The URL can be used to link to this page

Home My WebLink About04-21-14 PETERS&WASILEFSKI � � By: Charles E.Wasilefski,Esquire � -� � � Attorney ID#21027 �- °� � � o Alex M.Hvizda � � � i�� Attorney ID#306565 � � � rv �� A'� ��a rn 2931 North Front Street } "= � ~ �;"� � TM {., f.. Harrisburg,PA 17110 t:1 %"� `,�' ° 717-238-7555,Ext. 110 r,.� � .`-.r,�.� � � � Attorney for Objectors, � �' ��'� n George F.Dixon,III and ' � � � � Richard E.Dixon y--°. � � -� IN RE; . IN THE COURT OF ESTATE OF LOTTIE IVY DIXON . COMMON PLEAS FOR . CUMBERLAND COUNTY, . PENNSYLVANIA . 21-07-0686 ORPHAN'S COURT CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL PURSUANT TO PA. R.A.P. 1925(b) FILED BY OBJECTANTS, GEORGE F. DIXON III AND RICHARD E. DIXON NOW COMES, Objectants, George F. Dixon III and Richard E. Dixon, by and through their counsel of record, Peters & Wasilefski, and respectfully submit this concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b) as follows: I. THE COURT ERRED BY OVERRULING THE OBJECTIONS RELATING TO THE MANAGEMENT OF THE TRUST. A. THE COURT ERRED BY APPLYING 20 Pa. C.S. §7753(a) AND HOLDING THAT THE DUTIES OF THE TRUSTEE, M&T, WERE OWED ONLY TO THE SETTLOR, LOTTIE IVY DIXON, DURING HER LIFETIME. On the basis of 20 Pa. C.S. §7753(a) and the interpretation of that section by the Joint State Government Commission of the Pennsylvania General Assembly (hereinafter "JSGC"), the Court held that while Lottie Dixon was alive the Corporate Trustee, M&T, owed a duty only to her until her death in 2007. Therefore, the Court held `�� Estate, 264 Pa. 478, 481, 107 A. 863, 864 (1919). Accordingly, while Lottie Dixon was living, Corporate Trustee, M&T, owed a duty to Objectants, George F. Dixon III and Richard E. Dixon, and, therefore,their objections are not without merit. Further, the plain language of the Trust demonstrates that Lottie Dixon's intent was for the Corporate Trustee, M&T, to owe a duty not only to her but also to Objectants. Article VI of the trust, Trustee Powers, states: During the continuance of any trust created hereunder, the Trustee shall possess, among others, the following powers to be exercised for the best interests of the beneficiaries:.... [Emphasis added]. The explicit use of the word beneficiaries and use of the plural leaves no room for doubt that Lottie Dixon intended for Corporate Trustee, M&T's, fiduciary duty to inure not only to her benefit, but also to the benefit of Objectants. Additionally, the Court's analogy to a will set forth in footnote 1 of its Opinion demonstrates that under the facts and circumstances of this matter the objections have merit and discovery must be permitted. As the Court acknowledges, the beneficiaries under a will cannot challenge changes made to the will by the testator because the beneficial interest is not effective until the testator's death. However, and critical to this matter,the Court acknowledges an exception for claims of undue influence, fraud, duress, etc. The objections asserted in this matter are no different than claims for undue influence, fraud, and duress. As the Court is well aware, Objectants contend that Lottie Dixon was unduly influenced by their brother and that the distributions purportedly requested by Lottie Dixon were made pursuant to his undue influence. Lottie Dixon's weakened, fragile state is demonstrated by Corporate Trustee, M&T's, invocation of Power of Attorney in May 2005 when she was deemed incapacitated. The Trust requires 3 written requests for distributions and requires any amendments to the Trust to be made in writing. It is undisputed that Corporate Trustee, M&T, made distributions without written requests and there is no evidence of any writing by Lottie Dixon amending the requirement of written requests. The combination of the Lottie Dixon's weakened mental capacity, excessive distributions without written requests, the absence of any amendment to the Trust allowing for distributions without written requests, and the Trust's requirement that Corporate Trustee, M&T, exercise its powers in the best interests of the beneficiaries raises the inference that Lottie Dixon was unduly influenced to deplete the Trust. Objectants have the right and duty to pursue such a claim. Accordingly, it is respectfully submitted that the Court's decision is in error. B. THE COURT ERRED BY HOLDING THAT THE OBJECTION TO M&T NOT REQUIRING LOTTIE DIXON TO REQUEST DISTRIBUTIONS IN WRITING IS IRRELEVANT BECAUSE SHE CLEARLY CONSENTED TO M&T'S BEHAVIOR. The Court held that Corporate Trustee, M&T's, failure to require a written request for distributions is immaterial because she "clearly consented" to M&T's behavior. The Court concludes that Lottie Dixon"clearly consented"to M&T's behavior because "M&T claims that Lottie telephoned them requesting distributions from the Trust." It is respectfully submitted that there is no evidentiary record on which it can be concluded that Lottie Dixon consented to M&T's behavior—let alone "clearly consented" to M&T's behavior—and that a bald assertion from any party to a legal proceeding cannot be taken as conclusively established fact without even the benefit of discovery. 4 The Court acknowledges that consent must be proven. Corporate Trustee, M&T, has not offered any evidence whatsoever to prove consent. To conclude that a trustee can prove consent simply by baldly asserting that a settlor or beneficiary consented permits all trustees to inoculate themselves from any claim for breach of trust simply by making such a bald assertion. Discovery must be permitted and M&T must be required to prove not only that telephone calls actually were made requesting distributions from the Trust, but also that it was Lottie Dixon who made such phone calls under how own free will. Further, as noted above, due to Lottie Dixon's diminished capacity there is a question of fact as to whether Lottie Dixon was even capable of giving consent and/or whether any consent that may have been given was the result of undue influence. Although she was not formally deemed incapacitated until May 2005, there must be discovery as to her mental state prior to May 2005 to determine if and at what point she lost capacity to comprehend her financial affairs. Therefore, it is respectfully submitted that the Court's decision is in error and discovery must be permitted. Respectfully submitted, PETERS &WASILEFSKI ,�- By G . `. � � Charles E. Wasilefski Attorney ID#21027 Alex M. Hvizda Attorney ID #306565 2931 North Front Street Harrisburg, PA 17110-1250 [717] 238-7555, Ext 110 Date: Attorney for Objectants 5 ��: : 1N THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, ESTATE OF LOTTIE IVY DIXON : PENNSYLVANIA Deceased : : ORPHANS' COURT DIVISION : NO: 21-07-0686 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing CONCISE STATEMENT OFMATTERS COMPLAINED OF ON APPEAL PURSUANTTO PA. R.A.P. 1925(b) FILED BY OBJECTANTS, GEORGE F. DIXON, III AND RICHARD E. DIXON, has been served on all parties of interest by placing the same in the United States mail, first-class postage pre-paid, at Harrisburg, Pennsylvania on this �^b� day of r�� , 2014, and addressed as follows: Mark D. Bradshaw, Esquire STEVENS & LEE Harrisburg Market Square 17 North Second Street, 16th Floor Harrisburg, PA 17101 (Attorney for M&T Bank) Charlotte Dixon 323 Bayview Street Camden, ME 04843 Kimberly M. Colonna, Esquire 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-11 (Attorney for Executor of the Estate of Lottie Dixon) Kevin J. Kehner, Esquire OBERMAYER REBMANN MAXWELL & HIPPEL LLP 200 Locust Street Suite 400 Harrisburg, PA 17101 Daniel L. Sullivan, Esquire 26 W. High Street Carlisle, PA 17013 (Attorney for Executor Lottie Dixon, Individually)