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HomeMy WebLinkAbout07-20-09BEFORE THE REGISTER OF WILLS ~o OF CUMBERLAND COUNTY, PENNSYLVANIA ,`~ ~ ~ p ~ N IN RE: LEOTA L. SCHINDLER, DECEASED ~~x o ~ NO.: 605 OF 2009 ~ N ~ PETITIONERS: DAVID M. SCHINDLER and DONALD STEFAN SCHINDLER= RESPONDENT: DANIEL L. SCHINDLER OBJECTION AND ANSWER OF RESPONDENT, DANIEL L. SCHINDLER, PURSUANT TO PA. O.C.R. 3.2(a). TO Respondent, Daniel L. Schindler, by his undersigned counsel, responds to the Petition for Citation to Compel Production of Will (the "Petition") as follows. In accordance with the requirements of Pa. O.C.R. 3.2(a), this response includes an answer admitting or denying the averments of fact in the Petition, as well as a statement of Respondent's objection and the facts on which he relies. By submitting an answer along with his objection as required by Rule 3.2, Respondent does not waive his objection or defenses to the Petition. Ob action The Register and the Court lack subject matter jurisdiction with respect to any issue relating to the probate of the original will in North Carolina because Decedent was domiciled in North Carolina at the time of her death. Respondent submits to the jurisdiction of the Register and the Court solely for the purpose of obtaining ancillary letters testamentary for disposition of Decedent's real property, as set forth below. c - .: 1 ,i -• 7 c -7 1v~ Answer 1. Denied. Leota L. Schindler, the Decedent, died on May 5, 2009. 2. Denied. At the time of her death, the Decedent's principal and permanent residence was at Apartment 385, Lake Point Landing, 333 Thompson Street, Hendersonville, NC 28792. 3. Admitted. 4. Admitted in part and denied in part. It is admitted, upon information and belief, that Decedent executed a will on March 21, 2007 and that a copy of a document purporting to be that will is attached to the Petition. The will is a written document which speaks for itself. Further, any implication that the 2007 will was Decedent's last will is denied. 5. Denied. To the best of Respondent's recollection, he did not discuss Decedent's new will with Petitioner David M. Schindler on or about May 7, 2009; the same is therefore denied. Byway of further response, the only communication that Respondent recalls between himself and Petitioner David M. Schindler concerning the new will occurred on or about June 2, 2009 by a-mail. 6. Denied as stated. Respondent is unable to determine with certainty to what "such" refers in the averment of this paragraph of the Petition, and the averment of this paragraph is therefore denied. By way of further response, to the extent that "such" refers to Decedent's execution of a new will, that occurred on April 28, 2009. 7. Admitted in part and denied in part. It is admitted that at the time of her death, Decedent was seized of various personal property. It is denied that all such property was located in Cumberland County, Pennsylvania. It is denied that any 2 personal property of Decedent transported to North Carolina was transported at Respondent's "insistence." It is denied that any "trek" to North Carolina was undertaken at Respondent's "insistence." It is denied that probate of Decedent's original will is necessary in Cumberland County, Pennsylvania. It is denied that Letters Testamentary, other than ancillary letters, are necessary in Cumberland County, Pennsylvania. To the contrary, Respondent, the named Executor of Decedent's last will, submitted that will for probate on June 24, 2009 in Henderson County, North Carolina, where Decedent resided at the time of her death, and obtained Letters Testamentary in that state. North Carolina, not Pennsylvania, is the proper jurisdiction for administration of Decedent's estate. 8. Admitted in part and denied in part. Respondent is without knowledge of where Decedent kept her will prior to March of 2009. It is admitted that in March, 2009, at Decedent's specific request and direction, Respondent acquired possession of the original March 21, 2007 will from Decedent's safety deposit box. By way of further response, upon information and belief, Petitioner David M. Schindler had removed the key to Decedent's safety deposit box from her home without her knowledge, making it necessary for Respondent, after being given Decedent's power of attorney, to have the safety deposit box drilled open. It is denied that Respondent had "little or no involvement" with Decedent for several years, although it is admitted that Respondent had little involvement with her financial affairs for the reason that Petitioner David M. Schindler was supposed to be caring for Decedent's finances. It is admitted that Respondent, who has resided in North Carolina for the past ten years, became more involved with Decedent's personal affairs when in March 2009 he arrived at the nursing 3 home in Pennsylvania where Decedent had been placed, to find her in fetal position, in a neglected condition physically, weeping and declaring that her other sons, David and Donald (Petitioners) had abandoned her and that she wanted to die. From that moment, Respondent and his wife regularly and consistently attended to the care and comfort of the Decedent, unaided by either of the Petitioners, until her death. 9. Admitted in part and denied in part. It is admitted that Respondent came into possession of Decedent's final will, executed on April 28, 2009. It is denied that Respondent made any oral assertion concerning that will to David M. Schindler on or about May 7, 2009 (see response to paragraph 5 above). It is denied that Respondent has failed or refused to produce Decedent's last will for probate. To the contrary, Respondent has submitted the will for probate in North Carolina, as set forth in paragraph 7 above. To the extent that Petitioners seek production of the original will through the Petition, it is legally and physically impossible for Respondent to comply with that demand, inasmuch as the original will has already been filed in Henderson County, North Carolina. To the extent that Petitioners seek a duly authenticated copy of the will pursuant to 20 Pa. C.S. § 3136, Respondent has been informed that the original will is still being microfilmed and will not be available for purposes of obtaining a duly authenticated copy until on or after July 20, 2009, the due date for filing this response to the Petition. However, it is Respondent's intent to obtain a duly authenticated copy of the will and to produce it to the Register of Wills in Cumberland County, Pennsylvania, promptly after it becomes available. 4 WHEREFORE, Respondent, Daniel L. Schindler requests that the Petition for Citation to Compel Production of Will and the Register of Wills' related Citation be denied and dismissed. Respectfully submitted, McNees Wallace & Nurick LLC BY--~L'~~' ro""`~ Donald B. Kaufman, I.D. o. 49674 Debra P. Fourlas, I.D. No. 62047 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717)232-8000 (717) 237-5300 (Fax) Attorneys for Respondent, Daniel L. Schindler Dated: July I'j , 2009 5 VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I, Daniel L. Schindler, Executor of the Estate of Leota L. Schindler, verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. Y Daniel L. Schin ler, xecutor of the Estate of Leota L. Schindler Dated: July 17, 2009 CERTIFICATE OF SERVICE I certify that on this date I am serving a true and correct copy of the foregoing document upon the persons set forth below, by depositing the copy in the United States mail, first class postage prepaid, addressed as follows: Jordan D. Cunningham, Esquire Marc W. Witzig, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 ~~.~ ~ ~,~ ebra P. Fourlas Counsel for Respondent, Daniel L. Schindler Dated: July ~ ~ , 2009