J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER MARTIN,

INDIVIDUALLY AND AS TRUSTEE OF

THE DANIEL R. PAUL & SUSAN L. PAUL IAPT 12/14/11

Appellant

v.

SUSAN L. PAUL, INDIVIDUALLY AND

AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF DANIEL R. PAUL AND COREY W. MARTIN, INDIVIDUALLY

AN D AS TRUSTEE OF THE DANIEL R.

PAUL AND SUSAN L. PAUL IAPT 12/14/11 :

:

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:

:

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 944 MDA 2021

Appeal from the Order Entered June 23, 2021

In the Court of Common Pleas of Columbia County Orphans ’ Court at No(s): 2016

- OC

- 142

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J. *

MEMORANDUM BY COLINS, J.: FILED: MARCH 29, 2023

Christopher Martin (“Christopher”) appeals from the September 27

,

2019 order 1 removing him as trustee of the Daniel R. Paul and Susan L. Paul

Irrevocable Asset Protection Trust dated 12/14/2011 (“APT”) and directing

that a farm property owned by the APT (“Atta Farm property” or “the

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 As explained in more detail below, the orphans ’ court did not provide notice of entry of th e September 27, 2019 order or note the same on the docket until June 23, 2021, at which point Christopher filed this timely appeal.J

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- 2

-

Property”) be sold with proceeds in the amount of $278,213.71 allocated to

Susan L. Paul (“Susan”) and with any excess amount returned to the APT. We

affirm in part, vacate in part, and remand for further proceedings

.

This Court has previously set forth the relevant background to this

dispute:

Susan is the mother of Christopher and his brother, Cory W. Martin (“Cory”). [ 2 ] In 1985, Susan married Daniel R. Paul (“Daniel”)

. With the help of Daniel , Christopher formed Christopher A. Martin Wildlife Management, Inc. (“Company”) in

2005. Susan and Daniel purchased real property, on June 3, 2009, located on Atta Road in Stillwater, Pennsylvania [] . On July 1, 2009, Susan and D aniel entered into a five

- year commercial lease contract with Christopher, individually and on behalf of the Company, to allow the Company to conduct horse boarding and related business at the Atta Farm property. That same day, the Company began operating a horse boarding service at Atta Farm.

On December 14, 2011, Susan and Daniel executed a revocable living trust agreement, the Daniel R. and Susan L. Paul Family

Trust (“Family Trust”). The Family Trust named Susan and Daniel

as settlors and trustees of the Family Trust. The Family Trust

contained several sub

- trusts, including a Survivor ’ s Trust and the

APT

.

The Family Trust provided, in relevant part, as follows:

It is the primary purpose and intent of this Trust to provide

for the management of the Settlors ’ [ 3 ] assets both presently

and during any future period of disability. This Trust Agreement is a chosen alternative preferred to guardianship

or formal conservatorship proceedings that are conducted in

and supervised by a court of law. This Trust Agreement

_________________ __________ ______ ____ _______

2 While Cory is a party to the action below, he has not filed a brief in this appeal.

3 The “Settlors” are Susan and Daniel . The “Survivor,” as used in the agreement, refers to the surviving s ettlor. Family Trust § 4.1.J

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- 3

- shall serve as a simplified means of accomplishing both

lifetime and death transfers of both Settlors ’ assets.

* * *

ARTICLE TWO

– Reservation of Rights

–

2.1. The Settlors reserve the following rights, individually as
t o their respective interest in Tenants

- in

- Common property
and as to their respective Sole and Separate property, to be

exercised at any time and from time to time by a written

instrument effective immediately upon its execution during

their joint lives without consent or participation of any other person:

(a) Settlors may amend this Trust, in whole or in part,

or to revoke this Trust agreement in its entirety (by a writing delivered to a Trustee other than themselves

if such Trustee is serving) and to remove any or all of

their respective interests in their respective property
transferred to this Trust.

[ * * *

(d) Settlors may direct any Trustee as to the retention, acquisition, or disposition of any Trust assets by a writing delivered to such Trustee. . . .]

* * *

2.3. Upon the death of either Settlor

, this Trust shall be

irrevocable and non

- amendable subject, however, to any

power of appointment, right of withdrawal or right of

revocation hereinafter granted to the Survivor concerning
property held in the Survivor ’ s Trust as provided in

Article Five.

* * *

ARTICLE FIVE

– Administration/Distribution of Survivor ’ s Trust

–

5.1. The Survivor shall retain full (and unhindered) general

power of appointment of all property held in the

Survivor ’ s Trust

, including the power to alter, amend orJ

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- revoke, in whole or in part, any and all provisions (including

the revocation and appointment of any Trustee of the

Survivor ’ s Trust) concerning such property held in the

Survivor ’ s Trust.

* * *

ARTICLE EIGHT

– Estate Distribution Upon Death of Survivor

–

* * *

8.1. If any of the following named beneficiaries referenced

below

— who are receiving separate allocation(s) of Settlors ’ (respective) properties

— do not survive the last Settlor to die, then such allocation(s) shall be distributed as per the

remainder Trust Estate below Section 8.2.

* * *

(e) CHRISTOPHER A. MARTIN

, Wife/Settlor ’ s son, shall receive all interest in Wife/Settlor ’ s property
located at 34 Atta Road / Stillwater, Pennsylvania

17878.

8.2. CHRISTOPHER A. MARTIN & CORY W. MARTIN

, Wife/Settlor ’ s sons, shall each receive equal (1/2) portions of the remainder

— remaining after all of the

above allocations (if any) of the Trust Estate.

* * *

ARTICLE NINE

– Successor Trustee Appointments

–

9.1. The Settlors reserve the power to remove any Trustee during their joint lives and to appoint other or additional

Trustees not presently named as Successor Trustee at the

creation of this Trust.

[9.2. The Settlors shall serve as Co

- Trustees (as heretofore appointed) until . . . their death.

9.3. Upon . . . [the] death of the first Settlor to die, the other Settlor shall serve as sole Trustee. . . .]J

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- 9.4. Upon the (i) resignation or (ii) inability to serve because

of a medical/mental condition causing impairment of normal

administrative abilities (as evidenced by a medical

certificate from his or her attending physician) or (iii) death

of the surviving Settlor/Trustee then CHRISTOPHER [ A. ]

MARTIN (Wife ’ s Son) shall serve as Trustee of this Trust.

* * *

ARTICLE SEVENTEEN

– Asset Protection Trust

–

17.1. BE IT KNOWN that the Settlors affirm their right of

transfer and assignment of portions or all of their property
of the (preceding) Revocable Trust Estate to another individual(s) whether by a lifetime gift or by a transfer at death, outright, or IN TRUST. To that end, it is the Settlors ’

intent with the funding of the following prescribed

irrevocable sub

- trust (of the Revocable Living Trust Estate)

to preserve the principal assigned therein by vesting the

same to the intended remainderman beneficiaries of this irrevocable, sub

- trust component (of Settlors ’ Revocable Living Trust Estate) hereinafter referred to and identified as the Asset Protection Trust (APT)

. The primary purpose and intent of the APT is to reasonably avoid preventable governmental “spend

- downs” of Settlors ’ estate otherwise charged for services the Settlors may qualify to receive through state

- and

- federal

- partnered Medicaid entitlement program(s) as defined under Title XIX of the Social Security Act/42 U.S.C. § 1396 et seq.

17.2. Settlors hereby acknowledge and exercise the right to allocate, assign, and transfer any potion or all of the principal amount of the Revoc able Living Trust Estate
deemed under the revocable, general power of appointment

control of the Settlors whether in cash or in kind

— or directly

from the Settlors outside the Trust (and/or directly from

other individuals) to this Irrevocable Asset Protection Trust (APT) (subtrust) portion described hereunder, subject to the

terms of this Article. All such irrevocable transfers assigned

hereto shall be deemed a part of this APT

. . .

17.3. Settlors now disclaim unhindered rights to reclaim, appoint or otherwise use any principal of this APT, or that

may be transferred to this APT, to or for their benefit, theirJ

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- estate, their creditors, or their creditors ’ estate

— subject, however, to the stipulations and terms otherwise provided

under this Article.

17.4. Settlors retain the right to receive all Distributable Net Income (DNI) of this APT for their joint lifetimes, and to the survivor of them for his/her lifetime, on at least an annual or more frequent basis

.

17.5. Subject to the stipulations and terms otherwise provided under this Article, Trustee may not reverse or re

assign any allocations of corpus/principal of this APT back to
the Settlors.

17.6. NOTWITHSTANDING the above, in the event that an
invasion of principal of this APT would then otherwise be

allowable under Pennsylvania state (and federal) law

— or under the laws of Settlors ’ state

- of

- domicile if then other

than Pennsylvania

— without disturbing the full asset

preservation intent of this APT and Settlors are in personal

need of additional funds over and above the income

distributions provided herein to adequately care for their health, safety, and reasonable comfort, then Trustee may allocate portions of principal of this APT from time to time

as may be necessary or appropriate in Trustee ’ s unhindered

discretion for Settlors ’ benefit when such needs are not being met by the DNI amounts (or other sources of income)

allowable to Settlors under the terms of this APT.

(a) In such case, Trustee may make princi pal

distributions to enhance Settlor ’ s provisions of food, clothing and shelter and other comforts if Trustee

determines in its sole discretion that such distributions

would be in Settlors ’ best interests but ONLY when taking into account the possible reduction or forfeiture

of Medicaid (or other governmental) benefits that may result from any such distribution(s) event.

(b) In such case, Trustee is authorized to make

distributions for Settlors ’ benefit for payments of
taxes, supplemental medical or therapeutic care, furniture and furnishings, adaptive aids, benefits
overpayments (if any), and other such items as might

be reasonably calculated to enhance the quality of

Settlors ’ life but only, however, if such distributions

do not affect the level of the governmental aid andJ

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- entitlements that would otherwise inure to Settlors or
to supplant or replace any governmental aid or other public entitlement funds that may be endowed for

their benefit through the establishment of this APT.

To reaffirm: Trustee is not authorized to make any distributions for Settlors ’ benefit that would otherwise jeopardize Settlors ’ qualification to receive governmental aid benefits.

* * *

17.7.

. . .

* * *

(c) NOW THEREFORE, any and all such assets/funds/real estate transferred from the

Revocable Living Trust to the APT or directly to the

APT outside of the Revocable Living Trust Estate shall

be transferred and assigned to [Christopher, as the Trustee of the APT.]

* * *

17.9.

. . .

* * *

(b) The vested beneficiary(s) of the APT, the proportionate, distributable amounts of income

. . . shall be defined, determined and designated as provided in Article Eight ( supra ) of this Trust as amended thereto but irrevocably vested

, notwithstanding subsequent amendments to said Trust, as to the initial funding date of this APT.

* * *

17.10. The APT beneficiary(s) so designated to receive portions or all of Settlors ’ revocable Trust Estate and portions or all of Settlors ’ irrevocable APT Trust Estate (as

per this Article) shall be determined and identified as provided in Article Eight ( supra ) and such designation(s)

shall become irrevocable as pertaining to the assets of

this APT upon the initial funding of the APT.J

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- 8

-

[Family Trust, Preamble, §§ 2.1, 2.3, 5.1, 8.1

- 2, 9.1

- 4, 17.1

- 7,

17.9

- 10 (some emphasis in original ; some emphasis added).]

On February 27, 2012, Susan and Daniel executed a deed conveying the Atta Farm property to Christopher, as trustee of the APT, and put the Atta Farm property in the APT, pursuant to the Family Trust provisions. After Daniel died testate on May 30, 2013, Susan administered Daniel ’ s estate as its personal representative. Following Daniel ’ s death, the relationship

between Susan and Christopher deteriorated, resulting once in police intervention for an alleged theft.

On September 10, 2013, Susan ostensibly executed a Restatement of the Family Trust (“Restated Trust”). . . .

In large part, the terms of the Restated Trust are substantially

and materially the same as the terms of the original Family Trust.

The most striking change accomplished by the Restated Trust, however, was to remove Christopher as trustee and to name Cory

successor trustee of the Restated Trust and truste e of the APT. Notwithstanding the preamble set forth in the Restated Trust,

Susan essentially “modified” the original Family Trust/APT to

remove Christopher as trustee of the APT and name Cory as new
trustee of the APT.

Acting on his new position, Cory executed a quit claim deed on August 3, 2014, purporting to transfer the Atta Farm property
from [Cory, as trustee of the APT, to Susan and Daniel , as trustees of the Family Trust.] Subsequently, Susan executed a quit claim

deed on July 6, 2015, appearing to transfer the Atta Farm property
from [Susan, as surviving trustee of the Family Trust to Cory, as trustee of the APT.]

On August 17, 2016, Christopher filed a petition against Susan

and Cory to remove Cory as the trustee of the APT an d direct that

the Atta Farm property remain an asset of the APT. . . . [D] uring

a status conference, Susan and Cory indicated they wanted to sell

the Atta Farm property and place the proceeds of the sale into

investments for the benefit of Christopher

, if the court determined

he was entitled to those proceeds.

The court conducted a bench trial on July 13, 2017, during which it heard testimony from, inter alia , Christopher [ and] Susan

. . . . At trial, Christopher testified on his own behalf that he had a falling

out with Susan in the 1990 ’ s or 2000, after which he did not speak

to Susan and Daniel for ten or eleven years. Christopher said heJ

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-

reconnected with Susan and Daniel approximately in 2008, when

he moved in with them. After Su san and Daniel purchased the Atta Farm property, Christopher and his wife lived at Atta Farm while the Company operated a horse boarding business on the

farm.

Christopher again had a falling out with Susan after Daniel died. While Christopher and his wife were still living on the Atta Farm property, Christopher ’ s brother, Cory, removed a flatbed trailer from the farm property. Christopher reported the incident to the police, who found the trailer at the residence of Susan, with whom Cory lived, and arrest ed Susan and Cory for stealing the equipment. Christopher did not renew the lease on Atta Farm and

received a notice from Susan ’ s counsel in September 2014, to vacate the property in thirty days. By October 7, 2014, Christopher and his wife left the Atta Farm property.

Susan also testified at trial. Susan said she and Christopher had a tumultuous relationship. They fell out in 1993, after which they did not speak again until 2009. In January 2012, Susan attempted to punch Christopher after the two had a verbal altercation. In early 2013, Christopher put out to pasture one of Susan ’ s horses boarded at Atta Farm, because Susan had been late several times to pay the $ 450.00 monthly boarding fee. After Daniel died in May 2013, Christopher would not spea k to Susan. Susan explained she believed she owned the trailer that Cory had taken from the Atta Farm property in May 2014. Susan stated Christopher reported the incident to police and had Susan and Cory arrested, even though Christopher knew they merely intended to borrow the trailer. In September 2014, Susan sent Christopher an eviction notice.

. .
Susan acknowledged she formed the Restated Trust in September 2013, to remove Christopher as trustee of the APT and replace him with Cory as trustee. Susa n claimed the August 3, 2014 quit claim deed purporting to transfer the Atta Farm property from the APT to her, as trustee of the Family Trust, was just a mistake,

because she knew she could not remove an asset from the APT

which was also an irrevocable tr ust. Susan said she ameliorated the error when she executed the July 6, 2015 quit claim deed, appearing to convey the Atta Farm property to Cory, as trustee of the APT. Susan explained she had intended to keep the Atta Farm property in the APT, despite t he Restated Trust and the 2014 quit

claim deed.

. .J

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-

. . . On January 2, 2018, the [o] rphans ’ [c] ourt entered an opinion

and verdict, which declared the Atta Farm property irrevocably
part of the APT. The decision then [stated] that “ Christopher had

an irrevocable vested interest in the Atta Farm once the property [was] transferred to the [APT and that o] wnership of the Atta

Farm [property] must properly be transferred to Christopher .”

M artin v. Paul (“ Martin I ”), No. 118 MDA 2018, 2019 WL 1490572, at *1

- 7

(Pa. Super. April 3, 2019) (unpublished memorandum) (footnote and record

citations omitted ; references to parties and other key individuals modified for

readability ).

Susan filed an appeal from the January 2, 2018 order, challenging the

orphans ’ court award of immediate ownership of the P roperty to Christopher

as well as the court ’ s failure to rule on her requests to remove Christopher as

trustee for the APT and to compel a sale of the Property

. In the initial appeal

,

we determined that we could not address Susan ’ s issues related to

Christopher ’ s removal and the sale of the P roperty , because the orphans ’ court

had not yet rule d on them. Id. at *8. W e did reach Susan ’ s argument

concerning the court ’ s transfer of title of the Property to Christopher

, finding

that , under the APT, Christopher would become owner of the Property when

Susan dies, while Susan was entitled, as the surviving settlor, to regular

lifetime distributions of income generated from APT assets

. Id. at * 8

- 10. We

thus con cluded that the orphans ’ court improperly awarded title of the

Property to Christopher as his “role regarding the Atta Farm property is limited

to trustee with a vested beneficial interest in the APT

, ” while we also reject ed

Susan’s argument that she had an ownership interest in the Property as sheJ

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-

was only a lifetime beneficiary. Id. at *10

- 11. We therefore vacated the

court ’ s order and remanded for clarification or correction on the issue of

ownership of the P roperty and for further proceedings on Susan ’ s request s

that Christopher be removed as trustee and the Property be sold. Id. at *11.

Following oral argument and the submission of briefs, the orphans ’ court

issued an order and accompanying opinion on September 27, 201 9 , providing

for Christopher’s removal as trustee of the APT, the sale of the Property, and

the reimbursement of $278,213.71 from th e sale to Susan with any remainder

to the APT

. Opinion and Order , 9/27/19, at 4

- 5. In its Pa.R.A.P. 1925(a)

opinion, the c ourt clarified that it ordered the sale of the Property and

reimbursement to Susan pursuant to its power to modify a trust based upon

circumstances that were not anticipated by the settlor under Section

7740.2(a) of the Pennsylvania Uniform Trust Act (“UTA ”) , 20 Pa.C.S. §

7740.2(a). Rule 1925(a) Opinion, 12/30/21, at 3

- 4. The court further opined

that Christopher’s removal as trustee was appropriate under Section

7766(b)(1)

- (3) of the UTA, 20 Pa.C.S. § 7766(b)(1)

- (3), because he

committed a serious breach of the trust, failed to effectively administer the

trust through unfitness, unwillingness, and persistent failures, and as a result

of his lack of cooperation with Susan. Rule 1925(a) Opinion, 12/30/21, at 6

-

7.J

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-

On appeal, 4 Christopher presents the following issues for our review:

I. Did the lower court exceed its authority vested by 20 Pa.C.S.[ §] 7740.2(a) and (c) when it modified a noncharitable irrevocable

trust and directed the trust be distributed in a manner which not only defeats its pr imary purpose, but in a manner that is expressly prohibited by the terms [of the] trust?

II. Did the lower court commit error by modifying a noncharitable

irrevocable trust without the consent of all beneficiaries in a

manner which does not protect the in terests of the irrevocably vested remainder beneficiary as required by 20 Pa.C.S.[ §]

7740. 1(d)(2)?

III. Did the lower court commit an error of law and/or an abuse of discretion when the court (1) declined to rule on the appellant ’ s request to remove a purported trustee who had been acting on behalf of the trust [and] (2) cite[d], among other things, to

actions of the disputed trustee in removing the appellant as trustee under 20 Pa.C.S.[ §] 7766?

IV. Did the lower court [commit] error by exceeding its authority in 20 Pa.C.S.[ §] 7781(b) and 20 Pa.C.S.[ §] 7766(c) to remedy an alleged breach of trust when it invade[d] an irrevocab le noncharitable trust and direct[ed] $278,213. 71 be reimbursed to

the settlor ?

_________________ __________ ______ ____ _______

4 Christopher did not immediately appeal from the September 27, 2019 order

and instead filed an application for leave to appeal nunc pro tunc on January 21, 2020. The orphans’ court denied the petition on May 14, 2020, and Christopher appealed from that order. On appeal, this Court ruled that the lower court prothonotary did not provide notice of entry of the September 27, 2019 order and spec ify on the docket that notice was given as required by

Pa.R.Civ.P. 236. Martin v. Paul (“ Martin I I ”), No. 823 MDA 2020, 2021 WL 1886067, at *3 (Pa. Super. May 11, 2021) (unpublished memorandum). We

therefore vacated the denial of nunc pro tunc relief and remanded for the prothonotary to docket the September 27, 2019 order in full compliance with Rule 236 so that Christopher could refile his appeal. Id. at *3

- 4. On June 23, 2021, following remand, the prothonotary noted on the docket that proper

notice o f the September 27, 2019 order was given. Christopher then timely filed the appeal presently before this Court.J

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-

Christopher ’ s Brief at 4 (unnecessary capitalization, emphasis, and suggested

answers omitted).

“When reviewing a decree entered by the orphans ’ court, this Court

must determin e whether the record is free from legal error and the court ’ s

factual findings are supported by the evidence.” In re Trust Created Under

the Will of Cohen , 188 A.3d 1208, 1210 (Pa. Super. 2018) (citation and

brackets omitted). Furthermore,

The findings o f 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 . This rule is particularly applicable to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.

In re Jackson Charitable Trust , 174 A.3d 14, 23 (Pa. Super. 2017) (citation

omitted).

The interpretation of a trust presents a question of law as to which our

standard of review is de novo, and our scope of review is plenary. I d. at 29.

The pole star in interpreting trusts is the set tlor ’ s intent, which must be

ascertained from the language of the trust. Id. A court must give effect, to

the extent possible, to all words and clauses in the trust document and shall

not resort to canons of trust construction except where the language o f the

trust is ambiguous or conflicting and the settlor ’ s intent cannot be garnered

from the plain language. Id. ; In re Estate of Loucks , 148 A.3d 780, 782

(Pa. Super. 2016).J

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-

We first address Christopher’s third issue in which he challenges his

removal as trustee of the APT. Christopher asserts that the APT, by its own

terms, only permitted removal of the trustee during the settlors’ joint lives,

and therefore Susan lacked authority to place his brother, Cory, in the role of

the APT trustee, which she pur ported to do in the Restated Trust of September

10, 2013, executed several months after Daniel’s death. Christopher notes

that, in his 2016 petition that initiated this case, he raised the issue of whether

Cory was properly appointed as trustee, and yet t he orphans’ court declined

to rule on his request in its most recent order. Furthermore, Christopher

contends that the lower court improperly based his removal on the fact that

he did not make all of the payments required under his lease to the Property

,

as well as his 2014 eviction from the Property by Susan, even though Susan

and Daniel had always represented to him that they would remain responsible

for the mortgage, taxes, and insurance on the Property

.

Removal of a trustee is governed by Section 7766 ( b) of the UTA, which

provides as follows:

(b) When court may remove trustee.

-- The court may remove

a trustee if it finds that removal of the trustee best serves the

interests of the beneficiaries of the trust and is not inconsistent with a material purpose of the trust, a suitable cotrustee or

successor trustee is available and:

(1) the trustee has committed a serious breach of trust;

(2) lack of cooperation among cotrustees substantially impairs the administration of the trust;J

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- (3) the trustee has not effe ctively administered the trust because of the trustee’s unfitness, unwillingness or persistent failures; or

(4) there has been a substantial change of circumstances. A corporate reorganization of an institutional trustee, including a plan of merger or consolidation, is not itself a substantial change of circumstances.

20 Pa.C.S. § 7766(b).

The orphans’ court found that grounds for Christopher’s removal existed

under subsection (b)(1), (2), and (3), based upon Christopher’s serious

breach of the trust, h is lack of cooperation with his cotrustee, and his

unfitness, unwillingness, and persistent failures in the administration of the

APT. Rule 1925(a) Opinion, 12/30/21, at 6

- 7. The court specifically found

that Christopher was “incapable or unwilling to pe rform his fiduciary duties,”

he “failed to make even one payment towards the mortgage” or “make any

profit” from the farm, and his relationship with Susan was so strained that it

resulted in physical altercations, an eviction, and Susan’s arrest

. Id. ; see

also Opinion and Order, 9/27/19, at 4

- 5. The court further concluded that

removing Christopher as trustee was in the best interests of the beneficiaries

of the APT and that it was not inconsistent with the purpose of the APT.

Opinion and Order

, 9/27/19, at 4

- 5.

Upon review, we initially agree with Christopher that Susan lacked

authority to remove him as trustee of the APT and place Cory in that position

,

which she purported to do in the Restated Trust executed in September 2013

.

Pursuant to the Family Trust, the settlors only had authority to remove aJ

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-

trustee and appoint a successor trustee “ during their joint lives.” Family Trust

§ 9.1 ; cf. id. § 5.1 (providing that surviving settlor had authority to remove

the trustee of the Survivor’s Trust)

. When Daniel died in May 2013, Susan,

as the surviving settlor, thus lost any ability to remove and replace

Christopher as trustee . The Restated Trust’s substitution of Christopher with

Cory as trustee of the APT accordingly had no legal effect, a fact t hat this

Court acknowledged in our initial decision in this matter. See Martin I , 2019

WL 1490572, at *5, 10 & n.1 (stating that Christopher remained APT trustee

as of the date of our 2019 decision and that Susan lacked authority to modify

the APT to remo ve Christopher). While the orphans’ court did not specifically

address the issue , the lower court implicitly recognized that Christopher, not

Cory, was the APT trustee at the time of its decision by ruling on Susan’s

request that Christopher be removed as trustee and not addressing

Christopher’s alternate claim that Cory should be removed.

Turning to the merits of Christopher’s removal, we agree with the

orphans’ court’s determination that grounds for removal existed under Section

7766(b)(3), which requi res that “ the trustee has not effectively administered

the trust because of the trustee ’ s unfitness, unwillingness or persistent

failures .” 20 Pa.C.S. § 7766(b)(3). 5 The record here shows Christopher ’s

_________________ __________ ______ ____ _______

5 The lower court found that Christopher’s removal was proper under subsection (b)(1), (2), and (3); however, we discuss only subsection (b)( 3)

as the statute only requires that any one of the paragraphs under subsection (b) be satisfied. 20 Pa.C.S. § 7766(b).

(Footnote Continued Next Page)J

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-

almost complete unwillingness to undertake any act s to fulfill his role as

trustee of the APT. See 20 Pa.C.S. § 7766, Uniform Law Comment (describing

a trustee’s “unwillingness” to include “cases where the trustee refuses to act”

as well as “a pattern of indifference to some or all of the beneficiaries”); see

also Trust Under Agreement of Taylor , 164 A.3d 1147, 1159

- 60 (Pa.

2017) (courts may rely on commentary of drafters of Uniform Trust Code in

interpreting UTA)

. The Family Trust was established in December 2011, and

the Property was transferred by deed to him as trustee of the APT, in February

2012. N.T., 7/13/17, at 41, 5 0

- 5 1; Christopher’s Exhibit 18. At the time of

the transfer of the Property into the APT, Christopher resided at and ran a

horse boarding business at the Property pursuant to a five

- year lease executed

in July 2009 with Susan and Daniel as landlords. Christopher’s Exhibit 7. After

the transfer of the Property to the APT, Christopher never entered into a new

lease for the Property , and, instead, he continued to act as if Daniel and S usan

(and ultimately Susan, after Daniel’s May 2013 death) were t he landlord s and

owner s of the Property , with Christopher eventually being “evicted” by Susan

in October 2014. N.T., 7/13/17, at 41

- 42, 106, 125

- 26.

_________________ __________ ______ ____ _______

Furthermore, we note that our analysis of Christopher’s role as APT trustee is complicated by the fact that Christopher acted in two ot her roles relevant to this case, as the proprietor of the horse boarding business being run on the

P roperty and in his status as a vested remainder beneficiary of the APT assets

. We focus here on Christopher ’s role as trustee, but that necessarily entails our

review of his decision to allow himself to persist in his money

- losing business

on the P roperty and consideration of the threat his actions caused to his

remainder interest in the trust.J

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- 18

-

While Daniel and Susan also bear some r esponsibility for their continued

attempts to control the Property following its transfer into the APT, Christopher

made no effort to fulfill his duties as trustee of the APT during the period when

he was living on the Property . A trustee has the duty of prudent

administration of a trust, that is the trustee “ shall administer the trust as a

prudent person would, by considering the purposes, provisions, distributional

requirements and other circumstances of the trust and by exercising

reasonable care, skill and caution. ” 20 Pa.C.S. § 7774. Furthermore, a trustee

must “take reasonable steps to take control of and protect the trust property.”

20 Pa.C.S. § 7779; see also In the Matter of Estate of Campbell , 692 A.2d

1098, 1102 (Pa. Super. 1997) (trustee has duty of “receiv[ing] trust property

and administer[ing] it”) (citation omitted). Christopher was aware of the

Family Trust, as well as his role as the trustee of the APT, at the date of the

trust’s execution in December 2011, and he was also contemporaneously

informed by Daniel that the Property was being transferred to him

, as trustee.

N.T., 7/13/17, at 101

- 03. However, Christopher never “really pa[id] attention

to [his status as trustee and the transfer of the Property ] because . . . it’s my

mom and my [step

- ]dad, why would I worry about such things?” Id. at 103;

see also id. at 127 (stating that he was “the guy with the shovel” who did

not pay attention to “[a]ll these papers and stuff”). Christopher thus made

no attempt “to take contro l of and protect the [] property” of the APT, nor did

he exercise “ reasonable care, skill and caution ” in administering the APT. 20

Pa.C.S. §§ 7774, 7779.J

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- 19

-

Christopher also failed to take action to preserve the APT’s assets for

the benefit of both benefici aries of the trust, Susan as the lifetime beneficiary

who was entitled to regular lifetime distributions from that trust, and

Christopher as the remainder beneficiary of the APT assets. As our Supreme

Court has explained, “a trustee’s interest [in the tru st] is in performing the

agreed duty to administer the trust assets for the benefit of the beneficiaries

in accordance with the terms established by the settlor.” In re Trust Under

Deed of Walter R. Garrison , No s . 61

- 63 MAP 2022, ___ A.3d ___ (Pa., filed

January 19, 2023), slip op. at 9. “The primary duty of a trustee is the

preservation of the assets of the trust and the safety of the trust principal,”

as measured by the standard of what an ordinary prudent investor would

maintain in the care of their ow n estate. In re Estate of Warden , 2 A.3d

565, 573 (Pa. Super. 2010) (citation omitted). “ If a trust has two or more

beneficiaries, the trustee shall act impartially in investing, managing and

distributing the trust property, giving due regard to the bene ficiaries ’

respective interests in light of the purposes of the trust. ” 20 Pa.C.S. § 7773;

see also In re Scheidmantel , 868 A.2d 464, 482 (Pa. Super. 2005)

(“ Subject to the specific language of the trust instrument, a trustee acting

consistently with the law of Pennsylvania must exercise discretion in

preserving the balance of interests between successive beneficiaries.” )

(citation omitted).

Here, Christopher admitted that

, during the period he resided on the

Property

, he never paid the $2,000 rent

, real estate taxes or insurance for theJ

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- 20

-

business , nor did he contribute to the payment of the mortgage ; instead, his

only financial contribution was for repairs and some of the equipment used for

the horse boarding business

. N.T., 7/13/17, at 34

- 35, 39

- 40, 96

- 9 8 , 128

,

155 . Susan reiterated that she and Daniel were responsible for paying the

mortgage, taxes, and insurance on the Property during the entire time that

Christopher ran the business without any contribution from her son. Id. at

154

- 55, 176, 184

- 85. In addition, Daniel made substantial financial

contributions towards the business , loaning the co rporation formed to run the

business more than $230,000 during the years of the business’s existence

.

Id. at 135, 139

- 41, 143

- 44. The corporation had accumulated losses of

approximately $321,000 over the years (with losses of $75,537, $38,297, and

$13,295 in 2012, 2013, and 2014, respectively) , showing that the business

was “underwater,” according to the business’s accountan t. Id. at 114

- 16,

132

- 33, 135

- 36 . Furthermore, although Christopher only worked briefly at

the grocery store Daniel owned in 2008 and 2009, the store continued to pay

Christopher $400 per month after he left the job and through the date of his

eviction f rom the Property in October 2014. Id. at 103

- 04, 157

- 58. Based

upon the failure of the property to generate income, Susan ultimately decided

to take the proceeds from one of Daniel’s life insurance policies and pay off

the balance of the mortgage on the property. Id. at 174, 176.

The record thus shows that Christopher, as trustee, did not take

sufficient actions to preserve and manage the Property for his or Susan’s

benefit, as the beneficiaries. The horse boarding business was neverJ

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- 21

-

profitable

, and there was no apparent pathway for the business to become

profitable. Furthermore, rather than Susan receiving “all Distributable Net

Income [] of th[e] APT” during her lifetime

, Family Trust § 17.4 (emphasis

omitted) , she and Daniel were compelled to subsidize Christopher’s business

during its entire existence. Christopher also did not act to protect his

remainder interest in the APT that would have afforded him the opportunity

to inherit the Property following Susan’s death. Without an established viable

business in place, Christopher was destined to rely on Susan’s continuing

subsidies, which she was under no obligation to provide

.

We therefore concur in the orphans’ court’s finding that Christopher did

“not effectively administer[] the trust bec ause of [his] unfitness, unwillingness

or persistent failures.” 20 Pa.C.S. § 7766(b)(3). However, Section 7766

imposes three additional requirements before removal may be ordered; the

court must additionally find that (1) “removal of the trustee best ser ves the

interests of the beneficiaries of the trust”; (2) removal “is not inconsistent

with a material purpose of the trust”; and (3) “a suitable cotrustee or

successor trustee is available.” 20 Pa.C.S. § 7766(b); Taylor , 164 A.3d at

1157. Here, the orph ans’ court made findings that the first two requirements

were met, see Opinion and Order, 9/27/19, at 4

- 5 , and we agree that his

removal serves the interests of the beneficiaries based upon Christopher’s

track record of administering the trust and that his removal was not

inconsistent with a material purpose of the trust.J

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- 22

-

However, the orphans’ court did not make a finding that “a suitable []

successor trustee is available” to replace Christopher. 20 Pa.C.S. § 7766(b).

As discussed above, although Susan attempted to name Cory, her other son,

as the APT trustee in 2013, this appointment was without legal effect.

Furthermore

, in the order and opinions under review, the orphans’ court did

not address whether Cory could adequately serve as Christopher’s

repl acement. Therefore, we are constrained to vacate the orphans’ court

order to the extent it remov ed Christopher as trustee of the APT. We remand

for the lower court to make a finding whether “a suitable [] successor trustee

is available,” id. ; if the cour t determines that there is a suitable successor,

then the court may order Christopher’s removal and name the successor

trustee.

We now turn to Christopher’s remaining appellate issues, in which he

challenges the modification of the APT to permit the sale of the Property and

the return of a portion of the proceeds of the sale to Susa n . Christopher first

argues that modification was improper under Section 7740.2(a) of the UTA, 6

_________________ __________ ______ ____ _______

6 Christopher also argu es that the orphans’ court violated Section 7740.1 of

the UTA because his interest as a nonconsenting beneficiary was not

“ adequately protected

. ” See 20 Pa.C.S. § 7740.1(d) (2) . We disagree. The

structure of the UTA , as well as the language of the relate d commentary

, make

clear that Section 7740.2

— the orphans’ court’s stated grounds for

modification

— and Section 7740.1 are among several alternate , independent grounds for modification or termination of a trust. See generally 20 Pa.C.S. §§ 7740.1

- 7740.6; se e also 20 Pa.C.S. § 7740(b) (listing available statutory remedies for modification or termination) ; 20 Pa.C.S. § 7740.1, Uniform Law

Comment (distinguishing grounds for termination or modification under
(Footnote Continued Next Page)J

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- 23

-

n oting that Susan and Daniel’s “primary purpose and intent” in creating the

AP T was “ to reasonably avoid preventable governmental ‘ spend

- downs ’ of

Settlors ’ estate otherwise charged for services the Settlors may qualify to

receive through state

- and

- federal

- partnered Medicaid entitlement

program(s) [.]” Family Trust § 17.1 (emphasis omitted). Christopher asserts

that , by allowing Susan to regain access to Property placed into the APT, she

would be potentially forced to spend down those assets to become eligible for

Medicaid Long

- Term Care benefits or that she would be r endered temporarily

ineligible for benefits based upon a less

- than

- fair

- market value transfer within

the program’s 60

- month look

- back period

. 7 Christopher further argues that

the order ed return of $278,213.71 from the proceeds of the sale of the

Property was in error as it directly contradicted the asset

- protection purpose

_________________ __________ ______ ____ _______

Section 7740.1 from Section 7740.2 and other sections) . Nothing in the language of any of the relevant UTA provisions, or related caselaw, indicates that a court proceeding with modification u nder Section 7740.2 must also comply with the requirements of Section 7740.1.

7 See 55 Pa. Code § 178.104a ( establishing look

- back period pursuant to the federal Social Security Act ) ; Brenckman v. Department of Human

Services , 222 A.3d 38, 43 (Pa. Cmwlth. 2019) ( w hen an applicant has transferred or disposed of assets for less than fair market value during the

look

- back period, they will be “disqualified from receiving [Medicaid] for a period equal to the number of months of average nursing home care that th e transferred assets could have purchased” ) (citation omitted) ; Schell v. Department of Public Welfare , 80 A.3d 844, 848

- 5 2 (Pa. Cmwlth. 2013) (stating that, to establish Medicaid Long

- Term Care eligibility, applicant’s

resources must fall under certain th reshold and further that asset in trust can

constitute a countable recourse in certain circumstances )

.J

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- 24

-

of the trust and that it disregarded his vested beneficial interest in the

Property

. 8

Under Section 7740.2 of the UTA, a court is authorize d to modify a

noncharitable irrevocable trust based upon unanticipated circumstances:

The court may modify the administrative or dispositive provisions of a noncharitable irrevocable trust, make an allowance from the principal of the trust or terminate the trust if, because of circumstances that apparently were not anticipated by the settlor, modification, allowance or termination will further the purposes of the trust. To the extent practicable, the modification or allowance shall approximate the settlor’ s probable intention.

20 Pa.C.S. § 7740.2(a). The comment to the statute provides that courts are

authorized to “apply equitable deviation” to modify “inopportune details to

effectuate better the settlor’s broader purposes” and that unanticipated

circumst ances that will support modification may include the “failure [of the

settlor] to anticipate economic change.” 20 Pa.C.S. § 7740.2, Uniform Law

Comment. “ While it is necessary that there be circumstances not anticipated

by the settlor before the court ma y grant relief [] , the circumstances may

have been in existence when the trust was created. ” Id. Moreover, we note

_________________ __________ ______ ____ _______

8 Christopher also argues that the orphans’ court did not have authority to

order the return of $278,213.71 as a remedy for his breach of trust under

Section 7781 of the UTA

. See 20 Pa.C.S. § 7781( b ) (listing remedies that a court may order f or a trustee’s breach of trust). However, the lower court did

not cite Section 7781, nor did it base its decision o n a b reach of trust by Christopher ; instead, the court relied on its authority to modify the trust under

Section 7740.2 and directed that the sum be paid to Susan as
“reimbursement” for the mortgage and other expenses on the property

. Opinion and Order, 9/27/1 9, at 5.J

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- 25

-

that the court’s ability to modify a trust under Section 7740.2 is broader than

under prior Pennsylvania law, which required “ a finding tha t the settlor ’ s

original purpose ‘ cannot be carried out or is impractical of fulfillment .’” 20

Pa.C.S. § 7740.2, Joint State Government Commission’s Comment to UTA

(quoting 20 Pa.C.S. § 6102 (repealed)); 1 Pa.C.S. § 1939 (drafting

commission’s comments ma y be consulted in construction of statute).

The orphans’ court determined that modification of the APT to permit

the sale of the Property was appropriate under Section 7740.2(a), because

the settlors could not have anticipated the fact that the Property would not

generate income or even be self

- sustaining. Rule 1925(a) Opinion, 12/30/21,

at 3

- 4. The court found that Christopher’s actions of “not making a payment

toward the mortgage, taxes, or insurance [of the Property ], all of which were

required as pa rt of the lease agreement that [Christopher] signed” frustrated

the primary asset

- protection purpose of the APT. Id. at 3. As the court

explained, if the Property “were to remain part of the trust, it will be more

likely that it will succumb to a tax sal e than become property of [Christopher

as remainder beneficiary ] due to [ his ] failure to make the required payments.”

Id. The court found that “the only reason the [ Property ] has not been

foreclosed upon . . . is due to [Susan] paying the balance of the mortgage.”

Id. at 4.

In addition, the orphans’ court found that Christopher’s actions

frustrated the second purpose of the APT to provide Susan, as the surviving

settlor, with the net income from the APT assets during her lifetime. Id. at 3.J

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- 26

-

The court found that Christopher’s actions led to the trust producing no

income

— and therefore no distributions to Susan

— and further opined that , if

the Property remained in the trust, any revenue generated from the farm

would only be spent on upkeep rather tha n providing income to Susan. Id.

at 3

- 4. Finally, “ based upon the fact that the entire mortgage was paid by

[Susan]

, when [ it ] should have been paid from income from [Christopher’s]

Horse Farm

. . . and said payments were only made in an attempt to save the”

Property , the court determined that Susan “must be reimbursed from [the

ordered] sale [of the Property ] in the amount she paid.” Id. at 4.

We find no abuse of discretion in the orphans’ court modification of the

APT to permit the sale of the Property and the reimbursement of $278,213.71

from the sale to Susan

. T he “circumstances . . . not anticipated by the

settlor[s]

, ” 20 Pa.C.S. § 7740.2(a), that permit modification in this case a re

the fact that the Property did not bec o me self

- supporting under Christopher’s

management

. As explained above, Christopher never paid rent on the

Property when it was subject to a lease, nor did he ever contribute to the

payment of the mortgage, real estate taxes, or insurance after the Property

b ecame an APT asset. The business was reliant on loans to stay afloat,

including more than $230,000 from Daniel

. Moreover, there was no testimony

at the hearing that the horse boarding business w as on a path to solvency

,

nor was evidence offered that any other bus iness could be operated on the

Property that would allow it to be self

- sufficient. Therefore, the Property was

to remain a financial drain for Susan for however long Christopher remainedJ

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- 27

-

on the Property and continued to do so after he vacated. 9 While Daniel and

Susan were aware when they created the APT that they would need to support

Christopher in establishing his business, they could not have been aware how

extensive and how open

- ended that financial backing would have to be. See

20 Pa.C.S. § 7740.2, Uniform Law Comment (stating that while the

circumstances that support modification must be unanticipated, they may

have been in existence when the trust was created).

In addition, the record supports the court’s finding that Susan’s use of

the proceeds from Daniel’s life insurance policy was made for the purpose of

preventing foreclosure on the Property

. See Rule 1925(a) Opinion, 12/30/21,

at 4; N.T., 7/13/17, at 174, 176. While the court acknowledged evidence

showing that the policy was taken out with the intention to pay off the balance

of the mortgage when Daniel died, the court observed that Susan’s testimony

established that it was only necessary for her to use those funds

— which were

paid to her individually, rath er than into the trust

— based upon Christopher’s

inability to turn his business into one that could at least cover the mortgage

payments after he had filled the barn with horses. See Rule 1925(a) Opinion,

12/30/21, at 4; N.T., 7/13/17, at 176, 183

- 84, 186.

_________________ __________ ______ ____ _______

9 Susan testified at the 2017 hearing that she had continued to pay the insurance and taxes on the property , as well as for necessary repairs, such as a new furnace, since Christopher vacated the property. N.T., 7/13/17, at 181. Furthermore, at a 2019 oral argument, Susan’s attorney represented that she

had been continu ing to pay the insurance and taxes from her personal funds. N.T., 6/4/19, at 10.J

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- 28

-

Furthermore, the modification “will further the purpose s of the” APT. 20

Pa.C.S. § 7740.2(a). While Christopher correctly identifies the design of the

APT to shield the settlors’ assets from potential Medicaid spend

- down

, the APT

also served the purpo se of transferring the Property from the settlors to

Christopher and “preserv [ing] the principal assigned [in the APT and] vesting

the same to the intended remainderman benefic i ar[y]

. ” Family Trust § 17.1

(emphasis omitted). Due to mismanagement, the Property has been and

continues to be reliant on Susan ’s financial support , which she is under no

obligation to provide

. Permitting the sale of the Property would “pre serve the

principal ” of the APT

, id.

, and would allow Christopher, as the remainderman,

to derive some benefit from the Property rather than allowing it to “succumb

to a tax sale.” Rule 1925(a) Opinion, 12/30/21, at 3

. Moreover, w hile the

reimbursement of $278,213.71 from the Property ’s sale does run counter to

the APT’s purpose of shieldin g the settlors’ assets from Medicaid as the funds

would be a n available resource for Susan and subject to a potential spend

down before she would be eligible f or Medicaid benefits

, 10 th e reimbursement

only replace d funds Susan w ould have otherwise retained had Christopher

administered the Property such that the mortgage did not need to be paid off

.

_________________ __________ ______ ____ _______

10 See Schell , 80 A.3d at 848 (discussing the resource limit that cannot be exceeded when applying for Medicaid Long

- Term Care benefits) . It does not appear that the return of funds from the sale to Susan would trigger the 60

- month look

- back period under the Medicaid program as it wo uld not involve a

less

- than

- fair

- market

- value transfer by Susan.J

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- 22

- 29

-

Accordingly, we affirm the orphans’ court’s September 27, 2019 order

to the extent it modifies the APT to allow for the sale of the Property and the

reimbursement of $278,213.71 to Susan. Furthermore, as discussed above,

we vacate the removal of Christopher as trustee and remand for consideration

of whether there exists a suitable successor trustee and , if the court answers

that quest ion in the affirmative, to authorize Christopher’s removal and

appoint his replacement.

Order affirmed in part and vacated in part. Case remanded. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/2023