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HomeMy WebLinkAbout09-10-09ESTATE OF MICHAEL T. GREEN DECEASED BEFORE THE REGISTER OF WILLS OF CUMBERLAND COUNTY, PEN NSYLV~IA n ~© : ~j ~~ ~ NO 21-08-0901 =? ~ ~ --- ~7t,~~"'~ ~ ~ `T] ~ ;gym _ C..~ PETITION FOR CITATION SUR APPEAL ~~~` FROM DECREE OF PROBATE The Petitioner, Kelly D. Green, hereby Petitions this Orphans' Court, to issue a Citation directed to Respondent(s), Mitchell T. Green, Kristen D. Green and Shirley Hertzler, to show cause why the Appeal from Decree of the Register of Wills dated September 10, 2008, admitting to probate a certain writing dated August 1, 2007 as the Last Will and Testament of Michael T. Green deceased, should not be sustained and the Decree of the Register of Wills of Cumberland County, set aside: HISTORY 1. Decedent is Michael T. Green, an adult individual, who died on August 21, 2008 last domiciled at 4048 Seneca Avenue, Camp Hill, PA. 2. Petitioner is Kelly D. Green, an adult individual residing at 3 Hill Street, Mount Holly Springs, PA 17065. 3. Petitioner was married to decedent but they were divorced by the date of Decedent's death. 4. Petitioner and decedent reestablished an intimate relationship after their divorce and lived together for a period of time in 2006. 5. On or about September 10, 2008, the Register of Wills of Cumberland County probated an instrument dated August 1, 2007 (attached as Exhibit A). 6. Exhibit A is the alleged last will and testament of the decedent. .~ ~-~ ~.~~ ;~r-~. f._; r_: ~, C~~ S+ -- ~ r ~~:3 i::: ~ - "> :--, "' _' ,t y ~f", 7. Exhibit A has hand written changes on it, alleged to have happened on December 15, 2007. 8. There is no indication that the hand written changes were witnessed. 9. Other parties of interest include: a. Mitchell T. Green, an adult individual believed to be living at Meadow Road, Newville, PA and son of decedent. b. Kristen D. Green, an adult individual living at 4048 Seneca Avenue, Camp Hill, PA and daughter of decedent. c. Shirley J. Hertzler, an adult individual living at 256 Redwood Lane, Country Manor Trailer Park, Carlisle, PA and mother of decedent and Trustee. 10. This Petition is an appeal from the Decree of the Register of Wills dated September 10, 200$ (attached as Exhibit B). 11. Petitioner is a beneficiary under the Will which was changed and therefore has standing to contest the Will which was probated. 12. This Petition is brought within a year of that Decree and is therefore timely. I. LACK OF TESTAMENTARY CAPACITY 13. Previous paragraphs are incorporated herein by reference. 14. Decedent/Testator allegedly made handwritten changes to his last will and testament. 15. If Decedent did in fact make those changes he lacked sound mind in doing so. 16. Decedent was diagnosed with cancer approximately one year before his death. 17. The handwritten changes are alleged to be made in December 2007. 18. The handwritten changes were not witnessed. 19. Decedent/Testator lacked a sound mind because of his sickness to make such changes. WHEREFORE, Petitioner respectfully requests the Decree of the Register of Wills dated September 10, 2008 be set aside. II. FORGERY 20. Previous paragraphs are incorporated herein by reference. 21. It is alleged that Decedent made handwritten changes to his last will and testament. 22. No person witnessed the changes made to the will. 23. The handwritten changes were not made by decedent. 24. The handwritten changes were forged by another person other than decedent. 25. The person who made the changes and forged decedent's signature was not authorized to do so. 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(s) to show cause why the said Appeal should not be sustained and the Decree of the Register of Wills dated September 10, 2008, set aside and an issue be directed to try by jury the following question of fact: 1. Whether or not at the time of execution of the 2007 Will, the Decedent was a person of sound mind? 2. Whether or not the changes made to Decedent's Will were forged? Date: /b- o Respectfully submitted, ROMINGER & ASSOCIATES ~'- Vincent M. Monfredo, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 206671 BEFORE THE REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF MICHAEL T. GREEN DECEASED NO 21-08-0901 CERTIFICATE OF SERVICE I, Vincent M. Monfredo, Esquire, do hereby certify that I served a copy of the Petition for Citation Sur Appeal From Decree of Probate following by depositing same in the United States mail, postage prepaid, at Cazlisle, Pennsylvania, addressed as follows: Cumberland County Register of Wills One Courthouse Squaze Carlisle, PA 17013 Mitchell T. Green Patricia R. Brown, Esquire SALZMANN HUGHES, P.C. 354 Alexander Spring Road, Ste. 1 Carlisle, PA 17015 Kristen D. Green Patricia R. Brown, Esquire SALZMANN HUGHES, P.C. 354 Alexander Spring Road, Ste. 1 Carlisle, PA 17015 Shirley D. Hertzler Patricia R. Brown, Esquire SALZMANN HUGHES, P.C 354 Alexander Spring Road, Ste. 1 Carlisle, PA 17015 Respectfully submitted, ROMINGER & ASSOCIATES ~Z incent M. Monfredo, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 206671 Dated: `/ `~ ~ VERIFICATION I verify that I am the petitioner and that the statements made in the foregoing Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904, relating to unsworn falsification to authorities. I c/ Date: D ~ / Kelly Green LAST WILL AND TESTAMENT ~~ ~~~f BE IT REMEMBERED THAT I, MICHAEL T. GREEN, a resident of Cumberland County, Pennsylvania, being of sound mind, memory and understanding, do make, publish and declare this to be my LAST WILL AND TESTAMENT, hereby revoking any and all Wills and Codicils previously made by me. I declare that I have two children, MITCHELL T. GREEN and KRISTEN D. GREEN. II I direct that all my just debts and funeral expenses shall be paid from my residuary estate as soon as practicable after my decease. III I direct that all taxes that may be assessed in consequence of my death, of whatever nature and by whatever jurisdiction imposed, shall be paid from my residuary estate as a part of the expense of the administration of my estate. ~ m~~ ~e 1 ~ ~ ~ I~~~ ~~ z f~5 j~~ Y ~ days. 1~,2c~YE ~~eY t~l ~ v ~ F'Yl ~1 < <c~1 r~ 1z/, / ~ ~ ~ o, d~}*8-~g~VC' devis~Q~.~~... rh ~~ of my nrn^s+rf ~,r ~ ~ - ~ r '~ r of a~airrtmer~t, to my children, MITCHELL T. GREEN and KRISTEN D. GREEN, in equal shares, per stirpes, pursuant to the terms of the hereinafter included N ` C Trust. ~~ ~ N -.. ' i~-~:. ~'? -o m -, : _ > ~OC1 b ~ (~..~''= 1 -~ f,'~ f:'I b r %- ' , ut ' VI TRUST If either of my children who are under the age of twenty-five (25) years who survive me, I appoint my mother, SHIRLEY J. HERTZLER, as Trustee of the property that I have given to my children. A. The assets that are transferred to the Trust shall be divided into approximately equal shares for each of my children under the age of twenty-five (25) years of age. B. The Trust estate shall be administered until each child reaches the age of twenty-five (25} years. Until that time, the Trustee shall apply all net income and principal of the Trust estate as follows: l) So long as my child is under the age of twenty-five (25) years of age, the net income of the Trust shall be paid to or applied for the benefit of my child at such times and in such amounts as the Trustee shall in his discretion deem necessary for his support, welfare, maintenance and education. Education shall be defined broadly to include not only that available in college, but also trade school and other similar training. In the event that the income shall be insufficient to provide my child with adequate maintenance, support, welfare or education, the Trustee may invade the principal of this Trust for this purpose. 2) The Trustee, in exercising her discretionary authority with respect to the payment of income or principal of the Trust estate to my beneficiary, shall take into consideration any income or other resources available to my child from sources outside of this Trust that may be known to the Trustee. The determination of the Trustee with respect to the necessity of making payments out of income or principal to my beneficiary shall be conclusive on all persons howsoever interested in the Trust. 3) The Trustee shall accumulate and add to principal any net income of the Trust not paid out in accordance with the discretion hereinabove conferred on the Trustee. 4} In the event my child predeceases me or dies prior to the termination of this Trust, the interest of my child in the Trust shall cease, except that if he or she is survived by any children, then the Trustee shall pay net income of the Trust to or apply the same for the benefits of such children of my deceased child, in such amount or amounts as the Trustee in her sole discretion may determine for support, welfare and maintenance. C. When my child reaches the age of twenty-one (21) years, a calculation of the property remaining in the Trust shall be made and ten percent (10%) of the total thereof shall be distributed to him or her. ~. `N. erg my child reaches the age of twenty-three (23} years, a calculation of the property remaining in the Trust shall be made and twenty percent (20%j of the total thereof shall be distributed to him or her, E. when my child reaches the age of twenty-five (25) years, a calculation of the property remaining in the Trust shall be made and the total thereof shall be distributed to him or her. F. My child, as beneficiary of this Trust, shall not have any right to alienate, encumber, or hypothecate his interest in the principal or income of the Trust in any manner, nor shall any interest be subject to claims of his creditors or liable to attachment, execution or other process of law. G. In order to carry out the purposes of this Trust established by this Will, the Trustee, in addition to all other powers granted by this Will or by law, shall have the following powers over the Trust estate, subject to any limitation specified elsewhere in this Will: 1) To retain any property received by the Trustee estate for ' as long as the Trustee considers it advisable. 2) To spend funds for the maintenance and repair of real property. 3) To sell at public or private sale, exchange or lease for a period of time any real or personal property and give options for sale of the lease. 4) To execute and deliver any deeds, leases, assignments or other instruments as may be necessary to carry out the provisions of this Trust. 5) To borrow money and to mortgage or pledge any real or personal property. 6} The Trustee shall maintain accurate records and accounts and shall render statements to my beneficiary hereunder showing receipts and disbursements of principal and income no less frequently than annually. The Trustee shall serve without bond and shall receive fair and reasonable compensation for administration of this Trust, not to exceed five (5%) percent of annual income. 7j To distribute property in kind. 8) To do all other acts that are in his judgment necessary or desirable for the proper management, investment and distribution of the Trust estate. VII I nominate, constitute and appoint KELLY D. GREEN, as Executrix of this LAST WILL, to serve without bond. If KELLY D. GREEN is unable or unwilling to act in that capacity, then i nominate, constitute and appoint my mother, SHIRLEY J. HERTZLER, as Executrix of this LAST WILL, to serve without bond. IN WITNESS WHEREOF, I, MICHAEL T. GREEN, have set my hand to this LAST WILL this ~ day of Av4~~'" , 2007, MICHAEL T. GRE Signed, sealed, published and declared by the above-named MICHAEL T. GREEN, as and for his Last Will and Testament, in the presence of us, who, at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses. ACKNOWLEDGEMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss. I, MICHAEL T. GREEN, 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; that 1 signed it as my free and voluntary act for the purposes therein expressed. MICHAEL T. GR Sworn or affirmed to and acknowled ed before me by MICHAEL T. GREEN, Testator, this / 5_t day of ~L~~u,-t , 2007. ~" ~ ~ ~~~ Notary Public r~ cmm nwealth of Pennsvlvani NOTARIAL ScAL DE.d'vAAFi {„ ROAN, Notar, Public Mech3rnc;.l;,.;c iiOro., Cour~iy of Cumberland My G.r, arnission Expire, June ? ! , ?010 ~~ ~~U 1 Sworn or affirmed to and acknowledged before me this /~ day of ~~~- , 2007. . ~. Notary Public Commonwealth of Penrs Iv ni tdOTAR!AL SEAL DEriuRnH L. RYAPi, Nota+y public Mechanicsca-g 9cre., Ceun:y of Cumberland My Gan~~r;:sfon Expires June f t, 20f 0 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLAND We, ~`'~.r~(C(( ~1 Lvf li ~'''~'~~'l.Lr and,~l11'iPr+~>° ~~ ,/f1~~'l~ , the witnesses whose names are signec~to the attached or foregoing in trument, being duly qualified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as his LAST WILL, that MICHALE T. GREEN signed willingly and that he executed it as his free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the Will as witnesses; and that to the best pf~our knowledge, the Testator was at the time 18 years o age or mo , of sou~id mind and under no constraint or undue influence. f / ~.. ~"