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Home My WebLink About10-09-12MCNEES WALLACE 8~ NURICK LLC 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 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 dfourlasCa~mwn.com Attorneys for Elizabethtown College r•.-> ~ z~ a n~, c-a - c-, -n - L y ~4 ..: ; u: - " ~ -_~:-~ ;-~ a~-- t-.~.-, - ~,. ~ ; - r~ ~~ o _ tic. ,., 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 OBJECTIONS OF ELIZABETHTOWN COLLEGE TO FIRST AND FINAL ACCOUNT AND STATEMENT OF PROPOSED DISTRIBUTION OF JAMES D. BOGAR. EXECUTOR TO THE HONORABLE JUDGES OF THE CUMBERLAND COUNTY COURT OF COMMON PLEAS, ORPHANS' COURT DIVISION: Elizabethtown College (the "College"), by its undersigned counsel, files the following objections to the First and Final Account and Statement of Proposed Distribution (the "Account") submitted by James D. Bogar, Executor, in the above- captioned estate. First Objection -Account is Premature and Should Be Dismissed Elizabethtown College objects to the Account because it proposes distribution of the Estate's assets prematurely. The Decedent, Florence M. Fasick, died on February 27, 2012. The Pennsylvania Probate, Estates and Fiduciaries ("PEF") Code provides that an appeal from the probate of a decedent's will may be taken at any time up to one year from the date of death. See 20 Pa. C.S. § 908(a). The Estate, through its Executor, has been notified that Elizabethtown College is questioning the validity of the Will probated in this matter, as described below. The Executor did not petition this Court to shorten the time for taking an appeal from probate. See 20 Pa. C.S. § 908(a). Rather, the accounting was precipitously filed in an effort to avoid answering questions regarding the execution and terms of the probated will. Any distribution prior to the expiration of the appeal date and the resolution of any appeal is premature. Second Objection -Account Fails to Conform to Rules The Account filed by the Executor does not confirm to the Form of Account prescribed in Rule 6.1 of the Pennsylvania Supreme Court Orphans' Court Rules ("Rule 6.1 "). See also Cumberland County Orphans' Court Rule 6.1. Rule 6.1 (b) states that principal and income shall be accounted for separately in the account. The Executor incorrectly categorizes final interest paid when certificate of deposit accounts were closed as gains on Schedule B, Gains and Losses, of the Account. Such final interest would be properly reported on Schedule G, Receipts of Income. A detail of the holdings of PNC Investments Account No. 005-637645 (the "PNC Investments Account") is not included on the Account. The PNC Investments Account 2 is incorrectly reported as cash on Schedule A, Receipts of Principal, and individual investments of the PNC Investments Account are not detailed on Schedule B, Gains and Losses. Debts, including final medical expenses, are included under Administration Expenses on Schedule C, Disbursements of Principal, rather than under a "Debts" heading. Although the probate of the Will and the grant of letters occurred on March 2, 2012, the Executor indicates on Schedule B that the PNC Investments Account was liquidated on February 28, 2012 and the decedent's three certificates of deposit were collected or sold on February 28, 2012. The Executor could not have had legal control over the decedent's assets prior to the granting of letters on March 2, 2012. Third Objection - Objection to Distribution of Estate Assets and Schedule of Distribution Elizabethtown College specifically objects to the proposed schedule of distribution. Elizabethtown College is particularly concerned about the proposed distributions to Peter Montgomery and Marcia Montgomery. Elizabethtown College was notified by an employee of the scrivener and by Mrs. Fasick herself that she was leaving the bulk of her estate (approximately 97%) to the College. Mrs. Fasick was 101 years old when she died. The probated will was signed approximately six (6) months prior to Mrs. Fasick's death. During this time, Mrs. Fasick's health and intellect had deteriorated significantly. Mr. Montgomery, anon-relative of Mrs. Fasick, was serving as her agent under a Power of Attorney, and was in a confidential relationship with her. After Mrs. Fasick's death, a Will was submitted for probate which purported to leave 50% of the 3 estate to Mr. Montgomery and only 10% to Elizabethtown College. Clearly Mr. Montgomery received a substantial benefit under the probated will. The proposed distribution to Mr. Montgomery is $285,909.78. Mr. Montgomery's mother, Marcia Montgomery, was also favored in the probated will and was left a specific bequest of $10,000.00. It is unknown whether Marcia Montgomery was mentioned in any prior wills. Consequently, the College has been inquiring about the circumstances under which Mrs. Fasick's probated Will was made, and whether and why it contained alterations of the disposition of Mrs. Fasick's Estate as stated by Mrs. Fasick. James Bogar, as Mrs. Fasick's prior attorney, the scrivener of the Will, and the Executor of her Estate, has refused to provide Elizabethtown College with any information concerning Mrs. Fasick's previous wills. Elizabethtown College has filed a separate petition for disclosure of the previous wills, which petition is currently pending in this Court. Until the circumstances of the probated Will's execution can be clarified, distribution to Mr. Montgomery or Marcia Montgomery is premature and inappropriate. Fourth Objection -Excessive Attorney Fees Elizabethtown College objects to the proposed distribution of $44,500 to James Bogar as attorney fees for his representation of the Estate. The Account indicates a gross Estate value of $755,778.44. The Account itself demonstrates that estate administration was simple and straightforward and does not reflect legal services justifying such a high fee. Further, the Account does not set forth the agreed hourly rate for legal services or a description of legal services performed in order to justify the requested fee. Moreover, the proposed fee is almost 6% of the gross Estate, an 4 unjustified percentage in relation to an estate comprised of liquid assets (but for personal property which brought $9,422.00 at auction). The Account states and additional reserve of $4,500.00, which would bring fees charged to $49,000.00. In the absence of documentation demonstrating the reasonableness of the proposed fee, the proposed attorney fee is excessive and the proposed distribution is inappropriate. MCNEES WALLACE & NURICK LLC ~~ / ~: By ' ----~.~- 1~1L~. Ken r 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 ,jmwn.com October 8, 2012 Attorneys for Elizabethtown College 5 VERIFICATION I, Kendra D. McGuire, as counsel for Elizabethtown College, being duly authorized to do so, verify that the facts set forth in the foregoing Objections are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. McNEES WALLACE & NURICK LLC !~%' Date: '~"' ~~;:' ~i~~- ;'S~y«G~t "~y l lt,/~-i~-- Kendra D. McGuire Counsel to Elizabethtown College 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, Esquire BOGAR & 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 ~..._ L ~~ Ken ra D. McGuire Counsel for Elizabethtown College October 8, 2012