In the Mttr of: Janet Kelsey, Appeal of: Kelsey, M
1876 EDA 2020
Pa. Super. Ct.Jul 8, 2021Background
- Settlor Janet C. Kelsey executed a revocable trust (2000; amended 2006) leaving 71 West Rose Valley Rd ("No. 71") to daughter Marie Sage Kelsey (Sage), 73 West Rose Valley Rd ("No. 73") to son Denham L. Kelsey (Denham), and the residue to daughters Penn and Nancy.
- Sage and Denham were named co-trustees. After Settlor's death in 2018, disputes arose over access, possession, and administration of Nos. 71 and 73 (lock changes, removal of street number from No. 73, alleged third‑party occupancy, and personal property disputes).
- Sage refused to sign the Pennsylvania inheritance tax return (causing a missed discounted payment window), withheld interim distributions to residuary beneficiaries, and disputed counsel/appraisal actions; parties mediated and executed a July 31, 2019 "Working Relationship Agreement," but many issues persisted.
- Petitioners (Denham, Penn, Nancy) filed to remove Sage as co‑trustee (Feb. 2019); orphans' court held a hearing Aug. 18, 2020 and entered an order removing Sage and appointing Denham sole trustee.
- Sage appealed, arguing (1) the court lacked jurisdiction under a COVID‑related judicial emergency order, (2) the evidence did not meet 20 Pa.C.S. § 7766 standards for removal and mere "friction" anticipated by Settlor was not a basis for removal, and (3) removal was disproportionate.
- The Superior Court affirmed: Sage waived the jurisdictional challenge (not raised below and order not in the certified record) and the orphans' court did not abuse its discretion in removing Sage under § 7766(b).
Issues
| Issue | Sage's Argument | Petitioners' / Orphans' Court Argument | Held |
|---|---|---|---|
| Whether the orphans' court had jurisdiction to hear the Aug. 18, 2020 removal hearing given a judicial‑emergency order | The COVID extension order deprived the court of authority to hold the hearing | Sage failed to object below and did not include the emergency order in the certified record | Waived and not reviewable; claim forfeited because record omission and no contemporaneous objection |
| Whether evidence supported removal under 20 Pa.C.S. § 7766 | Removal improper: Settlor anticipated sibling friction; evidence shows mere disagreement and disputed administration choices, not statutory grounds | Sage's actions (locking out cotrustee, removing No. 73 identifier, refusing to sign tax return, withholding distributions, failing to cooperate) substantially impaired trust administration and showed unfitness/unwillingness | Affirmed: orphans' court credited Denham, found lack of cooperation and ineffective administration under § 7766(b)(2) and (3), removal justified |
| Whether removal was an abuse of discretion or whether lesser sanctions were required | Removal is drastic and unnecessary; lesser remedies should have been used | Removal best serves beneficiaries, does not contradict material trust purpose, and a suitable successor (Denham) was available | No abuse of discretion; removal was within the court's remedial authority and supported by the record |
Key Cases Cited
- Trust Under Agreement of Taylor, 164 A.3d 1147 (Pa. 2017) (discussing § 7766 and the court's requisite active inquiry when removing a trustee)
- In re Vincent J. Fumo Irrevocable Children's Tr. ex rel. Fumo, 104 A.3d 535 (Pa.Super. 2014) (standard of appellate review for trustee removal decisions)
- In re Vencil, 152 A.3d 235 (Pa. 2017) (civil sufficiency review—view record in light most favorable to verdict winner)
- In re Melograne, 812 A.2d 1164 (Pa. 2002) (distinguishing subject‑matter jurisdiction from a court's authority/power to act and preservation rules)
- In re Croessant's Estate, 393 A.2d 443 (Pa. 1978) (courts may remove a trustee if continuation would be detrimental; discretionary remedy)
- In re Estate of Brown, 30 A.3d 1200 (Pa.Super. 2011) (deference to orphans' court factual findings and credibility determinations)