Sarah’s share would go to her daughters if she predeceased the distribution,

Gerald’s share in such circumstances would be distributed to Randall and

Sarah rather than to whomever stood to inherit or otherwise take through

Gerald under the law.

       However, if a beneficiary violated the no-contest clause, he or she is

“specifically disinherit[ed]” and “the right of that person or entity to take any

interest in my Trust . . . shall cease, and the demise of that person (and his

or her descendants) or entity shall be deemed to have occurred prior to my

death.” Quinn Living Trust, 11/19/01, at 12-3, 12-5. Hence, if Sarah violated

the clause, her share would be split between Randall and Gerald (or the

beneficiaries at the time), rather than skip her and go to her daughters.




____________________________________________


that if he predeceases distribution, his share lapses. Id. at 8-3. Lapsed
shares are to be reallocated among the remaining named beneficiaries. Id.
at 8-1.

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      Despite the use of “descendants” and “issue” rather than “heir” or

“contingent beneficiary,” we conclude that, viewing the document as a whole,

it is apparent that Albert’s intent was that, if the disinheritance of a person

were triggered, the share of any of his children should lapse rather than go to

the alternate beneficiary.   Nothing in the document suggests that Albert

intended to disinherit his grandchildren upon Sarah’s contest of the Trust, but

not similarly remove his daughter-in-law as a beneficiary upon Randall’s

violation of the clause.

      Second, the no-contest clause broadly indicates that any beneficiary

who violates the clause forfeits the right to take any interest in the Trust. If

Randall’s spouse were to take his share despite Randall’s violation of the

clause, he would still be receiving not only a de facto, but a legal interest in

the Trust assets. See Haentjens v. Haentjens, 860 A.2d 1056, 1059 n.7

(Pa.Super. 2004) (“Pursuant to 23 Pa.C.S.A. § 3501(a)(3), property acquired

by bequest, devise or descent is not considered marital property. However,

for purposes of equitable distribution, the increase in value of a non-marital

asset constitutes marital property.”).

      Third, as discussed above, this Court has recognized the absurdity in

allowing one beneficiary to abet another beneficiary in contesting an

instrument without taking on the same risk of forfeiture. See In re Estate

of Simpson, supra. Allowing Linda to take Randall’s share in these

circumstances would have the practical effect of eviscerating the no-contest


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clause, as Randall in effect risked nothing by attempting to avoid distributing

Gerald’s rightful share to him.   Therefore, we agree with Gerald that the

orphans’ court’s resolution of any ambiguity in favor of Linda retaining her

right to Randall’s share is inconsistent with Albert’s intent in light of his

distribution scheme as a whole. See In re Cohen, supra at 1214 (providing

that a settlor’s intent is determined from an examination of “(a) all the

language contained in the four corners of the instrument; (b) the distribution

scheme; (c) the circumstances surrounding the testator or settlor at the time

the will was made or the trust was created; and (d) the existing facts.”)

(cleaned up).

      Accordingly, for the above-stated reasons, we hold that the orphans’

court erred in overruling Gerald’s objections to the proposed distribution of

the remaining Trust assets. While we acknowledge that the result is harsh, it

is consistent with Albert’s intent that any beneficiary contesting his Trust

forfeit his or her interest therein. We thus vacate the November 15, 2018

order to the extent that it does so, and remand for the orphans’ court to enter

an order providing for the Trust shares calculated in the final amended

accounting for Sarah and Linda to be be distributed to Gerald.

      In light of our resolution of these issues, we also vacate the portion of

the order awarding Gerald a portion of his attorney fees.      The no-contest

clause provides that expenses to resist attempts to impair provisions of the

Trust “shall be paid from the trusts created hereunder as expenses of


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administration.” Quinn Living Trust, 11/19/01, at 12-4. The orphans’ court

determined that Gerald’s fees were not awardable under the Trust provision

because (1) it held that Randall and Sarah did not violate the no-contest

clause, and (2) not all of the fees Gerald requested were related to Randall’s

DNA motion and motion to exclude. Orphans’ Court Opinion, 11/415/18, at

20. It awarded Gerald fees under 42 Pa.C.S. § 2503(7) as a sanction against

Randall for his vexatious conduct. Specifically, it awarded approximately forty

percent of the roughly $100,00 in fees and expenses claimed by Gerald at the

hearing.

      On appeal, Sarah and Linda argue that the award cannot stand because

Gerald offered no evidence that the fees were reasonable, pointing to the

acknowledgment of the orphans’ court that there were “no bills on record from

which the court can determine its reasonableness.” Appellees’ brief at 17.

See also Orphans’ Court Opinion, 11/15/18, at 20. On the other hand, Gerald

argues that, if this Court agrees that Randall and Sarah violated the no-contest

clause, then he should recover all of his fees from the Trust. Gerald’s brief at

51.

      We agree with Sarah and Linda that the award to Gerald without having

the bills or any evidence of their reasonableness was an abuse of discretion.

Therefore, we vacate that portion of the November 15, 2018 order awarding

Gerald attorney fees. However, we need not remand for a new determination.

Given our ruling that Randall and Sarah did violate the no-contest clause, we


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agree with Gerald that his efforts to uphold the Trust provisions from their

attack should be paid out of the Trust under the terms of the no-contest clause

quoted supra.       As we have held that Gerald is entitled to 100% of the

remaining Trust principal, his attorney fees will be paid by Trust assets as they

should without further action by the orphans’ court. The matter thus resolves

itself.

          Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2020




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