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HomeMy WebLinkAbout05-31-11 IN RE: THE ESTATE OF LEWIS A. STRAW DONALD STRAW and RONALD STRAW, Petitioners VS. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION NO. 10,~4~- ~ ~ (~ BRYAN W. SHOOK, ESQUIRE ~~ Executor/Respondent ~ ¢ ~ ~, ~ ' ~. = = ,' ..~} ~-~ NOTICE TO PLEAD ~ cn` ~ f . `- .~'; TO. O r3t~ ~~-,~, ~: ~ ~=,~ ~ t Eric R. David, Esquire C3 .. +~;~? ~ ~r~ C,~ Rominger & Associates o ':~"~ . c.`~= 155 South Hanover Street Carlisle, PA 17013 Attorneys for Petitioners You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Date: May 27, 2011 538593v1 METTE, EVANS & WOODSIDE BY~ ~CM~.E,~ iC i/.tw,.,~~ Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Executor/Respondent, Bryan W. Shook, Esquire ~v Ronald L. Finck, Esquire Sup. Ct. I.D. #89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Phone: (717) 232-5000 Fax: (717) 236-1816 rlfinck@mette.com IN RE: THE ESTATE OF LEWIS A. STRAW, deceased DONALD STRAW and RONALD STRAW, Petitioners VS. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION NO. 10-~~~(,v BRYAN W. SHOOK, ESQUIRE Executor/Respondent RESPONSE TO PETITION FOR CITATION TO SHOW CAUSE WHY APPEAL FROM PROBATE SHOULD NOT BE SUSTAINED The Executor/Respondent, Bryan W. Shook, Esquire ("Executor"), by and through his attorneys, Mette, Evans & Woodside, files this Response to the Petition for Citation to Show Cause Why Appeal from Probate Should not be Sustained of the Petitioners, Donald Straw ("Donald") and Ronald Straw ("Ronald") (collectively the "Petitioners"), as follows: 1. Admitted. 2. The averments of paragraph 2 constitute conclusions of law to which no responsive pleading is required. 3. Admitted in part, denied in part. It is admitted only that on April 30, 2010, the Cumberland County Register of Wills admitted to probate as the Last Will and Testament of Lewis A. Straw, deceased ("Decedent"), a writing dated April 5, 2010 (the "2010 Will")„ It is specifically denied that the 2010 Will is not the Last Will and Testament of the Decedent and should not have been admitted to probate. To the contrary, the 2010 Will is, in fact, the Last Will and Testament of the Decedent. The Executor responds to each subparagraph of paragraph 3 of the Petitioners' Petition as follows: (a) Denied. The averments of subparagraph 3 (a) constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, it is specifically denied that the Decedent lacked testamentary capacity as of Apri15, 2010. To the contrary, the Decedent knew the natural objects of his bounty, knew of what his estate consisted and knew what he desired to have done with it. Strict proof to the contrary is demanded. (b) Denied. The averments of subparagraph 3 (b) constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, it is specifically denied that the Decedent executed the 2010 Will as a result of undue influence. To the contrary, the Executor has no information indicating that the Decedent was the subject of undue influence. Strict proof thereof is demanded. 4. Admitted in part, denied in part. To the extent the averments of paragraph 4 constitute conclusions of law, no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is admitted only that the Petitioners were not sent the Notices contemplated by Pa. O.C.P. 5.6. It is specifically denied that the Petitioners did not have actual notice of the administration of Decedent's Estate. It is further specifically denied that the Petitioners were in any way prejudiced by any lack of written notice. Strict proof thereof is demanded, if deemed relevant. 2 5. Admitted in part, denied in part. It is admitted only that the Petitioners are the surviving biological children of the Decedent. The remaining averments of paragraph 5 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 6. Admitted. 7. Admitted in part, denied in part. It is admitted only that Lewis Dopp ("Lewis"), Savannah Marie Dopp ("Savannah"), and Anna Marian Straw ("Marian"), are interested beneficiaries under the 2010 Will. It is specifically denied that any of the remaining individuals identified in paragraph 7 have any interest in the Decedent's Estate. Strict proof thereof is demanded. 8. Admitted in part, denied in part. It is admitted that the proceedings before the Register of Wills are matters of public record, in writing, which as such speak for themselves. To the extent the Petitioners mischaracterize, misinterpret, misquote, misrepresent, elabarate upon, remove the contents of the writings from their context, said averments are denied and strict proof thereof is demanded, if deemed relevant. 9. Admitted, upon information and belief. 10. Denied. The averments of paragraph 10 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Decedent lacked testamentary capacity. Executor responds to each subparagraph of paragraph 10 of the Petitioners' Petition as follows: (a) Admitted in part, denied in part. It is admitted only that the Decedent's physical health was in decline. Any implication that the Decedent's mental health 3 was in a state of decline is specifically denied and strict proof thereof is demanded. (b) Denied. It is specifically denied that the Decedent was ever confused or exhibited any behaviors showing that he was incapable of understanding his actions at the time of the execution of the 2010 Will. To the contrary, the Decedent was mentally alert as of April 5, 2010. Strict proof to the contrary is demanded. 11. Denied. The averments of paragraph 11 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Decedent executed the 2010 Will as the result of undue influence. To the contrary, the Decedent executed the 2010 Will on his own volition. The Executor responds to each subparagraph of paragraph 11 of Petitioners' Petition as follows: (a) Denied. It is specifically denied that the Decedent lived without a Will until the execution of the 2010 Will. To the contrary, the Decedent had a prior Will dated August 12, 2005 (the "2005 Will"). A true and correct copy of the 2005 Will is attached hereto as Exhibit `A' and made a part hereof by reference. (b) Admitted in part, denied in part. It is admitted that the Decedent disinherited his natural children, the Petitioners. It is specifically denied that the Decedent had a long and caring relationship with his children. To the contrary, the Decedent was estranged from his son, Donald, for at least five (5) years prior 4 to the Decedent's death. While the Decedent maintained a cordial relationship with his other son, Ronald, for financial reasons the Decedent knowingly disinherited Ronald. (c) Admitted in part, denied in part. It is admitted that the Decedent left the bulk of his Estate to Testamentary Trusts established for the benefit of his Step-Grandson, Lewis, his Surviving Spouse, Marian, and the Decedent's Step- Great-Granddaughter, Savannah. It is further admitted that the Decedent never formally adopted his Step-Grandson, Lewis. It is specifically denied that the Decedent and Lewis did not maintain a close and strong relationship with one another. To the contrary, the Decedent was very fond of Lewis and they maintained a much closer relationship then the Decedent did with his natural children. Strict proof to the contrary is demanded. (d) Denied. It is specifically denied that Lewis only began taking part in the affairs of the Decedent at the end of the Decedent's lifetime. To the contrary, Lewis's close relationship with the Decedent began many years before the Decedent's death. It is specifically denied that Lewis exercised any control over the Decedent's personal affairs. Strict proof to the contrary is demanded, if deemed relevant. (e) Denied. It is specifically denied that Lewis arranged for the care of Decedent to be transferred from the Decedent's long-time, trusted physician. To the contrary, Lewis was in no way involved in the decision making process 5 regarding the Decedent's end of life care. Strict proof thereof is demanded, if deemed relevant. (~ Denied. The averments of subparagraph 11(f) constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the Executor incorporates his response to subparagraphs 10(a) through 10(e) above herein as if fully set forth. It is further specifically denied that Lewis enjoyed or exercised any power of attorney over the affairs of the Decedent's wife, Marian, at the time of the execution of the 2010 Will. Strict proof thereof is demanded, if deemed relevant. WHEREFORE, the Executor/Respondent, respectfully requests that this Court deny the Petitioners' Petition and dismiss the Petitioners' Appeal from Decree of Probate, and permit the Estate to be administered under the terms of the 2010 Will. In the alternative, the Executor requests that the Court grant leave to probate the 2005 Will. The Executor further requests such other relief as the Court deems just and appropriate under the circumstances. NEW MATTER 12. The averments set forth in the paragraphs above are incorporated herein by reference as if fully set forth. 13. The Decedent was born on December 12, 1917. 14. The Decedent was survived by Marian, who he married in Dorchester, Massachusetts on May 25, 1969. 15. The Petitioners are Marian's step-children and the natural children of the Decedent from a previous marriage. 6 16. At the time of the Decedent's marriage to Marian, Marian also had a daughter from a previous marriage, Ruth P. Brunner ("Ruth"). 17. Ruth died on December 16, 2008. 18. Lewis is the surviving son of Ruth and step-grandson of the Decedent. 19. Savannah is the natural daughter of Lewis. 20. As of this writing, Savannah is three years old. 21. During his lifetime, the Decedent owned and operated the ACME Northside Hangers at the Capital City Airport. 22. Since the early 1970's, the Decedent suffered from heart problems. 23. In February of 1970, he underwent a coronary occlusion at the Holy Spirit Hospital in Cumberland County, Pennsylvania. 24. On August 12, 2005, the Decedent executed the 2005 Will, attached hereto as Exhibit `A' and made a part hereof by reference. 25. In approximately October of 2006, the Decedent retained the Executor to represent the Decedent's interests in a variety of civil lawsuits and other legal proceedings involving the Decedent. 26. As the Decedent's attorney, the Executor worked with the Decedent on a regular basis. 27. During this time period, the Decedent made known to the Executor that the Decedent had a very poor relationship with his son, Donald, who the Decedent often referred to as `Speed.' 28. The Decedent maintained a fairly good relationship with his other son, Ronald. 29. Ronald is a patient at the Masonic Village in Cumberland County, Pennsylvania. 7 30. Alzheimer's. It is believed and therefore averred that Ronald suffers from early on-set 31. During his lifetime, Decedent was the primary attorney-in-fact for Ronald. 32. It is believed and therefore averred that Donald is the alternate attorney-in-fact and began acting in that capacity since the Decedent's death in April of 2010. 33. It is believed and therefore averred that Ronald is incapable of understanding the Petition filed by Donald on Ronald's behalf. 34. While the Decedent was still alive and acting as Ronald's attorney-in-fact, the Pennsylvania Department of Public Welfare attempted to terminate a portion of the financial assistance Ronald was receiving from the Commonwealth of Pennsylvania. 3 5. In response thereto, the Decedent initiated an appeal from the Pennsylvania Department of Public Welfare's decision. The appeal was ultimately submitted to the Commonwealth Court and was settled in April of 2010. 36. In the proceedings surrounding the Department's attempt to terminate Ronald's benefits, the Decedent was instrumental in governing the litigation and the Executor acted as the Decedent's attorney. 37. The Decedent expressed concern to the Executor that Ronald's receipt of an inheritance from the Decedent would jeopardize Ronald's financial assistance. It is believed and therefore averred that this concern played a part in the Decedent's decision to disinherit Ronald. 38. In approximately January of 2010, Decedent suffered congestive heart failure and was hospitalized at the Holy Spirit Hospital. 39. During his January of 2010 hospitalization, the Decedent contacted the Executor to assist in making changes to his 2005 Will. 8 40. The 2005 Will had been written by David Radcliff, Esquire. 41. During his hospitalization, the Decedent appointed the Executor to act as the Decedent's power of attorney. 42. From time to time, during his final illness, Decedent was released from Holy Spirit Hospital and either spent that time at Manor Care, Camp Hill, Cumberland County or at his residence until his death at Holy Spirit Hospital on Apri128, 2010. 43. While the Decedent's physical health deteriorated in the months leading up to his death in April of 2010, his mental acuity remained intact. 44. During this time period, the Decedent carefully considered and discussed his last wishes with the Executor. 45. During this time period, the Decedent maintained that Donald or Ronald would not inherit anything from the Decedent after the Decedent's death. 46. The Decedent further expressed a desire to benefit his wife, Marian as well as his step-grandson, Lewis, and step-great granddaughter, Savannah. 47. The Decedent was especially fond of his step-great granddaughter, Savannah. 48. The Decedent explained to the Executor and the Scrivener that it was not the Decedent's desire that Lewis be given a large sum of cash. Instead, the Decedent wanted a trust created for the benefit of Lewis and Lewis' daughter, Savannah. 49. The 2010 Will was drawn up and executed in order to accomplish the Decedent's expressed goals. 50. It is believed and therefore averred that the Decedent never discussed the existence or the contents of the 2010 Will with Lewis. 9 51. In fact, the first time that Lewis was advised of the contents of the Decedent's 2010 Will, was by the Executor, at the Carlisle Diner, after the Decedent's death. 52. During the time period that the Decedent was hospitalized in Holy Spirit and later in Manor Care, several individuals approached the Decedent about attempting a reconciliation with his son, Donald. 53. The Decedent was not interested in reconciling with Donald. 54. Further, the Decedent assumed that Donald was also not interested in the reconciliation as Donald never visited the Decedent while the Decedent had been hospitalized. 55. As a result of the existence of the 2005 Will, the Petitioners lack standing to contest the 2010 Will. 56. The claims made by the Petitioners are barred by the Doctrine of Laches inasmuch as the Petitioners failed to raise any such concerns while the Decedent was alive. 57. The Petitioners are further estopped from challenging the 2010 Will to the extent the Court finds that its doing so will jeopardize or perhaps terminate Ronald's receipt of financial assistance from the Commonwealth. 58. Based on the foregoing, the Petitioners' Petition should be denied. WHEREFORE, the Executor/Respondent, respectfully requests that this Court deny the Petitioners' Petition and dismiss the Petitioners' Appeal from Decree of Probate, and permit the Estate to be administered under the terms of the 2010 Will. In the alternative, the Executor requests that the Court grant leave to probate the 2005 Will. The Executor further requests such other relief as the Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE 10 Date: May 27, 2011 By: ~y~ -Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Executor/Respondent Bryan W. Shook, Esquire 11 VERIFICATION I, Bryan W. Shook, have read the foregoing document and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DATE: May ~ $ _, 2011 ~ . Bry W. Shook, Esquire E~~IBIT A THE LAST WILL AND TESTAMENT OF LEWIS A. STRAW KNOW ALL MEN BY THESE PRESENTS, that I, LEWIS A. STRAW, of 14 Drexel Hills Circle Drive, New Cumberland, Cumberland County, Pennsylvania, being in good health and of sound and disposing memory, do hereby make, declare and publish this as my Last Will and Testament, hereby revoking all former Wills and Codicils heretofore made by me. First: Payment of Debts and Tag Allocation I direct that all of my debts not barred by the statute of limitations, expenses of my last illness, funeral expenses, costs of administration and claims allowed in the administration of my estate shall be paid by my Executor hereinafter named, from my estate as soon after my decease as shall be found convenient. All estate, inheritance and death taxes, excluding any generation-skipping transfer tax, resulting from my death shall be paid without apportionment and without reimbursement from any person. Notwithstanding anything to the contrary in this Will, no death taxes payable as a result of my death shall be allocated to or paid from the Marital Trust or from any assets passing to my spouse and qualifying for the federal estate tax marital deduction unless my Executor has first used all other assets available to my Executor. Second: My Beneficiaries I am married to A. MARIAN STRAW. All references in this Will to "my spouse" or "my wife" are to her. In addition to my spouse, my intended beneficiaries are my wife's daughter RUTH BRLTNNER, my wife's grandson LEWIS DOPP and specific charities as set forth below. I have made no provisions in this Will for any of my children or other descendants. All references in this Will to "my Beneficiaries" are to RUTH BRUNNER and LEWIS DOPP. Third: Distribution of my Tangible Personal Property I give and bequeath my jewelry, clothing, household furnishings and fixtures, chinaware, silver, photographs, works of art, books, automobiles, sporting goods, artifacts relating to my hobbies, and all other tangible personal property (not including cash, securities or trusts), together with any existing insurance thereon, to my wife, A. MARIAN STRAW, if she survives me by thirty (30) days. Should my wife, A. MARIAN STRAW, not be living on the thirty-first (31st) day after my death, I give and bequeath my jewelry, clothing, household furnishings and fixtures, chinaware, silver, photographs, works of art, and books, together with any existing insurance thereon, to my Beneficiaries, my step- daughter RUTH BRUNNER and her son LEWIS DOPP, to be divided among them as they may agree. In the event that my Beneficiaries are unable to agree to the division of any or all items, the same shall be sold by my Executor and the proceeds added to the residue of my estate. All other tangible personal property shall be sold by my Executor and the proceeds added to the residue of my estate. Fourth: Creation of Marital and Family Trusts If my spouse survives me, my Executor shall distribute the rest, residue and remainder of my estate as follows: Section 1. My Executor shall divide the remaining assets of my Estate into two separate trusts, to be known as the Marital Trust and the Family Trust. a. The Marital Trust shall be the fractional share of the property of my estate determined as follows: 1. The numerator of the fractional share shall be the smallest amount which, if allowed as a marital deduction, would result in the least possible federal estate tax being payable as a result of my death, after allowing for the unified credit against federal estate tax (after taking into account adjusted taxable gifts, if any) as finally determined for federal estate tax purposes, and the credit far state death taxes (but only to the extent that the use of this credit does not require an increase in the state death taxes paid). The numerator shall be reduced by the value, for federal estate tax purposes, of any interest in property that qualifies for the federal estate tax marital deduction and which passes or has passed from me to my spouse other than under this Paragraph Fourth. 2. The denominator of the fractional share shall consist of the value, as finally determined for federal estate tax purposes, of all of the property of my estate under this Will. b. The Family Trust shall consist of the balance of the property of my estate. Section 2. My Executor shall have complete authority to make allocations of the property of my estate between the Marital and Family Trusts. My Executor may, i.n its sole and absolute discretion, make allocations in cash or in kind, in undivided interests, or. in any proportion thereof between the two trusts. a. My Executor shall not allocate any property or the proceeds from any property to the Marital Trust which would not qualify for the federal estate tax marital deduction in my estate. b. My Executor shall not allocate any policies of life insurance insuring the life of my spouse to the Marital Trust. c. To the extent that there are insufficient assets qualifying for the marital deduction to fully fund the Marital Trust, the amount of the funding to the Marital Trust shall be reduced accordingly. Section 3. In making the computations necessary to determine the amount passing to the Marital Trust, my Executor shall use those values as finally determined for federal estate tax purposes. a. Property conveyed or assigned in kind to the Marital Trust shall be valued at its value as finally determined for federal estate tax purposes. However;, in no event shall the aggregate value of the cash and property on the date or dates of distribution be less than the amount of the Marital Trust as finally determined in Section 1, Paragraph a of this Paragraph Fourth. alb -~!Z B~ b. When making the decision as to what property shall be allocated to the Marital Trust, my Executor shall consider the tax consequences and advisability of allocating property subject to foreign death tax, property on which a tax credit is available, or property which is income in respect of a decedent under applicable income or estate tax laws. Section 4. My spouse shall have the absolute and unequivocal right to compel my Trustee, at any time, to convert any nonproductive property held as an asset of the Marital Trust to productive property. This right shall be exercised in writing delivered to my Trustee. Section 5. My spouse may disclaim all or any portion of any interest in property or power with respect to property passing to my spouse, or for my spouse's benefit, under this trust within the time and under the conditions permitted by law. My spouse's disclaimer may be exercised by delivering an irrevocable and unqualified refusal to accept all or any portion of such interest or power to my Trustee or Executor. If my spouse exercises this disclaimer with respect to all or any portion of the Marital Trust, the interest so disclaimed shall be added to the Family Trust. If my spouse exercises this disclaimer with respect to my spouse's interest in all or any portion of the Family Trust, the interest that is disclaimed shall be disposed of under this Will as though my spouse had predeceased me. Fifth: Administration of Marital Trust My Trustees shall hold, administer, manage and distribute the assets of the Marital Trust as follows: Section 1. My Trustee shall pay to or apply for my spouse's benefit, at least annually during my spouse's lifetime, all of the net income from the Marital Trust. Section 2. My Trustee shall pay to or apply for my spouse's benefit such amounts from the principal of the Marital Trust as my spouse may at any time request in writing. No limitation shall be placed on my spouse as to either the amount of or reason for such invasion of principal. Section 3. My Trustee may also distribute to or for my spouse's benefit as much of the principal of the Marital Trust as my Trustee, in its sole and absolute discretion, shall consider necessary or advisable for my spouse's health, maintenance, education and support. My Trustee shall not take into consideration any income or resources of my spouse which are outside of the Marital and Family Trusts under this Will. ~~ 4 Section 4. My spouse shall have the unlimited and unrestricted general power to appoint, by a valid last will and testament or by a valid living trust agreement, the entire principal and any accrued and undistributed net income of the Marital Trust as it exists at my spouse's death. In exercising this general power of appointment, my spouse shall specifically refer to this power. My spouse shall have the sole and exclusive right to exercise the general power of appointment. This general power of appointment specifically grants to my spouse the right to appoint property to my spouse's own estate. It also specifically grants to my spouse the right to appoint the property among persons, corporations, or other entities in equal or unequal proportions, and on such terms and conditions, whether outright or in trust, as my spouse may elect. Section 5. The Marital Trust shall terminate at my spouse's death. My Trustee shall administer the unappointed balance or remainder of the Marital Trust as follows: a. My Trustee may, in its sole and absolute discretion, pay for the following expenses: The expenses of the last illness, funeral, and cremation of my spouse. The expenses of administering my spouse's estate. Any inheritance, estate, or other death taxes payable by reason of my spouse's death, together with interest and penalties thereon. My Trustee shall, to the extent that it is reasonable and prudent, coordinate with my spouse's personal representative to minimize expenses and taxes resulting from my spouse's death. b. If the Marital Trust holds United States Treasury Bonds eligible for redemption at the face amount in payment of the federal estate tax, my 'trustee shall redeem the bonds to the extent necessary to pay any federal estate tax due by reason of my spouse's death. c. Without in any way limiting my Trustee's discretion, it is my desire that my Trustee not make any payments under this Section if those payments can be satisfied from assets of my spouse outside of the Marital Trust. ~ 5 Section 6. The unappointed balance or remainder of the Marital Trust shall be administered as provided in the Paragraphs which follow. Sixth: Administration of Family Trust My Trustees shall hold, administer, manage and distribute the assets of the Family Trust as follows: Section 1. My Trustee shall pay to, or apply for the benefit of my spouse, at least quarterly during my spouse's lifetime, all of the net income from the Family Trust. Section 2. My Trustee may also distribute to or for the benefit of my spouse as much of the principal of the Family Trust as my Trustee, in its sole and absolute discretion, shall consider necessary or advisable for my spouse's health, maintenance, education and support. In making discretionary distributions of principal to my spouse, my Trustee shall preferably make all distributions of principal from the Marital Trust until it is exhausted, and only thereafter from the Family Trust. If my spouse has the power to remove a Trustee of this Family Trust, my Trustee shall not distribute any of the principal of the Family Trust that would in any manner discharge my spouse's legal obligation to a beneficiary of the Family Trust. Section 3. The Family Trust shall terminate at the death of my spouse and my 'Trustee shall hold and administer the remaining assets of the Family Trust, including any accrued and undistributed net income, under Paragraph Seventh. Seventh: Creation of Trusts for My Beneficiaries Section 1. If my spouse does not survive me, all the rest, residue and remainder of my estate wheresoever situate and of whatsoever nature and any property specifically directed to be distributed under this Paragraph Seventh are to be administered and distributed as set forth in this Paragraph. First, my Trustee shall continue to hold any mortgage due from RUTH BRUNNER and shall not forgive the indebtedness but the mortgage shall be an asset of the trust for the benefit of RUTH BRUNNER below. Second, I forgive the balance due on the car loan from RUTH BRITNNER and the documentary evidence of the termination of that indebtedness is to be signed by my Executor in a form to be recorded by the appropriate agency. My Executor shall distribute thirty (3 0%) percent of the remainder (including any mortgage due from RUTH BRUNNER) to my Trustee named below to create a separate trust share for RUTH BRUNNER to be held in trust under the terms of this Paragraph. Jac ~ 6 Section 2. The trust share of RUTH BRUNNER shall be administered and distributed as follows: a. Distribution of Trust Share for RUTH BRUNNER 1. Distributions of Net Income and Principal My Trustee, in its sole and absolute discretion, shall apply to, or for the benefit of, RUTH BRUNNER as much of the net income from her trust share as my Trustee deems advisable for her health, education, and maintenance. Any net income not distributed shall be added to principal. My Trustee, in its sole and absolute discretion, shall apply to, or for the benefit of RUTH BRUNNER as much of the principal from her trust share as my Trustee deems advisable for her health, education and maintenance. 2. Guidelines for Discretionary Distributions With regard to my Trustee's discretionary authority over the distribution of income or principal to RUTH BRUNNER, it is my desire that my Trustee be conservative in exercising such discretion. In making discretionary distributions to RUTH BRUNNER, my Trustee shall be mindful of, and take into consideration any additional sources of income and principal available to RUTH BRLTNNER which arise outside of this. agreement and are known to my Trustee. It is my express desire that my Trustee take into consideration the future probable needs of RUTH BRUNI~TER prior to making any discretionary distributions hereunder. 3. Distribution on the Death of RUTH BRUNNER Upon the death of RUTH BRUNNER, my Trustee shall distribute the remaining trust property to the trust share for LEWIS DOPP, if he :is then living. If LEWIS DOPP is not then living, my Trustee shall distribute the remaining trust property as set forth in Paragraph Eighth below. ~~ ~~ , b. Distribution of Trust Share for LEWIS DOPP 1. Distributions of Net Income and Principal My Trustee, in its sole and absolute discretion, shall apply to, or for the benefit of, LEWIS DOPP as much of the net income from his trust share as my Trustee deems advisable for his health, education, and maintenance. Any net income not distributed shall be added to principal. My Trustee, in its sole and absolute discretion, shall apply to, or for the benefit of, LEWIS DOPP, as much of the principal from his trust share as my Trustee deems advisable for his health, education and maintenance. 2. Guidelines for Discretionary Distributions With regard to my Trustee's discretionary authority over the distribution of income or principal to LEWIS DOPP, it is my desire that my Trustee be conservative in exercising such discretion. In making discretionary distributions to LEWIS DOPP, my Trustee shall be mindful of, and take into consideration any additional sources of income and principal available to LEWIS DOPP which arise outside of this agreement and are known to my Trustee. It is my express desire that my Trustee take into consideration the future probable needs of LEWIS DOPP prior to making any discretionary distributions hereunder. 3. Distribution on the Death of LEWIS DOPP Upon the death of LEWIS DOPP, my Trustee shall distribute the remaining trust property as set forth in Paragraph Eighth below. Eighth: Ultimate Distribution Provisions If at any time there is no person, corporation, or other entity entitled to receive all or any part of my estate or any trust property, then that property shall and any property directed to be distributed under this Paragraph shall be distributed to the organizations and in the percentages set out in this Paragraph: Humane Society of Harrisburg Area, Inc. ~~~o Camp Hill United Methodist Church 1 ~)~~o Guiding Eyes for the Blind, Philadelphia, Pennsylvania ;j~jo `~Q~ e William S. Snyder Lodge No. 756, F. & A. M., for its charity committee. 10% American Heart Association Capital Region, Camp Hill, PA 24°,/0 Capital Area Unit of the American Cancer Society, Harrisburg, PA 23®/0 Alzheimers Disease and Related Disorders Association 23°,/0 Ninth: The Resignation, Replacement and Succession of my Trustees The appointment, resignation, replacement, and succession of my Trustees shall be governed as follows: Section 1. I hereby nominate, constitute and appoint A. MARIAN STRAW and COMMUNITY BANKS as Co-Trustees of the trusts created by this, my Last Will and Testament, without the necessity for posting security regardless of state of residence. Section 2. Any Trustee may resign by giving thirty days' written notice to any Co- Trustee then serving, which notice is also to be delivered to the successor Trustee, if any, and to all of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income from any trust created under this Will. If a beneficiary is a minor or is legally incapacitated, the notice shall be delivered to that beneficiary s guardian or other legal representative. Such resignation shall be effective upon the successor Trustee's written acknowledgment of his undertaking of the duties of a trustee. Section 3. Any Trustee may be removed by my spouse at any time after my death. My Beneficiaries may remove any Trustee of their own separate trusts at any time after first naming a another corporate fiduciary as Trustee so that there is always a corporate Trustee. The person or persons who have authority to remove a Trustee shall not be required to give any Trustee being removed any reason, cause, or ground for such removal. Notice of removal shall be made in writing and delivered to the Trustee and shall be effective upon the acceptance of its duties by a successor corporate Trustee. Section 4. Trustees shall be replaced in the following manner: a. If A. MARIAN STRAW is unwilling or unable to serve as Trustee, or cannot continue to serve for any reason, then I nominate, constitute and appoint COMMUNITY BANKS as successor trustee with the intent that COMMUNITY BANKS may serve alone. b. In the event that CONIlVIUNITY BANKS is unwilling or unable to serve as Trustee, is removed or cannot continue to serve for any reason, then a maj ority of the beneficiaries then eligible to receive mandatory or discretionary distributions of income under the trust or trust share shall forthwith name a new corporate fiduciary. If a maj ority of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income under this trust cannot agree on a corporate fiduciary, any ,B~ 9 removed Trustee or beneficiary can petition a court of competent jurisdiction, ex pane, to designate a corporate fiduciary as a Trustee. The court that designates the successor Trustee shall not acquire any jurisdiction over any trust created under this Will, except to the extent necessary to name a corporate fiduciary as a successor Trustee. Section 5. Any corporate fiduciary appointed by a court of competent jurisdiction as a Trustee must be a bank or trust company situated in the United States having trust powers under applicable federal or state law. Such fiduciary shall have a combined capital and surplus of at least 2 million dollars. Section 6. Any successor Trustee, whether corporate or individual, shall have all of the rights, powers, and privileges, and be subject to all of the obligations and duties, both discretionary and ministerial, as given to the original Trustees. Any successor Trustee shall be subject to any restrictions imposed on the original Trustees. No successor Trustee shall be required to examine the accounts, records, and acts of any previous Trustees. No successor Trustee shall in any way be responsible for any act or omission to act on the part of any previous Trustees. Section 7. Notwithstanding any other provisions of this, my Last Will and Testament, my Trustee may not exercise or participate in the exercise of discretion with respect to the distribution of income or principal to any person my Trustee is legally obligated to support, to the extent the distribution discharges the support obligation of my Trustee. Tenth: Appointment of Executor I hereby nominate, constitute, and appoint my wife, A. MARIAN STRAW, as Executor of this, my Last Will and Testament. In the event that my spouse shall predecease me, or be unwilling or unable to act as my Executor, as aforesaid, then I nominate, constitute and appoint COMMUNITY BANKS without necessity for posting security regardless of state of residence, as Executor of this, my Last Will and Testament. All references to the Executor herein shall be applicable to said substitute Executor. Eleventh: General Provisions Section 1. My Executor's and Trustee's Administrative and Investment Powers My Executor and Trustee shall have, in addition to the powers and authority conferred upon them by law, the following additional powers and authority: ~ ~ ,o 1. To sell at public or private sale, exchange, lease, mortgage or pledge any property, real or personal, at any time constituting a portion of a trust or my estate, and upon such terms and conditions as the Executor or Trustee shall deem wise. 2. To invest any money at any time in such bonds, stocks, notes, real estate, mortgages, life insurance, annuities or other securities (including proprietary mutual funds of the corporate Executor or Trustee), or such property, real or personal, as the Executor or Trustee shall deem wise, without being limited by any statutes or rule of law regarding investments by the Executor or Trustee. 3. To retain, without incurring any liability, as investments, any property owned by me at the time of my death, as long as they deem it wise, and even though such property is not the kind of property an Executor or Trustee would purchase as an investment; and even though to retain such property might violate sound diversification principles; and to make any division, distribution or partition of the estate or trust property in cash or kind, or partly in cash and partly in kind, pro rata or non-pro rata. 4. To cause any security or other property which may constitute a portion of a trust or of my estate to be issued, held or registered in their own name, or in the name of a nominee, or in such form that title will pass by delivery. 5. To consent to the reorganization, consolidation, readjustment of the financial structure, or sale of the assets of any corporation or other organization, the securities of which constitute a portion of a trust or of my estate, and to take any action with reference to such securities which, in the opinion of the Executor or Trustee is necessary to obtain the beneftt of any such reorganization, consolidation, readjustment or sale; to exercise any conversion privilege or subscription right given to them as owner of any securities constituting a portion of a trust or of my estate resulting from any reorganization, consolidation, readjustment, sale, conversion or subscription. 6. To pay all costs, taxes, charges and expenses in connection with the administration of a trust or of my estate, including such compensations to Executor or Trustee. My corporate Executor or corporate Trustee shall receive compensation for the performance of its functions hereunder in accordance with its schedule of fees in effect from time to time during the period over which it services are performed. In addition to fees paid to corporate Executors or Trustees, individual trustees, other than a beneficiary of the trust, rriay be compensated in an amount equal to one-half of the corporate trustee's compensation. Any individual trustee who is also a beneficiary shall serve without compensation. 7. To determine what is "income" and what is "principal" hereunder, and their decision thereon shall be final; and to purchase securities at a premium or discount, and to apply or charge said premium or discount against income or principal as the Executor or Trustee may determine. .. 8. To borrow money from any person, firm or corporation, including any corporation acting as an Executor or Trustee hereunder, for the purpose of protecting and preserving or improving my estate or trust hereunder; to execute promissory notes or other obligations for amounts so borrowed upon such terms and conditions as they deem advisable. 9. To employ legal counsel, accountants, brokers, investment advisors, custodians, managers and other agents and employees and to pay them reasonable compensation out of my estate or any funds held hereunder to which said compensation is attributable. 10. To carry on any business owned or controlled by me at my death for whatever period of time they shall think proper, and they shall have the power to do any and all things they deem necessary or appropriate, including the power to close out, liquidate or sell the business at such time and upon such terms as to them shall deem best. 11. My Executor may exercise any available elections with regard to state or federal income, inheritance, estate, succession, or gift tax law. My Executor shall, in its absolute discretion, determine whether to elect under Section 2056(b)(7) of the Internal Revenue Code of 1986 or corresponding provision in effect at my death, to qualify any portion of the Marital Trust for the federal estate tax marital deduction. Generally, I anticipate that my Executor will elect to minimize the estate tax payable by my estate. However, I would expect that some consideration be given to the estate tax payable in my spouse's estate upon her death, especially if she should die prior to the time the election is made. The determination of my Executor with respect to the exercise of the election shall be conclusive upon all affected persons. 12. The Executor or Trustee may, but shall not be required to, prepare and file accountings with any Court. Prior to delivering all of the property of any trust hereunder to a successor Trustee or to making any partial or complete distribution of trust principal or of my estate assets, the Executor or Trustee may require an approval of its accounting either by a release and discharge by the beneficiary or beneficiaries of any such trust or by a Court of competent jurisdiction. All of the Executor's or Trustee's fees and expenses (including reasonable attorney's fees) attributable to any such accounting and approval shall be :paid by such trust. 13. The Trustee in its sole and absolute discretion may terminate any trust hereunder at any time it determines that the aggregate value of the trust property renders continued administration economically infeasible and, upon such termination, shall pay over the remaining trust property to the income beneficiary or, proportionately, the income beneficiaries thereof (or to a parent or legal guardian in the case of a minor beneficiary). Upon such termination, the remainder interest in such trust shall be extinguished and the Trustee shall be accountable with respect to such trust only to such income beneficiary or beneficiaries (or to a parent or legal guardian in the case of minor beneficiary). /~ .J® ~ ~.:JC~1`~ 12 14. To minimize any tax in respect of any trust, or any beneficiary thereof, or for such other purpose as it deems appropriate, the Trustee may in its sole and absolute discretion remove all or any part of the property of, or the situs of administration of, such trust from one jurisdiction to another and elect, by an instrument filed with the trust records, that thereafter such trust shall be construed, regulated and governed as to administration by the laws of such other jurisdiction. 15. To do all other acts in their judgment necessary or desirable for the proper and advantageous management, investment and distribution of a trust or of my estate. Section 2. Protective Clause To the fullest extent permitted by law, the interests of all the beneficiaries in the various trusts and trust property subject to this Will, shall not be alienated, pledged, anticipated, assigned, or encumbered unless specifically authorized by the terms of this Will. Such interests, while they remain trust property, shall not be subject to legal process or. to the claims of any creditors. Section 3. Survivorship Presumptions If the order of my death and my spouse's death cannot be established by proof, my spouse shall be deemed to have survived me. Section 4. Changing the Trust Situs After my death, the situs of any trust under this Will may be changed by the unanimous consent of all of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income from the trust. If -such consent is obtained, the beneficiaries shall notify my Trustee in writing of such change of trust situs, and shall if necessary designate a successor corporate fiduciary in the new sites. This notice shall constitute removal of the current Trustee if appropriate, and any successor corporate Trustee shall assume its duties as provided under this Will. A change in sites under this Section shall be final and binding, and shall not be subject to judicial review. Section 5. Headings of Sections and Paragraphs The headings of Sections, and Paragraphs used within this Will are included solely for the convenience and reference of the reader. They shall have no significance in the interpretation or construction of this Will. ' 13 Section 6. Notices All notices required to be given in this Will shall be made in writing by either: Personally delivering notice to the party requiring it, and securing a written receipt, or Mailing notice by certified United States mail, return receipt requested, to the last known address of the party requiring notice. The effective date of the notice shall be the date of the written receipt or the date of the return receipt, if received, or if not, the date it would have normally been received via certified mail, provided there is evidence of mailing. Section 7. Delivery For purposes of this Will "delivery" shall mean: Personal delivery to any party, or Delivery by certified United States mail, return receipt requested to the party making delivery. The effective date of delivery shall be the date of personal delivery or the date of the return receipt, if received, or if not, the date it would have normally been received via certified mail, provided there is evidence of mailing. IN WITNESS WHEREOF, I, LEWIS A. STRAW, have affixed my initials to this, my Last Will and Testament, typewritten on fourteen sheets of paper which I have identified at the bottom of each page by my initials, the f Z day of ¢ , 2005. .%~~~ L IS A. STRAW The preceding instrument consisting of this and thirteen other typewritten pages, each identified by the initials of the Testator, LEWIS A. STRAW, was on this day and date thereof signed, published and declared by LEWIS A. STRAW, the Testator therein named, as and for his Last Will, in the presence of us who, at his request, in his presence, and in the presence of each other have subscribed our names as witnesses. d 1~- ~,~ ~ R~~ 14 COMMONWEALTH OF PENNSYLVANIA: SS COUNTY OF CUMBERLAND I, LEWIS A. STRAW, 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 I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. -~.~ ~,~ LE S A. STRAW Sworn or affirmed to and acknowledged before me, by LEWIS A. STRAW, the Testator the /~~~~ day of ,Qua ~s~ , 2005. NOTARIAL SEAL ~~ ~ ~~ ~ (SEAL) DAVID H RADCLIFF Notary Public Notary Public LEMOYNE BOROUGH, CUMBERLAND COUNTY ~' My Commission Expires Jun 29, 2008 COMMONWEALTH OF PENNSYLVANIA: SS COUNTY OF CUMBERLAND ffJJ r We ~~ GO ~ ~. ~ ~ ~ ,and b k~i ~ ~( ~ ~ ,the witnesses whose names are signed t e attached or foregoing instrument, 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 he 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 of our knowledge the Testator was at that time eighteen or more years of age, of sound mind and under no constraint or undue influence. ~ C(~ Sworn or affi ed to and subscribed to before me by ~~ ~-a L~ ,~ • ~ ~ __ and ~~ J ~ ,L - /~ !~~ witnesses, this l Z ~N` day of ~~ was ~ __, 2005. a~ /i ~ . NOTARIAL SEAL -- (SEAL) DAVID H RADCLIFF Notary Public Notary Public LEMOYNE BOROUGH, CUMBERLAND COUNTY My Commission Expires Jun 29, 2008 15 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Eric R. David, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Attorneys for Petitioners Respectfully submitted, METTE, EVANS & WOODSIDE BY~ Sl y SC _ "/.1 Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Executor/Respondent, Bryan W. Shook, Esquire Date: May 27, 2011