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Home My WebLink About12-17-12IN RE: ESTATE OF FLORENCE M. FASICK, DECEASED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-12-0271 ORPHANS' COURT ORDER OF COURT / Chi AND NOW, this / ~ day of December, 2012, upon consideration of the Petition, Response, briefing and argument before the court, the Petition of Elizabeth College for Discovery Relating To Decedent's Prior Wills is GRANTED. Within twenty (20) days of this order, the Estate of Florence M. Fasick, through its Executor, SHALL PROVIDE the College with copies of all prior wills of Florence M. Fasick. By the Court, James D. Bogar, Esquire `~, ~~--_ -, Albert H. Ma and, J. Executor of the Estate of Florence M Fasick . r~s _' :x7 TY1 Kendra McGuire, Esquire ~ o .~ c> o For Elizabethtown College ~m ro - c s f ~ `;ate Michael T. Foerster, Esquire ~~ , x,. ~, ~ ~, ' For the Commonwealth ~7_ 7~ ^rt "' I ~ ~ c~ ~~ ~ i :sal ~ <7 _,, '"' ero `~, ~r- in ~, _, v ~ \~ t.~ IN RE: ESTATE OF FLORENCE M. FASICK, DECEASED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-12-0271 ORPHANS' COURT MEMORANDUM OPINION AND ORDER OF COURT Masland, J., December , 2012:-- Before the court is the Petition of Elizabethtown College for Discovery Relating to Decedent's Prior Wills. The College contends that near the end of her life, the Decedent, Florence M. Fasick, promised the College a bequest of approximately 97% of her estate. However, upon her death, her will left only 10% of her estate to the College and left 50% of the estate to the son of one of the Decedent's friends who served as the Decedent's agent under a power of attorney. In light of the large disparity between the Decedent's promised gift and what the College ultimately would receive under the will, the College is requesting the Executor to provide copies of any prior wills executed by the Decedent. Essentially, the College seeks to discover whether there is some basis for a will challenge because of undue influence. Executor objects to the College's discovery request on several grounds. He first argues that the request must be denied because the College has not filed a will contest. He contends that a will challenge is the exclusive means to attack the validity of a will and to permit the College to engage in the requested discovery would amount to an impermissible collateral attack. We disagree. 21-12-0271 ORPHANS' COURT If the College were to file a will contest, it would only have standing to do so as a beneficiary of a prior will whose share in the estate is smaller in the probated will. 20 Pa. C.S. §980(a); /n re Lazar Estate, 37 Pa. D. & C. 2d. 680 (Phila. Co. 1965). The basic pleading requirements of such a will contest may be summarized as follows: Moreover, the broad generalities contained in the petition, with respect to prior wills executed by decedent, do not meet the requirements of our practice. The petitioner must specifically set forth under which instrument she claims to be an interested party and attach a copy of it and other relevant testamentary writings to her petition. Lazar, 37 Pa. D. & C.2d at 684 (emphasis added). Clearly, without copies of any prior wills executed by the Decedent wherein the College received a greater share of the estate, the College cannot satisfy the threshold pleading requirements to maintain a will contest. The Executor demands the College file a premature will contest before it has access to the predicate documents necessary to maintain such an action. As such, Executor's objection on this basis places a procedural checkmate on the College that is simply inequitable and therefore presents no barrier to the Petition for Discovery of Prior Wills.' The Executor next opposes discovery of prior wills on the basis that those documents are shielded by the attorney-client privilege. We disagree. To the extent that the attorney-client privilege attaches at all to a decedent's prior wills, We view this matter as analogous to precomplaint discovery in civil cases which is to be "restrictively allowed, narrowly drafted, and permitted only when a complaint capable of surviving preliminary objections cannot be filed without aid of the requested discovery. " McNeil v. Jordan, 894 A.2d 1260, 1274 (Pa. 2006). As stated, the College's will contest cannot survive objections without access to the prior wills and the discovery request presents only a minor burden of production on the Executor. -2- ` 21-12-0271 ORPHANS' COURT we conclude that the testamentary exception to that privilege renders the prior wills discoverable. We find persuasive the reasoning of the Court of Common Pleas of Centre County in the case of In re Thevaos Estate, 10 Pa. D. & C. 5th 481 (2010). There the court stated: [T]he testamentary exception applies in this case. The court believes that any documentation related to the change in [the decedent's] estate near the end of his life and after suffering a series of medical setbacks can only go to show what [the decedent's] intent was, and whether he was able to clearly communicate what he desired for his estate. Additionally, it is possible that any documentation provided by [the executor] will either eliminate or affirm caveator's belief that [the decedent] may have been unduly influenced to make changes to his estate which eliminated his natural heir completely. Id. at 488. We face similar circumstances in this matter. The College merely seeks to discover what the Decedent's intent was and why her ultimate bequest to the College was dramatically less than she had promised during her lifetime. A review of the prior wills may very well offer all the explanation the College needs and eliminate the need for an expensive and protracted will contest. And, as previously noted, the College's discovery request is narrowly tailored and minimally burdensome. For these reasons, the prior wills are not protected from discovery by the attorney-client privilege and the College's petition will be granted in accordance with the following order. -3- 21-12-0271 ORPHANS' COURT ORDER OF COURT AND NOW, this day of December, 2012, upon consideration of the Petition, Response, briefing and argument before the court, the Petition of Elizabeth College for Discovery Relating To Decedent's Prior Wills is GRANTED. Within twenty (20) days of this order, the Estate of Florence M. Fasick, through its Executor, SHALL PROVIDE the College with copies of all prior wills of Florence M. Fasick. By the Court, j -, ~/i~~ ~ ,i ~~ ~v Albert H. Masland, J. James D. Bogar, Esquire Executor of the Estate of Florence M. Fasick Kendra McGuire, Esquire For Elizabethtown College Michael T. Foerster, Esquire For the Commonwealth sal -4- In Re: FLORENCE FASICK ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 21-12-0271 ORDER DATE: JUDGE'S INITIALS: AHM TIME S"fAMP DATE: CERTIFICATE OF SERVICE OF ORDER IN RE: ORDER OF COURT SERVICE TO: JAMES BOGAR, ONE WES"F MAIN STREET, SHIRMANSTOWN PA 17011 DF,BRA FOURLAS, KENDRA MCGUIRL-', MCNEES WALLACE & NURICK 100 PINE STREET PO BOX 1.166 _HARRISBURG PA 17108 MICHAF,L FOF,RSTER, SENIOR DEPUTY A'fTOKNEY GENERAL, CHARITABLE TRUSTS AND ORGANIZATION SECTION, 14~" FLOOR STRAWBERRY SQUARE, HARRISBURG PA 17120 ME"fHOD OF MAILING: ® IJSPS ^ RRR ^ HAND DF,LIVF,RFD ^ O"I~HF,R _ MAILED: 12/17/12 SERVICE 1~0: ENVELOPES PROVIDED BY: ® PETITIONER ^ JUDGE ^ CLERK OF ORPHANS COURT ME"fHOD OF MAILING: ^ USPS ^ RRR ^ HAND DELIVERED ^ OTHER _ MAILED: ENVELOPES PROVIDED BY: ^ PETITIONER ^ JUDGE ^ CLERK OF ORPHANS COURT G eputy Clerk of rphans' Court