HomeMy WebLinkAbout10-06-11
NDEX TO WITNESSES
FOR PETITIONER DIRECT CROSS REDIRECT RECROSS
Jane Adams, Esq. 16
FOR EXECUTRIX
Jane Adams, Esq. 5 -- -- --
2
NDEX TO EXHIBITS
FOR PETITIONER MARKED ADMITTED
Ex. No. 1 - will 23 (withdrawn)
Ex. No. 2 - 8/2005 will 26 44
FOR EXECUTRIX
Ex. No. 1 - 4/2006 will 6 14
3
3:15 p,m,
2 THE COURT: Please be seated. This is the
3 time and place for a hearing on a Petition for Citation Sur
4 Appeal from Decree of Probate in the matter of William I.
5 Evans at No. 21-08-979 Orphans' Court. We will let the
6 record indicate that the parties' respective counsel are
7 present in court. Go ahead.
8 MR. MATEYA: Your Honor, if I could -- may it
9 please the Court, Mark Mateya representing Ms. Davenport,
10 and we have I think maybe just some housekeeping that we
11 need to address. Attorney Finck is going to present a
12 particular issue.
13 MR. FINCK: Your Honor, I take the position
14 that the burden initially is on the proponent of the will to
15 prove that the will was properly executed and probated. I
16 believe he has the burden of going forward on that issue
17 alone, at which time the burden may shift back to me to show
18 whether or not the decedent had testamentary capacity or was
19 the subject of undue influence according to I believe --
20 excuse me. I believe he is required to first put the
21 probate record into evidence and to establish -- and to
22 otherwise establish his case -- his prime facie case that
23 the will is valid.
24 THE COURT: Okay. Mr. Mateya.
25 MR. MATEYA: Thank you, Your Honor. I
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understand Attorney Finck's position. I am going to object
to that for the record simply because in his Petition Sur
Appeal this issue was not raised.
THE COURT: All right. We will take that
objection under advisement and let you present evidence as
to whether it was properly probated.
MR. MATEYA: Okay. Thank you, Your Honor.
To that end, Your Honor, I would like to call our first
witness, and that would be Attorney Jane Adams.
THE COURT: All right.
Whereupon,
JANE ADAMS, ESQUIRE
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MATEYA:
Q
record, please?
A
S2
A
Pennsylvania.
Q
living?
A
Ms. Adams, will you state your name for the
Jane Adams.
And where do you live?
I live at 101 Tower Road, Dillsburg,
Ms. Adams, what is it that you do for a
I am an attorney.
MR. MATEYA: Okay.
Your Honor, if I could
5
approach the witness I have an exhibit for her to see.
2 THE COURT: All right. Well, we will have to
3 have the stenographer mark the exhibit, if you will.
4 (Executrix Exhibit No. 1 was marked for
5 identification.)
6 BY MR. MATEYA:
~ Q Ms. Adams, I am handing you what has been
8 marked as Executrix Exhibit 1. Would you take a look at
9 that -- that is a copy of the original. Will you take a
10 look at that, please, and tell me if you are familiar with
11 that document.
12 A Yes, I am.
13 Q Can you tell the Court what it is that we are
14 looking at here?
15 A That is a last will and testament that I
16 prepared for William Evans.
17 MR. MATEYA: Okay. And, Your Honor, if it
18 please the Court, I have -- I can just give you a copy of
19 this document to review.
20 THE COURT: I don't think it is necessary
21 until it is admitted.
22 MR. MATEYA: Okay.
23 BY MR. MATEYA:
24 Q Ms. Adams, is this the only time you ever
25 drafted a will?
6
A No. I drafted a prior will for --
2 Q At all?
3 A No.
4 Q Is drafting a last will and testament, is
5 that something that you had done before this time?
6 A Yes.
7 Q Many times? A few times? Is this a part of
8 your practice?
9 A Well, I practice primarily family law, which
10 entails divorce and custody. So I wouldn't really say will
11 drafting is really the main area of my practice. It's not
12 really my favorite thing to do, but I do draft a lot of
13 wills at the end of divorce for my clients.
14 Q Okay. At the time this will was drafted,
15 this is April of 2006, how long had you been practicing law
16 at that point?
17 A I was admitted to practice law in May of
18 1997.
19 Q Okay. So 9 years, almost 10 years. Okay.
20 And those intervening years, from the time you were admitted
21 until the time that you drafted this will that we are
22 looking at, give me an idea, did you draft two a year?
23 Twenty a year?
24 A I really couldn't answer that. I can just
25 say that oftentimes -- you know, doing divorce a lot of
7
times a client will come to me after a divorce is final and
2 ask that the ir will be updated.
3 Q Okay. So is it fair so say this is a regular
4 part of your practice?
5 A Yes.
6 Q Okay. All right. Ms . Adams, if you take a
7 look at this first page, down at the bottom is a signature,
8 and can you identify the signature?
9 A Um-hum. That is the signature of William
10 Evans.
11 Q Okay. And the will as drafted here, were
12 these -- the disposition that was -- that was set up in the
13 will here, was this what Mr. Evans decided he wanted to do?
14 A Yes. I had represented him throughout his
15 divorce from approximately 2003, and the divorce was final
16 in May of 2005. I had prepared a will for him in -- I
17 believe it was August of 2005. Once the divorce and all the
18 wrap-up documents were completed, I didn't hear from him for
19 a long time.
20 Q Okay.
21 A And then in I believe March of 2006 he
22 contacted me.
23 Q Okay. And whenever you had this will drafted
24 -- if you would, please, turn to the final page, and at the
25 top it says Affidavit, just to be sure we're talking about
8
the same page. Okay. Could you explain to the Court what
2 that page is?
3 A Well, that is an affidavit for the witnesses,
4 the two witnesses who would have been there when he signed
5 the will.
6 4 Okay.
~ A And then their signatures are notarized.
8 4 Okay. And can you tell me whose signatures
9 those are?
10 A The top one is Mark Bayley.
11 Q Okay.
12 A And at the time, in April of 2006, Mark
13 Bayley and I rented office space at 64 South Pitt Street on
14 the second floor. So on the second floor there was -- well,
15 it used to be a house, but there were three rooms or three
16 offices that were adjacent to each other, and he was the
17 attorney that was in the office next to me.
18 4 Okay. And so was this something that you
19 routinely did, that he would witness a will for you?
20 A Yes. When a client came in usually I would
21 have him come up to my office, and while they were sitting
22 there I would peak next door and grab him and, you know, say
23 come on over and witness a will.
24 4 And how about Jacqueline Ege?
25 A Jacqueline Ege is a woman who works as Mark s
9
secretary. So she was probably two doors down from me.
2 Q Okay.
3 A In the office building on the second floor.
4 Q And was this something that you routinely did
5 with Ms. Ege as well?
6 A Yes. They would be in the office during the
7 day and I would, you know, walk down the hall and say come
8 on and witness a will.
9 Q All right. I note on this page, the third
10 page that we were looking at, while you described Mark
11 Bayley's signature and Jacqueline Ege, I don't see on this
12 page anywhere Mr. Evans' name. Could you explain how it is
13 that that's missing on there?
14 A I mean the only thing I can really say is
15 that it was probably sloppy. It was probably not the best
16 way to do things. I have sort of since changed my regular
17 practice in doing that, but at the time that was pretty
18 common, and so that would have been a common way for me to
19 do it.
20 Q I note that for this exhibit that I have
21 asked you to look at there are three pages. To the best of
22 your recollection, when Mr. Evans signed this will and
23 executed this will, were all three pages together at the
24 same time?
25 A I believe so, yes.
10
Q And on a routine will that you have done, you
2 said you do them after divorces, again assuming that we have
3 a one page will, would I have these three pages or something
4 very similar to this?
5 A Well, correct. I don't really have my own
6 secretary. I usually print it up myself. So I would print
7 up the whole document and then have them sign it and call
8 the other attorneys or witnesses over, and then we would
9 execute it.
10 MR. MATEYA: Okay. Your Honor, if I could
11 have just a moment.
12 THE COURT: Certainly.
13 MR. MATEYA: I have a question for the Court.
14 We are presently addressing the issue just of whether or not
15 this will was properly executed?
16 THE COURT: Well, I don't know about properly
17 executed, you mean properly probated?
18 MR. MATEYA: Properly probated, thank you,
19 Your Honor. In fact, Ms. Adams may be called as a witness
20 in the future concerning the issue of capacity.
21 THE COURT: I understand.
22 MR. MATEYA: So is it okay with the Court if
23 I take a few moments to address that issue as well?
24 THE COURT: No, I wouldn't do that at this
25 point. We are still on the issue of probate.
11
MR. MATEYA: Oka Ver
Y• y good. Thank you,
2 Your Honor.
3 BY MR. MATEYA:
4 4 Ms. Adams, you had you said Jackie --
5 Jacqueline Ege and Mark Bayley signed this -- this happened
6 occasionally?
~ A Yes.
8 4 Do you recognize their signatures?
9 A Yes, I do.
10 Q And would you say those were, in deed, their
11 signatures?
12 A Yes. I currently rent space from Mark Bayley
13 at 17 West South Street. So I recognize his signature. It
14 has always been the big giant letters with, you know, just
15 the initials.
16 Q Okay. On the date that this was executed,
17 the 14th of April of 2006, have you had a chance to go back
18 and look at your own records of who you saw that day and so
19 forth?
20 A
21 Q
22 A
23 Q
24 what it purpo
25 the affidavit
Yes.
And did you execute any other wills that day?
No.
Okay. Are you very confident that this is
its to be, that is that this third page, that
for the subscribing witnesses is, in deed, a
12
part of the will of William Evans?
2 A Yes.
3 MR. MATEYA: I have no further questions at
4 this time, Your Honor.
5 THE COURT: Okay. Mr. Finck.
6 MR. FINCK: Thank you, Your Honor. Your
7 Honor, I have no cross examination of Ms. Adams on the issue
8 of the prima facie case of whether the will was probated.
9 If I am correct then Mr. Mateya is resting on that issue.
10 MR. MATEYA: Yes.
11 MR. FINCK: I will simply withhold my
12 questioning of Ms. Adams until we get to the next step.
13 THE COURT: Okay. You may step down. Thank
14 you. May this witness be excused for toda 's ~
y purposes.
15 MR. MATEYA: Yes, Your Honor.
16 MR. FINCK: Well, Your Honor, I am prepared
17 to proceed, if you are, on the testamentary capacity, if
18 he's resting on the primary --
19 MR. MATEYA: Your Honor, I'm sorry, I wanted
20 to just move that we enter this exhibit.
21 THE COURT: Who is going to be your first
22 witness?
23 MR. FINCK: Ms. Adams.
24 THE COURT: Is she? All right. Then I guess
25 I will ask you to stay, if you don't mind. You don't have
13
to stay on the stand at this point. You may step down.
2 And is there any objection to the admission of Executrix
3 Exhibit 1?
4 MR. FINCK: No, Your Honor.
5 THE COURT: Executrix Exhibit 1 is admitted.
6 (Executrix Exhibit No. 1 was admitted into
7 evidence.)
$ THE COURT: And what is our
y position,
9 Mr. Finck, as to the probate of the will?
10 MR. FINCK: Your Honor, I submit to you that
11 in Pennsylvania all wills must be approved by the oath or
12 affirmation of two competent witnesses. I am looking at
13 20 Pa. C.S. Section 3132 of the Probate Code. This will in
14 particular was admitted to probate on the basis of being a
15 self -- a self-proving will. I submit to you, Your Honor,
16 that under the statute governing self-proving wills in
17 Pennsylvania, which is 20 Pa. C.S. Section 3132.1, it
18 requires the subscribing witnesses to not only sign the
19 attestation of the will, but also to sign the will itself.
20 There is a form procedure in the Probate Code
21 that sets forth what the affidavit itself must say.
22 Without that I don't believe that the petition -- or, I'm
23 sorry, that the proponent of the will has proven his prima
24 facie case with respect to proper probate of the will.
25 THE COURT: Okay. This will was accepted for
14
probate by the register; is that right?
2 MR. FINCK: That's correct, Your Honor. I
3 simply -- to preserve the record I move for a nonsuit on
4 that issue alone.
5 THE COURT: And this was not in our
y petition
6 that we are hearing today, this issue was not?
~ MR. FINCK: This issue was not raised in the
8 petition. However, as I indicated to you in chambers, I
9 believe the caselaw puts the burden on the proponent of the
10 will to establish that the will was properly probated, as is
11 prima facie case.
12 MR. MATEYA: And, Your Honor, if I accepted
13 that reasoning, that would mean that every time I probate a
14 will downstairs before I could do anything I would have to
15 come up here and prove to you that the will was properly
16 probated. That is to say that that would be initiating the
17 Register of Will's office, if that reasoning held correct,
18 that though it was accepted it has to be proven. And our
19 position, Your Honor, is that the will, as it stands and as
20 it was accepted by the Register of Will's, in deed was
21 properly probated.
22 THE COURT: Okay. We will take a short
23 recess, and I will look at the exhibit.
24 (A recess was taken at 3:34 p.m.)
25 AFTER RECESS
15
THE COURT: We will enter this order:
2 AND NOW, this 22nd day of March, 2011, upon
3 consideration of Petitioner's motion to terminate this
4 matter in his favor on the ground that the will of William
5 I. Evans should not have been probated is denied.
6 Okay. I will allow ou to
y proceed further.
7 MR. FINCK: Thank you, Your Honor. I would
8 like to call Jane Adams back to the stand.
9 Whereupon,
10 JANE ADAMS, ESQUIRE
11 having been duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 THE COURT: Would you state your name and
14 business address for the record, please?
15 THE WITNESS: Jane Adams, 17 West South
16 Street, Carlisle, PA, 17013.
17 THE COURT: Thank you.
18 BY MR. FINCK:
19 Q Ms. Adams, how are ou
y presently employed?
20 A I am an attorney. I am self-employed.
21 Q And how long have you been practicing law?
22 A Since May of 1997.
23 Q And how would you describe your practice in
24 terms of the type of work that you do?
25 A Primarily family law.
16
Q Okay. Can you estimate -- or can you tell me
2 how many wills you have drafted since you began practice?
3 A I don't know.
4 Q Okay.
5 A I would say a number per year. I mean, like
6 I said, I typically would draft them frequently after the
7 completion of a divorce to take the other spouse out of the
8 will.
9 Q Okay. And you said that our
y practice
10 consists primarily of family law; is that correct?
11 A Correct. And that includes other overlapping
12 areas as well.
13 Q Such as what?
14 A Traffic tickets. Sometimes I do real estate
15 settlements, draft wills, powers of attorney. I also do
16 adoption and file guardianships.
17 Q In terms of percentage, can you estimate what
18 percent of your practice is drafting wills or estate
19 planning documents?
20 A I really couldn't say. I don't keep
21 statistics like that.
22 Q So you don't know?
23 A I don't know. If you are asking me what
24 percentage of my practice is that, I would not know. I just
25 don't keep --
17
Q Are you able to estimate?
2 A I mean given the volume of divorces that I
3 do, I would probably say that I do between maybe 6 and 20
4 wills per year perhaps.
5 Q Okay. And you indicated that you do wills.
6 Do you to other estate planning documents?
~ A I mostly do Powers of Attorney or healthcare
8 Powers of Attorney.
9 Q Okay. Do you do any federal estate tax
10 planning?
11 A No.
12 y
Q Do ou do any generation skipping tax
13 planning?
14 A No.
15 Q Do you do any gift tax planning?
16 A No.
17 Q Okay. Do you ever draft irrevocable trusts?
18 A Not commonl
y, no .
19 Q Okay. How about revocable trusts?
20 A No.
21 Q Do you participate in trust administration?
22 A No.
23 Q Do you do any Medicaid planning?
24 A No.
25 Q So am I correct that primaril o
y y ur estate
18
practice consists of simple ones?
2 A Correct.
3 Q Are you familiar with the decedent, William
4 I. Evans?
5 A Yes, I am.
6 Q How so?
~ A He was one of my divorce clients.
8 Q When did you first meet him?
9 A In 2002 or the beginning of 2003.
10 Q Okay. Were you the only attorney who worked
11 on his divorce?
12 A No.
13 Q Who else did?
14 A Prior to me Wayne Shade had represented him
15 regarding his divorce, and I am not sure how Wayne -- how
16 long Wayne had had him as a client, but after he had
17 retained Wayne , then he came to me.
18 Q Okay. How long did the divorce process for
19 Mr. Evans, the decedent, take?
20 A At least three years.
21 Q Three years. Okay.
22 A The divorce was final in May of 2005.
23 Q May of 2005, and you indicated he came to you
24 in about 2002 or 2003?
25 A Correct. Either the end of 2002 or the
19
beginning of 2003.
2 Q Okay. And you don't know when the actual
3 divorce petition was filed?
4 A I don't know that off the top of my head. I
5 believe it was filed in 2002.
6 Q Okay. During the time that you represented
7 Mr. Evans, just with respect to his divorce -- or, I'm
8 sorry, Mr. Evans with respect to his divorce proceedings,
9 how often did you see him?
10 A Well, pretty frequently. It was a somewhat
11 complicated divorce.
12 Q Why do you say that?
13 A He had a lot of properties and he had a
14 Teamsters pension account and we had to get appraisals on
15 the properties and on the retirement account, and there was
16 not many things that were agreed upon between him and his
17 wife and his wife's counsel, and we eventually had to go to
18 a Divorce Master's hearing to complete -- or it was a
19 pretrial conference, at which we came up with a settlement.
20 Q Okay. So am I correct that this was not an
21 amicable divorce?
22 A That is correct.
23 Q How would you describe Mr. Evans's attitude
24 in terms of did he want to get divorced?
25 A I think he was pretty upset by the whole
20
proceeding. He didn't really -- I don't think he initiated
2 the divorce, and I don't believe he initially really wanted
3 the divorce.
4 4 Okay. As time progressed did that change?
5 A I think he came to terms with the divorce.
6 4 Why do you say that?
~ A I mean I think he accepted it more. So I
8 think -- you know, the process was pretty stressful overall.
9 Q Okay. So you thought he was stressed by the
10 divorce?
11 A I didn't really say that. I meant that the
12 process was somewhat stressful. There was a lot of
13 appraisals and meetings and things like that.
14 Q Okay. Well, what makes you say it was
15 somewhat stressful for him?
16 A Well, I think --
17 MR. MATEYA: Objection, Your Honor. I think
18 this has been asked and answered a few times.
19 THE COURT: I am a little concerned about the
20 amount of time that this is going to take. You can ask a
21 couple more questions on that point, and then let's move on
22 and get more to the time of the signing of the will.
23 MR. FINCK: Okay.
24 THE WITNESS: Well, I guess -- you know, I
25 think that type of process is stressful for any client. I
21
don't think he was anymore stressed than any other client
2 that I would t
ypically have. I mean it is a stressful
3 process.
4 BY MR. FINCK:
5
Q Okay. How about the issue of marital
6 distribution? What was his attitude towards that?
~ A Well, he worked hard to build up his
8 properties and his estate. So, of course, like anyone else
9 he wasn't really crazy about splitting that estate up. He
10 had worked so hard to accumulate it, but we did eventuall
11 y
come to an agreement at the Divorce Master's
12
Q Okay. And you said the divorce was finalized
13 in 2005?
14 A Correct.
15 Q May of 2005, I believe
you said?
16 A I believe the decree was entered May 31st,
17 2005.
18
Q Okay. And, Ms. Adams, as you know, we are
19 here related to a will contest of a will dated April 14th
20 2006, and ou
y previously testified that you were the
21 individual that actually drafted the April 14th, 2006, will;
22 is that correct?
23 A Correct.
24
Q Okay. And were you involved in probating
25 that will?
22
A Yes.
2 Q Prior to the 2000 -- the will that is dated
3 April 14th, 2006, did Mr. Evans have another will?
4 A Yes.
5 Q Okay. Do you recall being deposed in April
6 of 2009 on this matter?
7 A Yes.
8 Q Okay. And during that time you had indicated
9 that you thought you had a prior will. Do you recall that?
10 A Yes.
11 Q Okay. What's changed since between now and
12 then that now you're certain he had a prior will?
13 A Well, I went in my basement and pulled his
14 file and looked in his file, and I believe he had written a
15 prior will in about August 2005.
16 Q Okay. But at the time of your deposition you
17 weren't certain of that, you had not reviewed your file on
18 this?
19 A Correct. I don't believe I had pulled my
20 file at that point.
21 Q I would like to show you an exhibit I will
22 ask be marked as Petitioner's Exhibit 1.
23 (Petitioner's Exhibit No. 1 was marked for
24 identification.)
25 BY MR. FINCK:
23
Q I am showing you a document which has been
2 marked as Peti tioner's Exhibit No. 1. Do you recognize that
3 document?
4 A Yes, I do.
5 Q And what is it?
6 A That is a will that I prepared for William
7 Evans in Augus t of 2005.
8 THE COURT: Is that an original?
9 THE WITNESS: No.
10 MR. FINCK: I'm sorry?
11 THE COURT: Is the exhibit an original will?
12 MR. FINCK: No, it is not, Your Honor.
13 THE COURT: All right. And when you say you
14 found the will in the basement, was that an original or a
15 copy?
16 THE WITNESS: I don't believe I had the
17 original. I usually give that to the client, but I always
18 keep a copy. So I looked at the file.
19 BY MR. FINCK:
20 Q Is the document that I have shown you as
21 Exhibit No. 1, is that the document that you drafted for
22 him?
23 A Yes.
24 Q Are there any changes to it that you can see
25 from the time that you drafted it?
24
A No.
2 Q Okay. And you said that you usually give a
3 copy to your client?
4 A I usually give the original to the client and
5 I keep a photocopy just for referencing in my file just in
6 case they call or had a question I could look at it.
7 Q Okay. The copy that is in your file, did you
8 bring that with you today?
9 A I brought the file, but I mean I could look
10 through it.
11 Q Okay. Do you recall -- when you looked at
12 the copy that you found in your basement, do you recall
13 whether it had more than just one page?
14 A Yeah. It would be in the same style as the
15 other will that I prepared.
16 Q Do you recall that it was or you think it
17 would be?
18 A I think that it would be. That was the
19 typical form of wills that I prepared at that time, yes.
20 MR. MATEYA: Your Honor, if I may, I believe
21 that she has her file here, and if there is no objection, it
22 may save us all a lot of time if she goes and takes a look
23 at her file.
24 THE WITNESS: I could look at that. I don't
25 have any -- I mean I'm not trying to say that that's not a
25
will that he executed. I mean I agree that he signed that
2 in August of 2005. I remember that.
3 MR. FINCK: Okay. Your Honor, the reason
4 that I ask is because we have never seen the original will,
5 the August of 2005 original will. If the Respondent's
6 counsel is willing to stipulate to the authenticity of the
7 document, I could certainly move on.
8 THE COURT: Mr. Mateya.
9 MR. MATEYA: Your Honor, I wouldn't have any
10 way to know that this is accurate or it is not accurate. I
11 mean, in fact, I am not sure how much weight that -- I'm not
12 sure how much that effects the point at hand, the capacity.
13 THE COURT: Well, if you want to ask the
14 witness to look in her file and see if she has the more
15 original document, that is fine with me.
16 MR. FINCK: Okay. I would ask that the
17 witness take a look at her file.
18 BY MR. FINCK:
19 Q Ms. Adams, I will show you a document that I
20 will ask be marked as Petitioner's Exhibit No. 2.
21 (Petitioners Exhibit No. 2 was marked for
22 identification.)
23 BY MR. FINCK:
24 Q Do you recognize this document?
25 A Yes, I do.
26
Q What is it?
2 A That's a copy of the will from August 2nd,
3 2005, with t he acknowledgment and also the affidavit page.
4 Q Okay. And you are the one that drafted that
5 will?
6 A Yes.
7 Q Okay. And were you present when the will was
8 signed by Mr . Adams?
9 A Yes.
10 Q With Mr. Evans. I'm sorry, Mr. Evans, the
11 decedent?
12 A Yes.
13 Q In fact, you notarized the document; is that
14 correct?
15 A Yes.
16 Q And you notarized it with Mr. Evans -- with
17 Mr. Evans's signature on it, correct?
18 A Yes.
19 Q Okay. And you said that -- well, do you know
20 what happene d to the original of this document?
21 A I think I gave it to the client. I usually
22 would just g ive that to my client. I don't really like to
23 retain the o riginals because they might find another
24 attorney or want to change something so I usually just
25 release that to the client and keep a copy for my file.
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Q Okay. As the scrivener of what has been
labeled as Petitioner's Exhibit No. 2, is there any doubt in
your mind that what -- that Petitioner's Exhibit No. 2 is a
true and correct copy of the original that you --
A No, there is no doubt. I mean that is in
line with my recollection as to what I prepared at that
time.
Q Okay. And when you prepared this exhibit,
Petitioner's Exhibit No. 2, was anyone with the decedent at
the time?
A Well, I mean it is kind of hard to remember
six years back, but I think at that time Bill was getting
along with his son Danny so I think his son was there, but I
can't really recall specifically, you know, six years ago.
Q Okay.
A But that would have been common at that time,
for him to come in with Danny at times.
Q So you're saying -- you are saying that he
came into your office with Danny at times?
A Yes, once in a while.
Q Okay. How often would you say Danny would
come with him?
A I don't recall. I mean I remember seeing him
a couple times.
Q Okay. And you agree with me that in item 2
28
of what has been marked as Petitioner's Exhibit No. 2 he
2 gives the bulk of his estate to his son Danny Bruce Evans,
3 did he not?
4 A Yes.
5 Q Do you recall any conversations you had with
6 Mr. Evans, with the decedent, William Evans, about who he
7 wanted to give his estate to at that time?
8 A I don't recall specifically. I think at that
9 time that was about a couple months after the divorce, and
10 we were kind of wrapping up some of the final documents and
11 deeds and things, but generally I recall him asking me to
12 prepare this will. I don't recall the specific, you know,
13 words or conversation.
14 Q Okay. Was the August 2nd, 2005, will that's
15 been marked as Petitioner's Exhibit No. 2, was that your
16 idea or was it Mr. Evans's idea?
17 A I don't remember. I think it was probably
18 his idea. Again, usually through the course of the wrapping
19 up of a divorce, we were completing the deeds, we had to do
20 an order to implement the alimony, we had to do a Qualified
21 Domestic Relations Order to divide the pension. So I mean
22 oftentimes I might mention to my clients or ask them if they
23 want me to prepare a will. I don't think I really force the
24 issue. I think it was his idea.
25 Q Do you recall a specific conversation you had
29
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with him about that in August of 2005?
A No.
Q Do you recall how long it took to execute the
August 2005 document?
A No.
Q Okay. Previously a last will and testament
of William I. Evans was admitted as Executrix Exhibit No. 1.
Do you have that in front of you?
A No.
MR. FINCK: Your Honor, I would ask that
Executrix Exhibit No. 1 be put into evidence -- or be put in
front of the witness. I have another copy.
THE COURT: I think we should show the
original. We will let the record indicate that the witness
is looking at Executrix Exhibit 1.
BY MR. FINCK:
Q Okay. You previously testified, Ms. Adams,
that you recognized this document?
A Yes.
Q Okay. Can you explain to me how this
Executrix Exhibit 1 document came to be?
A In March of 2006 Bill Evans contacted me, and
he said that he wanted to meet with me to prepare another
will. So I met with him. I believe it was -- it was at the
end of March, maybe March 28th, perhaps, I met with him and
30
he came in for an appointment.
2 Q Okay. So he contacted you by phone?
3 A I believe so.
4 Q Okay.
5 A He also sometimes was the type of client that
6 would just kind of drop in. So I don't remember whether he
7 dropped in or whether he called.
8 Q Okay. So you set up an appointment with him,
9 whether it be by telephone or in person, correct?
10 A Yes.
11 Q Okay. And --
12 A I believe he did actually come in the last
13 week of March in 2006 because I looked at my appointment
14 book last night and I had notated an appointment for him.
15 Q Okay. At the time he contacted you to make
16 the appointment had you seen him since he executed the
17 August 8th, 2005, will that's been marked as Petitioner's
18 Exhibit No. 2?
19 A I don't remember. At that time we were kind
20 of wrapping up the divorce. So during the course of the
21 divorce Bill was one that would -- like I said, he would
22 drop in frequently, call in a lot, but at that point in time
23 the divorce was pretty much wrapped up. So I probably saw
24 him a little bit less frequently than I had during the
25 course of the divorce.
31
THE COURT: Mr. Finck, do you mind if I take
2 a very brief recess for about 10 minutes and then we will
3 resume?
4 MR. FINCK: Certainly.
5 THE COURT: We will continue on until about
6 4:20. You may step down. Thank you.
7 AFTER RECESS
8 THE COURT: Mr. Finck.
9 MR. FINCK: Thank you.
10 DIRECT EXAM INATION (CONTINUED)
11 BY MR. FINCK:
12 Q Ms. Adams, I believe you previously testified
13 that the decedent, when he wrapped his divorce up, there was
14 a time when you saw him le ss; is that correct?
15 A I'm sorry. Can you say that again?
16 Q Sure. You said that the divorce proceedings
17 were final in May of 2005; is that correct?
18 A Yes.
19 Q Okay. And there were some things that had to
20 be wrapped up, and part of that you did a will dated August
21 6th -- or August of 2005, correct?
22 A Yes.
23 Q Okay. Are you able to tell me how many times
24 you saw the decedent betwe en August of 2005, when you did
25 the August 2005 will, and when he came back to you to do a
32
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20
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new will?
A Can I look at my notes?
Q Certainly.
A I pulled some of the time records that I had
kept for this case, although I wasn't able to pull his bill,
some records are archived on my computer program, and it
appears like there were about 20 posts that I had made to
his bill. So from August 2nd, I guess, through November 5th
there were about 20 different notations on there, either
phone calls or letters, to wrap up the divorce.
There were some things to be straightened out
with Domestic Relations. And he had made some final
payments to me, and then also in the file I have a note.
No, I'm sorry. Strike that. That was a later note from
2007 he had contacted me.
Q Okay.
THE COURT: Do you happen to know what the
date of birth of Mr. Evans was?
THE WITNESS: I know he was around 70. I
don't know that off the top of my head at this moment. I am
sure it would be -- I mean it is one of the primary things
in my documentation, but I don't have that information
memorized anymore.
THE COURT: Okay. Go ahead, Mr. Finck.
MR. FINCK: Thank you, Your Honor.
33
BY MR. FINCK:
2 Q Okay. Ms. Adams, you indicated that between
3 August 2nd, 2005, and November 5th, 2006, you talked to
4 Mr. Evans approximately twenty times?
5 A Not all of the items -- I mean just because I
6 didn't tell you something, they aren't all phone calls,
7 there is a .8 hour meeting on August 30th. Some of them are
8 also just, you know, forwarding letters, calling the other
9 attorney. So just -- they are tasks, not every one is a
10 meeting with him.
11 Q Okay.
12 A This record is not as complete as the
13 timesheet that I would have given him, but I couldn't find
14 that.
15 Q So are you able to tell me how many times you
16 met with him between August 2nd, 2005, until November 5th,
17 2006?
18 A There is a note here I met with him and Danny
19 on August 2nd. On August 5th I met with him and attended a
20 hearing before Domestic Relations. On September 12th there
21 was a visit from him about various disputed medical expenses
22 that was posted at .6 of an hour. Then he called that same
23 day. On September 29th he visited about Domestic Relations,
24 and it says we discussed Domestic Relations arrearages. I
25 received a call from him on September 29th, 2005, and then
34
the last item is a call from him on November 5th, 2005. Up
2 to that point or through that point, including his divorce,
3 I estimate that I posted about 33 hours to his divorce case.
4 Q Between August 2nd, 2005, and until September
5 -- I'm sorry, November 5th, 2005, you posted 33 hours to
6 this case?
7 A No. I'm sorry. From when the divorce
8 started -- so this was a period of approximately three
9 years.
10 Q How much time did you -- how much time did
11 you spend with him between August 2nd, 2005, and November
12 5th, 2005, where he was either physically present or on the
13 phone?
14 A Do you want me to include phone calls or just
15 meetings?
16 Q Both.
17 A 2.5 hours.
18 Q You actually spent with him 2.5 hours during
19 the period from August 2nd, 2005, to November 5th, 2005?
20 A Well, that is basically tallying up all the
21 phone calls and the meetings and the attendance at Domestic
22 Relations.
23 Q Okay.
24 A So I use a, you know, .1, .2 system and round
25 to the nearest tenth.
35
Q Okay. Without looking -- or without reading
2 whatever is in your notes, can you independently recall any
3 discussions you had with him on the phone or in person
4 during that time?
5 A I can't recall anything specific.
6 Q Okay.
7 A Just that we were, you know, doing various
8 tasks to wrap up the divorce.
9 Q During that time do you recall any
10 discussions you had with him about his son Danny Evans?
11 A The only conversations I recall him talking
12 about Danny was before the first will, and then when he
13 contacted me to write the second will.
14 Q Okay. So during the period from August 2nd,
15 2005, until November 5th, 2005, you don't recall any
16 discussions about Danny; is that correct?
17 A I don't recall specifically, no.
18 Q Okay. After November 5th, 2005, when was the
19 next time th at you saw or talked to Mr. Evans?
20 A I'm not sure. I probably would have -- may
21 have stopped keeping records because the divorce was
22 completed, b ut I believe he contacted me in March of 2006.
23 Q Okay. So you have no recollection of any
24 meetings between you and Mr. Evans from November of 2005
25 until March of 2006?
36
A No.
2 Q Okay.
3 A I don't have any recollections of meeting
4 with him specifically between November 2005 and March of
5 2006.
6 Q Okay. Were you surprised to hear from him in
7 March of 2006 ?
8 A I think I was, yes.
9 Q Okay. Why were you surprised?
10 A It just sort of came out of the blue. He was
11 a client that I had a good relationship with. So during the
12 course of the divorce he would stop in a lot, but I think --
13 you know, I t hink it had been a couple months before we had
14 had the same quantity of contact, you know, but it wasn't
15 that long.
16 Q Okay. So I believe you previously testified
17 that he conta cted you to make an appointment on March 28th
18 of 2006; is t hat correct?
19 A Yes.
20 Q Okay. And did you make that appointment with
21 him?
22 A Yes. There was a notation in my date book.
23 Q Okay.
24 A That he had an appointment on March 28th.
25 Q March 28th?
37
A And then he had another appointment on April
2 14th, which wa s a Friday. It was the day that the will was
3 executed.
4 Q Okay. And how long did you spend with him on
5 March 28th?
6 A I don't remember because at that point the
7 divorce was completed so I didn't -- you know, I had closed
8 my file and I had closed the computer log on the case. So I
9 didn't keep a specific time record on that.
10 Q Okay. Can you estimate how long you spent
11 with him on Ma rch 28th?
12 A I don't know. Usually it would be maybe half
13 an hour to an hour.
14 Q Okay.
15 A But that is just a guess. I don't recall
16 specifically.
17 Q Okay.
18 A Because during the course of the divorce, I
19 think in the August 2nd appointment, I had that notated on
20 the divorce. So I think I had said that I spent .4 of an
21 hour with him, but I didn't keep records then because -- in
22 April.
23 Q Okay. So you're saying it took .4 billable
24 hours to meet with him in August of 2005?
25 A Probably. That was just when he had come in,
38
you know, to discuss his will.
2 Q Okay. And you didn't -- am I correct you
3 didn't keep -- or you didn't bill him by the hour for the
4 work that you did in March of 2006?
5 A No, I did bill him. I just -- like I
6 probably just issued, you know, a single invoice. I didn't
7 keep a rolling total like I had through the course of the
8 divorce.
9 Q Well, my question was you did -- you did not
10 -- am I correct that you did not bill him by the hour? Was
11 it just a fee or was it a by-the-hour bill?
12 A During the divorce I would have billed him
13 per the actual time.
14 Q I'm talking about March of 2006.
15 A I probably would have just quoted him a flat
16 fee at that point.
17 Q Do you recall whether that is what you did or
18 not?
19 A I'd have to check my bank statements or
20 copies of, you know, receipts, but typically if there is not
21 an ongoing case, I would quote just a flat fee.
22 Q Okay. During the March 28th, 2006, meeting,
23 what did you discuss with him?
24 A Well, he called me and was kind of upset. I
25 hadn't heard from him in a while, and he was kind of upset
39
about his son Danny.
2 THE COURT: Upset about what?
3 THE WITNESS: He was upset about his son
4 Danny.
5 THE COURT: His son?
6 THE WITNESS: Um-hum.
7 THE COURT: Okay.
8 THE WITNESS: And my understanding of it was
9 that he had had a dispute with Danny, and that at some point
10 before the divorce was over or after the divorce he had
11 purchased some property in Virginia, and he had put Danny's
12 name on this property with the understanding that Danny
13 would put the property back in Bill's name when the divorce
14 was completed.
15 Now, I would have never told him to do that,
16 but he didn't ask me, and the property was in Virginia, and
17 I believe it was his intent to -- after the divorce was
18 completed, to move down there and fix a building on the
19 property up or something like that. Well, Bill was very
20 upset because he said that he asked Danny to put -- or
21 transfer the deed back into his name, and Danny refused.
22 BY MR. FINCK:
23 Q Okay. You said that he called and told you
24 that. Did he call and tell you that at the time you made
25 the appointment or did he tell you that at the March 28th,
40
2006, meeting?
2 A Probably both.
3 Q Okay. Do you recall specifically which one
4 it was?
5 A No, I don't recall specifically, but he was
6 very upset, and he was very -- kind of agitated and just
7 kind of angry, and he showed up with a note, which I brought
8 today, that he had prepared and written all his notes out,
9 and I think he brought that to the one meeting.
10 Q Okay. Did you ever look at the Virginia deed
11 that he was referring to?
12 A I don't believe I did. He did that
13 transaction without my assistance. I don't recall seeing
14 it.
15 Q Okay. Did you ever offer to assist him in
16 looking into the matter as to whether or not the property
17 could be put -- could be put back into his name?
18 A No, I don't recall being involved in that at
19 all.
20 Q Do you recall ever -- do you recall whether
21 or not the property ever was in his name?
22 A I don't know.
23 Q Did you ever take any steps to ascertain
24 whether the property was in his name?
25 A I don't believe so.
41
Q Did you ever suggest he hire an attorney in
2 Virginia to help him get the property?
3 A I don't believe so. I don't remember that.
4 I mean being that it was in another state I had very little
5 involvement in that, but all I knew was that he was upset.
6 Q How upset?
7 A He was kind of livid. I didn't really delve
8 into the details of that whole transaction, but he was upset
9 with his son because there was a misunderstanding between
10 them.
11 THE COURT: I need to adjourn for the evening
12 at this point. You may step down. Thank you. How much
13 longer do counsel think this is going to last? At the rate
14 we are going we are never going to finish, but I don't know.
15 MR. MATEYA: Your Honor, if you will, in
16 interest of trying to get the story out, I am sitting on my
17 hands with objections --
lg THE COURT: Well, I am just trying to figure
19 out how much longer you think the case will last.
2p MR. MATEYA: The entire case or just
21 Ms. Adams?
22 THE COURT: The entire case.
23 MR. MATEYA: I believe we can perhaps create
24 some stipulations that will save us some time. Part of the
25 reason we had the meeting that we did, Your Honor,
42
beforehand in chambers. With your permission we could -- I
2 would like to suggest that we present maybe within the next
3 ten days stipulations that might cut through some of this
4 for us.
5 THE COURT: Well, I just need to know how
6 much longer you think it is going to take.
7 MR. FINCK: We asked your assistant to set
8 aside at least a full day.
9 THE COURT: And you feel that you will be
10 finished in a day?
11 MR. FINCK: I would prefer a day and a half.
12 I think it is going to be pushing it to do it in a full day,
13 but I can try if we're going to stipulate to some of the
14 things.
15 THE COURT: All right. And does either
16 counsel want -- you can step down. Does either counsel want
17 a copy of the notes of testimony from today's proceeding
18 transcribed and filed?
19 MR. FINCK: At this point I don't believe
20 that is necessary, Your Honor.
21 MR. MATEYA: I don't believe so either, Your
22 Honor.
23 THE COURT: All right. And do you want to
24 move the admission of your two exhibits?
25 MR. FINCK: Actually, Your Honor, I only move
43
for the admission of Exhibit number -- Petitioner's Exhibit
2 No. 2.
3 MR. MATEYA: No objection, Your Honor.
4 THE COURT: All right. Petitioner's Exhibit
5 2 is admitted.
6 (Petitioner's Exhibit No. 2 was admitted into
7 evidence.)
8 THE COURT: And is Petitioner's Exhibit 1
9 being withdrawn?
10 MR. FINCK: Yes.
11 THE COURT: All right. Petitioner's Exhibit
12 1 is withdrawn.
13 We will enter this order:
14 AND NOW, this 22nd day of March, 2011, upon
15 consideration of the Petition for Citation Sur Appeal from
16 Decree of Probate, and following an initial period of
17 hearing, which has not yet been completed, the record shall
18 remain open, and a further full day of hearing is scheduled
19 for Monday, June 27, 2011, at 9:30 a.m., in Courtroom Number
20 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
21 It is noted that at the time of adjournment
22 on today's date the Petitioner was in the process of
23 presenting his case-in-chief and was in the course of
24 proceeding with the direct examination of his first witness,
25 Jane Adams, Esquire, the scrivener of the will sub judice.
44
It is further noted that at the time of
2 adjournment Executrix Exhibit 1 had been identified and
3 admitted, and Petitioner's Exhibit 2 had been identified and
4 admitted. Petitioner's Exhibit 1 had been withdrawn. No
5 other exhibits had been identified or admitted.
6 It is finally noted that neither counsel has
7 requested that the stenographer transcribe and file a copy
8 of the notes of testimony from today's proceeding.
9 THE COURT: Okay. I will see you in June.
10 MR. MATEYA: Your Honor, if I may, I do
11 believe that a good deal of what we -- what we need to
12 handle with the facts can be dealt with by a stipulation.
13 It might be in everybody's interests, Your Honor, if you
14 could encourage that on the record as well but...
15 THE COURT: Well, I wouldn't encourage
16 anybody as to how to present his or her case. That is your
17 choice.
18 MR. MATEYA: Thank you, Your Honor.
19 THE COURT: Thank you.
20 MR. FINCK: Thank you.
21 THE COURT: Court is adjourned.
22 (The proceedings adjourned at 4:30 p.m.)
23
24
25
45
ERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
2uf
Michele A. Eline
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
J ~~ ri
Date
J.
Ni
46