HomeMy WebLinkAbout02-14-13MCNEES WALLACE ~ NURICK LLC
Kendra McGuire, I.D. No. 50919
570 Lausch Lane, Suite 200
Lancaster, PA 17601
717-581-3734 Telephone
717-291-2186 Facsimile
kmcguiretc'~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 _mwn.com
Attorneys for Elizabethtown College
RECORDED OFFICE OF
REGISTER OF !WILLS
1013 FEB 1`l FF112 `!6
CLERK OF
ORPHANS' COURT
CUMBERLAND CO.. PA
ESTATE OF
FLORENCE M. FASICK,
DECEASED
APPEAL FROM PROBATE BY
ELIZABETHTOWN COLLEGE
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
FILE NO. 21-12-0271
PETITION OF APPEAL BY ELIZABETHTOWN COLLEGE
FROM PROBATE OF DECEDENT'S AUGUST 5 2011 WILL
Elizabethtown College (the "College"), by its undersigned counsel, appeals from
the probate of the August 5, 2011 Will of Florence M. Fasick, deceased, through its
Executor, James D. Bogar, Esquire (the "Estate"). In support of this petition, the
College avers as follows.
Jurisdiction and Standing
1. Florence M. Fasick died testate on February 27, 2012 while a resident of
Cumberland County, Pennsylvania.
~~
2. The College has standing to appeal as a beneficiary under Mrs. Fasick's
Will and as the beneficiary of a substantially larger share of the Estate under a prior
Will.
Parties in Interest
3. Petitioner, Elizabethtown College, is an institution of post-secondary
education with an address of One Alpha Drive, Elizabethtown, PA 17022. The College
is also a charitable organization.
4. Respondent Bethesda Mission is a charitable organization with an
address of 611 Reilly Street, Harrisburg, PA 17102 and is named as a party in interest
as a beneficiary under the Will which is the subject of this appeal.
5. Respondent Nursing Foundation of Pennsylvania is a charitable
organization with an address of 2578 Interstate Drive, Suite 101, Harrisburg, PA 17110
and is named as a party in interest as a beneficiary under the Will which is the subject
of this appeal.
6. Respondent Peter Montgomery is an adult individual with an address of
660 Bamberger, Road, Etters, PA 17339 and is named as a party in interest as a
beneficiary under the Will which is the subject of this appeal and as attorney-in-fact for
Mrs. Fasick during the period of time surrounding the execution of the Will which is the
subject of this appeal.
7. Respondent James D. Bogar, Esquire is named as a party in interest in
this matter in his capacity as Executor of the Estate of Florence M. Fasick.
2
8. Respondent Virginia Bone is an adult individual with an address of 126
Clearview Drive, Camp Hill, PA 17011 and is named as a party in interest as a
beneficiary of a specific bequest under the Will which is the subject of this appeal.
9. Respondent Marianna Davis is an adult individual with an address of 2300
Dulaney Valley Road, Apt. 0004, Timonium, MD 21093 and is named as a party in
interest as a beneficiary of a specific bequest under the Will which is the subject of this
appeal.
10. Respondent Marcia M. Montgomery is an adult individual with an address
of 6 Redwood Court, Camp Hill, PA 17011 and is named as a party in interest as a
beneficiary of a specific bequest under the Will which is the subject of this appeal.
11. Respondent The Office of Attorney General is named as a party in interest
in this matter in its capacity as parens patriae, with a business address at 14th Floor,
Strawberry Square, Harrisburg, PA 17120. Michael T. Foerster, Esquire, Senior Deputy
Attorney General, Charitable Trust and Organizations Section, Pennsylvania Office of
Attorney General, has been assigned to this matter.
Facts Supporting Appeal from Probate
12. On May 27, 2009, Mrs. Fasick executed a Will in which, after a $20,000
bequest to Peter Montgomery, she left the residue of her estate to her daughter,
provided that should her daughter predecease her, 5% of the residue of her estate
would go to Bethesda Mission and 95% would go to the College. A true and correct
copy of the 2009 Will ("2009 Will") is attached as Exhibit A.
13. Upon information and belief, at the time that she executed the 2009 Will,
Mrs. Fasick's only daughter, Nancy L. Grady was critically ill.
3
14. On June 15, 2009, Nancy Grady died.
15. 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.
16. Both Mrs. Fasick and Nancy Grady were graduates of the College.
17. In February, 2010, Mrs. Fasick contacted Ms. Dahmus directly and
informed Ms. Dahmus that she was leaving the bulk of her estate to the College.
18. In March, 2010, Mrs. Fasick made an inter vivos cash gift of $10,000 to
the College.
19. Over the next several months, Ms. Dahmus visited Mrs. Fasick, and Mrs.
Fasick continued to talk about the large bequest she was leaving to the College.
20. During a visit to Mrs. Fasick in June, 2010, Ms. Dahmus showed her a
draft of an article to be published in the College's alumni magazine concerning Mrs.
Fasick's bequest to the College.
21. During a visit in July, 2010, Mrs. Fasick reported having celebrated her
100th birthday.
22. During the July, 2010 visit, Mrs. Fasick was very excited about the alumni
magazine article and requested eight copies of the issue carrying the feature about her
bequest.
23. The article was published in the Fall 2010 issue of Elizabethtown. See
Exhibit B attached to this petition.
24. In January, 2011, Peter Montgomery was acting as an agent of Mrs.
Fasick under a power of attorney. See Response of the Estate of Florence M. Fasick,
4
Deceased, to the Petition of Elizabethtown College for Discovery, at ¶ 19. It is unknown
to the College exactly when Mrs. Fasick (who was legally blind) executed a power of
attorney naming Peter Montgomery as her agent. Requests (made to Mr.
Montgomery's counsel and to Mr. Bogar) to produce the power of attorney document
have only recently been answered with a promise to provide the power of attorney
document along with an agency accounting by Mr. Montgomery. The agency
accounting will be filed on or before March 22, 2013.
25. Ms. Dahmus continued visiting Mrs. Fasick periodically as her health
declined.
26. During a visit in November, 2010, Ms. Dahmus noted that Mrs. Fasick
seemed alert but was using a wheelchair.
27. In a visit in December, 2010, Mrs. Fasick did not seem to know who Ms.
Dahmus was, and Ms. Dahmus was informed Mrs. Fasick would not be returning to her
apartment.
28. In a visit in February, 2011, Mrs. Fasick again did not seem to understand
who Ms. Dahmus was.
29. On June 8, 2011, Mrs. Fasick continued to be bedridden.
30. Between June and September, 2011, Mrs. Fasick suffered a heart attack
and was moved to Bethany. It was noted that Mrs. Fasick lost consciousness during
the heart attack. It was during this time that Mrs. Fasick executed the 2011 Will.
31. During Ms. Dahmus's last visit with Mrs. Fasick in December, 2011, Mrs.
Fasick was bedridden and reported that Peter Montgomery was having someone visit
her daily.
5
32. At no time did Mrs. Fasick indicate any change in her intent to bequeath
the bulk of her estate to the College.
33. After Mrs. Fasick's death, a Will executed on August 5, 2011 ("2011 Will")
was offered for probate.
34. The 2011 Will leaves only 10% of Mrs. Fasick's residual estate to the
College.
35. The 2011 will leaves 50% of Mrs. Fasick's residual estate to Peter
Montgomery, anon-relative neighbor of Mrs. Fasick.
36. Attorney Bogar is the scrivener of the 2011 Will as well as the Executor of
the Estate.
37. 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.
38. Thus, the 50% share of the Estate bequeathed to Peter Montgomery in
the 2011 Will is substantially larger than the $20,000 specific bequest made to him in
the 2009 Will.
39. Upon information and belief, Mr. Montgomery was actively serving as Mrs.
Fasick's agent under a power of attorney, for some time prior to her death, including the
time period during which she executed the 2011 Will.
40. Mr. Montgomery had a confidential relationship with Mrs. Fasick.
41. The circumstances of this case indicate that Mrs. Fasick had a weakened
intellect at the time of executing the 2011 Will.
6
42. The circumstances of this case indicate that Mrs. Fasick was unduly
influenced to change her will in favor of Peter 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).
43. The circumstances of this case indicate further that Mrs. Fasick lacked
testamentary capacity at the time of executing the 2011 Will.
44. As the product of undue influence and/or lack of testamentary capacity,
the 2011 Will should be set aside.
45. The 2009 Will is valid and should be admitted to probate.
46. Judge Masland has previously ruled on a discovery issue in the same or a
related matter.
THIS SPACE INTENTIONALLY LEFT BLANK
7
WHEREFORE, Elizabethtown College respectfully requests that this Court enter
an Order setting aside the 2011 Will and directing admission of the 2009 Will for probate
as exhibiting the Decedent's true and voluntary intent with respect to the disposition of
her estate.
MCNEES WALLACE 8< NURICK LLC
By
Ken ra 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 1 71 08-1 1 66
717-237-5201 Telephone
717-260-1692 Facsimile
dfourlasCa~mwn.com
February /a- , 2013 Attorneys for Elizabethtown College
8
VERIFICATION
Subject to 18 Pa. C.S. § 4904, relating to unswom falsecation to authorities, I
verify that I am President of Elizabethtown College, I am authorized to make this
verification on behalf of the Petitioner, Elizabethtown College, and the facts set forth in
the foregoing document are true and correct to the best of my knowledge or information
and belief.
C~.~'
Carl J. Strikwercia, President
Elizabethtown College
Dated: Jen~,ry , 2013
r
EXHIBIT A
x<
t
LAST WILL AND TESTAMENT
OF
FLORENCE M. FASICK
I, FLORENCE M. FASICK,. of Camp
Hill, Cumberland County, Pennsylvania,
make, publish and declare this as and
for my Last Will and Testament, hereby
revoking all other Wills and Codicils
heretofore made by me.
FIR T: I give and bequeath the
sum of twenty-thousand dollars
($20, 000.00)_ to my friend, PETER
MONTGOMERY, of 660 Bamburger Road,
Etters, Pennsylvania 17319,. provided
that should he predecease me, I direct
that this specific bequest be and
become a part of my residuary estate to
~~,
be distributed as set forth
hereinbelow.
SECOND: I devise and bequeath
all the rest, residue and remainder of
my estate of whatever nature and
wherever situate, including any
property over which I hold power of
appointment and together with any
insurance policies thereon, to my
daughter, NANCY L. GRADY.
THIRD: Should my daughter, NANCY
L. GRADY, predecease me, I devise and
bequeath all the rest, residue and
remainder of my estate of whatever
nature and wherever situate, including
any property over which I hold power of
appointment and together-with any
insurance policies thereon, as follows:
a
(A) Five percent (5%) thereof to
Bethesda Mission, of 611 Reilly Street,
Harrisburg, Dauphin County,
Pennsylvania 17102, to be used for
general purposes as the .governing body
of said organization deems appropriate.
(B ) Ninety-five percent ( 9 5 0 )
thereof to Elizabethtown College, of
One Alpha Drive, Elizabethtown,
Pennsylvania 17022, to be used for
general purposes as the governing body
of said organization deems appropriate.
FOURTH: In addition to all
powers granted to them by law and by
other provisions of this Will, I give
the fiduciaries acting hereunder-- the
following powers, applicable to all
property, exercisable without court
3
approval and effective until actual
distribution of all property:.
(A) To sell at public or private
sale, or to lease, for any period of
~-
time, any real or personal property and
to give options for sales, exchanges or
leases, for such prices and upon such
terms (including credit, with or
without security) or conditions as are
deemed proper. This includes the power
to give legally sufficient instruments
for transfer of the property and to
receive the proceeds of any disposition
of it.
(B) To partition, subdivide, or
improve real estate and to enter into
agreements concerning the partition,
subdivision, improvement, zoning or
management of real estate and to impose
4
or extinguish restrictions on real
estate.
(C) To compromise any claim or
controversy and to abandon any property
which is of little or no value.
(D) To invest. in all forms of
property, including stocks, common
trust funds and mortgage investment
funds, without restriction to.
investments authorized for Pennsylvania
fiduciaries, as are deemed proper,.
without regard to any principle of ~~
diversification, risk or producti.vity~
(E) To exercise any option,
right or privilege granted in insurance
policies or in other investments.
(F) To exercise any election or
privilege given by the Federal and ~-
other tax laws, including, but not
5
necessarily being limited to, personal
income, gift and estate or inheritance
tax laws.
(G) To make distributions to my
herein named beneficiaries in cash or
in kind or partly. in each.
(H) To borrow money from
themselves or others in order to pay
debts, t-axes, or estate or trust
administration expenses, to protect or
improve any property held under my
will, and for investment purposes.
(I) To select a mode of payment
under any qualified retirement plan
(pension plan, profit sharing plan,
employee stock ownership plan, or any
other type. of qualified plan) to the
extent the plan or the law permits them
to do so, and to exercise any other
6
rights which they may have under the
plan, in whatever manner they consider
advisable.
FIFTH: I direct that all
inheritance, estate, transfer,
succession and death taxes, of any kind
whatsoever, which may be payable by
reason of my death, whether or not with
respect to property passing under this
Will, shall be paid out of the princi-
pal of my residuary estate.
Notwithstanding, I specifically direct
that there be no allocation of
inheritance, estate, transfer,
succession and death taxes, of any
kind, whatsoever, to any charitable
beneficiary designated by me herein.
SIXTH: I nominate and appoint
NANCY L. GRADY and JAMES D. BOGAR, Co-
Executors of this, my Last Will and
Testament. In the event of the death,
resignation or inability to serve for
any reason whatsoever of both NANCY L.
GRADY and JAMES D. BOGAR, I nominate
and appoint JENNIFER B. HIPP, Executrix
of this, my Last Will and Testament. I
direct that my Co-Executors or
Executrix, as the case may be, and
their successors, shall not be required
to post security or a bond for the
performance of their duties in any
jurisdiction.
e
IN WITNESS WHEREOF, I have here-
unto set my hand and seal to this, my
Last Will and Testament, this ~k day
of 2009.
,~
FLORENCE M. FASICK
Signed, sealed, published and
declared by the above-named Testatrix
as and for her Last Will and Testament
in our presence, who, at her request,
in her presence and in the presence of
each other, have hereunto subscribed
our names as attesting witnesses.
Address
Address
~~ ~~.
9
EXHIBIT B
Mother and Daughter, Florence
and Nancy Lee CJrady
by Elizabeth Dahmtu
We 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 cazeer 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 firstresponder when
a student is ill or in need of health care,
providing direct care or referring the student for further
examinarion by a medical doctor.
Sadly, Nancy Lee passed away in 2009 afcera long
illness. A business administration graduate, she had her
own distinguished. career with the Pennsylvania Department
of Public Welfare. She had discussed the idea of leaving a
legacy tq 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, then
gift will positively Influence the lives of every student at
Elizabethtown College.
Florence grelw up in Cherry Tree, Pa. One of her fondest
memories is that of competing against the then-soon-to-be-
famous Jimmy Stewarc in a regional oratory contest, as both
had won first place az their respective high schools. "It's my
claim to (ante," jokes Florence, who became a centenarian
oaJune 30, attaining the age of 100.
After finishing her schooling, Florence worked in
nursing in Maryland and Washington, D.C., before moving
to Camp Hill in central Pennsylvania with her husband
and a young Nancy Lee: The. move carne in 1948, when
her husband, Thomas, who was an electrical engineer, was
transferred from the Philadelphia Civilian Navy to the Naval
Supply Depot in Mechaniaburg, Pa. Previously, he had been
secretly assigned to the Manhattan Project-the. project
conducted from 1942 until 1946, during World War II, under
t}te control of the U.S. Army Corps of Engineers, to develop
the first atomic bombs.
~~~-: -
r. .
Through their gift, mother Florence Grady Fasick (right) and daughter
Nancy Lee Grady {left) are supporting continued qualty health care
for Elizabethtown's students through the endowment of the student
nurse position currently held 6y Eileen Wagener (shown below).
While living in Camp Hill, Florence held a faculty position
at the Harrisburg Hospital 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
directors of several area
organizations, including
the Rheumaroid Arthritis
Foundation and the
American Association
of University Women.
Of this special gift,
President Theodore Long
notes, "We are deeply
grateful ro Florence and
Nancy Lee for their
support of the College
and their service co our
students with this very
important gift."
C,~-ady Fasick
. ~ --.,-. .....:. K,...--~....~-:~.,,..
EXHIBIT C
INVENTORY
REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA } SS
couNTY of Cumberland }
File Number 21-12-0271
James D Bogar
Personal RepresentaWe(s) of the Estate of Florence M. Fasick
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 valuation placed opposite 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 orandum at the end of this inventory.
I verify that the statements made in this Inven- ~ ~ ~ ~ 2 ~ ~ i.2
tory are true and correct. I understand that false state- Jame D. Bogar
ments herein are made subject to the penalties of
18 Pa.C.S. § 4904 relating to unswom falsification to
authorities.
Attorney - (Name) James D. BOgar ~- (Supreme Loud LD: No.) 19475
(Firm) Bogar $ Hipp Law Offices
(address) One West Matn Street, Shiremanstown PA 17011
(Telephone) (717) 737-8761
DATE OF DEATH LAST RESIDENCE Maplewood Assisted Living DECEDENTS SOC: SEC. NO.
02/27/2012 Mechanicsburg. PA 17055 190-26.6600
FIGURES MUST BE TOTALED
Personal Prooertv
Cash ............................................... ..,........................................
Personal Property ........................................................................
StockslListed ................................................................................
Stocks/Closely Heid ................:....................................................
Bonds ................................................................:.........
Partnerships and Sole Proprietorships ..................,
Mortgages and Notes Receivable .............................
All Other Property ..............................:.......................,
Total Personal Property ........................................
Total Real Property............
Total Personal and Real Properly ........................
5:2 739,30s~5
W ~ 9,690 m ~'
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749,002.05
NOTE: The Memorandum of real estate outside the CommonNrealth of'Pennsylvania may at the eleetlon of the personal r~rssentative InGude the value of each
item, but such ftgures should not be eldended Into the total of the Inventory. (See ~O Pa. C.S. § 3801(b))
rrorm RW-09 rtav. ro-t&2ooe
INVENTORY
REGISTER OF WILLS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF Cumberland } SS File Number 21-12-0271
DATE OF DEATH LAST RESIDENCE DECEDENTS SOC. SEC. NO.
Maplewood Assisted Living
02/27/2012 Mechanicsbur PA 17055 190-26-6600
~b
Cash 100.00
Erie Insurance -Premium Refund 7.00
Metro Bank -Certificate of Deposit No. 7700174718. Principal balance at date of death 91,081.36
590,988.63; accrued interest $94.73
PNC Bank -.Certificate of Deposit No. 31800214329. Principal balance as of date of 109,792.74
death $109,587.34; accrued Interest $205.40
PNC Bank -Checking Account No. 5140159833. Principal balance at date of death 35,789.23
$35,789.02; accrued interest $0.21
PNC Bank -Savings Account No. 5112502294. Principal balance at date of death 28,114.30
$28,112.80; accrued interest $1.50
PNC Investments -Account No. 005-837645. 434,592.16
Sovereign Bank -Certificate of Deposit No. 2335548638. Principal balance at date of 39,214.26
. death $39,131.33; accrued interest $82.93
U.S. Treasury - 2011 Personal Income Tax Refund 614.00
Total Cash 739,305.05
Personal ProR r~tv
. Personal Property -Property transferred in kind to Peter Montgomery -per appraisal
275.00
Personal Property -sold at auction 9,422.00
Total Personal Property 9,697.D0
(Attach additional sheets if necessary) Total Personal Property and Real Estate 749,002.05
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, as follows:
first class postage:
James D. Bogar, Esquire
BOGAR & HIPP LAW OFFICES
One West Main Street
Shiremanstown, PA 17011
Michael T. Foerster, Sr. Dep. Attorney General
Charitable Trusts and Organizations Section
Pennsylvania Office of the Attorney General
14th Floor, Strawberry Square
Harrisburg, PA 17120
Peter Montgomery
c/o David Galloway, Esquire
54 East Main Street
Mechanicsburg, PA 17055
By certified mail return receipt requested:
Nursing Foundation of Pennsylvania
2578 Interstate Drive
Suite 101
Harrisburg, Pa 17110
Virginia Bone
126 Clearview Drive
Camp Hill, PA 17011
Marianna Davis
2300 Dulaney Valley Road, Apt. 0004
Timonium, MD 21093
Marcia Montgomery
6 Redwood Court
Camp Hill, PA 17011
Bethesda Mission
611 Reilly Street
Harrisburg, PA 17102
K ndra Mc uire
Counsel for Elizabethtown College
February /~ , 2013