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HomeMy WebLinkAbout09-28-04 (2) IN RE: : IN THE COURT OF COMMON PLEAS OF · ' CUMBERLAND COUNTY, PENNSYLVANIA ELEANOR U. COOLIDGE : ORPHANS' COURT DIVISION : NO. 21-03-936 PETITIONER'S PRETRIAL MEMORANDUM 1. FACTS AS TO LIABILITY ~.~ '-, ~ Petitioner, Julia Elizabeth Coolidge-Stolz is the youngest of thee (3) cl~dren ~ to Eleanor U. Coolidge, Testatrix. Respondents Phillip Coolidge and Thomas C~-~lidge ~e ~ihe other children. Prior to December 8, 2003 the testamentary plans of Eleanor:~U C~li~ge, testatrix and her previously deceased husband was to treat all three (3) children equally. Testatrix's husband died in 2001. Starting at least as early as April 2002 Testatrix suffered from dementia, a chronic and progressive degenerative brain disease that progressively impaired her cognitive and intellectual functioning. In November 2002 Testatrix was placed in the Green Ridge Village Nursing Home. In December 2002 Testatrix executed a Power of Attorney appointing Thomas Coolidge as her agent. From November 2002 until December 8, 2003 Respondents isolated Testatrix from Petitioner, who lived in Massachusetts. Thomas Coolidge, acting as agent for Testatrix, caused, and by his words and actions encouraged Petitioner to believe that he was altering the testamentary plans of the Testatrix. One or both of respondents removed several valuable items of personalty from Testatrix's home and her house was put up for sale. When Petitioner tried to intervene to make sure that her mother's wishes were being observed by legally challenging the actions of Thomas Coolidge, Thomas Coolidge and/or Philip Coolidge further alienated Petitioner from her mother by telling their mother that Petitioner was accusing her mother of being incompetent. Respondents influenced their mother to become angry with Petitioner and ultimately the Testatrix, on December 8, 2003 executed a new Will which effectively excluded Petitioner from an inheritance from an estate valued at approximately two million ($2,000,000.00) dollars. Due to the chronic and progressive nature of the dementia which afflicted Testatrix, Petitioner has contested the writing of December 8, 2003 on the grounds that Testatrix lacked the testamentary capacity to execute a valid Will on that date. In addition, Petitioner claims that one or both of Respondents took advantage of the weakened intellect of Testatrix and unduly influenced her to revoke her previously existing Will in which Petitioner was an equal beneficiary with Respondents, and execute a new Will which effectively disinherited Petitioner to the benefit or Respondents and their families. II. BASIC FACTS AS TO DAMAGES The estate of the Testatrix is approximately two million ($2,000,000.00) dollars. The Petitioner's damages are equal to the value of said estate which she would have received under the Last Will and Testament existing prior to December 8, 2003. III. PRINCIPLE ISSUES OF LIABILITY AND DAMAGES Liability is based upon the lack of the Testatrix's testamentary capacity as of December 8, 2003 to dispose of her estate by Will. In addition, neither Thomas Coolidge nor Philip Coolidge should benefit as a result of exercising undue influence over the Testatrix with regard to the disposition of her estate during the time when she was obviously suffering from weakened intellect. IV. LEGAL ISSUES REGARDING ADMISSIBILITY OF EVIDENCE Petitioner is not aware of any legal issues regarding admissibility of evidence. The Deadman's Act does not apply to cases involving a challenge to testamentary capacity or an allegation of undue influence. There is an issue with respect to Petitioner's right to a jury trial. The law is clear that the court has the discretion of granting or denying a request for a jury trial. However, the cases indicate that when there are substantial issues concerning whether or not undue influence occurred, a .jury trial is preferable. In the instant case, occurring in Cumberland County, Pennsylvania, which historically has been a relatively small bar with limited members of the bar, the court would be placed in the position of having to judge the credibility of at least one member of the Bar Association with whom the court has had prior dealings. Such a history at least gives rise the appearance of impropriety and would suggest that the factual determinations should be made by .jurors with no past relationship with any of the parties, witnesses or attorneys involved. V. IDENTITY OF WITNESSES Petitioner intends to call the following witnesses: 1. Julia Elizabeth Coolidge-Stolz, Petitioner. 2. Helen Kollas 3. Robert M. Frye, Esquire 4. Thomas W. Coolidge, Respondent 5. Philip W. Coolidge, Respondent 6. Carolyn (last name unknown), Secretary of Robert M. Frye, Esquire 7. James M. Hegarty, M.D. 8. Sandra Shultz, LCSW 9. Bruce H. Price, M.D. 10. As yet unidentified social workers or nurses at Chambersburg Hospital 11. Virginia Schweiker 12. Jeff Stolz 13. (Reserve the right to identify additional witnesses following the completion of discovery) VI. LIST OF EXHIBITS 1. Medical records of Dr. Brazel 2. Medical records o~'Dr. Hegarty 3. Medical records of Dr. Myers 4. Medical records of Chambersburg Hospital 5. Complete records from Green Ridge Village nursing home 6. Radiology records of the testatrix 7. Last Will and Testament of testatrix immediately pre-dating December 8, 2003 8. Will of testatrix dated December 8, 2003 9. Various cards and memos between testatrix and petitioner VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS Petitioner has agreed to cease pursuing any contest to the December 8, 2003 Will if Respondents would agree to distribute the estate in accordance with the Last Will and Testament of the testatrix predating December 8, 2003. Respondents have refused this offer to settle. Respectfully submitted, R. Mark Thomas, Esquire ID# 41301 101 S. Market Street Mechanicsburg, PA 17055 (717) 796-2100 CERTIFICATE OF SERVICE 1, R. Mark Thomas, Esquire, hereby certify that I have served a copy of the within document on the following by fhxing a true and correct copy of the same and depositing a true and correct copy in the U.S. Mail at Mechanicsburg, Pennsylvania, Postage pre-paid, addressed to: James D. Flower, Jr., Esq. 26 West High Street Carlise, PA 17013 Fax: 717-243-6486 Robert M. Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 Fax: 717-243-6441 R. Mark Thomas, Esq.