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HomeMy WebLinkAbout11-01-10IN RE: ESTATE OF WILLIAM R. KENNEDY, DECEASED late of South Middleton Township, Cumberland County, PA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0.21-2010-67 EXECUTOR'S ANSWER WITH NEW MATTER TO PETITION TO DIRECT PERSONAL REPRESENTATIVE TO FILE INVENTORY AND MOTION FOR PROTECTIVE ORDER AND NOW, comes Wayne F. Shade, Esquire, Executor of the Estate of William R. Kennedy, Deceased, and files the following Answer with New Matter to the Petition of Denise M. Thomas to Direct Personal Representative to File Inventory and Motion for Protective Order: 1.-5. Admitted. 6. The averments of ¶ 6 of the Petition are admitted in part and denied in part. It is WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Cazlisle, Pennsylvania 17013 admitted that Petitioner (hereinafter the "Widow") filed an election to take against the Will in her capacity as surviving spouse, but it is denied that the election was filed on March 4, 2010. On the contrary, Respondent avers that the electios filec~n M~,rc~ 3, =..~ ?~, ~ i.. , _ .1 2010. ~? m '~ ©~_-n ~ _~ ~ ~ ~a:-- ~ f31 ~. - g. Admitted. 9. The averments' of ¶ 9 of the Petition, being within the exclusive knowledge of the Widow, are denied; and proof thereof is demanded. 10. Admitted. By way of further response, see Respondent's New Matter below. 11. It is admitted that the Widow has stated that, once she sees an inventory of the Estate, she will be able to determine whether it is financially appropriate for her to pursue an elective share. By way of further response, Respondent avers, as set forth more particularly in the following New Matter, that it is not possible for Respondent to prepare an inventory of the Estate until the threshold issue of the validity of the Widow's election to take against the Will and related issues have been resolved. 12. The averments of ¶ 12 of the Petition are denied. On the contrary, Respondent avers that he is unable to prepare an inventory until your Honorable Court has determined what, if any, assets have been disclaimed by virtue of a valid election to take against the WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -2- Will and what, if any, assets have passed to the Widow as surviving tenant by the entirety in the event of a decision that she has forfeited her right to elect to take against the Will. 13. Admitted. 14. The averments of ¶ 14 of the Petition are denied. On the contrary, Respondent avers that he is unable to prepare an inventory and that the Widow has no standing to demand an inventory until the threshold issue of the validity of her election to take against the Will has been determined. 15. The averments of ¶ 15 of the Petition are denied. On the contrary, Respondent WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 avers that, in addition to seeking to expeditiously determine the issues of the validity of the Widow's election to take against the Will and the ownership of tangible personal property, on June 3, 2010, Respondent advised counsel for the Widow, in writing, that, in addition to the jointly-owned real estate which is occupied by the Widow and which would be an Estate asset by virtue of her disclaimer in the event of a finding of the validity of her election to take against the Will, the assets consist of a modified Ford pick- up truck that has been described variously as a 1954 or 1955 model, a 1957 Ford Thunderbird body with no engine or drive train, ahigh-mileage 1992 Chevrolet Blazer, -3- cash in the approximate amount of $27,500, and miscellaneous tangible personal property. 16. The averments' of ¶ 16 of the Petition, being conclusions of law, no response is required. By way of further response, the averments of the New Matter below are incorporated herein by reference as though fully set forth. 17. Admitted. 18. The averments' of ¶ 18 of the Petition, being conclusions of law, no response is required. By way of further response, Respondent avers that he is unable to file an inventory or a Pennsylvania inheritance tax return for the reasons set forth in the New Matter below. 19. Admitted. By way of further response, Respondent avers that the Widow is not an interested party and has no standing to request information concerning the assets and debts of the Estate until after the issue of whether or not she has forfeited her right to elect to take against the Will has been determined. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -4- 20. Admitted. 21. Admitted. By way of further response, Respondent avers that your Honorable Court in the person of the Honorable Edward E. Guido, J., issued the Order of August 3, 2010, in the declaratory judgment proceedings herein requiring the Widow to respond thereto. 22. The Widow does not concur with the relief requested in this Answer with New Matter. WHEREFORE, Respondent respectfully requests that your Honorable Court issue a Rule upon the Widow to show cause why the ex parte Order of October 26, 2010, herein should not be rescinded pending disposition of the previously pending declaratory judgment action and why the Widow should not be ordered to sit for her deposition to advance the previously pending declaratory judgment proceedings. NEW MATTER 23. More than two months before the Widow filed her election to take her elective WAYNE F. SHADE Attorney at Law S3 West Pomfret Street Carlisle, Pennsylvania 17013 share, Respondent placed former counsel for the Widow on notice, in writing, on -5- December 31, 2009, that it was the position of Respondent that the Widow had forfeited her right to elect to take against the Will under the provisions of 20 Pa.C.S. § 2106. 24. In the same letter to former counsel for the Widow, Respondent asserted the parties had divided their tangible personal property by a written agreement that was signed by decedent and the Widow on March 26, 2009, and that the Widow no longer had any claim to the items of tangible personal property that remained at the marital residence. 25. After the Widow filed her election to take her elective share of the Estate, Respondent repeatedly requested, of former and present counsel for the Widow, dates to take the deposition of the Widow to address the issues of forfeiture and ownership of tangible personal property. 26. When the Widow refused to provide deposition dates for more than four months after the filing of her election to take her elective share of the Estate, Respondent filed a declaratory judgment action to address the issues of the Widow's forfeiture of her right to elect to take against the Will and the ownership of tangible personal property. 27. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 The declaratory judgment action was filed on July 30, 2010, and docketed herein. -6- 28. After the filing and service in the declaratory judgment action, counsel for the Widow stated to Respondent, in writing on October 4, 2010, that they would contact Respondent to schedule the Widow's deposition. 29. The Widow then reneged on that counseled commitment to schedule her deposition and filed the Petition to which this New Matter is in response. 30. If the Widow is held not to have forfeited her right to take against the Will, her filing of the election constitutes a disclaimer of her survivorship interest in the entirety real estate and in any jointly-owned tangible personal property under the provisions of 20 Pa.C.S. § 2204(a)(8). 31. The Widow has not provided any authority to the contrary of 20 Pa.C.S. § 2204(a)(8), in spite of written requests that she do so. 32. If your Honorable Court were to find that the Widow has forfeited her right to WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 elect to take against the Will, then the Widow would not be an interested party in the Estate because she would have no interest in the probate assets and no standing to -7- demand an inventory or anything else regarding administration of the Estate. Her interest would be limited to her survivorship interest in the real estate as a then non-probate asset. 33. If your Honorable Court were to find that the Widow has not forfeited her right to elect to take against the Will, your Honorable Court will still need to determine the issues raised in the previously pending declaratory judgment action regarding the ownership of the untitled tangible personal property that was owned by the parties prior to their written agreement of March 26, 2009, in which they agreed to divide that property. 34. At the date of death of decedent, the Widow was not living at the marital residence. 35. At the date of death of decedent, he was living, alone, at the marital residence; and all of the untitled tangible personal property that was there belonged to him in accordance with the aforesaid written agreement of the parties of March 26, 2009. 36. After the death of decedent, the Widow returned to live in the marital residence; and Respondent believes and therefore avers that the Widow has commingled items of WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -t~- untitled tangible personal property at the marital residence, in spite of the written request of Respondent that she not do so. 37. As long as the Widow's challenged election to take an elective share remains pending without a decision on whether or not it is invalid by virtue of forfeiture, the real estate is clearly under the control of the Executor as an Estate asset under the provisions of 23 Pa.C.S. § 3311; and the Widow's status on the property is that of a trespasser. 38. In spite of her status as a trespasser on the real estate pending a decision on the validity of her election, the Widow is occupying the real estate and refusing to permit Respondent to enter upon it under threat of criminal prosecution. 39. Even if Respondent were not otherwise unable to file an inventory and inheritance tax return for the reasons set forth herein, he is unable to document the tangible personal property that was in the possession of decedent at his date of death where the Widow refuses to permit him to enter upon the property to inventory it. 40. Until the issues that are presented in the declaratory judgment proceedings have WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 been resolved, Respondent is unable, as a matter of law, to determine what assets are -9- probate assets that would be includable in the inventory of the Estate and what assets are non-probate assets that would not be includable in the inventory of the Estate. 41. For the same reasons, Respondent will be unable to determine the assets that are taxable for inheritance tax purposes until the threshold issues of probate and non-probate assets, that are embraced in the declaratory judgment action, have been resolved. 42. If your Honorable Court were to find that the Widow has forfeited her right to elect to take against the Will, it would be a waste of Estate assets to pay for an appraisal of the real estate where the entirety real estate would become the non-taxable property of the Widow. 43. The Widow's demands for the filing of an inventory and for an accounting of the debts of the Estate are premature until the threshold issues of her standing and of ownership of assets that are embraced in the declaratory judgment action have been resolved. WHEREFORE, Respondent respectfully requests that your Honorable Court issue a Rule upon the Widow to show cause why the ex pane Order of October 26, 2010, herein should not be rescinded pending disposition of the previously pending declaratory WAYNF, F. SHADE Attorney at Law 53 West Pomfret Stree Carlisle, Pennsylvania 17013 -10- judgment action and why the Widow should not be ordered to sit for her deposition to advance the previously pending declaratory judgment proceedings. Wayne .Shade, Esquire I verify that the statements made in the foregoing Answer with New Matter 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. Date: November 1, 2010 ~~~ ~~~ Wayne F. Shade WAYNE F. SHADE Attorney at Law 53 West Pomfret Stree Carlisle, Pennsylvania 17013 -11-