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HomeMy WebLinkAbout03-26-13 ESTATE OF : IN THE COURT OF COMMON PLEAS OF FLORENCE M. FASICK, : CUMBERLAND COUNTY, PENNSYLVANIA DECEASED ORPHANS' COURT DIVISION APPEAL FROM PROBATE BY ELIZABETHTOWN COLLEGE FILE NO. 21-12-0271 RESPONSE OF THE ESTATE OF FLORENCE M. FASICK, DECEASED, TO THE PETITION OF APPEAL BY ELIZABETHTOWN COLLEGE FROM PROBATE OF DECEDENT'S AUGUST 5, 2011 WILL The Estate of Florence M. Fasick, deceased, by and through its Executor, James D. Bogar, Esquire, makes the following response to the Petition of Appeal by Elizabethtown College from Probate of Decedent's August 5, 2011 Will, and in support thereof, avers as follows : 1 . Admitted. 2 . Admitted in part and denied in part . It is admitted that the College has standing to appeal as a beneficiary under Mrs . Fasick's August 5, 2011 Will . The remaining averments of Paragraph 2 are conclusions of law to which no response is necessary. To the extent a response to the remaining averments of paragraph 2 are required, it is denied that the College has standing to appeal as a beneficiary under a prior LBill whh : a Co C-s not been proven valid or admitted to probate. 3 . Admitted. C17' `j .ate 4 . Admitted. _mz �` C3 5 . Admitted. 6 . Admitted. By way of further response, the responses set forth in paragraph 24 hereinbelow are incorporated herein. 7 . Admitted. 8 . Admitted. 9 . Admitted. 10 . Admitted. 11 . Admitted. 12 . Admitted. The May 27 , 2009 Will, which has been superseded and invalidated by the August 5, 2011 Will, speaks for itself . 13 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 13 , and, therefore, these averments are denied and proof thereof is demanded. 14 . Admitted. 15 . Admitted in part and denied in part . It is admitted that Diane Montgomery, an employee of the law offices of James D. Bogar, Esquire, contacted Elizabethtown College at the request of James D. Bogar, Esquire, being eventually referred to Elizabeth Dahmus, all relating to the collecting of contact information related to an unnamed client who was contemplating a testamentary gift to be restricted to the nursing program of Elizabethtown College, if such a program existed. It is denied that any reference was made by Diane Montgomery, either directly or -2- indirectly, to Florence M. Fasick or to the size and nature of any contemplated testamentary gift. 16 . Admitted. 17 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 17 , and, therefore, these averments are denied and proof thereof is demanded. 18 . Admitted. 19 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 19, and, therefore, these averments are denied and proof thereof is demanded. 20 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 20, and, therefore, these averments are denied and proof thereof is demanded. 21 . Admitted in part and denied in part . It is admitted that Mrs . Fasick celebrated her 100' birthday on June 30, 2010 . Respondent is without sufficient knowledge or information to respond to the remaining averments of Paragraph 21, and, therefore, these remaining averments are denied and proof thereof is demanded. 22 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 22 , and, -3- therefore, these averments are denied and proof thereof is demanded. 23 . Admitted. 24 . Admitted in part and denied in part . Upon information and belief, Peter Montgomery acted as Mrs . Fasick's agent under a Power of Attorney from January 4, 2011 until the date of her death, all at the express request and authorization of Mrs . Fasick. Peter Montgomery has prepared an agency accounting and provided a copy of the Power of Attorney. Respondent is without sufficient information to fully and completely respond to the remaining averments of Paragraph 24 and, therefore, these averments are denied and proof thereof is demanded. 25 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 25, and, therefore, these averments are denied and proof thereof is demanded. 26 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 26 , and, therefore, these averments are denied and proof thereof is demanded. 27 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 27 , and, therefore, these averments are denied and proof thereof is demanded. -4- 28 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 28, and, therefore, these averments are denied and proof thereof is demanded. 29 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 29, and, therefore, these averments are denied and proof thereof is demanded. 30 . Admitted in part and denied in part . It is admitted that Mrs . Fasick executed her Last Will on August 5, 2011 . Respondent is without sufficient knowledge or information to respond to the remaining averments of Paragraph 30, particularly those averments alleging that Mrs . Fasick executed her Last Will on August 5, 2011 during the midst of a health crisis, and, therefore, these averments are denied and proof thereof is demanded. 31 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 31, and, therefore, these averments are denied and proof thereof is demanded. 3.2 . Denied. Respondent is without sufficient knowledge or information to respond to the averments of Paragraph 32 , and, therefore, these averments are denied and proof thereof is demanded. -5- 33 . It is admitted that the last valid Will prepared by Mrs . Fasick, same being dated August 5, 2011, was offered for and accepted for probate. 34 . Admitted in part and denied in part. It is admitted that the August 5, 2011 Will leaves 100 of Mrs . Fasick' s residual estate to the College. The Will also makes three (3 ) specific bequests to three (3) different individuals, being relatives or long time friends of Mrs . Fasick, as well as the following additional residuary bequests : 5% to Bethesda Mission; 35% to the Nursing Foundation of Pennsylvania; and 50% to Peter Montgomery, a long time friend. 35 . Admitted in part and denied in part . It is admitted that the August 5, 2011 Will leaves 500 of Mrs . Fasick's residual estate to Peter Montgomery, a long time friend. The Will also makes three (3 ) specific bequests to three (3 ) different individuals, being relatives or long time friends of Mrs . Fasick, as well as the following residuary bequests : 5% to Bethesda Mission; 10% to Elizabethtown College; and 35% to the Nursing Foundation of Pennsylvania. 36 . Admitted. Respondent was specifically directed by Mrs . Fasick to assist her with respect to the August 5, 2011 Will . 37 . Admitted. A time-stamped copy of the inventory was provided per the request of Kendra McGuire, Esquire, a copy of -6- which is attached as Petitioner's Exhibit "C" . 38 . Admitted. The probated August 5, 2011 Will and the superseded and invalidated May 27 , 2009 Will speak for themselves . 39 . Based upon information and belief, it is admitted that Mr. Montgomery served as Mrs . Fasick's agent under her Power of Attorney from January 2011 to the time of her death on February 27, 2012 , including August 5, 2011, the date on which Mrs . Fasick executed her last Will . 40 . Denied. The averments of Paragraph 40 are conclusions of law to which no response is required. To the extent that a response is required, Petitioner' s averment that a confidential relationship existed is denied. 41 . Denied. The averments of Paragraph 41 are conclusions of law to which no response is required. To the extent that a response is required, Petitioner's averment stating that the circumstances of this case indicates that Mrs . Fasick had a weakened intellect at the time of executing the August 5, 2011 Will are denied. 42 . Denied. The averments of Paragraph 42 are conclusions of law to which no response is required. To the extent that a response is required, Petitioner's averments that the circumstances of this case indicate that Mrs . Fasick was unduly influenced to change her Will in favor of Peter Montgomery are -7- denied. 43 . Denied. The averments of Paragraph 43 are conclusions of law to which no response is required. To the extent that a response is required, Petitioner's averments stating that the circumstances of the case indicate that Mrs . Fasick lacked testamentary capacity at the time of executing her August 5, 2011 Will are denied. 44 . Denied. The averments of Paragraph 44 are conclusions of law to which no response is required. To the extent that a response is required, Petitioner's averments that undue influence and/or lack of testamentary capacity and, further, the invalidity of the August 5, 2011 Will are denied. 45 . Denied. The averments of Paragraph 45 are conclusions of law to which no response is required. To the extent that a response is required, the May 27, 2009 Will is invalid, being superseded by the August 5, 2011 valid Will of Mrs . Fasick, which was properly admitted to probate. 46 . Admitted. -8- WHEREFORE, the Estate of Florence M. Fasick, through its Executor, James D. Bogar, Esquire, respectfully requests that the Petition of Appeal by Elizabethtown College from Probate of Decedent' s August 5, 2011 Will be dismissed, with prejudice, and, furthermore, that the cost of these proceedings, along with attorney's fees, be assessed fully and completely to Elizabethtown College. Respectfully submitted, Date: March 26, 2 013 t�"A 4es Ja D. B jr, Executor Of the Esta of Florence M. Fasick One West Main Street Shiremanstown, PA 17011 (717) 737-8761 -9- VERIFICATION I, James D. Bogar, verify that the statements made in this Response of the Estate of Florence M. Fasick to Petition of Appeal by Elizabethtown College from Probate of Decedent's August 5, 2011 Will are true and correct . I understand that unsworn statements herein are made subject to the penalties of 18 . Pa. C. S.A. § 4904, relating to unsworn falsification to authorities. Date: March 26, 2013 C/ �/441�4 J mes D. 11 ar -10- CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Response of the Estate of Florence M. Fasick to Petition of Appeal by Elizabethtown College from Probate of Decedent's August 5, 2011 Will upon the following persons, by mailing same by first-class U. S . mail, postage prepaid, as follows : Debra P. Fourlas, Esquire MCNEES, WALLACE & NURICK 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Kendra McGuire, Esquire MCNEES, WALLACE & NURICK 570 Lausch Lane, Suite 200 Lancaster, PA 17601 Michael T. Foerster, Sr. Deputy Attorney General Charitable Trusts and Organizations Section Pennsylvania Office of Attorney General 14th Floor, Strawberry Square Harrisburg, PA 17120 Virginia Bone 126 Clearview Drive Camp Hill, PA 17011 Marianna Davis 2300 Dulaney Valley Road, Apt. C004 Timonium, MD 21093 Marcia M. Montgomery 6 Redwood Court Camp Hill, PA 17011 Bethesda Mission 611 Reilly Street Harrisburg, PA 17102 -11- Nursing Foundation of Pennsylvania c/o P. Daniel Altland, Esquire 350 Sporting hill Road Mechanicsburg, PA 17050 Peter Montgomery c/o David R. Galloway, Esquire 54 East Main Street Mechanicsburg, PA 17055 Date: March 26, 2013 James D. Bogar 0 squire