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HomeMy WebLinkAbout06-07-12 (2)IN RE: Estate of BERYL C. GARDNER, Deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. PETITION TO ADMIT A COPY OF THE ORIGINAL WILL OF BERYL C. GARDNER TO PROBATE TO: Glenda Farner Strasbaugh, Register of Wills of Cumberland County: NOW COMES Elizabeth S. Gardner, widow of Beryl C. Gardner, deceased, by and through her attorneys, the law firm of Saidis, Sullivan & Rogers, and brings this Petition to Admit a Copy of the Original Will of Beryl C. Gardner to Probate, and in support thereof, avers the following: 1. Petitioner is the widow of Beryl C. Gardner, deceased (the "Decedent") who died on March 24, 2012, a resident of 37 Kitszell Drive, Carlisle, South Middleton Township, Cumberland County, Pennsylvania. 2. Decedent's sole intestate heirs are Petitioner and Decedent's three (3) adult children, Beth C. Gardner, Sharon L. Gardner and Laura G. Leistra. 3. On December 29, 1993, the Decedent executed a will which was prepared by the Decedent's then attorney, Richard W. Stevens, Esquire, of Jenkintown, Pennsylvania. Decedent executed the will in Kent County, Maryland in the presence of April L. Hughes and Patricia A. Heinefield, who both acted as subscribing witnesses. The Decedent obtained custody of the will follower ~~~ ~~..a `~..=' PV .- l ' 'T ' ~ f ,(J -' ~1 execution. Petitioner is a beneficiary under the will and is named as ex~c~~or ~ ''~~ '= a ~" - z ~~_ ~ ~a _ , r~, ;-~:; , ._ , o -_~ therein .. , - . . ~ ~ ! ~ ~-= toy c.~ 1 `~ 4. Sometime after executing his will, the Decedent retained the services of another attorney, who may have kept the original of Decedent's will. The Decedent kept a photocopy of said will in his files, a true and correct copy of which is attached hereto as Exhibit "A." The original will was not in Decedent's possession and to the best of Petitioner's knowledge, Decedent never gave any instructions to his attorney regarding the revocation of his will. 5. Upon the death of the Decedent, Petitioner learned that the attorney last consulted by Decedent and Petitioner destroyed all files pertaining to the Decedent in accordance with the record retention schedule maintained by that attorney, and without the knowledge or consent of the Decedent and Petitioner. 6. The Petitioner has searched for, but is unable to locate, the original will of the Decedent dated December 29, 1993, and believes, and therefore avers, that the original of Decedent' s will was inadvertently destroyed or lost without the Decedent's knowledge or authorization, and was therefore unrevoked by the Decedent at the time of his death. 7. Beth C. Gardner, natural daughter and contingent beneficiary of the Decedent, is an adult individual residing at 126 Preakness Drive, Mullica Hill, New Jersey 08062 who joins in this Petition, and has no knowledge that the Decedent revoked his original will, as set forth in the Affidavit and Consent and Joinder attached hereto as Exhibit "B." 8. Sharon L. Gardner, natural daughter and contingent beneficiary of the Decedent, is an adult individual residing at 242 East 19th Street, New York, New 2 York 10003, who joins in this Petition, and has no knowledge that the Decedent revoked his original will, as set forth in the Affidavit and Consent and Joinder attached hereto as Exhibit "C." 9. Laura G. Leistra, natural daughter and contingent beneficiary of the Decedent, is an adult individual residing at 81 Valewood Run, Penfield, New York 14526, who joins in this Petition, and has no knowledge that the Decedent revoked his original will, as set forth in the Affidavit and Consent and Joinder attached hereto as Exhibit "D." WHEREFORE, Petitioner respectfully requests that a probate record be opened for the estate of Beryl C. Gardner, deceased, that an order be issued admitting the December 29, 1993 will of Beryl C. Gardner, deceased to probate, and that Letters Testamentary be issued thereon to Petitioner Elizabeth S. Gardner. Respectfully submitted, Dat SAIDIS, SULLIVAN & ROGERS L_ . " c. ~. ~ C1 ~ Elyse .Rogers, Esq ire Identif cation No. 41274 Todd F. Truntz, Esquire Identification No. -83302 Saidis, Sullivan & Rogers 635 North 12th Street, Suite 400 Lemoyne, PA 17043 3 VERIFICATION ELIZABETH S. GARDNER deposes and says, subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities, that the facts set forth in this foregoing document are true and correct to the best of her knowledge, information and belief. I Eliza ' th S. Gardner EX~IIBIT A WILL I, BERYL C. GARDNER, revoke all my prior wills and codicils and declare this to be my will. FIRST: Last Expenses. I direct the payment from my estate of the expenses of my last illness and funeral. SECOND: Tangible Articles. A. I bequeath all my articles of personal and household use and ornament, including jewelry, clothing, furniture and furnishings, automobiles and similar tangible property, together with all insurance thereon, to my wife, Elizabeth S. Gardner, if she survives me. If she does not survive me, I bequeath all such property and insurance to my children who survive me, to be divided as they may agree or, in the absence of agreement, as the executor may think fair. THIRD: Residue. I devise and bequeath all the rest of my estate, real and personal, including any property over which I may have power of appointment, to the trustee of the Revocable Insurance Trust Agreement signed by me earlier today, wherein my wife, Elizabeth S. Gardner, is named the trustee, to be added to and become a part of the principal of the trusts created thereby. FOURTH: Taxes. The executor shall pay, from the principal of my residuary estate, all estate, inheritance and other death taxes, including interest and penalties thereon, imposed upon all property passing under my will. FIFTH: Powers. In addition to all other powers granted to her by law, the executor shall have the following powers to exercise without court approval: A. To retain and invest in all forms of property without being confined to legal investments and without regard for the principle of diversification; B. To borrow money, mortgaging real property and pledging personal property as security; C. To lease real property without restriction as to time and to repair, alter, improve, exchange or give options with respect to real property; D. To sell real and personal property at public or private sale for cash and/or credit; E. To carry investments in bearer form or in the name of a nominee; F. To distribute hereunder in cash or in kind, or partly in each; G. To compromise claims; H. To exercise any election or privilege given by the federal or other tax laws, including, without limiting the foregoing, joinder with my surviving wife in filing income tax returns, consent on gift tax returns to have any gift made by her considered as made in part by me for gift tax purposes, payment of any portion of income or gift tax due under such returns, 2 election of the alternate valuation for federal estate tax purposes, allocation of generation skipping transfer tax exemptions, and election to claim deductions for death tax or for income tax purposes; and to make or not make equitable adjustment for the exercise or non-exercise of any such election or privilege; I. To compromise and pay death taxes on all interests, present and future; J. To buy investments at a premium or discount; K. To determine whether any receipt or disbursement shall be allocated to principal or income, or partly to each; L. To join in any corporate action, reorganization or voting trust plan, to deposit securities under agreements and pay assessments, to subscribe for stock and bond privileges, to give proxies, to grant, obtair. or exercise options, and generally to exercise all rights of security holders; M. To borrow from and to sell real and personal property to the trustee of my trust mentioned earlier herein; N. To disclaim all or any part of any interest in any property which I may have or to which I or my estate may be or become entitled; 3 O. To distribute directly to the individual beneficiary any part of my estate otherwise distributable to a trustee for that beneficiary if the beneficiary would be entitled to immediate distribution from the trustee. SIXTH: Election of Marital Deduction. The executor may, in her sole discretion, elect to have a specific portion or all of the Marital Trust under the Insurance Trust Agreement signed by me earlier today qualify for the federal estate tax marital deduction in my estate if such property could qualify by making the election. The executor's decision concerning the election of all, part, or none of the federal estate tax marital deduction potentially available to my estate shall be conclusive upon all parties affected by such decision, and she shall not be liable to anyone for the effects of her decision. In exercising this discretion, I suggest, but do not direct, that the executor consider the benefits and eventual costs of deferring taxation until my wife's death, possible increase or decrease in values during my wife's lifetime, the foreseeable and relative needs of the beneficiaries, and any other factors that the executor may deem relevant. It is my purpose in so providing that the executor shall have the option of having deducted from my gross estate subject to federal estate tax so much or so little of the marital deduction allowed by the Internal Revenue Code as she may, in her sole discretion, deem best. I direct that my will be 4 so interpreted and that the powers herein conferred on her shall be exercised in conformity with my said purpose and intention. SEVENTH: Administration and Interpretation. A. The interests of the beneficiaries in income and principal shall not be subject to anticipation or to voluntary or involuntary alienation as long as they are in the hands of the executor. B. All executors and all beneficiaries not referred to by name are for convenience referred to in this will in the feminine singular. C. I am married to Elizabeth S. Gardner. All references in this will to my wife are intended to mean her. I have three children, Beth G. Aucoin, Sharon L. Gardner and Laura G. Leistra. All references in this will to my child or children are intended to mean one or more of them. References to my issue are intended to mean my children and their descendants. D. Any employee benefits payable to the executor shall not be liable for or used for the payment of or lent for the purpose of paying any taxes, liabilities, debts or any other claims or charges against my estate. E. If my wife and I die simultaneously or under such circumstances that the order of our deaths cannot be proven, it shall be presumed that my wife survived me. 5 F. No executor shall be required to enter bond in any jurisdiction. G. If a beneficiary or the Trustee of a trust under my Revocable Insurance Trust Agreement mentioned earlier exercises any election or power to withdraw or distribute the whole amount of any trust before that trust has been completely funded, the executor may, if the Trustee approves, make distribution directly to the beneficiary. EIGHTH: Appointment of Executors. I name my wife, Elizabeth S. Gardner, as executor of my will. If she shall fail to qualify or cease to act, I name my daughter Beth G. Aucoin as executor. If she shall fail to qualify or cease to act as 6 executor, I name my daughter Sharon L. Gardner as executor, or, if she shall fail to qualify or cease to act, I name my daughter Laura G. Leistra as executor. IN WITNESS WHEREOF, I have hereunto set my hand and seal this L~,~y`~~ day of ~.Q,LOrvkv~ 1993. `~ C ~~ ( SEAL ) w~ ~ C . ~;, ~] ~o.v ~bt Signed, sealed, published and declared by Beryl C. Gardner, the testator above named, as and for his will, in the presence of us who, at his request, in his presence, and in the presence of each other, all being present at the same time, have hereunto subscribed our names as witnesses. ~~ ~ ~ ~'~~ V :~i )~~i ~tver, 2c~~~ k~ac /Itll Address ~ ~!~ ~I~An~ ~A~n~~ ~~ 1~~A11 ~~~. Address ' 7 STATE OF ~~1~-1~ ~~ ~ ~r~~~ . SS. COUNTY OF ~ ~- rl We, Beryl C. Gardner, ~~- ~- ~'T~ '~~ <~ and ' , the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator, in the presence and hearing of both witnesses, signed and executed the instrument as his last will, that he signed willingly, that he executed it as his free and voluntary act for the purposes therein expressed, that each of the witnesses, in the presence and hearing of the testator and the other witness, signed the will as witness and that to the best of our knowledge the testator was at the time eighteen years of age or older, of sound mind and under no constraint or undue influence. ~ C, ,~~~ Bery C. Gardner l ,~ fitness ~ ~ ~. Witn ss Subscribed, sworn to and acknowledged before me by the above named testator and subscribed and sworn to before me by the above named witnesses this v~, ~ ~ day of JeC-? t'~'~ ~-~ r' , 19 9 3 . ..e ?~ Notary Public .~~-Y7 ~ S ~ ~ ~7~ ~Suv~ EXHIBIT B IN RE: Estate of BERYL C. IN THE COURT OF COMMON PLEAS GARDNER, Deceased :CUMBERLAND COUNTY, PENNSYLVANIA NO. AFFIDAVIT AND CONSENT AND JOINDER I, Beth C. Gardner, natural daughter, legal and intestate heir, and contingent beneficiary of the 1993 Will of Beryl C. Gardner, deceased, do hereby consent and joir. in th.e Petition to Admit a Cepy of the Original ~/~~ill of Beryl C. Gardner to Probate. I also swear and affirm that I have no knowledge that my father, Beryl C. Gardner, intentionally destroyed or otherwise revoked his Will dated December 29, 1993 prior to his death. Date Beth C. Gar STATE OF ~U~ ~P_~" -~i ss. COUNTY OF (~ ~,~ ~ c ~ 5 -~,,~ On this, the l~ day of ~~~~~ , 2012, before me, the undersigned officer, a Notary Public in and fo said county and state, personally appeared BETH C. GARDNER, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~~ Notary Public _ _ _ _ _ _ ANNA MARIA DISTEFANO COMM. N2384797 I NOTARYVUBLK I NCWJERSEV Gloucester County Comm. Expires Apr 16, 2014 EXHIBIT C IN RE: Estate of BERYL C. IN THE COURT OF COMMON PLEAS GARDNER, Deceased :CUMBERLAND COUNTY, PENNSYLVANIA NO. AFFIDAVIT AND CONSENT AND JOINDER I, Sharon L. Gardner, natural daughter, legal and intestate heir, and contingent beneficiary of the 1993 Will of Beryl C. Gardner, deceased, do hereby consent and join in the Petition to Admit a Copy of the Original Will of Beryl C. Gardner to Probate. I also swear and affirm that I have no knowledge that my father, Beryl C. Gardner, intentionally destroyed or otherwise revoked his Will dated December 29, 1993 prior to his death. /'~ ~~ Date Sharon L. Gardner STATE OF ~,~~ ~C 12.K COUNTY OF ss. On this, the ~ ~ day of ~~( , 2012, before me, the undersigned officer, a Notary Public in ~(nd for said county and state, personally appeared SHARON L. GARDNER, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I he Christie Lestage Notary Public-State of New York No. 01 LE6154792 Qualified in Nassau County My Commission Expires Oetober 23, 20~.9'j~ EXHIBIT D IN RE: Estate of BERYL C. GARDNER, Deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. AFFIDAVIT AND CONSENT AND JOINDER I, Laura G. Leistra, natural daughter, legal and intestate heir, and contingent beneficiary of the 1993 Will of Beryl C. Gardner, deceased, do hereby consent and join in the Petition to Admit a Copy of the Original Will of Beryl C. Gardner to Probate. I also swear and affirm that I have no knowledge that my father, Beryl C. Gardner, intentionally destroyed or otherwise revoked his Will dated December 29, 1993 prior to his death. s/~/~- Date Laura G. eistra STATE OF J ss. COUNTY OF On this, the ~'1 day of ~ CLUB ~ - , 2012, before me, the undersigned officer, a Notary Public in ~i d for said county and state, personally appeared LAURA G. LEISTRA, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. r ~~~ Notary Public REBECCA A. SAGER Notar;~ i-~UbiIC - ~tvnt2 of iVew York No. 0 ~ SAEi 94~J39 ~ualivieci in Monroe County My Commission Expires September 29, 2012