The URL can be used to link to this page

Home My WebLink About12-09-110 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA In Re: William I. Evans Will Orphans' Court Division No. No 21-08-0979 Danny B. Evans, n '_ Petitioner, (Judge W. Oler) ;~ ~ ,, m ;',~~ `~ vs. _ :~; r .>,-, Irma Davenport, __' ` ~ ~'-' _.~' Respondent. -~, ~~; ~% ~' _.... -. MOTION OF RESPONDENT IRMA DAVENPORT TO AMEND ANSWER TO CONFORM TO EVIDENCE ADMITTED AT TRIAL Pursuant to Pa. R.C.P. 1033, Respondent Irma Davenport, through her undersigned attorneys, moves to amend paragraph 60 of her Answer to the Petition for Citation Sur Appeal from Decree of Probate to conform her pleading to the evidence offered and admitted at trial. In support of her motion, Irma Davenport avers the following: 1. Petitioner is Danny Evans, who is challenging the probated will of decedent William Evans on the grounds of lack of testamentary capacity and undue influence. 2. Respondent Irma Davenport is the executrix of the estate of William Evans. 3. This Court heard testimony and received evidence on this matter beginning on March 22, 2011, and continued to hear additional testimony on June 27, 2011, June 29, 2011, and September 29, 2011. 4. On September 30, 2011, this Court denied Petitioner's request for relief and dismissed his claims, finding that William Evans had testamentary capacity -,- =~, {---: \. ~ ~. ~,-~ when he executed his will and that he was not unduly influenced. 5. On September 19, 2011, Petitioner filed Exceptions to the September 30, 2011, Order. 6. In a Court Order dated October 25, 2011, this Court directed the parties to brief the issues presented in the Exceptions and to appear for argument on November 28, 2011. 7. It was not until Petitioner's brief was filed and served that the attorneys for Irma Davenport realized that paragraph 60 of her Answer to the Petition did not conform with the evidence presented and admitted on her behalf. 8. Specifically, the allegation in and answer to paragraph 60 of the Petition is as follows: 60. As the sister of Decedent and the Attorney-in-Fact for Decedent, a confidential relationship, per se, existed between Decedent and Respondent. Answer 60. Admitted. 9. As the evidence demonstrated during the course of this trial, Irma Davenport did not have a confidential relationship with decedent William Evans; she inadvertently admitted this allegation. 10. Some of the evidence admitted showing that no confidential relationship existed between Decedent and Irma Davenport includes, but is not limited to, the following examples: a. A neutral observer who saw decedent on a daily basis from 1998, Jon Casey testified that William Evans made his own decisions and that no one ever told Evans what to do. (See Sept. 29, 2011 Transcript, not yet available for pinpoint citation). b. Likewise, Irma Davenport, also, testified that William Evans made his own decisions. (See June 29, 2011 transcript, p. 47,1. 17 - 25; p. 48,1. 5 - 8; p. 50, 1. 15 - 20; p. 52, line 11 -15). c. Petitioner that he could not hog-tie his father because his father was a strong- willed person. (See June 27, 2011 transcript, p. 48.20 - 22). He further testified on redirect that his father wanted to be in charge...he wanted to be in control. (See June 27, 2011 transcript, p. 59,1. 21 - p.601.6). d. Decedent and Irma Davenport lived in separate states and saw each other no more than twice a year. (See, e.g., June 29, 2011 transcript, p. 23,1. 6 - 23). e. Decedent and Irma Davenport spoke every couple of weeks in 2005 and 2006. (See June 29, 2011 transcript, p.241.25 - p. 251. 3). f. Irma Davenport testified on direct examination from Attorney Finck that she did not know how her brother was devising to her his estate. (See June 29, 2011 transcript, p. 28,1. 3 - 6). She also was unaware of details of his physical condition, including the fact that he had a pacemaker. (See June 29, 2011 transcript, p. 30,1. 13 - 15, & p. 31,1. 1 - 5). g. None of the other siblings called by Petitioner were able to establish that a confidential relationship existed between William Evans and Irma Davenport in Apri12006. i. Marie E. Johnstin testified that she had no knowledge of Irma Davenport influencing her brother in any way. (See June 27, 2011 transcript, p. 195,1. 11 - 14). She had not even received anything from Bill in writing since 2001 or 2002. (See June 27, 2011 transcript, p. 93,1. 18 - p. 94,1. 6). ii. Decedent's brother Thomas C. Evans testified that he had no knowledge of Irma Davenport assisting, advising, or controlling William in any way. (See June 27, 2011 transcript, p. 193,1. 12 - 25). iii. Decedent's other sibling, Connie Houston testified that she did not see her brother at his home in 2005 or 2006, that she never discussed his last will and testament with him, that she did not know anything concerning interactions between her sister Irma and brother Bill, and she seldom even spoke with him. (See June 29, 2011 transcript, p. 15, 1.4 - p. 16,1.23). iv. Petitioner Danny Evans was not able to point to one concrete example of how Irma Davenport limited contact between his father and the remainder of his family. (See June 27, 2011 transcript, p. 46,1. 4 - 15). Nor was Danny Evans able to provide even one example of how Irma Davenport allegedly handled William Evans' daily affairs. (See June 27, 2011 transcript, p. 46,1. 16 -18). 11. In sum, there is no evidence of record that Irma Davenport and her brother William Evans dealt on unequal terms. He did not depend on her, nor did she counsel him. Instead, they had a normal brother-sister relationship -talking to one another on a regular basis about the events consuming their lives. 12. On December 3, 2011, this Court issued an Order that denied Petitioner's Exceptions to Court Order Dated September 30, 2011. In the event that Petitioner appeals that decision, Irma Davenport seeks to amend her Answer to paragraph 60 of the Petition. 13. Irma Davenport requests that her Answer to Paragraph 60 be amended to conform to the evidence offered and admitted in this case as follows: 60. Denied. The allegations in this paragraph are a conclusion of law to which no response is required. To the extent that a response is required, the allegations are denied. 14. Although the record has been closed and the Exceptions denied, Irma Davenport, out of an abundance of caution and in conformance with the Rules of Civil Procedure and the Rules of Evidence, seeks to amend the pleadings. 15. On December 8, 2011, Attorney Mark Mateya informed Petitioner's attorney, Ron Finck, of this motion, seeking his concurrence. Attorney Finck did not respond. WHEREFORE, Respondent Irma Davenport requests this Court to grant her request to amend Paragraph 60 of her Answer to the Petition for Citation Sur Appeal from Decree of Probate to conform the pleading to the evidence offered and admitted. Respectfully submitted, ~vUnM ~ . Mark A. Mateya a. ID 78931) Alexandra Makosky (Pa. ID 80267) Mateya Law Firm, P.C. 55 West Church Ave. Carlisle, PA 17013 (717) 241-6500 Dated: December 9, 2011 Attorneys for Executrix Irma Davenport CERTIFICATE OF SERVICE I, Mark A. Mateya, Esquire, certify that I have served a copy of the foregoing document on the following person by depositing a true and correct copy of the same in the United States Mail, by way of United States Mail, first class, postage prepaid, at Carlisle, Cumberland County, Pennsylvania addressed to: Ronald L. Finck Esquire Mette Evans & Woodside P.O. Box 5950 Harrisburg PA 17110-0950 Dated: ('z ~ ~' Uvl~ h~ Mark A. Mateya, Esqu 55 W. Church Avenue Carlisle, PA 17013 (717) 241-6500 (717) 241-3099 Fax