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HomeMy WebLinkAbout09-21-12MCNEES WALLACE 8c NURICK LLC Kendra McGuire, I.D. No. 50919 570 Lausch Lane, Suite 200 Lancaster, PA 17601 717-581-3734 Telephone 717-291-2186 Facsimile kmcguire _mwn.com Debra P. Fourlas, I.D. No. 62047 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 717-237-5201 Telephone 717-260-1692 Facsimile dfourlas~a~,mwn.com Attorneys for Elizabethtown College ~... ~ s- ~, ... ~ % ~. "~.. ~ w ~ ~° `'n T> N n~ ESTATE OF FLORENCE M. FASICK, DECEASED PETITION FOR DISCOVERY BY ELIZABETHTOWN COLLEGE IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION FILE NO. 21-12-0271 PETITION OF ELIZABETHTOWN COLLEGE FOR DISCOVERY RELATING TO DECEDENT'S PRIOR WILLS Elizabethtown College (the "College"), by its undersigned counsel, seeks an Order of the Court requiring the Estate of Florence M. Fasick, deceased, through its Executor, James D. Bogar, Esquire (the "Estate"), to produce copies of all prior wills executed by the Decedent. In support of this petition, the College avers as follows. 1. Florence M. Fasick died testate on February 27, 2012. 2. Mrs. Fasick was a resident of Cumberland County, Pennsylvania. 3. The College has standing to seek discovery as a beneficiary under Mrs. Fasick's will. h~~ 4. In June, 2009, Elizabeth Dahmus of the College received a communication from Diane Montgomery of Attorney Bogar's office, relating to a client who was planning to leave a large testamentary gift to the College. 5. It became clear that the client was Mrs. Fasick. 6. Both Mrs. Fasick and her recently-deceased daughter were graduates of the College. 7. Shortly after being contacted by Ms. Montgomery, Ms. Dahmus provided Ms. Montgomery with suggestions for appropriate language to be used for the proposed bequest. 8. In February, 2010, Mrs. Fasick informed Ms. Dahmus directly that she was leaving 97% of her estate to the College. 9. In March, 2010, Mrs. Fasick made an inter vivos cash gift of $10,000 to the College. 10. Over the next several months, Ms. Dahmus visited Mrs. Fasick, and Mrs. Fasick continued to talk about the large bequest she was planning to leave to the College. 11. During a visit to Mrs. Fasick in June, 2010, Ms. Dahmus showed her a draft of a story to be published in the College's alumni magazine concerning Mrs. Fasick's proposed bequest to the College. 12. During a visit in July, 2010, Mrs. Fasick was very excited about the alumni magazine article and requested eight copies of the issue carrying the feature about her planned bequest. 2 ~ } 13. The article was published in the Fall 2010 issue of Elizabethtown. See Exhibit A attached to this petition. 14. Ms. Dahmus continued visiting Mrs. Fasick periodically as her health declined, the last visit occurring in December, 2011. 15. At no time did Mrs. Fasick indicate any change in her intent to bequeath the bulk of her estate to the College. 16. After Mrs. Fasick's death, a will executed on August 5, 2011 was offered for probate. 17. The August 5, 2011 will leaves only 10% of Mrs. Fasick's residual estate to the College. 18. The August 5, 2011 will leaves 50% of Mrs. Fasick's residual estate to Peter Montgomery, anon-relative neighbor of Mrs. Fasick. 19. Upon information and belief, Mr. Montgomery served as Mrs. Fasick's agent under a power of attorney, for some time prior to her death. 20. Mr. Montgomery had a confidential relationship with Mrs. Fasick. 21. Attorney Bogar is both the scrivener of the August 5, 2011 will and the Executor of the Estate. 22. On May 7, 2012, the undersigned contacted Attorney Bogar concerning the unexpected reduction in the bequest to the College, and requested copies of Mrs. Fasick's prior wills and a copy of the Estate inventory. 23. On May 9, 2012, the undersigned followed up on those requests by letter. See Exhibit B attached to this petition. 3 24. On May 29, 2012, Attorney Bogar provided a copy of an inventory showing that the Estate had $749,002.05 in assets. See Exhibit C attached to this petition. 25. Attorney Bogar did not provide copies of any prior wills or otherwise respond to the request for copies. 26. By letter dated June 5, 2012, the undersigned repeated the College's request for copies of prior wills, also repeating the explanation that "the college is simply trying to understand why the gift that was so often discussed by Mrs. Fasick was not included in her will." See Exhibit D attached to this petition. 27. Attorney Bogar again did not respond to the request for copies of prior wills. 28. By letter dated July 9, 2012, the undersigned requested yet again that the Estate provide copies of Mrs. Fasick's prior wills. See Exhibit E attached to this petition. 29. In a telephone discussion on July 17, 2012, Attorney Bogar expressed anger concerning the College's request for copies of prior wills, stating: a. He has "a problem with aggressive charities"; b. He believes the College is plotting a will contest; c. He believes the College's request for copies of prior wills is tantamount to an accusation that his "office did something wrong." 30. Attorney Bogar demanded that the College provide legal authority demonstrating its entitlement to copies of the prior wills. 4 31. Attorney Bogar also threatened to contact the Office of the Attorney General to request an investigation. 32. By letter dated July 26, 2012, the College contacted the Office of the Attorney General, explaining the situation involving the Estate, and notifying the Attorney General pursuant to Pa. O.C. Rule 5.5 that the College would be seeking to compel disclosure of the prior wills. 33. By letter dated August 28, 2012, the undersigned provided citations to several authorities supporting the College's right to obtain copies of prior wills from the Estate. See Exhibit F attached to this petition. 34. In the August 28, 2012 letter, the undersigned also informed Attorney Bogar that the Office of the Attorney General had expressed support of the College's request for copies of prior wills. See id. 35. In the August 28, 2012 letter, the undersigned reiterated the College's request for copies of the prior wills. See id. 36. By letter dated August 31, 2012, Michael T. Foerster, Senior Deputy Attorney General, Charitable Trusts & Organizations, informed Attorney Bogar of his belief that the Estate must disclose the prior wills as requested by the College. See Exhibit G attached to this petition. 37. Senior Deputy Attorney General Foerster stated, inter alias ...From my outsider's perspective, I see 50% of a solid estate going to the son of a neighbor, from a 100 year old woman, where that beneficiary held a power of attorney. One can easily argue 50% of the estate is substantial benefit. I have concerns, not about the capacity of the Testator, but about her ability [to] match wits with a person intent on manipulation, if that was the case. Finally, being an agent under a power of attorney is, as a matter of law, a confidential relation. Thus, there are aspects of this situation that 5 give rise for [sic] concern. Again -this letter is not to cast aspersions but it is to argue that the College is not off base in its inquiry.... Id. at 2. 38. Despite the College's citations to authorities supporting disclosure, and the support of the Office of the Attorney General, Attorney Bogar did not produce copies of prior wills, continuing instead to ignore the College's repeated requests. 39. Attorney Bogar then filed a First and Final Account on behalf of the Estate, although the time for an appeal from the probate of the will has not yet expired and he is aware that there are questions concerning the validity of the will. See Exhibit H attached to this petition. 40. In his September 11, 2012 transmittal letter to the beneficiaries concerning the filing of the First and Final Account, Attorney Bogar stated for the first time that he has "declined" to produce the requested copies of prior wills, and gave as his reasons, also for the first time, concerns about the attorney-client privilege and the work-product doctrine. See Exhibit I attached to this petition. 41. The attorney-client privilege does not shield prior wills and surrounding documentation from disclosure where relevant. As one Pennsylvania court has explained, a testamentary exception to the application of the attorney-client privilege is proper "...in any case where a deceased holder of the attorney-client privilege is suspected of having been unduly influenced to change the planned disposition of his estate...." In re Thevaos Est., 10 D. & C.5th 481 (C.P. Centre 2010). In addition, ...any documentation related to the change in [decedent's] estate near the end of his life and after suffering a series of medical setbacks can only go to show what [decedent's] intent was, and whether he was able to clearly communicate what he desired for his estate.... [I]t is possible that any documentation provided...will either eliminate or affirm caveator's belief 6 that [decedent] may have been unduly influenced to make changes to his estate.... Id. See also Swidler & Berlin v. United States, 524 U.S. 399, 414, 118 S. Ct. 2081, 2089 (1998) ("In the situation where the posthumous privilege most frequently arises - a dispute between heirs over the decedent's will -the privilege is widely recognized to give way to the interest in settling the estate") (citing Glover v. Patten, 165 U.S. 394, 406-08, 17 S. Ct. 411, 416 (1897)). 42. The work-product doctrine is wholly inapplicable to this case. See In re Est. of Wood, 2003 PA Super 72, 818 A.2d 568, 572 (Pa. Super. 2003) (work product doctrine does not apply where requested information does not include attorney's own conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories). 43. Moreover, as the Executor of the Estate, Attorney Bogar has the ability to waive the application of any privilege. See Law Office of Douglas T. Harris v. Philadelphia Waterfront Partners, LP, 2008 PA Super 222, 957 A.2d 1223, 1231 n.4 (Pa. Super. 2008) (citing 8 Wigmore, Evidence § 2329 (McNaughton rev. 1961)). 44. The circumstances of this case are such as to raise questions and concerns whether Mrs. Fasick may have been unduly influenced to change her will in favor of Mr. Montgomery. Cf. In re Heffner's Est., 92 Montg. 44 (1969) (sustaining appeal from probate where evidence showed that testatrix was physically disabled and depended on proponent; that he held a power of attorney for her; that a prior will would have given him a substantially smaller portion of her estate; that he was not related to her by blood; and that he had enjoyed a confidential relationship with her). 7 45. Prior to filing this petition, the undersigned contacted Attorney Bogar by email on September 19, 2012, providing a copy of this petition and requesting concurrence pursuant to this Court's local rules; concurrence was not given. 46. upon information and belief, no judge of this Court has yet ruled on any issue in the same or a related matter. WHEREFORE, Elizabethtown College respectfully requests that this Court enter an Order directing the Estate of Florence M. Fasick to produce copies of all prior wills or drafts of wills prepared for Florence M. Fasick. MCNEES WALLACE & NURICK LLC By ~~- 4---- Debra P. Fourlas, I.D. No. 62047 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 717-237-5201 Telephone 717-260-1692 Facsimile dfourlas(a~mwn.com Kendra McGuire, I.D. No. 50919 570 Lausch Lane, Suite 200 Lancaster, PA 17601 717-581-3734 Telephone 717-291-2186 Facsimile kmcguireCa~mwn.com September 21, 2012 Attorneys for Elizabethtown College 8 :.~~. ~'_ - ,,,,;,~, ,. ~... ~` `.~ -L- ~ ~ •:., • .~ ~ '' ;gip 7 ~'~'~ t ~ „~ ~. ,~ .~ t ~`,fsK • ` 1 ,tom ..r ~ ~r ~ e i ' ~~~j7~~ [1. ,1 t +t 1,,A r •S ? ,f.• .I i~ ! f f Z 'r'!~ f 1, v' a ., r ~ t ~::. '~,,k;ijl - r- ~~.~ l,.t ~ ,°er r ~ •• ~ I ,. is ,~ t~ ~ ~1 :17 • _ =Y ,~ ~ il, .fy, 6 ~± ~ ~ t. ~r tl Er_' J~ r .i•. /~'y~• t ~"';• ,) ~~~~•+ ~ ~•A+ ~_' ~~;f ~ '~ ~~ v ,p~~ -~ .tT~i~~? i~ c~}~~tt * ` -' ::-~••...r (•~,~ tf'. , r, st:. ' - .St ` t ~~~~ t + 'h. ~ i-~ ~~ ~r ti<~ ~3~ F'7~~~' ~~ r.. ' •+' J }'~e.~~~. ~ i) ~~ . (. yy ` t ~~ •-r"'~-•7~rrw., .,, ~ _ ~• ,~ .~ ~ t .u ~ j ~;sf "~7. 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ZI~Iother c~nd daughter, and Nttncy Lee C~rcxdy by Elizabeth Dahms~s F`~orence Crrady Fasick '~~~' re all understand the gift of good ~/ health and goad health care. Offering quality health care to~our students is•a top priority of the'College. Offering quality health care was the hallmark of a long and distinguished career in nursing for Florence Grady Fasick. Florence attended Elizabethtown College with her daughter, Nancy Lee Grady, and together, they will leave a legacy of support for the continued quality health care of our students. Their gift will ultimately endow the student nurse position held by Eileen Wagener and will be known •as the Nancy Lee Grady and Florence Grady Fasick College Health Liaison. The college health Liaison is the first responder when . a student is ill or In need of health care, providing direct care or referring the student far further examination by a medical doctor. Sadly, Nancy Lee passed away In 2409 after a long illness. A business administration graduate, she had her own distinguished Career tivith the Pennsylvania Department of Public Welfare. She had discussed the idea of leaving a legacy to the College and honoring her mother by leaving this legacy to support nursing. Florence inherited Nancy Lee's estate and will honor that wish with a gift from both estates. Remembering their time together on campus, their gift will positively influence the lives of every student at Elizabethtown College. Florence grew up in Chen•y Tree, Pa. One of her fondest memories is that;of competing against the then-soon-to-be- famous Jimmy Stewart to a regional oratory contest, as both had won first pl~aee. at their respective high schools. "It's my claim to fame," jokes Florence, who became a centenarian on dune 30, attaining the age of 100.. After finishing her schooling, Florence worked in nursing in MarS7land and Washington, ll.C., before moving to Camp Hi1i in central Pennsylvania with her husband and a young Nancy Lee. The move came in 19¢$, when her husband, Thomas, who was an electrical .engineer, was transferred from the Philadelphia Civilian Na<<y to the Naval Supply 1Jepot in Mechanicsburg, Pa. Previously, he had been secretly assigned to the Manhattan Project-the project canduued from 1942 unti1.1946, during World War 11, under the control of the U.S. Army Corps of Engineers, to develop the first atomic bombs. ;; #~f ~ ~ • .. Through their gift, mother Florence Grady Fasick (right) and daughter Nancy Lee Grady (left) are supporting continued quality health care for Elizabethtown's students through the endowment of the student nurse position currently held by Eileen Wagener (shown below). While living in Camp Hill, Florence held a faculty position at the Harrisburg 1-Iospita[ School of Nursing as the first clinical instructor, and then became the executive director of the Visiting Nurse Association of Harrisburg, Pa. She retired in 1973 and served on the board of ' ~. . 1 - . directors of several area ~'~ ~~ A~~~~t~ i~~; '~-•~~ j ,; organizations including M t ~, ~ w { : .~r,i ' s~or " ~ ~ ~ ~. the Rheumatoid Arthritis ;~ . Sr~;~~~ary~ ~ ~xs Foundation and the American Association of University Women. Of this special gift, President Theodore Long notes, "`~(1e are deeply grateful. t~ Florence and Nancy Lee for their support of the College and their service to our students with this very important gift." Y . ~~ ~' ar.t„~ EXHIBIT B McNees Wallace & (~urick uc 57U Lausch Lane ~ ~alEifiO 200 ~ Lancaster, PA 17601 °8057 i"el: 717,291,1177 ~ Fax: 717.291,2186 May 9, 2012 VIA FIRST CLASS James D. Bogar, Esquire One West Main Street Shiremanstown, PA 17011 RE: Estate of Florence M. Fasick Dear Mr. Bogar: Kendra D. McGuire Direct Dial: 717.581.3734 Direct Fax: 717.260.1730 kmcguire@mwn.com This is in follow up to our conversation of Monday, May 7, 2012. Thank you for speaking with me. As I advised, this firm represents Elizabethtown College. The College received your letter of March 14, 2012 with the enclosed Will. The College was a bit surprised to see the disposition of Mrs. Fasick's estate, as the College believed that it was a primary beneficiary of Mrs. Fasick's estate. Members of the College staff routinely visited with Mrs. Fasick following her call to the College in February, 2010. During those visits, Mrs. Fasick often discussed the major gift she intended to give the College by bequest in her Will. Mrs. Fasick was the beneficiary of her daughter's estate and wanted to do something in memory of her daughter. An article regarding the gift appeared in the Fall, 2010 edition of the Elizabethtown Magazine; a copy of the article is enclosed herewith. Mrs. Fasick was quite excited about the article and requested several copies of the article. Mrs. Fasick routinely and repeatedly communicated her desire and intention to benefit the College over the years until the time of her death in February of this year. Indeed, on March 29, 2010, Mrs. Fasick gave Elizabethtown College a check in the amount of $10,000 for the Nancy Lee Grady and Florence Fasick We(Iness Program. You asked for more specific information regarding contact between your office and Elizabethtown College. In early June, 2009, Diane Montgomery of your firm called Elizabeth Dahmus of Elizabethtown College to discuss a 99 year old client, who was a nursing major at Elizabethtown College, whose daughter had just passed, and who wished to leave 97% of her estate to the College. The daughter was a graduate of Elizabethtown College. It was clear from the www.mwn.com I-IARRIS~URG, PA LANCASTER, P/~ ® STATE COLLEGE, FA NAZLETON, PA Q COLUMBUS, OH WASHINGTON, DC James D. Bogar, Esquire May 9, 2012 Page 2 conversation that Ms. Montgomery was calling about Florence Fasick. Ms. Dahmus provided information to Ms. Montgomery in follow up to the conversation; the information was provided by email on June 17, 2009. As we discussed, the College is trying to understand why the gift that was so often discussed by Mrs. Fasick was not included in her Will. As part of the process of trying to understand what happened, I asked if you would be willing to provide the College with copies of prior wills, if any, executed by Mrs. Fasick. I also requested a copy of the Estate inventory, which you indicated is not yet complete. will look forward to hearing from you in response to the College's requests. Sincerely, McNEES WALLACE & NURICK LLC By Kendra D. McGuire KDM/2876372 Enclosure c: Elizabeth Dahmus, Executive Director, Planned Giving, Elizabethtown College ~X~-IIBI'T C 1N~/ENTORY REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANfA COUN"t'Y OF Cumberland } Ss Fife Number 29-12.027'1 James D. Boger Persona! Representatives} of the Estate at Florence M. Faslck deceased, depose(s) and say(s) that the items appearing in the following inventory include all of the personal assets wherever situate and all of the real estate in the Commonwealth of Pennsylvania of said Decedent, that the vaiuaiion placed apposite each item of said inventory represents its fair value as of the date of the decedent's death, and that Decedent owned no real estate outside of the Commonwealth of Pennsylvania except that which a rs in a e orandurn al the end of this inventory. 1 verify #hat the statements made in this lnven- ,,j ~. ~. L ~ ~ ~- tory are true and correct. i understand that false state- ~ Jar`tme D, Boger ments herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification #o authorities. Attorney -- (Name) James D. Boger ~ (Supreme Court I.D. No.} 19475 (Firm) gogar & Hipp Law Offices __ (Address) One West Main Street, Shiremanstown, PA '17011 (Telephone) (717) 737-8761 gA7E OF DEATH LAST RE5fDENGE Maplewood Assisted Living DEG~flENrs soc. sic. rro. p212712412 Mechanicsburg, PA 17055 190-26-6600 FIGURES MUST BE TOTALED Personal Property Cash ................................................ ..........,.,.............................. Persona! Property ........................................................................ StockslListed ................................................................................ Stocks~Closely Held ................:.................................................... Bonds ............................................................................................ Partnerships and Soie Proprietorships ..................................... Mortgages and Notes Receivable ............................................... Al! Other Property ..............................:.......................................,. Total Persona! Property ........................................ Total Real Property ................................................ Total Personal and Real Property ........................ n 739,30~.~5 _ 690 8 `x-z ~~ Go -z~ _ ~ ~ ~ , - ~ ,--, -t ~: ~ ~.7 .l ::._ ~ ~. ~ ~~~~ t) W . ~ ~ •, ,; c:~ _ " .. . . c~ ~ ~~ ~ c~ ~`~ c~ . ~r:- : ~~ 749, 002. tl5 tVt7TE: The Memorandum of real estate outside the Commonwealth of Pennsylvania may at the e[eciion of the personal representative include the vatue of each item, but such f[gures should not be extended into the tots! of the Inventory. (See ~0 Pa. G.S. § 33D1{b}) Fprm RW-09 ftev. 7D-13-2008 1NlI~NTORY REGISTER OF VI/1LLS OF ~. COMMONWEALTH UP PENNSYLVANIA COUNTY OF Cumberland ~ SS File Number 21-92-0279 DATE OF DEATH LAST RESIDENCE MapleWOOd Assisted Living ©ECEDENrs SOC. src. No. 02/27/2092 Mechanicsburg, PA 17055 190-26-6600 Cash CUMBERLAND COUNTY, PENNSYLVAN[A Total Cash P~rson~l P~`-Q~~ Personal Property -Property #ransferred in kind to Peter Montgomery -per appraise! Personal Property -sold at auction Tote! Persona! Property Cash Erie insurance -Premium Refund Metro Bank -Certificate of Deposit No. 7700174718. Principal balance at date of death $90,986.63; accrued interest $94.73 PNC Bank -Certificate of Deposi# No. 31600214329. Principal balance as of date of death $109,587.34; accrued interest $205.40 PNC Bank -Checking Account No. 5140159833. Principal balance at da#e of death $35,789.OZ; accrued interest $0.21 PNC Bank -Savings Account No. 59'12502294. Principal balance at date of death $28,'112.80; accrued interest $'1,50 PNC Investments -Account No. 005-637645. Sovereign Bank -Certificate of Deposit No. 2335548638. Principal balance at date of death $39,131.33; accrued interest $82.93 U.S. Treasury - 2091 Personal lncorne Tax Refund 1oo.ao 7.00 91,089.3fi 9 09,792.74 35,789,23 28,'114.30 434.592.98 39,294.26 6'14.00 739,305.05 275.00 9,422.00 9, 697.00 (Attach additional sheets if necessary} Tota! Persona! Property and Real Estate 749,002.05 EXHIBIT D McNees Wallace ~ Nurick ~~c 570 L~tISCh Lane ~ Sulu 200 ~ f,ancast~r, P~ 1701-3057 T~f; 717.291.1177 ~ Fax; 7i 7.281.2186 June 5, 2012 VIA FIRST CLASS James D. Bogar, Esquire One West Main Street Shiremanstown, PA 17011 RE: Estate of Florence M. Fasick Kendra D. McGuire Telephone: (717} 291-1177 Fax; (717} 291-2186 kmcguire@mwn.com Dear Mr. Bogar: Thank you for your letter of May 29, 2012 with the enclosed inventory. Please note that I also requested copies of prior Wills. Would you kindly forward them to me at your earliest convenience? As I stated in earlier correspondence, the college is simply trying to understand why the gift that was so often discussed by Mrs. Fasick was not included in her will. Very truly yours, McNEES WALLACE & NURICK LLC B Gv~" l~ Y K ndra D. McGuire KDM:bg 2913430 c: Elizabeth Dahmus, Executive Director of Planned Giving, Elizabethtown College vuww.m~nrn.corn HARRISBURG, PA ° LANCASTER, PA ® STATE COLLEGE, PA ® Hazt_ETON, PA ~ COLUMBUS, OH ~ WASHINGTON, DC E~HIBI~T E McNees Wallace & Nuric~ uc 570 L~~usch Lane $ quite 204 ~ Lancaster, PA 17001-3057 `i'r;l: 717,291.1177 d Fax; 717.201.2186 July 9, 2012 VIA FIRST CLASS James D. Bogar, Esquire One West Main Street Shiremanstown, PA 17011 RE: Estate of Florence M. Fasick Dear Mr. Bogar: Kendra D. McGuire Direct Dial: 717.551.3734 Direct Fax: 717.260.1730 kmcguire@mwn.com 1 am following up to my letter of June 5, 2012. I have not heard from you. Kindly provide us with copies of Mrs. Fasick's prior wills at your earliest opportunity. If the Estate wishes to take the position that it will not release prior wills, kindly advise me of that as well so that the College can consider its options for compelling the production of prior wills. Elizabethtown College truly desires to work cooperatively with the Estate. We would like a response to our request for information. We believe it is reasonable and appropriate under the circumstances. Very truly yours, McNEES WALLACE & NURICK LLC By Kendra D. McGuire KDM:bg 2946189 c: Elizabeth Dahmus, Executive Director of Planned Giving, Elizabethtown College WWW.mWn.COm HARRISBURG, I'A ® LANCASTER, PA ®~ STATE COLLEGE, PA ® HAZLETON, PA ° COLUMBUS, OH ® WASHINGTQN, DC McNees Wallace & Nurick ~~c 570 L~L~,ch Lens ~ wits 240 ~ LanC~~tsr, PA 17E41-3057 Trl: 717,201.1177 ~ i+ax: 717.241.218E August 28, 2012 VlA FIRST CLASS James Bogar, Esquire One West Main Street Shiremanstown, PA 17011 RE: Estate of Florence Fasick Dear Mr. Bogar: Kendra D. McGuire Direct Dial: 717.581.3734 Direct Fax: 717.260.1730 kmcguire@mwn.com This is in follow up from our telephone conversation of July 17, 2012. You requested additional information regarding the release of prior wills. I commend the following items to your review: 1. In re Thevaos Estate, 2010 WL 1435160, 30 Fiduc. Rep. 2d 140 (Centre County 2010) (compelling the production of estate planning file of decedent and all communications with third parties); 2. Philadelphia Bar Ethics Opinion 2007-6 (consent to release documents can come from the personal representative; implied authorization of disclosure to promote client's estate plan, forestal( litigation, preserve assets and further an understanding of client's intentions); 3. Swidler & Berlin v. U.S., 118 S. Ct. 2081, 141 L. Ed.2d 379 (1998) {addressing and upholding a testamentary exception to the attorney client privilege; client's intent is furthered by disclosure); 4. ACTEC Commentaries to the Rufes of Professional Conduct, relating to obligations after death of client (discussing implied authorization to disclose prior wills and estate planning documents to further disclosed client's estate plan); 5. Philadelphia Bar Ethics Opinion 2003-11 (an executor has the authority to consent to disclosure of a client's confidential information pertaining to estate planning.}; and www.mwn.com HARRISBURG, PA m LANCASTER, PA ~ STATE COLLEGE, PA ~ COLUMBUS, OH ® WASHINGTON, DC James Bogar, Esquire August 28, 2012 Page 2 6. Restatement (Third) of the Law Governing Lawyers (2000), §81A, Dispute Concerning a Decedent's Disposition of Property, comment b (The attorney-client privilege does not apply to a communication from or to a decedent relevant to an issue between parties who claim an interest through the same deceased client, either by testate or intestate succession or by an inter vivos transaction.). The case law is replete with cases that establish Elizabethtown College's standing to request copies of prior dispositive documents. See, In re Ash's Estate, 351 Pa. 317 {1945); see also, 31 Standard Pennsylvania Practice 2d § 149:35. During our telephone conversation, you repeatedly mentioned that you had a personal animus against overly aggressive charities and threatened to alert the Office of the Attorney General. Of course, the College has no objection to the involvement of the Office of Attorney General and has indeed notified the Office of its requests and your unwillingness, to date, to honor those requests. Mr. Foerster indicated that the Office of Attorney General would support the production of prior wills and would not object to a motion to compel the production of prior wills. I look forward to hearing from you about the production of prior wills. You have now been supplied with the authority for producing them. Kindly produce Mrs. Fasick's prior wills at your earliest convenience. Sincerely, McNEES WALLACE & NURICK LLC Ken ra D. McGuire KDM/2974602 c: Elizabeth Dahmus, Executive Director of Planned Giving, Elizabethtown College Michael T. Foerster, Esquire, Senior Deputy Attorney General, Charitable Trusts EXHIBIT G ~. e ,~ ~` ,~' ~ '~ COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL LINDA L. KELLY August 31, 2012 ATTORNEY GENERAL Charitable Trusts and Organizations Section 14a' Floor, Strawberry Square Harrisburg, PA 17120 Telephone: (717) 783-2853 Facsimile: ?17-787-1190 mfoerster@attorneygeneral. gov James D. Bogar, Esquire BOGAR & HIPP LAVV OFFICES Attorney At Law One West Main Streefi Shiremanstown, PA 17011 RE: Estate of Florence Fasick Dear Mr. Bogar: I have spoken with Kendra McGuire and received the courtesy copy of her August 28, 2012 letter. I have some understanding of the situation and believe it is necessary that you disclose prior wills. Please allow this letter to explain. I understand that Florence Fasick lived to 100 years, or older, and survived her daughter. The elder Ms. Fasick was a nursing major at Elizabethtown College, from where her daughter graduated as well. The College became aware of the Testator's intentions from your office and, as I understand it, the intention in 2009 was to leave the residue of the estate to the college. Of course, there is some time between that and August, 2011, when the last will was executed. Certainly one has every right to do whatever it is they want with their property, inter vivos or a mortuis, so long as it is legal. Dulles Estate, 218 Pa. 162, 67 A. 49. But, the change is drastic. More importantly, there are elements to the situation which sublimate an air of undue influence. Indeed, this letter is no accusation of undue influence. I point out, though, that the well- established elemental claim for undue influence requires a will's contestant to show three elements: • substantial benefit; • weakened intellect; and, James D. Bogar, Esquire RE: Estate of Florence Fasick August 31, 2012 Page 2 • confidential relation. Clark Estate, 461 Pa. 52, 334 A.2d 628 (1975). From my outsidex's perspective, I see 50%-of a solid estate going to the son of a neighbor, from a-100 year old woman, where that beneficiary held a power of attorney. One can easily argue 50% of the estate is substantial benefit. I have concerns, not about the capacity of the Testator, but .about her ability match wits with a person intent on manipulation, if that was the case. Finally, being an agent under a power of attorney is, as a matter of law, a confidential relation. Thus, there are aspects of this situation that give rise for concern, Again -this letter is not to cast aspersions but it is to argue that the College is not off base in its inquiry. ~ . I can only assume that you have a different perspective or may point to other factors to which I am not privy. Please feel free to contact me with a call or letter. Thank you for your time and consideration. Very truly yours, Michael 'T. I~'oerster Senior Deputy Attorney General Charitable Trusts & Organizations cc: Kendra D. McGuire, Esquire EXHIBIT H In the Court of Common Pleas of Cumberland County, Pennsylvania Orphans' Court Division File No. 21-12-0271 Estate of Florence M. Fasick, Deceased ____ Late of Lower Allen Township FIRST AND FINAL ACCOUNT AND STATEMENT OF PROPOSED DISTRIBUTION James D. Bogar, Executor Date of Death; Date of Executor's Appointment: Date of First Complete Advertisement: Accounting for the period: 02127/2012 03/0212012 Cumberland Law Journal 3/9/12; 3/18/12; 3/23/12 Central Penn Business Joumal 3/9/12; 3/18/12; 3/23// 2 02/27/2012 to 09!07/2012 Purpose of Account: James D. Bogar, Executor, offers this Account to acquaint interested parties with the transactions that have occurred during the Administration. It is important that the Account be carefully examined. Requests for additional information or questions or objections can be discussed with: James D. Bogar Bogar & Hipp Law Offices One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Supreme Court I.D. No. 19475 ~, C~ _~-~ ~~ Z ~ r~1 ~:_~ ~; C'~ i - . ; ~~ ',~; C7 C-'~ _~~ .:; C~ ' ~__ LT'S SUMMARY OF ACCOUNT Estate of Florence M. Fasiclc, Deceased For h eriod of Febr~~arv ~, 2012 through S~ntPmbPr 7,..Z.Q1.2 Fiduciary Current Acquisition PAGES Value Value Proposed Distributions to Beneficiaries 7 647,623.00 PRINCIPAL Receipts: This Account 1 755,778.44 Net Gain (or Loss) on Sales 2 2,498.94 or Other Dispositions 758,277.38 Less Disbursements: Debts of Decedent 0.00 Funeral Expenses 3 293.20 Administration Expenses 3 16,263.70 Federal, State & Local Taxes 4 50,803.44 Commissions 0.00 Fees 4 44,500.00 Family Exemption 0.00 111,860.34 Balance Before Distributions 646,417.04 Transfer to (from) Principa( o.oo Distributions to Beneficiaries ~ 275.00 Principal Balance on Hand 646,142.04 For Information: Investments Made Changes in Holdings INCOME Receipts This Account 6 1,480.96 Net Gain (or Loss) on Sales 0.00 or Other Dispositions 1,480.96 Less Disbursements 0.00 Balance Before Distributions 1,480.96 Transfer to (from) Income 0.00 Distributions to Beneficiaries 0.00 Income Balance on Hand 1,480.96 For Information: Investments Made Changes in Holdings COMBINED BALANCE ON HAND 647,623.00 SCHEDULE A RECEIPTS OF PRINCIPAL Assets Listed in Inventory (Valued as of Date of Death) Fiduciary Acquisition Value ~b Cash 100.00 Metro Bank -Certificate of Deposit No. 7700174718. 91,081.36 Principal balance at date of death $90,986.63; accrued interest $94.73 PNC Bank -Certificate of Deposit No. 31600214329. 109,792.74 Principal balance as of date of death $109,587.34; accrued interest $205.40 PNC Bank -Checking Account No. 5140159833. 35,789.02 Principal balance at date of death $35,789.02 PNC Bank -Savings Account No. 5112502294. 28,112.80 Principal balance at date of death $28,112.80 PNC Investments -Account No. 005-637645. 434,592.16 Sovereign Bank -Certificate of Deposit No. 39,214.26 2335548638. Principal balance at date of death $39,131.33; accrued interest $82.93 Mutual of America -Annuity payment 136.52 Office of Personnel Management -pension payment 955.58 Social Security 1,036.00 Erie Insurance -Premium Refund 7.00 U.S. Treasury - 2011 Personal Income Tax Refund 614.00 Asbury Communities, Inc. -refund of overpayment 4,650.00 Total Cash 746,081.44 Personal_ roperfic Personal Property -Property transferred in kind to 275.00 Peter Montgomery -per appraisal Personal Property -sold at auction 9,422.00 Total Personal Property 9,697.00 Total Receipts 755,778.44 Total Receipts of Principal 755,778.4a -1 - SCHEDULE B GAINS AND LOSSES ON SALES OR OTHER DISPOSITIONS -PRINCIPAL in 02/28/2012 Metro Bank -Certificate of Deposit No. 7700174718. Principal balance at date of death $90,986.63; accrued interest $94.73 Net Proceeds 9'1,109.01 Fiduciary Acquisition Value -91,081.36 27.65 02/28/2012 PNC Bank -Certificate of Deposit No. 31600214329. Principal balance as of date of death $109,587.34; accrued interest $205.40 Net Proceeds 109,895.44 Fiduciary Acquisition Value -109,792.74 102.70 02/2812012 PNC Investments -Account No. 005-637645. Net Proceeds 436,939.98 Fiduciary Acquisition Value -434,592.16 2,347.82 0212812012 Sovereign Bank -Certificate of Deposit No. 2335548638. Principal balance at date of death $39,131.33; accrued interest $82.93 Net Proceeds 39,235.03 Fiduciary Acquisition Value -39,214.26 20.77 TOTAL GAINS AND LOSSES/PRINCIPAL LESS LOSS NET GAIN OR LOSS Loss 2,498.94 2,498.94 -2- SCHEDULE C DISBURSEMENTS OF PRINCIPAL Finer 1 Ex e~ rases 03/21/2012 Neill Funeral Home -balance of funeral bill Total Funeral Expenses p.dministration E~. e~ rases 03/02/2012 Cumberland Law Journal -Executor's Notice 03/0212012 Register of Wills -probate fee 03!0212012 Sovereign Bank -fee for date of death valuation 03/07/2012 Rowe's Auction Service -auctioneer's commission and trash removal fee 03/20/2012 Bethany Village -final bill 03/20/2012 Omnicare 03/27/2012 H&R Block -tax preparation fee 04/03/2012 Journal Publications -Executor's Notice 04111/2012 Mutual of America -reclamation of final annuity payment 05/10/2012 PA Department of Revenue - 2011 Personal Income Tax Due 05/23/2012 Register of Wills -additional probate fee 05/23/2012 Register of Wills -filing fee for PA Inheritance Tax Return and Inventory 07112/2012 United States Treasury -Office of Personnel Management -Reclamation of final annuity payment 08/16/2012 Virtuox Inc. Lab -medical bill TO BE PAID RESERVES: -Costs to conclude administration of Estate, including preparation and filing of final 2012 Personal Income Tax Returns, Federal and State Fiduciary Income Tax Returns, and First and Final Account and Statement of Proposed Distribution Total Miscellaneous Administrative Expenses 293.20 293.20 75.00 593.50 20.00 3,362.70 5,778.50 81.58 162.00 150.00 136.52 362.70 50.00 30.00 955.58 5.62 4,500.00 16,263.70 -3- SCHEDULE C DISBURSEMENTS OF PRINCIPAL Continued FPrlPrala Stag, and Local Taxes 05/15/2012 'Ii0 BE PAID Register of Wills, Agent -Payment of PA Inheritance 50,803.44 Taxes at 5% discount Total Taxes 50,803.44 Fees James D. Bogar, Esquire -Attorney fees for 44,500.00 representation of Estate per agreement Total Fees 44,500.00 TOTAL DISBURSEMENTS OF PRINCIPAL 111,860.34 -4- SCHEDULE D DISTRIBUTIONS OF PRINCIPAL 02/28/2012 Peter Montgomery -Personal property retained -per 275.00 appraisal 275.00 TOTAL DISTRIBUTIONS TO BENEFICIARIES 275.00 -5- SCHEDULE G RECEIPTS OF INCOME Intere$tlBank Metro Bank 07/31/2012 Metro Bank -interest earned in Estate savings account through July 31, 2012 1,465.61 1,465.61 jVletro Bank 08115/2012 Metro Bank -interest earned in Estate checking account through August 15, 2012 TOTAL BANK INTEREST TOTAL RECEIPTS OF INCOME 15.35 15.35 1,480.96 1,480.96 -6- PROPOSED DISTRIBUTIONS TO BENEFICIARIES Current Value Fiduciary 09/07/2012 Acquisition or as noted Value TO: Marcia Montgomery -Proposed Distribution (specific bequest) 10,000.00 Marianna Davis -Proposed Distribution (specific bequest} 10,000.00 Peter Montgomery -Proposed Distribution 285,909.78 Virginia Bone -Proposed Distribution (specific bequest) 5,000.00 310,909.78 TO: Bethesda Mission Bethesda Mission -Proposed Distribution 33,671.32 33,671.32 TO: Eiizabeth~own College Elizabethtown College -Proposed Distribution 67,342.65 67,342.65 TO: Nursing Foundation of Pennsylvania Nursing Foundation of Pennsylvania -Proposed Distribution 235,699.25 235,699.25 Total s47,sz3.oo -7- In the Court of Common Pleas of Cumberland Counfiy, Pennsylvania Orphans' Court Division File No. 21-12-0271 Estate of Florence M. Fasick, Deceased Verification James D. Bogar, Executor under the Last Will and Testament of Florence M. Fasick, Deceased, hereby declares under oath that he/she has fully and faithfully discharged the duties of his/her office; that the foregoing Account is true and correct and fully discloses all significant transactions occurring during the accounting period; that all known claims against the Estate have been paid in full; that, to his/her knowledge, there are no claims now outstanding against the Estate; that all taxes presently due from the Estate have been paid; and that the grant of Letters Testamentary and the first complete advertisement thereof occurred more than four months before the foregoing Account. This statement is made subject to penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. ,,. ~ . ~~. Dated: ~ ~~2 ~, ~-~`~~ ~~- `~---- - ~t James D. Bogar, Exec to EXHIBIT I JAMES D . B OGAR ATTORNEY AT LAW ONE WEST MAIN STREET SHIREMANSTOWN, PENNSYLVANIA 17011 www, bogarandhipplaw, com e-mail mail~bogarlaw.com JAMES D. BOGAR JENNIFER B. HIPP* LAUREN E. DOGAR `Also admitted to New Jersey Bar September 11, 2012 TELEPHONE (717) 737-8761 FACSIMILE (717) 737-2086 Direct e-mail jbogar(n bogarlaw.com TO: BENEFICIARIES OF THE ESTATE OF FLORENCE M. FASICK RE: Estate of Florence M. Fasick Dear Beneficiaries: This letter follows our letter to you dated September 7, 2012, wherein we provided you with a full and complete copy of the First and Final Account and Statement of Proposed Distribution and advised that October 9, 2012 is the date scheduled for this Account to be confirmed, absent objections being filed. We wish to advise that we have been contacted by the Attorney for Elizabethtown College, Kendra D. McGuire, Esquire. It would appear that Elizabethtown College is of the understanding that it should have received a higher .percentage or bt/iieii~:idl irzteL~est; iI~ ~1~iiS Es`cate. Furi:iierr~tore, ElizabethLOwli College, through Ms. McGuire, has requested copies of prior Wi11s of Mrs. Fasick, which request we have declined due to what we feel are our obligations to honor the attorney-client privilege and the work product doctrine. We also want to advise that we have been contacted by Michael T. Foerster, Senior Deputy Attorney General, Charitable Trusts and Organizations - Office of the Attorney General, with respect to the concerns and requests of Elizabethtown College, as above-stated. The Attorney General's Office became involved after being contacted by Ms. McGuire. We will endeavor to keep you posted as to all developments with respect to these matters. As noted above, objections can be BENEFICIARIES OF THE ESTATE OF Florence M. Fasick September 11, 2012 Page 2 filed to the First and Final Account and Statement of Proposed Distribution on or before 9:30 a.m., Tuesday, October 9, 2012, the date set for Court confirmation of this Account. V y tr y yours, ES D . B A JDB/bbl Enclosures cc: Marcia Montgomery Marianna Davis Virginia Bone Peter Montgomery Bethesda Mission Nursing Foundation of Pennsylvania Elizabethtown College, Attn: Kendra D. McGuire, Esquire Michael T. Foerster, Sr. Deputy Attorney General, Charitable Trusts and Organizations - Office of the Attorney General CERTIFICATE OF SERVICE I certify that on this date I am serving a copy of the foregoing document upon each person listed below, by United States mail, first class postage prepaid, addressed as follows: James D. Bogar BOGAR 8c HIPP LAW OFFICES One West Main Street Shiremanstown, PA 17011 Michael T. Foerster, Senior Deputy Attorney General Charitable Trusts and Organizations Section Pennsylvania Office of the Attorney General 14th Floor, Strawberry Square Harrisburg, PA 17120 ~Q, Y ~' Debra P. Fourlas Of Counsel for Elizabethtown College September 21, 2012