HomeMy WebLinkAbout03-05-09 (2)Ronald L. Finck, Esquire
Sup. Ct. I.D. #89985
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
rlftnck@mette.com
IN RE:
WILLIAM I. EVANS WILL
DANNY B. EVANS,
Petitioner
v.
IRMA DAVENPORT,
Respondent
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ORPHANS' COURT NO. ~2I (1~- V ~ _I
ESTATE NO. 21-08-979
JURY TRIAL DEMANDED
PETITION FOR CITATION SUR APPEAL
FROM DECREE OF PROBATE
The Petitioner, Danny B. Evans ("Petitioner") hereby Petitions this Orphans' Court, to
issue a Citation directed to Irma Davenport ("Respondent"), to show cause why the Appeal from
Decree of the Register of Wills dated October 1, 2008 admitting to probate a certain writing
dated April 14, 2006 as the Last Will and Testament of William I. Evans, deceased
("Decedent"), should not be sustained and the Decree of the Register of Wills of Cumberland
~~~
County, Pennsylvania, dated October 1, 2008, be opened to permit the Register to receive and act
upon a Petition for Probate of an earlier writing dated August 2, 2005, as the Last Will and
Testament of the Decedent, or alternatively that the Decedent's Estate pass under the
Pennsylvania Laws of Intestacy, and in support thereof avers as follows:
PARTIES
The Decedent died on September 26, 2008 a resident of Cumberland County,
Pennsylvania.
2. The Petitioner is an adult individual with a principal address at 4739 Tanner
Town Road, Brodnax, VA 23920.
3. The Petitioner is the natural son of the Decedent.
The Decedent had no other children who survived him.
5. The Respondent is an adult individual with a principal address at 14044 Glebe
Road, Dewitt, VA 23840.
6. The Respondent is the natural sister of the Decedent, the sole beneficiary of the
Decedent's estate, and the executrix of the Decedent's estate pursuant to the Decree of Probate
of the Cumberland County Register of Wills dated October 1, 2008.
The Respondent and the Petitioner are the sole parties of interest in this matter.
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JURISDICTION
8. Jurisdiction is appropriate in this Court pursuant to 20 Pa. C.S. §§71 I (1) and
711(18).
BACKGROUND
9. The Decedent was born October 18, 1934 in South Hill, Mecklenburg County,
Virginia.
10. The Decedent remained in Virginia until 1972 when he married his third wife,
Giesla Evans ("Giesla"), and relocated to Carlisle, Cumberland County, Pennsylvania.
11. The majority of the Decedent's extended family, including the Respondent,
remained in Virginia.
12. The Petitioner also remained in Virginia during the relevant time period.
13. Despite the distance between them, the Petitioner maintained active involvement
in the Decedent's life and continued a close relationship with the Decedent.
14. The Petitioner would frequently visit with the Decedent and Giesla at their home
and would host the Decedent at his own home during his frequent trips to Virginia.
15. Beginning in the late 1990's, the Petitioner became aware that the Decedent and
Giesla were having mazital problems.
16. During this time period, the Petitioner noticed that the Decedent was exhibiting
strange behavior.
17. The Petitioner attributed the Decedent and Giesla marital problems to the
Decedent's increasingly bizarre behavior and need to control Giesla.
18. In 2000, Gies]a filed for a divorce from the Decedent.
19. Giesla's demand for a divorce shocked and greatly dismayed the Decedent.
20. The Petitioner observed the Decedent's behavior become even more bizarre after
the announcement of the Decedent's separation from Giesla.
21. In connection with the equitable distribution of the Decedent and Giesla's marital
estate upon their divorce, the Decedent was forced to transfer roughly one-half (1/2) of the
marital assets to Giesla.
22. After the Decedent's divorce from Giesla; the Decedent was extremely agitated,
hostile, and seemed to become obsessed with Giesla and the divorce.
23. The Decedent was observed by the Petitioner to act irrationally whenever he
spoke about the divorce or Giesla, which dominated the majority of the Decedent's
discussions with anyone who would listen.
24. The Petitioner observed the Decedent become paranoid about Giesla trying to
"steal" assets from him even after the equitable distribution proceedings were settled.
25. The Decedent informed the Petitioner on several occasions that he was going to
have a will made naming the Petitioner as his sole beneficiary in order to prevent Giesla from
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inheriting assets from the Decedent after he died; though they had been divorced for nearly
five years.
26. At times, the Decedent informed the Petitioner that Giesla had stolen various
items from the Decedent's home. In reality, some of the items the Decedent accused Giesla of
taking were still at the Decedent's home. Other items the Decedent believed Giesla had stolen
from him were things the Decedent never owned.
27. There were times when the Decedent refused to leave his home because he was
afraid that Giesla would "come again" and steal from him.
28. In fact, the Decedent informed that Petitioner that he was keeping a gun and
ammunition on the kitchen table so that he could shoot Giesla if she ever came to his house.
29. In addition to his irrationality regarding Giesla, the Petitioner observed the
Decedent to frequently babble nonsensically and tell the same stories repeatedly within
minutes of each other.
30. The Decedent was also observed to become forgetful and confused easily.
3l . Other family members expressed concern to the Petitioner about the Decedent's
deteriorating mental state.
32. The Petitioner attempted to get the Decedent to see a doctor about his condition,
but the Decedent would ignore the Petitioner or change the subject.
33. In addition to losing his grip on reality, the Decedent suffered from extremely
high cholesterol for much of his adult life. It is believed that the Decedent's poor physical
health aggravated his delicate mental state.
34. The Petitioner observed the Decedent to become increasingly more irrational and
confused in the years immediately preceding the Decedent's death.
35. On August 2, 2005, the Decedent executed a Last Will and Testament naming the
Petitioner as his only beneficiary.
36. The Respondent was aware of the Decedent's mental state as it was frequently a
topic of concern and discussion amongst the Decedent's extended family.
37. Shortly after the Decedent's execution of the August 2, 2005 Will, the
Respondent expressed an interest in learning about the Decedent's financial situation and daily
affairs. Prior to this time, the Respondent had little to do with the Decedent.
38. The Respondent would frequently ask the Petitioner about the state of the
Decedent's finances.
39. Shortly after August of 2005, the Respondent asked the Petitioner whether the
Decedent had a will. The Petitioner informed the Respondent that the Decedent had executed
the August 2, 2005 Last Will and Testament naming the Petitioner as the Decedent's sole
beneficiary.
40. Thereafter, the Respondent used the Decedent's volatile mental state to develop
more of a relationship with the Decedent.
41. The Petitioner's relationship with the Decedent started to wane once the
Respondent became involved in the Decedent's life.
42. Toward the end of the Decedent's lifetime, the Respondent would frequently
borrow money from the Decedent.
43. Moreover, during this period, the Respondent would visit the Decedent at his
home. She previously rarely made trips from Virginia to Pennsylvania or otherwise visited
with the Decedent.
44. During this time-period, the Decedent expressed anger to various family members
about several real estate transactions involving the Decedent and/or the Petitioner.
45. The Decedent had apparently forgotten that he purchased a piece of Virginia real
estate and put it in the Petitioner's name. The Decedent seemed to think that the Petitioner
had somehow stolen the property.
46. It is believed and therefore averred that the Respondent cultivated delusional
beliefs about this land transaction in order to turn the Decedent against the Petitioner.
47. On Apri] 14, 2006, unbeknownst to the Petitioner, the Decedent executed a new
Will through his attorney, Jane Adams, Esquire (the "2006 Will").
48. The 2006 Will leaves the entirety of the Decedent's estate to the Respondent.
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49. It is believed and therefore averred that the Decedent executed a Power of
Attorney in favor of the Respondent at some point after August of 2005.
50. The Decedent died on September 26, 2008, a resident of Cumberland County,
Pennsylvania.
PROCEDURAL HISTORY
51. On October 1, 2008, the Register of Wills, in and for Cumberland County,
Pennsylvania ("Register") admitted the 2006 Will to probate as the Last Will and Testament of
the Decedent and granted Letters Testamentary to the Respondent. A copy of the Register's
Decree, which Petitioner seeks to set aside, is attached hereto as Exhibit "A" and made a part
hereof by reference.
52. Concurrently with the filing of this Petition, the Petitioner is filing an Appeal
from the Register's Decree. A true and correct copy of the Appeal is attached hereto as
Exhibit "B" and made a part hereof by reference.
COUNT I -LACK OF TESTAMENTARY CAPACITY
53. The averments of pazagraphs 1 through 52 above are incorporated herein by
reference as if fully set forth.
54. At the time the 2006 Will was executed, the Decedent was 73 years old.
55. Though he was never adjudicated as incapacitated, in the years immediately
preceding his death, the Decedent exhibited signs of severe mental illness.
56. After the Decedent's death, an autopsy confirmed that the Decedent suffered 'from
severe neural damage consistent with dementia.
57. As a result of his impaired mental condition, the Decedent lacked intelligent
knowledge of his true desires regarding the composition of his estate, the natural objects of his
bounty, and how he desired for his estate to pass at his death, when he executed the 2006 Will.
COUNT II -UNDUE INFLUENCE
58. The averments of paragraphs 1 through 57 above are incorporated herein by
reference as if fully set forth.
59. The Respondent developed a confidential relationship with the Decedent while
the Decedent was in a mentally weakened state.
60. As the sister of Decedent and the Attorney-in-Fact for Decedent, a confidential
relationship, per se, existed between Decedent and Respondent.
61. The Respondent exercised power and control over Decedent which steadily
increased in the year immediately prior to the execution of the Decedent's 2006 Will and
continued until the Decedent's death.
62. Decedent trusted the Respondent and depended on the Respondent for the
management of his personal affairs.
63. The Respondent actively limited the Petitioner and the Petitioner's family from
contact with the Decedent.
64. As a result of the 2006 Will, Respondent's share of the Decedent's estate greatly
increased from that which she would have otherwise received.
65. In fact, but for the 2006 Will, the Respondent would not have inherited anything
from the Decedent.
66. It is believed and therefore averred that the Decedent's 2006 Will was the result
of undue influence exercised upon the Decedent by the Respondent.
WHEREFORE, Petitioner respectfully requests that this Honorable Court award a
citation pursuant to the provisions of §764 of the Pennsylvania Probate, Estates and Fiduciaries
Code, 20 Pa. C.S. §3754, to the Respondent to show cause why the said Appeal should not be
sustained and the Decree of the Register dated October 1, 2008 set aside, and an issue be directed
to try by a jury the following question of fact:
Whether or not at the time of execution of the 2006 Will, the Decedent was a
person of sound mind?
2. Whether or not the said 2005 Will was procured by undue influence practiced
upon the Decedent by the Respondent?
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METTE, EVANS & WOODSIDE
Ronald L. Finck, Esquire
Sup. Ct. I.D. #89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 1 71 1 0-0950
(717)232-5000
Attorneys for Danny B. Evans
Dated: March 4, 2009
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VERIFICATION
I, DANNY B. EVANS, have read the foregoing document and verify that the facts set
forth therein are true and correct to the best of my knowledge, information and belief. To the
extent that the foregoing document and/or its language is that of counsel, I have relied upon
counsel in making this Verification.
I understand that any false statements made herein are subject to the provisions of 18 Pa.
C.S.A. §4904 relating to unswom falsification to authorities.
DATED: ~ ~~ r? j ~~-
-~~-.
DA B. EVANS
~'ETITI~N F®Id PIt~I3ATE ~~a~ ~I~ANT ~I; I,ETTEIIS
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Estate aJ l t 1 }r'!~ ~, '
also known as _ To:
--~ Register of Wills for the II
-- Deceased. County of ('t.~ v'~~~~'rle+.~~ in the
Social Security No. _ a;',~ -'3 {- -~ t(t_ ~ 1 ;-•~ Commonwealth of Pennsylvania
The petition of the undersigned respectfully represents that:
Your petitioner(s), who is/are 18 years of age or older an the executt`~t X
in the last will of the above decedent, dated _~~ _ n~~ ( ;
and codicil(s) dated _ 4-
(state relevant circumstances, e.g. renulInciationl, death oC executor, etc.)
Decendent was domiciled at death in ~4V\4~f v' 1 G~,v~~.A County, Pennsylvania, with
its ~ last family or principal residence at 1 7 i~1 Vv . Ht ,.,, (a ~ ~ v r
f car'\iilr~~4~Va I1;~1~
-7 (list street, number and muncipalityj
Decendent, then ~ 7 years of age, died _ ~ t' P 4K-s.~~1;" ~, 7` ~,~
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Except as follows, decedent did not marry, was not divorced and did not have a child born or adopted
after execution of the will offered for probate; was not the victim of a killing and was never adjudicated
incompetent:
Decendent at death owned property with estimated values as fallows:
(If domiciled in Pa.) All persona] property $ ~~~ i~ ti~
(If not domiciled in Pa.) Personal property in Pennsylvania $
(If not domiciled in Pa.) Personal property in County $ ,
Value of real estate in Pennsylvania $ '1tJ t~,"> {.1
situated as follows:
WHEREFORE, petitioner(s) respectfully request(s) the probate of the last will and codicil(s)
presented herewith and the grant of letters~J .1 c',
therC-n (testamentary; adminisf . tion al.a.; administration d.b.n.c. t.a.)
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®A'I'~I ®~' PE[ZSONAi, I2EPIZESENTATIVE ~~- ..a
~,®t~,Ibt~NV6'FALT,~3 ®a PENNSYLVANIA 1
~t;~JiJN, Y ®iF 1 i'~'1 ~~Er l C~ ,~~~_ ~ ss
The petitioner(s) above-named swear(s) or affirm(s) that the statements in the foregoing petition are
lllne and carrect to the best of the knowledge and belief of petitioner(s) and that as personal represen-
tativ..(s) of the above decedent petitioner(s) will well and truly administer the estate according to law.
Sworn to or affirms- and subscribed >>ti ~ x..~'l~t~
uef ;e me this 1='I day of
r~'91N71 Ol-~ ~
l Register
Estate of \,~'~, A1~«~7~ ~_~ ~~~n,~5 ,Deceased
DEGREE OF PROBATE AND GRANT OF LETTERS
AND NOW _ ~~ ~~ll~ i C,~ Y~jC~t~S-~'
`~'- ~9Z~='~~, in consideration of the petition on
the reverse side hereof, satisfactory proof having been presented before me,
IT IS DECREED that the instrument(s) dated \ i 7r ~ ~ I ~F i ~ 0 C~ v
described therein be admitted to probate and filed of record as the last will of
and Letters l N ~~1'arv ~ _~ ~~FsY ~
are hereby granted to ~ ~ r~ci i
FEES
Probate, Letters, Etc.......... $ ` 1 L r_~
Short Certificates(1~) . , , , .. , . , $ ~ ~
Renunciation ................ $
~~~ u $ 1'T
TOTAL _~$ i5o'.._
Filed ..................
..............
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Register of Wills~6~..~~t~.i," ~~ ~ ~~
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ADDRESS
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PHONE
~.a~t viii att~ ~Ge~tamettt of
~iCtiant ,31. ~battg
I, WILLIAM I. EVANS, of Carlisle, Cumberland County, Pennsylvania, being of sound
and disposing mind, memory, and understanding, hereby declare this instrument to be my Last
Will and Testament, revoking any and all Wills by me heretofore made.
ITEM ONE: I direct my hereinafter named Executors to pay all my just debts, funeral
expenses and administration expenses, including inheritance taxes, as soon as may be convenient
after my decease.
ITEM TWO: I give all the rest, residue and remainder of my Estate, real, personal, or
mixed, of whatsoever nature and wheresoever situate, unto my sister, IRMA DAVENPORT, of
Dewitt, Virginia, or her issue per stirpes. I have intentionally not included my son, DANNY B.
EVANS in this, my last Will and Testament.
ITEM FOUR: I hereby nominate, constitute, and appoint my sister, IRMA
DAVENPORT, as Executor of this, my Last Will and Testament. If IRMA DAVENPORT is
unable, unwilling, or refuses to act, then I appoint MARIE E. JOHNSTIN, of South Hill,
Virginia, as executor of this, my Last Will and Testament.
ITEM FIVE: I direct that my Executor or Co-Executrices, shall not be required to give
bond for the faithful performance of their duties in this or any other jurisdiction.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this this, my Last Will
and Testament, consisting of ~ typewritten page(s), bearing my signature,
this ~r,Il~~, day of 1 ~; ~ " ~ A.D. 2006.
~lTk/~_
WILLIAM 1. EVANS" ']estator '~i
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ACKNOWLEDGEMENT
COMMON\\'F,ALTIi OF PENNSYLVANIA
COLTIv'T\ "3ERLAND
BOROU! rl OF ~_~.itLISLE
I, WILLIAM I. EVANS, the Testator, whose name is signed to the attached or foregoing
instrument, having been duly qualified according to law, do hereby acknowledge that I signed
and executed the instrument as my Last Will and Testament; that I signed it willingly; and that I
signed it as my free and voluntary act for the purposes therein expressed.
"t. ~ ~/ ;~
WILLIAM I. EVANS, Testator
J~G~
On this, the ~ / day of ~~~"~~,I~, ~ ~,__. , 2006, before me, a Nolary Public, the
undersigned officer, personally appeared WILLIAM I. EVANS, Testator, larown or proven to me
to be the person whose name is subscribed to the within Last Will and Testament, and
acknowled d h
ge tat he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto
set my hand and official seal. --- ,,
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NOTAJRY
~""` "'~ Notarial Seal
Jane Adams, Notary Public
Carlisle Boro, Cumberland Coc
My Commission Expires Sept 6,
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
BOROUGH OF CARLISLE
The foregoing will,,. consisting of ~ typewritten page(s), was,
on the ~\l`~~`~ day of ~~~~ , 2006, signed, sealed, published and declared by the
said testator as and for his/her Last Will and Testament, and it is hereby acknowledged that said
testatrix appeared to be of lawful age and sound mind and memory and there was no evidence of
undue influence. We, at her request and in her presence, have hereunto subscribed our names as
attesting witnesses:
~i t.,
Witness °f L ~. ~ ~ ~ ~ y'~` t ~~4 ~ ~ r ~ ~~ 1 .~ t:~. ~~
Address
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^{~~ t .2x,L-e.~~ ~ C(~r'" ~ of ~ai~ t' ,~>;~;~;1 ~lla'~1~~c' ~i'y'~ ~ ~~3
~, Witness~l'~ 7~ Address ~ ~~~
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On this, the `. ° da of
~ ~ Y , 2006, before me, a Notary Public, the
understgned officer, personally appeared ~'t~I\~ ~-'_ (~Yl~ t t,>~"~ ,and
-~-. 1-11v1~~ 1-+, c ,known or proven to me to bd the person whose name is
subscribed to the within Last Wil] and Testament, and acknowledged that she executed the same
for the purposes U~erein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official
Y PUBLIC
Jm.e h ams~~j~oSeal
Carlisle Eoro, Cumbe anG County
R1y Commiss7on Expires Sept. 6, 2008
Ronald L. Finck, Esquire
Sup. Ct. LD. #89985
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
rlfinck@mette.com
IN RE: BEFORE THE REGISTER OF WILLS OF
WILLIAM I. EVANS WILL CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE NO. 21-08-979
APPEAL FROM DECREE OF REGISTER OF WILLS
TO THE REGISTER OF WILLS OF CUMBERLAND COUNTY:
Danny B. Evans, by and through his counsel, Mette, Evans & Woodside, hereby appeals
to the Orphans' Court Division of the Court of Common Pleas of Cumberland County, from the
decision of the Register of Wills in the above estate admitting to probate a writing dated April
14, 2006, as the will of the Decedent, and granting letters testamentary thereon.
METTE, EVANS & WOODSIDE
Ronald L. Finck, Esquire
Sup. Ct. LD. #89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 1 7 1 1 0-0950
(717)232-5000
Attorneys for Danny B. Evans
Dated: March 4, 2009
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg
Pennsylvania, with first-class postage, prepaid, as follows:
Jane Adams
17 West South Street
Carlisle, PA 17013
METTE, EVANS & WOODSIDE
Ronald L. Finck, Esquire
Sup. Ct. I.D. #89985
3401 North Front Street
P. O. Box 5950
Harrisburg, PA ] 7110-0950
(717) 232-5000 -Phone
Attorneys for Plaintiffs
Dated: March 4, 2009
siozss~i
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg,
Pennsylvania, with first-class postage, prepaid, as follows:
Jane Adams, Esquire
17 West South Street
Carlisle, PA 17013
METTE, EVANS & WOODSIDE
BY~ _S! IuWM~` '~ ~~
Ronald L. Finck, Esquire
Sup. Ct. LD. #89985
3401 North Front Street
P. O. Box 5950
Harrisburg PA 17110-0950
(717) 232-5000 -Phone
Attorneys for Plaintiffs
Dated: March 4, 2009
siozx9~i