HomeMy WebLinkAboutBrief Hamilton C. Davis, Esquire,
I.D. No. 10264 -
Suzanne M. Trinh, Esquire
I.D.No. 92747
LAW OFFICES OF ZULLINGER-DAVIS, P.C.
20 East Burd Street
P.O. Box 20
Shippensburg, PA 17257
(717) 532-5713
Attorney for Will Proponent, Eric B. McGillvray
ESTATE OF ) BEFORE THE REGISTER OF WILLS
BARBARA J. MCGILLVRAY, ) OF CUMBERLAND COUNTY,
A/K/A BARBARA JEAN MCGILLVRAY, ) PENNSYLVANIA
A/K/A BARBARA B. MCGILLVRAY, )
A/K/A BARBARA MCGILLVRAY, ) NO. 21=14-0044.
DECEASED )
BRIEF IN SUPPORT OF PETITION FOR PROBATE AND GRANT OF LETTERS
NOW COMES Eric B. McGillvray,proponent of a will dated November 21, 2013, of
Barbara J. McGillvray, Deceased, by and through his attorney, The Law Offices of Zullinger-
Davis, P.C., and submits his Brief in Support of Petition for Probate and Grant of Letters as
follows:
I. Procedural History
The Decedent in this matter, Barbara J. McGillvray, a/lc/a Barbara Jean McGillvray, a/lc/a
Barbara B. McGillvray, a/lc/a Barbara McGillvray, died on December 20, 2013,at age 78 in
Newville, Cumberland County, Pennsylvania. A Petition for Probate and Grant of Letters
Testamentary was submitted to the Register of Wills on or about January 14, 2014. The petition
attached as the last will and testament of the Decedent,a handwritten document dated November
21, 2013 (the "Will"). A copy of the Will is attached. The Will named Eric B. McGillvray as
Executor and the petition requested that Eric B. McGillvray be granted letters testamentary
thereon.
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The Register of Wills of Cumberland County has primary jurisdiction over this matter
pursuant to 20 P.S. § 711(12); 20 P.S. § 901; and 20 P.S. § 907. The Register scheduled a
hearing on the matter of admitting for probate the document dated November 21, 2013, as the
Last Will and Testament of the Decedent. A hearing was held before the Register on February
20, 2014. Eric B. McGillvray, proponent of the Will, appeared in person and through his
counsel,the Law Offices of Zullinger-Davis, P.C. Colleen Kemp, the only surviving child of the
Decedent, appeared in person and gave some indication of an intention to object to the Will.
However, she did not and has not actually objected to the Will. This matter is now ripe for
decision by the Register.
II. Summary of Facts
Hamilton C. Davis, Esquire, testified in support of the petition. Attorney Davis testified
that he was the attorney for the Decedent for approximately 40 years. He assisted her with
settlement of the estate of her husband, Fred McGillvray("Big Fred"), the estate of her son, Jeff
McGillvray, and numerous matters relating to the family farm over the years. Attorney Davis
testified that he was in regular contact with the Decedent,which he estimated averaged once or
twice a month, noting that sometimes he spoke to her several times per week when there was an
active matter, such as the administration of an estate.
Attorney Davis testified that the Decedent did not drive and that he generally went to her
house to meet with her when she had legal needs. He testified that on November 21, 2013, he
met the Decedent at her house to discuss her will. The Decedent had contacted him and made
the appointment and was fully aware of the purpose of the appointment when the two met. The
Decedent lived alone and there was no one other than Attorney Davis and the-Decedent present
in the house at the time of their meeting. Attorney Davis spent approximately an hour with the
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Decedent that day and he had no concerns about her understanding of what she was doing or her
capacity to enter into a will.
Attorney Davis testified that the Decedent told him what she wanted to have happen with
her assets upon her death and he wrote that down. Beside the words "Barb's will", Attorney
Davis wrote "2/3 - 5 grandchildren" and"1/3 - Colleen Trust". Attorney Davis testified that
these two provisions disposed of all of the Decedent's probate assets. He also wrote "Eric as
Executor/Alt. —Nick." Attorney Davis testified that the Decedent had given a lot of thought to
the matter of whom to name as executor and had concluded that her grandson, Eric B.
McGillvray, was the best choice. Mr. Eric McGillvray testified that the Decedent had contacted
him several months before her death,possibly in October 2013, and asked him if he would serve
as her executor. He agreed to take on that responsibility.
Attorney Davis testified that he and the Decedent reviewed the notes he had written, she
had an opportunity to change or correct them, and then he watched as she signed the document at
the bottom. Attorney Davis testified that it is his practice to have his clients sign his notes when
he meets with them to discuss their wills so that there is a will in effect if something happens
before a self-proving will can be prepared. The physical bottom of the will is also the"...end
thereof" as a matter of law, and these can be concluded from the four corners of the submitted
Will (writing).
Attorney Davis had control of the Will from November 21, 2013, until the Decedent's
death on December 20, 2013. He testified that the page of notes the Decedent signed is the full
will and that the Decedent did not request any changes or corrections to the document, after it
was signed or after their meeting on November 21, 2013. Attorney Davis submitted the original
of the Will to the Register when he filed the Petition for Probate and Grant of Letters.
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Attorney Davis is very familiar with the Decedent's family and confirmed that the
Decedent has five grandchildren and that they are all over the age of 18. He testified that the
Decedent was predeceased by four children and that her only surviving child is Colleen Kemp.
Ms. Kemp is the beneficiary of a trust that was established by the Decedent and the Decedent's
husband in 1999. A copy of the trust document was submitted to the Register as Exhibit 2
during the hearing. Attorney Davis testified that the Trust is in existence and currently holds
funds for the benefit of Ms. Kemp. The Decedent and her deceased son, Fred, were the trustee
and alternate trustee,respectively, on the trust. The Decedent had the power to name an alternate
trustee.
Attorney Davis also testified that there are two portions of his notes that are not part of
the Will. The first section relates to Colleen's trust, and includes some notes about the assets of
the trust and potential candidates to serve as alternate trustee. Attorney Davis testified that the
Decedent had not reached a final conclusion about the alternate trustee and therefore she did not
intend to include that in her Will. Attorney Davis also testified that the notes that are inside a
box hand drawn on the page relate to other matters outside the scope of the Will.
Attorney Davis testified that the Decedent's death was unexpected, as she had been in
good spirits, mentally alert and engaged, and appeared quite well on the day he met with her.
Eric McGillvray,the Decedent's grandson, testified that he saw the Decedent at Thanksgiving
and that she was doing very well then. He confirmed that the family was surprised by the
Decedent's death.
Nichole Kellert, former estate paralegal for the Law Office of Zullinger-Davis, P.C.,
testified that she had worked with the Decedent for approximately 13 years. She testified that
she is familiar with the Decedent's signature and observed the Decedent sign hundreds of times
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over the years. She confirmed that the signature at the end of the Will is that of the Decedent.
Ronald Fickes, an accountant with his own firm, testified that he had worked with the
McGillvray family for approximately 40 years. He testified that over the years he had observed
the Decedent sign many documents. He confirmed that the signature at the end of the Will is
that of the Decedent.
Scott Fickes, also an accountant, testified that he had worked with the McGillvray family
for approximately 25 years. He testified that over the years he had observed the Decedent sign
many documents. He confirmed that the signature at the end of the Will is that of the Decedent.
Colleen Kemp appeared at the hearing and was given an opportunity to raise objections,
if she had any, to the Will. Ms. Kemp stated that she did not have any objections to the Will.
She had a number of questions and concerns regarding the terms and conditions of her trust,
specifically in connection with the question of who will serve as trustee going forward.
Although the Registrar heard Ms. Kemp's testimony and it is part of the record, it is not relevant
to whether the Will should be accepted for probate. .
III. Questions Presented
A. Whether the writing dated November 21, 2013, the Decedent's last will and
testament that should be accepted for probate where it indicates testamentary
intent within its four corners and, to the extent there is ambiguity about its intent
or meaning, the ambiguity was resolved by extrinsic evidence offered at hearing?
Suggested Answer: Yes. The writing dated November 21, 2013, is the
Decedent's last will and testament and it is the duty of the Register of Wills to
accept it for probate.
B. Whether the November 21, 2013,will operates as a revocation of any prior will of
the Decedent because it disposes of the Decedent's entire probate estate?
Suggested Answer: Yes. A new will that disposes of a decedent's entire estate
operates as a revocation of any prior will.
C. Whether the will dated November 21, 2013, was properly proved?
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Suggested Answer: Yes. Testimony from Attorney Davis and three additional
competent witnesses affirmed the signature of the Decedent.
IV. Argument
In Pennsylvania, a will is a document that is in writing and signed by the testator at the
end thereof. 20 Pa.C.S.A. § 2502. There is no requirement that a will be in a particular form or
that it contain any specific, formal language. Estate of Logan, 489 Pa. 29, 32, 413 A.2d 681, 683
(1980). "A will is a medium by which a person can dispose of property, real and personal, after
his death." In re Braman's Estate, 435 Pa. 573, 577, 258 A.2d 492, 494 (1969). Pennsylvania
courts have adopted the definition of a will from Blackstone's Dictionary, which states that a will
is"the legal declaration of a man's intentions, which he wills to be performed after his death. In
re Cohen's Estate, 445 Pa. 549, 553, 284 A.2d 754, 756 (1971) (quoting Blackstone). To be
valid, a will must be sufficiently certain and definite to be capable of intelligent interpretation
and enforcement. In re Estate of Fleigle, 444 Pa. Super. 632, 638, 664 A.2d 612, 615 (1995): In
re Estate of Fred McGillvray, Deceased,No. 21-12-0806 Orphan's Court Division,'Court of
Common Pleas of Cumberland County, Pennsylvania, the interestingly similar Will of the
Decedent's son, Fred McGillvray, (copy of document and Order attached) was determined to be
the Will, was admitted for probate and Letters Testamentary thereon were ordered, by our own
Orphan's Court. It is submitted that this is binding precedent in the within matter.
A. THE WRITING DATED NOVEMBER 21,2013,MUST BE ACCEPTED BY THE REGISTER FOR
PROBATE BECAUSE IT INDICATES TESTAMENTARY INTENT WITHIN ITS FOUR CORNERS
AND,TO THE EXTENT THERE WAS AMBIGUITY ABOUT ITS INTENT OR MEANING,THE
AMBIGUITY WAS RESOLVED BY EXTRINSIC EVIDENCE OFFERED AT HEARING.
Where a paper is proposed for probate and there is a question as to its testamentary
character, it is incumbent upon the court to examine the paper, its form and its language, and
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determine therefrom as a matter of law whether or not it shows testamentary intent with
reasonable certainty. Estate of Logan, 489 Pa. 29, 31-32, 413 A.2d 681, 682 (1980). If
testamentary intent is ambiguous in the paper, extrinsic evidence as to the intent of the maker is
permitted. Id. If testamentary intent is satisfactorily demonstrated, either from the four corners
of the document or from extrinsic evidence, it is the duty of the court to treat the instrument as a
will. Id.
Turning to the case before the Court, the analysis of the November 21, 2013, document
needs to begin with an examination of the four corners of the document. The document
expressly includes the words "Barb's will" and the word "will" in two separate locations, once
with regard to disposition of assets and once with regard to appointment of an executor.
Accordingly, the determination that the document shows testamentary intent can be made on its
face without the need for consideration of further evidence.
If the Register concludes that extrinsic evidence is necessary in order to determine
Decedent's testamentary intent, ample evidence on that point was offered at the hearing.
Attorney Davis testified that he had been called to the Decedent's house specifically for the
purpose of preparing a will. He and the Decedent discussed her wishes and he wrote them down.
Mr. Eric McGillvray testified that the Decedent had spoken with him in advance of the meeting
and discussed with him her desire to name him as executor of her will. Attorney Davis
reviewed his notes with the Decedent and they discussed matters further. The Decedent then
signed the document at the end. The will disposes of the entirety of the Decedent's probate
estate=two-thirds to the Decedent's five grandchildren and one-third to an existing trust
established for the Decedent's daughter, Colleen Kemp.
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To the extent there is ambiguity as to which portion of the writing constitutes the
Decedent's will, Attorney Davis also offered testimony to resolve that question. The two
sections of the document that have the word "will" next to them constitute all of the Decedent's
testamentary intent. The other portions of the document relate to administration of Ms. Kemp's
trust and to matters that are beyond the scope of the will. Most of those issues are written in a
hand drawn box to set them apart from the language that constitutes the will.
Additionally,no one has raised any objection to the validity of the November 21, 2013,
document that was submitted to the Court for probate. The Decedent's only surviving child,
Colleen Kemp, appeared at the hearing and, when asked if she objected to the document, stated
that she did not. Ms. Kemp was given an opportunity to express objections and she took the
opportunity to raise questions about the administration of her trust. No other prospective heirs,
except Eric McGillvray, attended the hearing. No heirs have formally challenged the Will.
B. THE WILL OPERATES AS A REVOCATION OF ANY PRIOR WILL OF THE DECEDENT
BECAUSE IT DISPOSES OF THE DECEDENT'S ENTIRE PROBATE ESTATE.
Express revocation of a will is not required. Where a second will makes a complete
disposition of all of the property of the testator, such a will is clearly incompatible with any
former will, and therefore must operate as a revocation of the prior will, even though there are no
express words to that effect. In re Franey's Estate, 436 Pa. 94, 100, 257 A.2d 515, 520 (1969).
The writing prepared on November 21, 2013, disposes of the Decedent's entire probate
estate, by awarding it two-thirds to the five grandchildren and one-third to a trust for the benefit
of the Decedent's daughter, Colleen Kemp. Pursuant to Franey's Estate, the Decedent's will
makes complete disposition of all of her property and, therefore, operates as a revocation of any
prior will, even though it does expressly state that. Id. As a result,there is no need for the Court
to give consideration to any prior will of the Decedent.
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C. THE WILL WAS PROPERLY PROVED BY AFFIRMATION OF MORE THAN TWO COMPETENT
WITNESSES.
All wills must be proved by the oath or affirmation of two competent witnesses. Proof of
a will is simply the process by which the testator's signature is verified by two competent
witnesses. 20 Pa.C.S.A. § 3132. The Supreme Court has held that, "[W]hen dealing with a will
signed by testator, it is not necessary that there be subscribing witnesses if testator's signature
can be proved by two witnesses at probate." In re Brantlinger's Estate, 418 Pa. 236, 244, 210
A.2d 246, 251 (1965). The proof simply needs to be an affirmation of the fact that the signature
affixed to the testamentary instrument is that of the testator. Id. Such proof verifies the will as
one signed by the testator and, at least prima facie, establishes a will. Id.
At the hearing,testimony was offered from Attorney Davis that he watched the Decedent
sign the will on November 21, 2013. Testimony was also offered from Nichole Kellert, estate
paralegal for Attorney Davis who had known the Decedent for approximately 13 years and had
observed her signing hundreds of times; from Ronald Fickes,the Decedent's accountant for forty
years,who observed her signing many documents over the years; and Scott Fickes, who worked
in the same firm as Ronald Fickes, had known the Decedent for approximately 25 years, and who
had also observed her signing many documents over the years. All four witnesses were able to
affirm that the signature affixed to the end of the document offered for probate is the-signature of
• the Decedent.
V. Conclusion
Will proponent, Eric B. McGillvray, respectfully requests that the Register accept for
probate the handwritten document dated November 21, 2013, and signed at the end by the
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Decedent and further that the Register enter the Decree of Probate and Grant of Letters submitted
with the original Petition for Probate and Grant of Letters.
Respectfully submitted,
LAW OFFICES OF ZULLINGER-DAVIS, P.C.
Date:
Hamilton C. Davis, Esquire
Pa. Atty. I.D. No. 10264
Suzanne M. Trinh, Esquire
Pa. Atty. I.D. No. 92747
Attorney for Executor
20 East Burd Street
P.O. Box 40
Shippensburg, PA 17257
(717) 532-5713
10
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F:'FILESClientr 1037 McGdMay114657.1.ca,rt.ardcr
IN RE: ESTATE OF THE COURT OF COMMON PLEAS OF
FRED MCGILLVRAY,Deceased : CUMBERLAND COUNTY,PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO.21-12-0806 ORPHANS' COURT
---._.... ..__-- ...ORDER...
AND NOW,this 6th day of September,2012,the above Estate having come before the Court
pursuant to a July 30,2012,Certification of Record to Court by the Clerk of the Orphans'Court,and
a Certificate of Service having been filed indicating that Notice of the Hearing in this matter held
this date was provided to all heirs and interested parties,and after hearing and taking testimony and
admitting certain exhibits to the record,it is ordered and directed as follows:
1. The document filed with the Clerk of the Orphans'Court as the proposed Will of Fred
McGillvray dated June 19,2012,shall be accepted as filed.
2. The Clerk of the Orphans'Court is directed to issue Letters Testamentary in the above
Estate appointing Jessica A.Nailor as Executrix.
3. This Order shall not prejudice any party in interest who is aggrieved from the
appointment of Jessica A. Nailor as the Executrix and from the acceptance of the June 19,2012,
document for filing by the Register from initiating any appropriate appeals or objections pursuant
to 20 Pa. C,S.A. §908 or any other available appeal or objection.
•
BY THE COURT,
The Honorat a Christylee L.Peck
Hubert X,Gilroy, Esquire
10 East High Street
Carlisle,PA 17013
Attorney for Petitioner
Mr. Eric McGillvray •
60 Michelle Way
Hanover,PA 17331 C�
A TRUE COPY FROM RECORD
• In Tesony wtwra,I hereunto :Es col
Mr. Kevin McGillvray est my hand and the sal c..
4991 East Prospect Road of aid Cast itt Cork*PA I - ,; . —
York,PA 17406 rt`k `�
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2665 Prosperity Avenue,Apt. 302
. Fairfax,VA 22031
Ms.Barbara McGillvray
120 Buttermilk Road
Newville,PA 17241
• Ms.Christine McGillvray
c/o Marylou Matas,Esquire
26 West High Street
• Carlisle,PA 17013
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