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HomeMy WebLinkAbout07-20-09Ralph A. Jacobs, Esquire Attorney ID No. 21387 Jacobs & Singer LLC 1515 Market St., Suite 705 Philadelphia, PA 19102 215-789-3110 IN RE: ESTATE OF ROBERT M. MUMMA, Deceased C7 CO ~" ° r-, C~.~ ~ ~FZ n ~-- C ~ T'i ~ ,a ~~.7 ?~ r-- r ~,,~~ Counsel for Respon~e~ ~ _. _ -; Barbara Mann Mum~Fia rv ~ ;, ~.- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION NO.21-86-398 MOTION OF BARBARA M. MUMMA FOR LEAVE TO CALL EXPERT WITNESSES TO TESTIFY AT AUDITOR'S HEARING Barbara M. Mumma, Respondent, by her undersigned counsel, hereby moves for leave to call expert witnesses at the Auditor's hearing in this matter, and in support thereof states as follows: 1. This is an estate audit proceeding concerning objections to Accounts filed by the Executors. 2. Among the issues that are the subject of Movant's Objections is the overfunding of the Marital Trust by virtue of the overvaluation of the family business of which Decedent was the majority shareholder. 3. In view of testimony that has been elicited to date, and in view of the colloquy with the auditor concerning the need for expert testimony (Transcript of Auditor's Hearing, p. 539 - 550) it is Movant's desire to present expert testimony that it is believed would be helpful to the Auditor and the Court. 4. The expert witnesses Movant wishes to call are the following: a. Allen Haar, CPA (and/or another accountant) who, it is anticipated, would testify that the marital trust was overfunded and that the assets selected for funding that trust were inappropriate. It is anticipated that the basis for his opinion will be the terms of Decedent's will which directed that the value of the Marital Trust was to be calculated based on the value gross estate accepted by the IRS; the appropriate process of valuing assets based on the fair market value as of the date of transfer; the value actually used by the executors in funding the trust and errors in relying on said value; the actual fair market value as calculated by appropriate methods; the contemporaneous evidence which showed that the executors and their professional advisors knew of the overvaluation at or about the time it was reported in the filed Audit; the calculation of damages from overfunding based on the Residual Trust's entitlement to the excess assets and their appreciation but not income from date of contribution to the Marital Trust. He will also testify about the inappropriate selection of assets to contribute to the Marital Trust and the adverse estate consequences that will ultimately result from that selection. b. Robert Williams, Esquire, (and/or another attorney) who, it is anticipated, would testify to the following: that the manner in which the executors administered the estate led to unnecessary conflict and missed opportunities at dispute resolution 2 which delayed and interfered with the administration of the estate. It is anticipated that the expert witness will opine based on his extensive experience in the field of trusts and estates, regarding the obligation of fiduciaries to administer an estate in a reasonable manner and in the interest of beneficiaries; the impact on estate administration of disputes of the sort that have occurred in the administration of this estate; examples of actions which exacerbated disputes; the failure of the executors to attempt reasonable means of dispute resolution, with examples of dispute resolution approaches which could have been utilized; the role of the executors' professional advisors; the failure of the executors' conduct to meet their obligations even considering the discretion fiduciaries are afforded; and appropriate remedies. It is anticipated that he will also testify about the lack of transparency in this estate, giving examples of the failures of the executors and the professional advisors to provide beneficiaries with clear and meaningful information 5. Movant had not identified any expert witnesses prior to the deadline provide by this Court's scheduling order for identifying experts and serving expert reports. However, as these proceedings continued, it became apparent to Movant that expert testimony would be important, and counsel for Movant informed all counsel and parties informally of Movant's intention to call expert witnesses. Counsel for the Executors has indicated that the Executors would not consent to the calling of experts not previously designated and, accordingly, this motion is necessary. 6. Respondent is still working with the experts to finalize the scope of their testimony and to provide expert reports. 3 7. Respondent has been delayed in this effort by financial constraints as well as by her consideration of retaining new counsel. 8. Nonetheless, permitting respondent to call expert witnesses will not delay the completion of these hearings. There are currently hearing dates scheduled for August 3, 4, 5 and 6 and October 13, 14, 15 and 16, 2009. [Counsel for the Executors has indicated that the October dates may pose a conflict for one of his clients, so there may be an adjustment of those dates]. Movant will provide expert reports or responses to expert interrogatories at least 60 days prior to the October hearings when she anticipates calling these witnesses. It is anticipated that the total hearing time necessary for the testimony of these witnesses, including cross-examination, would be less than one full hearing day. Accordingly, this would not interfere with the expeditious conclusion of these proceedings. WHEREFORE, Respondent respectfully requests that the Motion should be granted. ectfully subm' ed, Ralph A. J cobs, Esquire Attorney ID No. 21387 Jacobs & Singer LLC 1515 Market St., Suite 705 Philadelphia, PA 19102 215-789-3110 Counsel for Respondent, Barbara Mann Mumma Dated: July 17, 2009 4 CERTIFICATE OF SERVICE I, Ralph A. Jacobs, hereby certify that I caused a copy of the foregoing Motion of Barbara Mann Mumma For Leave To Call Expert Witnesses At Auditor's Hearing to be served via United States First Class mail upon the following on this 17th day of July 2009: George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto, P.C. Ten East High Street Carlisle, Pennsylvania 17013-3015 Brady L. Green, Esquire Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103-2921 Robert M. Mumma, II, pro se 840 Market Street Suite 164 Lemoyne, PA 17043