HomeMy WebLinkAbout05-01-13 In Re: IN THE COURT OF COMMON PLEAS OF
Estate of Phyllis L. Renninger, CUMBERLAND COUNTY, PENNSYLVANIA
Deceased NO. 21-13-0324
ORPHANS' COURT DIVISION
PETITION FOR CITATION SUR APPEAL FRM
REGISTER IN PROBATING WILL AND REQUEST
FOR CONSTRUCTIVE TRUST t_7
TO THE HONORABLE, THE JUDGES OF SAID COURT: .
AND NOW, comes Kelly Petersheim, the Petitioner, by and through her attorney,
Michael A. Scherer, Esquire, and respectfully represents as follows'
1. Phyllis L. Renninger (hereinafter "Decedent") died March 7, 2013 at her
home at 38 William Penn Drive, Camp Hill, Cumberland County, Pennsylvania 17011.
2. The Decedent was born October 5, 1932 and was 80 years old at the time
of her death.
3. The Decedent was a widow who had been married to Glenn Renninger,
Jr. (hereinafter "Glenn").
4. Glenn died on December 9, 2008.
5. The Decedent had no living or deceased children.
6. The Decedent is survived by her brother, Joseph R. Silks and her sister,
Dorothy E. DeArment, and a number of nieces and nephews.
7. The Petitioner is Kelly Petersheim, formerly Kelly Elder (hereinafter
"Petitioner"), an adult individual who resides at 117 Wyneberry Drive, Ephrata,
Pennsylvania 17522.
8. The Decedent is the Petitioner's great-aunt. The Petitioner's deceased
grandmother was the sister of the Decedent.
9. The decedent and her husband Glenn for many years had a close
personal relationship with Petitioner, in that:
a. When Petitioner was a child, she spent numerous weeks each
summer with the Decedent and Glenn.
b. Decedent and Glenn celebrated Christmas each year with
Petitioner.
C. Decedent and Glenn attended Petitioner's graduation and wedding.
d. Decedent and Glenn maintained substantial contact with Petitioner.
10. At the time of his death, Glenn's Will left his estate to his wife, and if his
wife predeceased him, his entire estate was left to Petitioner.
11. After Glenn's death, Petitioner saw Decedent at least monthly, and
sometimes up to four times per month, despite Petitioner being the mother of four minor
children and living approximately 35 minutes away from the Decedent.
12. In 2009, after Glenn died, Petitioner began to be of more assistance to the
Decedent, whose advanced age and physical condition made the assistance a
convenience.
13. Decedent suffered a stroke in 2009 which caused Decedent's sight to
deteriorate.
14. Petitioner and Decedent would go to the park, have lunch at local
restaurants, and would generally visit with one another.
15. Petitioner would assist Decedent with transportation to the bank and
shopping.
16. Decedent came to Petitioner's son's high school graduation, spent each
Christmas at Petitioner's home since the death of Glenn, and Petitioner would celebrate
each of Decedent's birthdays with Decedent, and Decedent would stay overnight in
Petitioner's home on occasion, including at Christmas time.
17. Decedent loved Petitioner's children and often gave them small gifts.
18. After Decedent was no longer able to drive she gave Petitioner's son her
automobile, which although older and not particularly valuable, was much appreciated
by Petitioner's son.
19. Petitioner bought Decedent various items, including clothes Decedent
found to be comfortable and a bible with large print which was easy to read despite
Decedent's visual impairment resulting from the stroke Decedent suffered.
20. During this time Petitioner became familiar with Decedent's personal
affairs and financial affairs.
21. Petitioner would often fill out Decedent's checks, which Decedent always
signed herself.
22. Petitioner assisted Decedent with the completion of important forms, such
as medical documentation.
23. Petitioner was never named as Decedent's power of attorney, primarily
because Decedent did not need a power of attorney by virtue of the manner Petitioner
was able to assist Decedent by completing forms for her but by having Decedent sign
the forms.
24. Petitioner transported Decedent to medical appointments and
accompanied Decedent into the examination room during the medical appointments.
25. Petitioner transported Decedent to surgeries and waited for Decedent
during the surgeries and thereafter transported Decedent home after the surgeries.
26. Decedent began treatments at the Pennsylvania Retina Specialists in
January, 2013, which Petitioner took Decedent to on the first occasion.
27. As of 2012, Petitioner arranged for an agency called "Senior Helpers" in
Mechanicsburg to provide weekly care to Decedent, since Petitioner was not physically
close enough to provide all the care the Decedent needed.
28. "Senior Helpers" assisted Decedent with laundry, meal preparation and
cleaning.
29. Steven Maben (hereinafter "Maben") is an adult individual who resides at
6111 Locust Lane, Mechanicsburg, Cumberland County, Pennsylvania.
30. Maben is the nephew of the decedent.
31. By his own admission to those gathered at the Decedent's memorial
service, Maben indicated that he was only in contact with the Decedent during
approximately the last thirty days of Decedent's life.
32. Maben has two daughters, Stephanie Maben, who is approximately age
22 and Michelle Maben, who is approximately age 24.
33. Decedent never maintained a close relationship with Maben; Decedent did
not spend holidays or special occasions with Maben.
34. Maben was in Korea for much of Maben's working career and was not
local and as such was not in a position to maintain contact with Decedent.
35. The Decedent had no relationship with Maben's children.
36. Prior to the Decedent's death, Decedent spoke to Petitioner and indicated
that Decedent had named Maben as her agent under a power of attorney form, which
Petitioner thought was a good idea since Maben was physically closer to Decedent and
could perhaps help Decedent with things that Petitioner was unavailable to help
Decedent with.
37. Near the end of Decedent's life, the secretary at "Senior Helpers" called
Petitioner and told her that a gentleman named Steve called "Senior Helpers" to advise
that agency that they could no longer speak to Petitioner, despite Petitioner having been
the person to initiate the relationship between Senior Helpers and Decedent.
38. Petitioner could not understand how it would be in Decedent's best
interest that Petitioner be cut off from Senior Helpers after Petitioner had been so
involved in Decedent's affairs for many years.
39. In February, 2013, Decedent expressed confusion to Petitioner regarding
medication Decedent had been taking for a long period of time.
40. Decedent executed a Will in 2009 which named Petitioner executor and
left the entire estate to Petitioner. The 2009 Will is attached as "Exhibit A."
41. Decedent's 2009 Will made no mention of Maben or his children.
42. On February 15, 2013, some twenty days prior to her death, Decedent
executed a new will which changed her entire estate plan, which Will replaced the 2009
Will.
43. Decedent's February 15, 2013 Will was admitted to probate by the
Register of Wills of Cumberland County on March 19, 2013. Attorney William Kauffman
is representing Maben in administering the estate.
44. In her February 15, 2013 Will, Decedent made a gift to her brother,
Joseph Silks, and left nearly her entire estate to Maben; and if Maben was deceased, to
Maben's children. Petitioner was not even mentioned in this Will.
45. Shortly before Decedent's death, Petitioner spoke with Decedent, and
Decedent was upset that Maben had been involved in the transfer of approximately
$40.000.00 of Decedent's money to Maben's daughters to pay for their college
expenses, despite Decedent having no relationship with Maben's daughters.
46. Petitioner has since investigated the matter through undersigned counsel
and has learned that Decedent reported the transfer of the funds to the Lower Allen
Police Department after the transfer occurred, apparently reporting the transfer as a
theft or otherwise being unauthorized.
47. The police looked in to the matter and after acknowledging that the
Decedent was confused, closed the case as the transfer was not criminal.
48. Thereafter, the Decedent reported the same incident to the same police
department again, at which time Decedent's confusion was apparent. However, the
police did not view the matter as criminal and no charges were filed.
49. Petitioner's mother spoke with Decedent after the transfer of funds
occurred and Decedent reported that Maben "took the money."
50. During a phone call on March 4, 2013, approximately three days before
Decedent died, Decedent complained to Petitioner that Maben stole $40,000.00 of
Decedent's money.
51. Petitioner offered her assistance to Decedent in determining what had
happened to Decedent's $40,000.00, however, when Petitioner spoke to Decedent the
following day, Decedent indicated she would "let it go."
52. After Decedent's death, Petitioner called Maben regarding Decedent's
2009 Will and Maben said you will have to speak with Decedent's attorney.
53. Several weeks after Decedent's death, Petitioner asked undersigned
counsel questions about the probate process, at which point Petitioner learned from
undersigned counsel that Decedent executed a Will on February 15, 2013 which named
Maben executor and left her entire residuary estate to Maben and made no gift
whatsoever to petitioner.
COUNT
UNDUE INFLUENCE
54. Due to Decedent's advanced age, isolation and infirmity due to the effects
of a stroke, she was of weakened intellect.
56. Maben stood in a confidential relationship to Decedent in that Decedent
relied upon Maben for assistance and named Maben as her agent under a written
power of attorney document.
57. Maben will receive a substantial benefit under the Decedent's Will which
was admitted to probate despite the fact that Maben was not even listed in Decedent's
will of 2009 nor was Maben in Decedent's life until approximately thirty days prior to
Decedent's death.
WHEREFORE, Petitioner requests that the Court issue a Citation to all parties
interested in the estate of the Estate of Phyllis L. Renninger and submit to the Court the
issue of whether Maben exerted undue influence upon the Decedent such that the
Decedent's February 2013 Will be declared void; or in the alternative that the residuary
clause of the February 2013 Will and the appointment of Maben as executor be
stricken.
COUNT II
LACK OF TESTIMENTARY CAPACITY
58. The preceding paragraphs are incorporated herein by reference.
59. In the alternative to Count I, Petitioner alleges that the Decedent's
advanced age, weaken physical condition and impaired memory and cognitive ability
resulted in a lack of testamentary capacity.
WHEREFORE, Petitioner requests that the Court issue a Citation to all parties
interested in the estate of the Estate of Phyllis L. Renninger and submit to the Court the
issue of whether Decedent lacked testamentary capacity in the execution of her
February, 2013 Will such that the Decedent's February 2013 Will be declared void; or in
the alternative that the residuary clause of the February 2013 Will and the appointment
of Maben as executor be stricken.
COUNT III
REQUEST FOR CONSTRUCTIVE TRUST
60. The preceding paragraphs are incorporated herein.
61. Petitioner believes that the transfer of approximately $40,000.00 of
Decedent's funds to Maben or Maben's children was inappropriate, involuntary, illegal
and not in Decedent's best interest.
62. Petitioner hereby requests that the monies transferred from Decedent to
Maben and/or his children be placed into a constructive trust and that the Court conduct
an inquiry in the circumstances and legality of said transfer; and that if said transfer was
illegal, that said funds be returned to the Decedent's estate.
Respectfully submitted,
BARIC SCHERER LLC
Date: S " 104�a4ll
Mic A. Scherer, Esquire
I.D. No. 61974
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Petitioner
\vl
LAST WILL AND TESTAMENT
OF
PHYLLIS L. RENNINGER.
I, PHYLLIS L. RENNINGER, of Lower Allen'Township, Cumberland
County, Pennsylvania, being of sound mind and body declare this to be my Last Will and
Testament and revoke any and all Wills and Codicils previously made by me.
ITEM I: I hereby direct that all just debts, funeral expenses, all
administration expenses, including inheritance tax shall be paid from the assets of my
estate as soon as practicable after my decease.
ITEM II: I hereby give, devise and bequeath all of the assets of my
estate, real and personal, wheresoever situate and in whatsoever name,to my grandniece,
KELLY ELDER, of Ephrata, Pennsylvania, if she survives me by thirty(30) days.
ITEM III: In the event that my said grandniece does not survive me by
thirty (30) days, I hereby give, devise, and bequeath such property in equal shares to her
children then living. In the case of my personal property, such gift shall be as equal as is
practicable.
ITEM IV: No person, to whom any gift or interest shall have been
given by the terms of this Will, shall be deemed to have survived me who shall have died
at the same time as I, or in a common disaster with me, or under such circumstances that it
is difficult or impossible to determine which of us survived the other.
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"Exhibit All
ITEM V: No interest in income or principal of my estate or any trust
created hereunder shall be subject to attachment, levy or seizure by any creditor, spouse,
r
assignee or trustee or receiver in bankruptcy of any beneficiary of my estate or of any trust
fcreated hereunder prior to the beneficiary's actual receipt thereof. My executor and trustee
shall pay over the net income and the principal to the beneficiaries herein designated, as
their interests may appear, without regard to any attempted anticipation(except as may be
s ecificall
provided herein),pledging or assignment b an beneficiary of m estate or of
p YP ) g g g Y Y Y Y
i any trust created hereunder and without regard to any claim thereto or attempted levy,
l attachment, seizure or other process against said beneficiary.
ITEM VI: If any income or principal shall be payable to any person
who shall be a minor or who shall be incapacitated for any reason, my executor as guardian
of the estate of such person shall hold such income and principal during minority or
incapacity and shall be entitled to apply such income and principal to the health,
maintenance, support and education of such person during minority or incapacity without
the appointment of any guardian or committee or any authority of court. My executor shall
be entitled to make direct application hereunder or to make application by payment of
income and principal to the guardian or to a custodian under the Uniform Transfers to
Minors Act. Any remaining income and principal to which such person shall be entitled
shall be distributed to such person upon the termination of minority or incapacity.
ITEM VII_ I confer on my executor to sell or otherwise convert any real
or personal property at public or private sale, at such time or times, in such manner, and for
such price or prices, and on such terms and conditions as my executor shall determine, and
to execute and deliver good and sufficient conveyances, assignments, and transfers of the
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property, without liability of any purchaser for the application of any consideration;to
borrow money and to secure its payment by mortgage of real or personal property,pledge
of investments, or otherwise, without liability on the part of the lenders to see to the
application thereof; to remain any investments at discretion; to invest and reinvest at
discretion, without restriction to so-called"legal investments"; to make distribution in cash
or in kind; to allocate and distribute kinds or disproportionate shares of property or
undivided interests in property among beneficiaries, in cash or in kind, or partly in each;
and to do all other acts and things necessary or appropriate in the management,
administration and distribution of my estate.
ITEM VIII: I hereby appoint my aforementioned grandniece, KELLY
ELDER, of Ephrata, Pennsylvania, as Executor of my estate. If for any reason she should
fail or cease to act, I appoint WILLIAM R. KAUFMAN, of Mechanicsburg, Pennsylvania,
as Executor.
ITEM IX: The Executor, or any successor Executor, shall qualify and
serve without the duty or obligation of filing any bond or other security.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, I have set my hand and seal to this, my Last
Will and Testament,consisting of this and the preceding three (3)pages,this 5-#' day
of /V(1Ve hJ 6 G'�, ,2009.
(SEAL)
PHYLL RE GER
We,the undersigned,hereby certify that the foregoing Will was signed,
sealed,published and declared by the above-named Testatrix as and for her Last Will and
Testament, in the presence of us,who,at her request and in her presence and in the
'`presence of each other, have hereunto set our hands and seals the day and year above
written, and e i that at the time of the execution thereof;,the said Testatrix was of
and and i and mory.
i
r' (SEAL,) Residing at: '�``�'
v
(SEAL) Residing at: �.e,- vrI v
Mo K )Ile �} s-j y
Page 4 of 5
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND ss.
We, PHYLLIS L. RENNINGER, ` �vwc -� w , and
r u r f jv1 , the Testatrix and the Witnesses, respectively, whose!
names are signed to the attached or foregoing instrument, being first duly sworn, do hereby
declare to the undersigned authority that the Testatrix signed and executed the instrument
as her Last Will, that she signed it willingly, and that she executed it as her free and
voluntary act for the purposes therein expressed, and that each of the Witnesses in the
presence and hearing of the Testatrix signed the Will as a Witness and that to the best of
their knowledge,the Testatrix was at that time eighteen (18) years of age or older, of sound
mind and under no constraint or undue influence.
ix
rtness
z'
Witness
Sworn to, acknowledge and subscribed before me b PHYLLIS �}RE INGER,
the Testatrix, and sworn to and subscribed before me by and
jv—,A,, ✓yl +ar�rn ,the Witnesses, this .-tea _day of k0V&1UM,, ,
A.D., 2009.
Not Public
C014WNWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
PATRICIA A.BENDER,Notary Public
East Pennsboro Twp.,Cumberland County
try Commission_Expires September 19,2011
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