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HomeMy WebLinkAbout04-30-10~~-n-~- ~Q _© O ~7 ~ ~ rl ~'r'I t; ~ Cr3 ~ .~' p ~ i . ~7 C"') O T "~ ~-'~ C? -- .~.. r ~_.7 ~_ tel. ~ ~~ : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF GEORGE F. DIXON, JR. :ORPHANS' COURT DIVISION DECEASED No.21-1994-0754 ~ ~~ : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF LOTTIE IVY DIXON :ORPHANS' COURT DIVISION DECEASED No.21-07-0686 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW OF MARSHALL DIXON, EXECUTOR OF THE ESTATE OF LOTTIE IVY DIXON I. Prouosed Findin¢s of Fact A. Background Information 1. Lottie Ivy Dixon ("Decedent" or "Mrs. Dixon") died on June 28, 2007. 2. Decedent's husband, George F. Dixon, Jr., predeceased her on August 28, 1993. 3. Decedent had four children, all of whom survived her: George F. Dixon, III, Richard E. Dixon, Marshall L. Dixon, and Charlotte Dixon. 4. Decedent's Will was probated in the office of the Register of Wills of Cumberland County on July 19, 2007 and is docketed as Will No: 0686. N~ 5. The Will named Decedent's son Marshall Dixon as Executor ("Marshall" or "Executor"). 6. The Will included specific bequests to Mazshall and Chazlotte, including the following: (a) a bequest of one of Decedent's Fort Lauderdale apartments to Chazlotte; (b) a bequest of the other Fort Lauderdale apartment to Marshall; and (c) a bequest of the Decedent's home to Marshall. 7. The Will directed that the residue be distributed to the Decedent's revocable trust (the "Revocable Trust"). 8. Upon the death of Decedent, George F. Dixon, III and Richard E. Dixon (collectively, the "Brothers") became the co-trustees of the Revocable Trust together with Manufacturers & Traders Trust Company ("M&T"). 9. The Revocable Trust directs that, after Decedent's death, the trustees must pay the income from the Trust to Decedent's issue, per stirpes, for a period often years, and then must distribute the trust remainder to her then surviving issue, per stirpes. 10. During her life, Decedent was the income beneficiary of the George F. Dixon, Jr. QTIP Trust (the "QTIP Trust"), established by her late husband. 11. The Trustees of the QTIP Trust aze George F. Dixon, III, Richazd E. Dixon and M&T. 12. Within three months after Mrs. Dixon's death, the Maztson Law Firm, as counsel to the Brothers, requested that Marshall provide documents related to Mrs. Dixon's financial affairs, which Marshall promptly did. Mazshall Dixon's Answer in Opposition to Motion to Extend Discovery Deadline (filed of record October 21, 2009). 2 13. In June 2008, the Brothers, through their counsel, requested that Marshall, as Executor, provide written authorization for the Brothers to obtain account statements and cancelled checks directly from the financial institutions with whom Mrs. Dixon had accounts during the last years of her life. The Executor promptly did so. Id. 14. By September 2008, the Brothers had received the monthly account statements and cancelled checks for the checking account that Mrs. Dixon had held at M&T bank, and its predecessor banks. Id. B. Objections to the Estate Account 15. On July 25, 2008, Marshall, as Executor, filed an Estate Accounting, Petition for Adjudication, and Statement of Proposed Distribution. 16. On August 22, 2008, the Brothers filed several objections to the Estate Account including: (a) an objection that "substantial assets includable in the Estate are not accounted for"• (b) an objection to the allocation of the Unified Tax Credit; (c) an objection to the valuation of the jewelry and other property; (d) an objection to the Estate's retention of a portion of a federal tax refund; (e) an objection to certain payments for expenses related to the real estate that had been bequeathed to Charlotte Dixon and Marshall Dixon; (g) an objection to certain losses in value of securities during the administration of the estate; (h) an objection that the attorneys' fees billed to the Estate were excessive; and, (i) an objection that the Executor's commissions were excessive. 3 17. In their objections, the Brothers did not object to Marshall serving as the executor. 18. M&T also filed certain objections to the Estate Account. 19. On August 26, 2008, the Court appointed Wayne F. Shade, Esq. as auditor and directed him to hear the objections and file a report with the Court. C. Objections to the QTIP Account 20. On January 30, 2009, the Brothers and M&T filed an Account of the QTIP Trust, together with a Petition for Adjudication/Statement of Proposed Distribution. 21. On February 27, 2009, Marshall, as Executor, filed an objection to the QTIP Trust Account through his undersigned counsel. 22. At about the same time, Marshall, in his capacity as an individual beneficiary of the QTIP Trust, filed objections to the QTIP Trust Account through his separate counsel, Daniel Sullivan of the law firm of Saidis, Flower & Lindsay. 23. By Court Order dated June 17, 2009 (adopting the Auditor's June 12, directive), the proceedings on the objections to the QTIP Trust were consolidated with proceedings on the objections to the Estate Account for purposes of discovery, hearing, and disposition. D. Pre-Hearing Procedures 24. By Court Order entered on June 17, 2009, all discovery was to be completed by August 31, 2009; pretrial memoranda were to be submitted in September, October, and early November 2009, and the hearing was to be concluded by December 4, 2009. 25. The June 12 directive and June 17 order required, inter alia, that the Brothers itemize the assets that they contended were improperly not included in the estate and identify their witnesses and exhibits in the pretrial memoranda. 4 26. The Brothers served interrogatories upon the Executor on June 18, 2009, and the Executor timely responded to the interrogatories. Marshall Dixon's Answer in Opposition to Motion to Extend Discovery Deadline (filed of record October 21, 2009). The Brothers never asserted that the. Executor's interrogatory responses were incomplete or that any of the objections asserted therein were improper. Id. 27. In August, counsel for M&T determined that it had a conflict of interest which required that M&T obtain new counsel, and counsel for all parties agreed that the deadlines would be pushed back 30 days. Id. 28. Marshall's deposition was scheduled for September 23, 2009 (seven days before the end of the discovery period), and Marshall fully cooperated in the deposition, answering all of the questions posed to him. Id. 29. During the entire discovery period, the Brothers took no discovery on their asserted objections that the jewelry and personal assets were undervalued, that the executor's commission was excessive, or that the estate's attorneys' fees were excessive. 30. On October 9, 2009, the Brothers filed a Motion to Extend the Discovery Deadline which sought anopen-ended extension of time in which to pursue further discovery to determine whether transfers by Mrs. Dixon to Marshall reflected reimbursements of expenses or gifts. Motion to Extend Discovery Deadline (filed of record October 9, 2009). 31. The Auditor held a Discovery Conference on October 11, 2009, at which the Brothers' motion to extend discovery and other discovery issues were discussed. 5 32. At the Discovery Conference, the Brothers' counsel conceded that they were unable to prove that Mrs. Dixon had been subject to incapacity or undue influence during her lifetime. Auditor's Report on Discovery Issues (filed of record on November 20, 2009). 33. At the Discovery Conference, the Brothers' contended that Mrs. Dixon had a brokerage account worth approximately $500,000 that was not accounted for in the estate administration. Id. 34. The Brothers' counsel also contended that, if transfers were made by Mrs. Dixon to Marshall as gifts, the cumulative amounts of the gifts was relevant to the allocation of death taxes among the beneficiaries. Id. 35. The Brothers did not contend that the inter vivos transfers to Marshall were invalid. In fact, at all times until February 2010, the Brothers asserted that the transfers from the checking account to Marshall or for his benefit were "gifts" (not reimbursements), and they contended that those gifts affected the tax liabilities of the estate, Marshall, and the Brothers. For example, in their first pretrial memorandum, the Brothers stated, "Objectors now believe that in order to fully appreciate how much money in gifts Marshall was receiving from his mother, they will need access to [Marshall's financial records]" and "Objectors request Marshall's financial records so that they can better determine the full extent of gifts received by Marshall for which no tax has been paid." Obiector's fsic] Pre-Hearing Memorandum (filed October 21, 2009). 36. As a result of the Discovery Conference, the Auditor issued the Auditor's Report on Discovery Issues, in which the Auditor recommended that Marshall be required to produce 6 his personal brokerage statements and that the motion to extend discovery be denied. Marshall subsequently produced his brokerage statements. 37. The Auditor also scheduled the hearing for December 16, 17, and 18, 2009, with the final pretrial conference scheduled for December 9, 2009. 38. Contrary to the requirements of the June 12, 2009 directive and June 17, 2009 order, in their pre-trial memoranda filed in October, November, and December, the Brothers failed to itemize the assets that they contended were not included in the estate that should have been included, and the Brothers failed to provide any supporting rationale and legal authority for their contention. 39. The Brothers failed to identify their exhibits and witnesses by December 5, as required by the June 12, 2009 directive and June 17, 2009 order. 40. On December 10, 2009, the Martson firm filed a Petition seeking to withdraw as counsel for the Brothers and requesting a general continuance of the hearing. 41. By Order dated December 11, 2009, the Martson Firm was granted leave to withdrawal as counsel for the Brothers, and the Brothers were instructed to retain new counsel within thirty (30~ days. 42. The December 11, 2009 Order set February 24, 25, and 26, 2010 as the new dates for the hearing and February 12, 2010 as the date for the pre-trial conference. 43. On January 22, 2009, attorneys with the law firm of Obermayer, Rebmann, Maxwell & Hippell LLP entered an appearance as counsel for the Brothers. 7 44. On February 9, 2010, the Brothers' counsel filed a pretrial memorandum that contended, for the first time, that Marshall used Mrs. Dixon's credit cards and funds to benefit himself without Mrs. Dixon's knowledge or permission, and also asserted that he "procured gifts using undue influence." That statement of the Brothers' legal theory was made more than three months after it was due and just eleven days before the hearing. The Brothers still failed to provide an itemized list of the alleged missing assets, and they also still failed to provide any legal authority for their contention that assets should have been included in the estate, but were not. The memorandum indicated that the Brothers would present no witnesses and no exhibits in support of their objection. 45. A final pre-trial conference was held on February 12, 2010. 46. At the final pre-trial conference, the Brothers withdrew their objection to the allocation of the unified tax credit, withdrew their objection to the Estate's retention of a portion of the federal estate tax refund, and withdrew their objection to the valuation of the jewelry and personal property. The Brothers also withdrew their contention that a stock brokerage account valued at approximately $500,000 was missing from the Estate. 47. Also at the final pre-trial conference, the Auditor advised that he would not permit the Brothers to submit evidence of undue influence, because they had previously waived that argument. 48. On February 13, 2009 (a Saturday), the Brothers' counsel served an addendum to their supplemental pre-hearing memorandum. That addendum, for the first time, alleged that Marshall had "prbcured gifts through theft, deception, fraud and misrepresentation...." The addendum, however, still failed to provide any legal authority for their contention that assets 8 should have been included in the estate, but were not. In a very belated attempt to comply with the directive requiring the Brothers, by October 21, to itemize the list of assets that they contended should have been included in the estate, the addendum included lists of checks written from the joint checking account, the vast majority of which were written by Mrs. Dixon to persons and companies to pay for her care and her maintenance of her household. 49. On February 22, 2010, the Auditor issued a directive in which he reported the resolution of several of the objections by agreement of the parties. Significantly, the directive also indicated that the brothers would be required "to establish the relevance of checks drawn on the joint checking account where Marshall was a joint owner of the account, where there is no suggestion that the brothers will be able to prove that Lottie [Mrs. Dixon] was subject to incapacity or undue influence in her lifetime, and where the brothers have withdrawn their objection to the allocation of the death taxes among the beneficiaries." 50. Shortly before the hearing, all objections with regazd to the QTIP Trust Account were resolved. At the heazing, a statement regazding the terms of the resolution of the QTIP Trust Account was placed on the record. 51. Accordingly, the only objection remaining to be considered at the hearing was the Brothers' objection that assets that should have been included in the estate administration were not. E . The Procedure at the Hearing 52. At the hearing, the Brothers called Mazshall Dixon as their first and only witness. 9 53. The Auditor ruled that the Brothers had not established the relevance of checks drawn on the joint checking account, so the Auditor precluded the Brothers from introducing any evidence regarding the checks drawn on the joint checking account. 54. The Brothers made no offer of proof regarding what the evidence would have shown if the Auditor had permitted it to be presented. 55. The Brothers submitted no exhibits in their case in chief. 56. The Brothers presented no evidence in their case in chief that identified any assets that the Brothers contended were improperly excluded from the estate. 57. The Brothers presented no evidence in their case in chief in support of their allegation that Marshall used assets of Mrs. Dixon without her knowledge or permission. 58. The Brothers presented no evidence in their case in chief in support of their contention that Marshall had procured gifts through theft, deception, fraud and misrepresentation. 59. At the conclusion of the Brothers' case in chief, counsel for the Estate moved for a nonsuit under Pa. R. Civ. P. 230.1, but the motion was denied. 60. The Estate then called Marshall Dixon as its witness and introduced certain checks from the joint checking account. 61. The Brothers cross-examined Mazshall with regazd to those checks and questioned him about other checks written from the joint checking account. 62. The Estate's Exhibit 6, pages 422 to 514, containing copies of checks written from the joint checking account, was admitted into evidence. The Auditor excluded pages 1 to 421 of 10 the Estate's Exhibit 6, containing copies of earlier checks, on the grounds that pages 422 to 514 would amply establish the issues relevant to the hearing. F. The Evidence Introduced at the Hearing 63. Mazshall Dixon resided in Boiling Springs, Pennsylvania with his mother, Decedent, from approximately 2002 to the time of her death in 2007. (Tr., 43, 45). 64. From 1995 to 2004, Mazshall Dixon owned and operated a business called "Hollywood Trucks" which rented trucks to the film industry. (Tr. 44-45). 65. Marshall travelled a great deal for business and also for pleasure. (Tr. 47). 66. After Mazshall wound down the Hollywood Trucks business, he had apart-time job as a salesman at G&T Stereo. (Tr. 43). 67. Mrs. Dixon knew the general terms of Mazshall's employment. Marshall showed her some of the trucks for Hollywood Trucks and took her to G&T Stereo. (Tr. 63). 68. Mrs. Dixon never suggested that Mazshall should get afull-time job, and, in fact, she liked Mazshall being at home. (Tr. 64-65). 69. Mrs. Dixon never objected to Marshall's lifestyle, except that she did not like when Mazshall stayed up too late a night (Tr. 65). 70. In June 2003, Mrs. Dixon made Marshall a joint owner on her M&T checking account. (Tr.73). 71. Mrs. Dixon kept the checkbook in her pocketbook, and she kept her pocketbook by her side. (Tr. 79-80). 72. Oln September 23, 2005, Mrs. Dixon wrote and signed a check from the joint checking account to pay Marshall's USAA credit card bill. (Tr. 95-96, 103-04; Ex. 6 at p. 422). 11 Mrs. Dixon also wrote checks directly to Marshall from the joint checking account. (Ex. 6 at p. 455, 502). 73. Those payments represented either gifts to Marshall or reimbursements for expenses that Marshall paid for using his credit cards. (Tr. 61-62). Those checks were consistent with Mrs. Dixon's practice, during the period before and after the checking account was placed into joint ownership, to use funds in the account to make gifts to Marshall either directly or through the payment of his bills. 74. Marshall wrote checks from the joint checking account primarily during the last year or so of Mrs. Dixon's life when writing checks became too tiring for her. (Tr. 62, 66, 74). 75. Marshall never wrote a check and had Mrs. Dixon sign it. (Tr. 65). 76. Marshall never signed Mrs. Dixon's name on any checks. (Tr. 65). 77. When Marshall wrote checks from the joint checking account, he recorded them in the check ledger. (Tr. 103). 78. The majority of the checks that Marshall wrote from the joint checking account, he wrote with his mother sitting beside him at a table. (Tr. 62). 79. Mrs. Dixon regularly wrote checks from the joint checking account to Nila Miller, her housekeeper, Art Christopher, her handyman; and Pat Kee, her home health aide. (Tr. 74-75; see, ~, Ex. 6, at pp. 423- 425, 428 -32; 457-67, and 495-503). 80. Many of the checks written from the joint checking account and signed by Marshall Dixon were written to these same individuals for the care that they provided to Mrs. Dixon and her home. (Ex. 6, at p. 459, 470, 478, 497, 501, 503-06, 508, 510-514). 12 81. Marshall Dixon also wrote checks to pay for other expenses of Mrs. Dixon, including, inter alia, her Blue Cross Health Insurance (Tr. 76, Ex. 6, at p. 475); her taxes (Tr. 80- 81, Ex. 6 at p. 492; a special bed (Tr. 78; Ex. 6 at p. 487); her Smithsonian magazine subscription (Tr. 80; Ex. 6 at p. 491); flowers (Tr. 101-02; Ex. 6 at p. 433); and service for the air-conditioning for the apartments that Mrs. Dixon owned in Fort Lauderdale (Tr. 101-02; Ex. 6 at p. 433). 82. Marshall wrote two checks from the joint checking account to Sue Neff Enterprises in the amounts of $1500 and $2987 to pay for repairs to a car that he had rebuilt that was damaged when a deer ran into it. (Tr. 81-82; Ex. 6 at p. 492, 495). Mrs. Dixon expressed to Marshall that she wished to pay for the repairs as a gift to him. (Tr. 82). Mrs. Dixon authorized Marshall to write those checks. (Tr. 81-82). 83. Marshall wrote a check from the joint checking account to the PA Department of Revenue in the amount of $600 to pay for the sales taxes on a car the Marshall bought. (Tr. 79, Ex. 6 at p. 491). Mrs. Dixon expressed to Marshall that she wished to pay the sales tax as a gift to him. (Tr. 79). Mrs. Dixon gave Marshall the check to pay the sales taxes. (Tr. 79). 84. As to six other checks, Marshall testified that he wrote checks to credit card companies, but he was unable to state whether those checks were paying his credit card bills or his mother's. (Tr. p. 97-99; Ex. 6, pp. 427-28, 438, and 447). 85. Marshall also paid bills electronically from the joint checking account with the knowledge and participation of Mrs. Dixon. (Tr. 85-86). 86. Marshall and Mrs. Dixon regularly reviewed the account statements for the checking account together. (Tr. 103). 13 87. Mazshall never wrote a check from the joint checking account for his own benefit without telling Mrs. Dixon that he was doing so. (Tr. 87). 88. Marshall never stole money from Mrs. Dixon in any way. (Tr. 87). G. Evidence NOT Introduced At The Hearing on the Objections 89. The was no evidence showing that Marshall wrote any checks from the joint checking account without Mrs. Dixon's knowledge and permission. 90. There was no evidence that Marshall used the funds in the joint checking account to purchase goods and services benefitting himself without Mrs. Dixon's knowledge and permission. 91. There was no evidence that Mrs. Dixon either objected to Marshall writing checks from the joint checking account or that she ever took any action to remove him as a signatory on the account. 92. Although there were many checks written to credit card companies, there was no evidence that th©se payments, other the check that Mrs. Dixon wrote to USAA to pay Mazshall's credit card bill see, Ex. 6 at p. 422), were payments on Mazshall's credit card bills. 93. There was no evidence that any payments out of the joint checking account were the result of theft, fraud, deception, or misrepresentation. 94. There was no evidence that Marshall used any funds in Mrs. Dixon's brokerage account for his own benefit, and in fact, no evidence regarding Mrs. Dixon's brokerage account, at all. 95. There was no evidence showing that Marshall transferred assets to or for his benefit without Mrs. Dixon's knowledge. 14 96. There was no evidence identifying which payments, or the amount of the payments, that the Brothers contend were made for Marshall's benefit. 97. There was no evidence showing that assets that should have been included in the estate were improperly excluded or omitted from the administration of the estate. II. Prouosed Conclusions of Law A. The Estate's Motion for Nonsuit Should Have Been Granted. Parties attempting to prove that an account is incorrect must sustain the burden of establishing their position. Estate of D'Alessio, 2004 WL 3186286, 26 Fiduc. Rep. 2d 236 (C.P. Philadelphia 2004); Dunn Estate, 54 D.&C.2d 760, 761 (C.P. Mercer 1972). 2. In their case in chief, the Brothers failed to introduce evidence to identify any assets that should have been included in the estate but were not. The Brothers also failed to introduce any evidence that Marshall took assets from Mrs. Dixon without her knowledge or permission or that Marshall procured gifts from his mother pursuant to theft, fraud, deception, or misrepresentation. 3. Absent such evidence, the Brothers failed to sustain their burden of establishing their objection to the Estate account. A mere allegation by an objector that one party to the joint account withdrew funds from the joint account "without the consent or authorization" of the other party is insufficient to carry the objector's burden of proof. Estate of D'Alessio, 2004 WL 3186286, 26 Fiduc. Rep. 2d 236 (C.P. Philadelphia 2004). 4. The standard for a compulsory nonsuit under Pa. R. Civ. P. 230.1 is as follows: (a)(1) In an action involving only one plaintiff and one defendant, the court, on oral motion of the defendant, may enter a nonsuit on any and all causes of action if, at the close of the plaintiffs case on liability, the plaintiff has failed to establish IS a right to relief. (2) The court in deciding the motion shall consider only evidence which was introduced by the plaintiff and any evidence favorable to the plaintiff introduced prior to the close of the plaintiffs case. 5. Because the Brothers introduced no evidence identifying any assets that improperly were improperly not included in the estate, the Executor's Motion for Nonsuit should have been granted. 6. Moreover, the Brothers failed to set forth a prima facie case identifying any assets that they contended were transferred to Marshall as invalid inter vivos gifts, so the burden of proof never shifted to the Estate to prove that any such transfers were valid inter vivos gifts. B. The Brothers' Objection Must Be Denied Because Any Monies That Were In the Joint Checking Account Are Not Properly Included in the Estate. 7. Because Mrs. Dixon made Marshall a joint owner on the checking account, and under the Multiple Party Accounts Act, Marshall was authorized to request payment from the account. 20 Pa. C.S.A. § 6301. 8. 20 Pa. C.S. § 6304(a) provides that "Any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent at the time the account is created." 9. In determining the ownership of funds in a joint account, the Multiple Party Accounts Act "favors the surviving party over the estate of the decedent." Estate of Mevers, 642 A.2d 525, 528. The party who opposes the presumption of survivorship must demonstrate clear and convincing evidence of a contrary intent. Id. 16 10. Because the Brothers introduced no evidence to the contrary, the Multiple Party Accounts Act provides a statutory presumption that, by naming Marshall Dixon as the joint owner of the checking account, Mrs. Dixon intended that all sums in that account at her death would belong to Marshall. 11. The Brothers produced no evidence to suggest that, if the funds had not been paid out of the checking account, Mrs. Dixon would have removed the funds from the joint account and treated them as assets to be included in her estate. Thus, even if the Brothers had proven that Marshall used assets in the joint checking account for his own benefit during the last years of Mrs. Dixon's life, the Brothers have no claim to those funds. If the funds had not been paid out of the joint account during Mrs. Dixon's life, they would have remained in the joint account and their ownership would have passed to Marshall immediately upon the death of Mrs. Dixon. C. In the Alternative, the Brothers' Objection Must Be Denied Because There Was Clear and Convincing Evidence That Mrs. Dixon Intended To Make Gifts to Marshall from the Joint Checking Account. 12. The Multiple Party Accounts Act provides that "A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each of the sum on deposit, unless there is clear and convincing evidence of a different intent." 20 Pa. C.S. §6303. 13. In Lessner v. Rubinson, 592 A.2d 678 (Pa. 1991), the Supreme Court of Pennsylvania indicated that where a party creates a joint tenancy, the intent to make an inter vivos gift is established where there is proof of intent to make a gift and actual or constructive delivery to the donee sufficient "to invest the donee so much dominion and control of the subject matter of the gift as is consonant with joint ownership or interest therein." 17 14. The uncontroverted evidence at the hearing showed that Mrs. Dixon had paid Marshall's credit card bill from the joint checking account, had made gifts directly to Mazshall from the joint account, and had made gifts to Mazshall by authorizing him to use funds in the account for payments of his caz repair and vehicle sales taxes. 15. The uncontroverted evidence at the hearing also demonstrated that Marshall had written many checks from the joint account over the last years of Mrs. Dixon's life as to which Mrs. Dixon had knowledge and made no objection. 16. Donative intent and delivery as to any checks written for Marshall's benefit were cleazly established by: (a) Mrs. Dixon's past practice of making gifts from the joint checking account to Marshall either by writing checks to him directly or by paying his bills; (b) the long course of dealing established by the checks written by Marshall from the account with no evidence of any objection being raised by Mrs. Dixon; (c) Marshall's uncontroverted testimony that his mother authorized him to write the checks and participated in the writing of the checks; and, (d) Marshall's uncontroverted testimony that his mother offered to pay some of his bills as gifts. ~ 17. Thus, there was clear and convincing evidence that Mrs. Dixon did not intend for the joint account to belong to the parties in proportion to the net contributions by each of them. ' The Brothers' assertion that Marshall's testimony regarding Mrs. Dixon's statements must be excluded under the Dead Man's Rule is incorrect. The Brothers waived any objection to Marshall's testimony under the Dead Man's Rule by calling Marshall to testify and by failing to assert the objection at the time of the hearing. 42 Pa. C.S.A. § 5932; In re Estate of Hosfeld, 202 A.2d 69 (Pa. 1941). 18 Rather, the clear evidence was that Mrs. Dixon intended that Marshall to receive gifts through the medium of joint ownership of the checking account.Z 18. Accordingly, under 20 Pa. C.S. § 6303, there was clear and convincing evidence that Mrs. Dixon intended to use the joint checking account to make gifts to Marshall, and any funds expended from that account for Marshall's benefit are valid inter vivos gifts that are properly excluded from the estate administration. 19. The Brothers failed to introduce any evidence to rebut the evidence demonstrating that any checks written by Marshall from the joint checking account for his own benefit represented valid inter vivos gigs from Mrs. Dixon. D. In the Alternative, The Brothers' Waived Their Argument That the Checks Written from the Joint Checking Account Were Not Gifts from Mrs. Dixon to Marshall. 20. The Brothers' pretrial memoranda conceded that the payments from the checking account were gifts, and asserted that those gifts had an effect on the allocation of death taxes. 21. On February 9, 2010, for the very first time in this case, the Brothers raised the allegation that the payments from the joint checking account for Marshall's benefit were not ` Wilhelm v. Wilhelm, 657 A.2d 34 (Pa. Super. 1995), cited by the Brothers, is factually distinguishable. In that case, the depositor of the money in the joint accounts was still alive, and there was testimony from the joint owners. that the they understood that the money in the joint accounts was the money of the depositor and that the intent of the joint accounts was to prevent the depositor's wife from obtaining the funds. Id. at 37. Likewise, the facts of Lessner v. Rubinson, 592 A.2d 678 (Pa. 1991) are distinguishable from the present case. In Lessner, the dispute over the joint certificate of deposit arose while both owners were alive, and the evidence showed that the depositor of the funds had received all interest on the certificate, had demanded that the certificatie be returned to him, and had immediately filed suit when the joint owner attempted to retain control of the certificate. Similarly, in Lannin v. West, 803 A.2d 753 two li ine joint owners disputed whether the funds in joint accounts belonged to the depositor or the other joint owner. 19 valid inter vivos gifts. In their post-hearing findings of fact and conclusions of law, the Brothers assert, also for the first time, that Marshall bore the burden of proving that the payments were gifts. 22. The Brothers' waived the argument that the payments from the checking account were not gifts by failing to raise it in a timely manner. 23. To the extent that the Auditor accepts the Brothers' untimely argument, Marshall has been prejudiced by being denied a fair and reasonable opportunity to refute that aggument. E. The Brothers Should Bear the Costs of the Audit. 24. Pennsylvania law directs that the court allocate the payment of fees. 20 Pa. C.S. §752. 25. The allocation of the payment of fees is subject to the court's discretion, and will stand absent an abuse of discretion. In re Estate of Vaughn, 461 A.2d 1318 (Pa. Super. Ct. 1983). 26. While the costs of the audit aze usually borne by the fiduciary estate, in certain circumstances, the costs can be shifted to another party. Id. 27. Where an objector's claims aze not supported by probable cause, he should bear the cost of the audit. In re Bennett's Estate, 30 Pa. D.&.C. 148 (Pa. Orph. Northampton 1937); In re Kim's Estate, 7. A.2d. 297 (Pa. 1939). 28. Probable cause consists of a contention started and conducted in good faith. Bennett, 30 Pa. D.&C. at 153-53. 20 29. The Brothers made seven objections to the Estate Account. The Brothers withdrew three of their objections, two were conceded in whole or part, and one was never pursued. The last objection was the subject of the hearing. 30. The three withdrawn objections were neither made nor pursued in good faith. 31. The objections as to executor's commissions and attorneys' fees were not pursued in good faith. 32. The objection as to missing assets has not been pursued in good faith. The Brothers conduct has been marked by intransigence, unwillingness to set or adhere to discovery deadlines, failure to comply with the auditor's directives and court orders, and multiple last minute attempts to derail the audit process, take up a new theory of the case, and pursue a new legal remedy. 33. Due to their lack of good faith in bringing and pursuing the majority of the objections, the Brothers' objections lack probable cause. The Brothers should therefore bear the majority of the cost of the Estate Account audit proceedings, including the auditor's fee. III. Relief Requested WHEREFORE, for the reasons set forth above, Marshall Dixon requests that the Brother's objections to the Estate Account be dismissed, that the Estate Account be approved by the Court, and that the Petition for Adjudication be granted, with the following amendments: (a) That Mazshall Dixon be directed to reimburse the estate in the amount of $5,402.26 for disbursements made on his Florida condominium; (b) That Mazshall Dixon be directed to reimburse the estate in the amount of $9,933.96 for loss of value of marketable securities during the administration of the estate; 21 (c) That Chazlotte Dixon be directed to reimburse the estate in the amount of $5,402.26 for disbursements made on her Florida condominium. Mazshall Dixon further requests that Brothers be directed to pay the fees and costs of the auditor. Date: April 30, 2010 McNEES WALLACE & NURICK LLC ay: P. Mullaugh I.D. No. 76397 Kimberly M. Colonna I.D. No. 80362 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 717-232-8000 Counsel for Marshall Dixon as Executor of the Estate of Lottie Ivy Dixon 22 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the forgoing documents were served by first class mail, postage prepaid, addressed as follows: Walter W. Cohen, Esquire Kevin J. Kehner, Esquire Obermayer Rebmann Maxwell &Hippel LLP 200 Locust Street, Suite 400 Hazrisburg, PA 17101 Paul C. Heintz, Esquire Nina B. Stryker, Esquire Erin E. McQuiggan, Esquire Obermayer Rebmann Maxwell &Hippel LLP One Penn Center, 19~' Floor 1617 JFK Boulevard Philadelphia, PA 19103 Mark Bradshaw, Esquire Stevens & Lee, P.C. 17 N. Second St., 16`t' Floor Harrisburg, PA 17101 Daniel L. Sullivan, Esq. Sadis Flower & Lindsay 2109 Market Street Camp Hill, PA 17011 Wayne F. Shade, Esquire 53 W. Pomfret St. Cazlisle, PA 17013 Charlotte Ivy Dixon 323 Bayview Street Camden, ME 04843 Kimberly . Colonna Dated: Apri130, 2010