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HomeMy WebLinkAbout09-30-10 (2)Elizabeth H. Feather, Esquire Attorney I. D. # 92618 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717)232-7661 Fax: (717)232-2766 Attornevs for Vasiliki Mallios IN RE: ESTATE OF VASILIKI MALLIOS, DECEASED 1N THE COURT OF COMMC~T PLEAS gF CUMBERLAND COUNTY, ~O o PENNSYLVANIA ~~~ ORPHANS' COURT DIVISIG~ w ~~ s o ESTATE N0.21-10-0790 pa -n ~~ 3 ~ N ~.. t T} ~~~ <.:_ ~.~ _ ~ r';', rn _z: C.7 ~__~ ~ .~''~*-~ r CJ 'TA PETITION FOR CITATION a ca 0 TO THE HONORABLE JUDGES OF SAID COURT: Petitioner, Vasiliki Mallios, by and through her attorneys, Caldwell & Kearns, P.C., hereby petitions the Orphans' Court Division of the Court of Common Pleas of Cumberland County, Pennsylvania, requesting the issuance of a citation to show cause why the appeal from probate filed by her, pursuant to 20 Pa. Cons. Stat. Ann. § 908 from the decree of the Register of Wills of Cumberland County admitting to probate as the will of Decedent, Vasiliki Mallios, a certain writing dated May 22, 2009, and granting letters testamentary thereon, should not be sustained and the decree of the Register revoked. In support thereof, the Petitioner avers the following: 1. Decedent, Vasiliki Mallios, died on July 27, 2010, a resident of Cumberland County, Pennsylvania. 2. Petitioner is Vasiliki Mallios, granddaughter of the Decedent and an adult individual who resides at 59 Strayer Drive, Cazlisle, Pennsylvania 17013. 3. Decedent left to survive her as the persons entitled to her estate under the intestate laws her living sons, Nicholas J. Mallios and Constantinos J. Mallios, and her granddaughter, Petitioner, Vasiliki Mallios, who is the only issue of Decedent's deceased son, Demertios I. Mallios. 4. Demertios I. Mallios died on September 8, 2003. 5. Petitioner is a party in interest in the estate of Decedent, entitled as the only issue of Decedent's deceased child to a one-third fractional interest under the intestate laws, 20 Pa. Cons. Stat. Ann. § 2104(1). 6. A certain writing alleged to be the will of Decedent (a copy of which is hereto attached as Exhibit "A"), and purporting to have been made on May 22, 2009, was admitted to probate by the Register of Wills of Cumberland County, Pennsylvania, as the will of the Decedent, Vasiliki Mallios, and letters testamentary thereon to Nicholas J. Mallios and Constantinos J. Mallios, Co-Executors, named therein. 7. On September 30, 2010, Petitioner filed her appeal from the decree of the Register and entered security required by statute; and the record of proceedings before the Register has been certified to the Court. 8. Petitioner believes and expects to be able to prove that, at the time of execution of the writing, the physical and mental condition of the Decedent was greatly impaired by sickness and infirmity; that she was not a person of sound mind, capable of disposing by will of her estate; and further that the writing was procured by undue influence, duress and constraint practiced upon the Decedent by Nicholas J. Mallios and Constantinos J. Mallios, named in the writing as the beneficiaries of the residue of Decedent's estate and the executors of her Last Will & Testament. 2 9. In support of Petitioner's claim of Decedent's lack of sound mind and undue influence, she avers the following: a. Decedent was seventy-nine (79) years old at the time of execution of the May 22, 2009 writing; b. Decedent's medical problems included dementia and diabetes. c. Decedent suffered from dementia for several years prior to her death including at the time of her execution of the May 22, 2009 writing; c. Decedent's driver's license was revoked after she had a motor vehicle accident caused by her dementia and failing health on or about September 2009; d. Due to her Dementia and failing health, Decedent became a resident of the Church of God nursing home in January 2010 and then Country Meadows nursing home in Apri12010; e. Decedent was admitted to the secure Alzheimer's/Dementia unit of Country Meadows nursing home on or about April 2010; and f. Decedent could not read the English language. WHEREFORE, Petitioner requests that the Court issue a citation directed to all parties interested in the Estate of Vasiliki Mallios, Deceased, as heirs, relations or next of kin, devisees, legatees or executors, to show cause why the appeal of Petitioner from the decree of the Register of Wills admitting to probate a certain writing dated May 22, 2009, as the will of Vasiliki Mallios, Deceased, should not be sustained and the decree of the Register of Wills set aside and an issue directed to trial by a jury the following questions of fact: 3 whether at the time of execution of the writing Decedent was a person of sound mind; and 2. whether the writing was procured by undue influence, duress and constraint practices upon the Decedent by Nicholas J. Mallios and Constantinos J. Mallios. Respectfully submitted, Date: September ~, 2010 By: Elizi~5eth H. Feather, Esquire Attorney I. D. # 92618 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717)232-7661 Fax: (717)232-2766 Attorney for Appellant, Vasiliki Mallios 10280-1-167792 4 VERIFICATION The undersigned hereby verifies that the feats set forth in the foregoing document are true and correct to the best of her knowledge, information and belief and fittther states that false statements herein are made subject to the penalties of 18 PaC.S § 4904 relating to unsworn falsification to authorities. Dated: ` ~ I~..~~ ~O V i0%1,t.QA ~/ Vasiliki Mallios ~: LAST WILL ANll 1'ES7'AML~'N"1' OF VASILIKI MALLIOS I, VAS[LIKI MALLIOS, also known as VIKI MALLIOS, widow, of South Middleton Township (mailing address: 224 Heisers Lane, Carlisle, PA 17015), Cumberland County, Pennsylvania, being of sound and disposing mind, memory and understanding, do hereby make, publish and declare this as and for my Last Will and Testament hereby revoking and making void any and all Wills by me a[ any time heretofore mude. 1. I direct my hereinafter-named Executors to pay all of my.just debts and funeral expenses as soon after my death as may be found convenient to do so. 2. I direct that all inheritance, transfer, succession, estate and death taxes, including interest and penalties thereon, which may be payable on account of my death shall be payable from the residue of my estate regardless of whether the assets upon which such taxes are based are included in my probate estate. 3. I give and bequentlt the sum of $20,000.00 to each of my four grandchildren who are MATHEW N. MALLIOS, son of Nicholas J. Mallios; SIA MALLIOS and JOANNA MALLIOS who are the two daughters of my son, Constantinos J Mallios; and VASILIKI MALLIOS who is the daughter of my son, DEMERTIOS I. MALLIOS. Should any of said grandchildren predecease me, I direct the share such grandchild would have received shall pass to such of his or her issue as shall survive me, their heirs and assigns, per stirpes, and if there be no such issue, the same shall lapse and be added to the reside of my estate. 4. I give and bequeath the sum of $5,000.00 to my great granddaughter SOPHIA NICOLE MALLIOS, who is the daughter of my grandson Mathew N. Mallios. Should she fail to survive me, I direct that the amount she would have received shall pass to such of her issue as shall survive me, their heirs and assigns, per stirpes, and if there be no such issue, the same shall lapse and be added to the reside of my estate. 5. All of the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever the same may be situate, I give, devise and bequeath in equal shares to my two sons, NICHOLAS J. MALLIOS and CONSTANTINOS J. MALLIOS, their heirs and assigns, but should either of them fail to survive me, then I direct the amount which each of them would have received shall pass to such of his issue as shall survive me, their heirs and assigns, per stirpes. 6. I hereby nominate, constitute and appoint my son, NICHOLAS J. MALLIOS and my son CONSTANTINOS I. MALLIOS, and the survivor of them, as Executors of this my Last Will and Testament, and 1 direct that neither of them shall be required to post any bond to secure the faithful performance of his duties in [he Commonwealth of Pennsylvania or in any other jurisdiction. 7. Should any person less than 21 years of age be entitled to distribution from my estate, I appoint the parents of such person as Guardians of the estate of such person and authorize such Guardians to receive and to invest the same, and topay the income arising therefrom at least annually, together with so much of the principal thereof as in the opinion of the Guardians is necessary or desirable to 6e expended for the proper maintenance, education and support of such person, and upon such person attaining 21 years of age to pay to him or her the then remaining principal together with any undistributed income. Should any Guardian decline to serve or cease serv~s such [hen in that event I nominate, constitute and appoint my Executors or their 8gs'wors as ;_,. ;_ alternate or successor Guardians. ~ u~ ~ c~ ~.- ~ ~ ~ C/l ~ f: 1 1 ~ r ~: -,~ '. y --1 lGl - T ~ 1O Cl Pag¢ l af3 ~ -, 7. In addition to the powers conferred by law, the above named Executors and Guardians of the estate of any person less than 21 years of age entitled to distribution, and their successors, are empowered: a. To invest any part of the trust corpus in such securities, investments, or other property as may he deemed advisable and proper, irrespective of whether the same are authorized for the investment of trust funds under the laws of any governing jurisdiction. b. With respect to any corporation, the stocks, bonds, or other securities of which may be held, to vote in person or by proxy on any shares of stock; to consent to the merger, consolidation or reorganization of such corporations; to consent to the leasing, mortgaging or sale of the property of any such corporations; to make any surrender, exchange or substitution of such stocks, bonds or other securities as an incident to the merger, consolidation or reorganization of such corporations; to pay all assessments, subscriptions and other sums of money which may be deemed wise and expedient for the protection and maintenance of the proportionate interest of the investment in such corporations; to exercise any option or privilege which may be conferred upon the holders of such stocks, bonds, or other securities of such corporations either for the conversion of the same into other securities or for the purchase of additional securities, and to make any and all necessary payments which may be required in connection therewith; and generally to have and exercise as to all such stocks, bonds and other securities, the powers of an individual owner who is not under trust obligation. c. To hold the trust corpus in one or more consolidated funds in which separate shares shall have undivided interests. d. To sell at public or private sale for cash or upon credit, or partly for cash and partly on credit, and upon such terms and conditions as shall be deemed proper, any part or parts of the estate, and no purchaser at any such sale shall be bound to inquire into the expediency or propriety of any such sale or to see to the application of the purchase moneys arising therefrom. e. To keep on hand and uninvested such money as may be deemed proper and for such period as may be found expedient. f. To compromise, settle or arbitrate any claim or demand in favor of or against the vast estate. g. And authorized in the discharge of fiduciary duties, to employ counsel and to determine and to pay such counsel reasonable compensation which shall be charged against the principal or income of the trust fund, and shall further be entitled to charge against the principal or income such other reasonable expenses and charges as may be necessary and proper to incur for the proper discharge of fiduciary duties and for the proper management and administration of the trust estate. h. In making any division of property into shares for the purpose of any distribution thereof directed by the provisions of the trust, to make such division or distribution, either in cash or in kind, or partly in cash and partly in kind, as shall be deemed most expedient, and in making any division or distribution in kind may allot any specific security or property or any undivided interest [herein to any one or more of such shares, and to that end may appraise any or all of the property so to be allotted and the judgment as to the propriety of such allotment and as to [he relative value for purposes of distribution of the securities or property so allotted shall be final and conclusive upon all persons interested in the trust or in the division or distribution thereof. Andauthorized to register any shares of stock or other assets of k. To retain any investments including mutual funds which I may own at the time 9f my death and in ad ition to invest any part of the Trust corpus in such mutual fund or mutual funds as may be deemed advisable or proper, irrespective of whether the same are authorized for the investment of trust funds under the laws of any governing jurisdiction. 1. To determine from time to time whether all or some portion of realized capital gains shall be treated as ordinary income for distribution to a beneficiary or treated as principal to be retained as part of the corpus, and such designation need not be consistent from one year to another. IN WITNESS WHEREOF, I have hereunto set my hand and seal to this my Las[ Will and Testament written on three (3) pages, this x-Zr~(lay of May, 2009. _ 9 f.I r r " ~ (SEAL) VASILIKI LLIOS ~~ /~vP' ~ (SEAL) Also known as VIKI MALLIOS Signed, sealed, published, and declared by VASILIKI MALLIOS, also know as VIffi MALLIOS, the Testatrix above named, as and for her Last Will and Testament, in our presence, who, in her presence, at her request, and in the presence of each other, have hereunto subscribed our names as attesting witnesses. 0 ~8r'„'~f ~t ~m ~//.~,'un_ Pagc 3 of 3 CERTIFICATE OF SERVICE AND NOW, this ~ day of September 2010, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Robert G. Frey, Esquire FREY & TILEY 5 South Hanover Street Carlisle, PA 17013 (Attorney for the Co-Executors of the Estate of Vasiliki Mallios, Nicholas J. Mallios and Constantinos J. Mallios) CALDWELL & KEARNS sy: Wl