HomeMy WebLinkAbout04-22-14 IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: ESTATE OF
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RUTH A. BENFER, 1 s'
DECEASED
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DOCKET NO. 21-2014-0112
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IN RE: PETITION FOR GRANT OF LETTERS a
OPINION AND DEGREE OF THE REGISTER o r; o ,� --n °
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JURISDICTION: 5 i w °
Generally it is not the purview of the Register of Wills to read into or question what
a Decedent has in her will. However, when a document, purporting to be a will, is
presented for probate and that document contains inconsistencies preventing it from
being admitted pro forma, a hearing must be held. In Re Rockett's Estate, 48 Pa. D & C.
6, 1944 WL 2078 (Orphans' Ct 1944) aff'd 348 Pa 445, 35 A.2d 303 (1944). In the case
sub judice, a hearing was held. During the hearing certain facts were discovered which
evidenced additional irregularities, thus putting the decedent's entire testamentary act
into question.
BACKGROUND:
Decedent had four children, Ronald McGraw and Dennis McGraw from a previous
marriage, Patti Griffin (Husband-James Griffin) and Richard Benfer (Wife-Cathy Benfer)
with her late husband. Decedent's purported will left her estate as follows: 60% to her
son Richard, 40% to her daughter Patti and nothing to sons Ronald and Dennis.
Ronald McGraw lives in New Jersey and was helping to pay for Decedent's
nursing home care. He did not appear at the hearing and provided no testimony.
Dennis McGraw lives in Harrisburg. He appeared at the hearing and testified that over
the years he visited the Decedent approximately one time a month. During the final
months of Decedent's life, while she was in the hospital and the nursing home, he saw
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her approximately three times at each. Dennis stated he was raised by his mother and
step-father and had a good relationship with his step-father.
Patti Griffin lives part of the year in Florida and part of the year in the Pocono
area. Patti did not appear at the hearing and provided no testimony. It was Patti's
husband James who prepared the Decedent's Will. Testimony showed that James is a
CPA, not an attorney. Patti visited the Decedent frequently when she was in
Pennsylvania. Richard Benfer and his wife Cathy live in Mechanicsburg. They provided
the lion's share of assistance to the Decedent, including transportation to appointments.
ISSUES:
1. Pages of will not fastened:
The will itself was not fastened in any manner. Criticism as to the validity of the
will is much lessened if it is securely fastened together. to Re Maginn's Estate, 278 Pa
89, 122 A. 264 (1923). Without it being stapled, any page can be removed and replaced
with another without leaving a mark or indication of the change. td.
Typically when documents are fastened in a secure manner, marks or treatment
of the several pages will generally be the same. For example, marks from folding,
staples, paperclips, etc., can be seen on every page and are lined up with each page. In
this will there is a lack of marks on every page, except the signature page. On that page
alone, there are small internal rips and some sort of rippled markings. One would expect
that if all of the pages were together, all of them would bear similar rips and rippled
markings. If just the signature page was removed from the will that Decedent signed and
put into another document purporting to be Decedent's will, chances of damaging just
the signature page and no other page of the will, increases dramatically. Anyone who
produces a will can easily print off another document from the same printer with the
same paper with different content and change out the pages as they wish and all pages
of the document would look the same.
2. No initials or date on each page:
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The will is numbered at the bottom of each of its 4 pages and reads in a logical
manner.
Pennsylvania's Probate Estate and Fiduciary Code IPEF), 20 Pa.C.8. §2502,
requires that a will "shall be in writing and signed by the Testator at the end thereof."
Courts have determined that this is essential in order to prevent frauds by one making
dispositive clauses on a will subsequent to a testator's signature. Many attorneys have
taken it a step further and have their clients and sometimes witnesses, sign or initial
each page to prevent pages from being changed after execution of the document.
In the will James provided, there are three short lines at the bottom of every page
for initials (one for testator and one for each of the two witnesses) and a line for the date.
It appeared like this:
Initials: Date:
None of these lines were filled out. Without having each page initiated by the
testator and each witness plus the date as provided for by these lines, it makes it much
easier to replace pages without detection. Further it goes towards James' lack of
knowledge in preparing and executing legal documents.
3. No witnesses or notary:
Richard testified that he and James witnessed Decedent sign the wilt in her home
and that there was no notary present. Oddly though, neither of them signed as
witnesses at the end of the will that clearly calls for the signature, printing of name and
address of each witness, nor did they initial each page as indicated. Again this adds to
the ease in which one could change out pages without detection. While Pennsylvania
does not require witnesses to a will for it to be valid, the failure to sign on the spaces for
witnesses in the document drafted by James directly reflects his lack of knowledge in
preparing and executing legal documents.
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Cathy Benfer testified that she was in the house on the day that Decedent signed
the will, but that she was not in the room and did not witness the signing. She did testify
that she recognized the signature on the will as that of the Decedent.
4. Leaves only to 2 of 4 children:
A parent does not have to leave anything to any of her children and does not have
to disclose her reasons for disinheriting them. In the absence of any contrary indication,
there is a presumption against any intention on the part of a testator to disinherit his or
her legal heirs, who are favored by the policy of the law. 80 Am. Jur. 2d Wills §1016.
While it is well settled that a Testator may disinherit her children, anytime a
Testator gives unequally to a class of people or disinherits her heirs-at-law, next of kin or
statutory distributees, questions arise as it is contrary to the natural distributive scheme.
It is unnatural and affords a strong proof of undue influence for a testator to make an
inequitable division of her property among her children. Appeal of Harrison, 12 W.N.C.
17, 1882 WL 14240 (Pa. 1882). To dispel problems during probate, good practice
among attorneys is to be explicit in why the person is being disinherited (examples
include, providing for them with non-probate assets, providing for them during lifetime,
breakdown in familial relationship, etc.) None of these situations presented itself in
testimony.
Richard testified that the will was "sufficiently explained" to the Decedent and that
she seemed to understand the terms of the will. This explanation apparently coming
from Richard, a beneficiary under the will and James, whose wife is a beneficiary under
the will, neither of whom are attorneys. There was no evidence that Decedent read the
document herself nor did a disinterested attorney explain it to her.
Richard also testified that there was discussion between himself and Patti about
the percentage split between them. Instead of splitting the estate 50150, he would take
60% and she would take 40% to better compensate Richard and his wife Cathy for doing
so much for the Decedent during her lifetime. There was no discussion about Ronald
McGraw and Dennis McGraw and why they were excluded from the will.
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Dennis testified that he had had a conversation at one point with the Decedent
and she stated that she was going to split everything among her four children. He said
at no time was there any discussion with her that she was "cutting" him or his brother out
of the will.
So what possible reason would Decedent have for disinheriting 2 of her 4
children? Richard testified it was due to the frequency of the various children in visiting
their mother as the reason. Financial concerns were not a driving factor. Of the two
that were not inheriting, one was the least wealthy of the four children and the other was
helping to pay for the Decedent's nursing home care. There was no testimony that there
was ill will between the Decedent and her first two children and her grandchildren. There
was no logical explanation about the unnatural division between her children (and
subsequently grandchildren).
Unreasonable or unnatural disposition, with other evidence, may be used to prove
incapacity. . . become of utmost importance when considering the question of undue
influence. . . In Re Lawrence's Estate, 286 Pa 58, 132 A. 786 (1926). The fact that the
children from the prior marriage were inexplicably left out of the will written by the CPA
son-in-law in concert with the children from the second marriage without any other
supporting evidence or involvement of disinterested legal counsel, is highly suspect.
5. Undue influence:
The measure of testimony requisite to establish the existence of"undue influence"
sufficient to set aside a will is imprisonment of body or mind, fraud, threats,
misrepresentation, circumvention, inordinate flattery, physical or moral coercion such as
to destroy free agency of testator and to operate as a present restraint. In re Phillips'
Estate, 244 Pa.35, 43, 90 A. 457 (1914). Generally a contestant of a will must show that
1) when the will was executed the testator was of weakened intellect [mind or body], and
2) that a person in a confidential relationship with the testator 3) receives a substantial
benefit under the will. In re Estate of Fickert, 461 Pa. 653, 657, 337 A.2d 592, 594
(1975).
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A confidential relationship exists whenever 'the circumstances make it certain the
parties do not deal on equal terms, but, on the one side there is an overmastering
influence, or, on the other, weakness, dependence, or trust, justifiably reposed (for) in
both (situations) an unfair advantage is possible.' in re Estate of Button, 459 Pa. 234,
239, 328 A.2d 480, 483, n.4. (1974)
"Undue influence is generally accomplished by a gradual progressive inculcation
of a receptive mind. The 'fruits' of the undue influence may not appear until long after the
weakened intellect has been played upon." in re Estate of Clark, 461 Pa. 52, 65, 334
A.2d 628, 634 (1975). Undue influence may be, and often can only be, proved by
circumstantial evidence. Hurst Will, 406 Pa. 612, 179 A.2d 436 (1962).
The Decedent was dependent on Richard and Cathy to get her to appointments
and to take care of her needs. Richard was also the Decedent's medical agent via a
power-of-attorney. Her son-in-law James is a CPA. He obviously believed he had
enough knowledge to prepare Decedent's will and convinced her he was able to do so.
Both Richard and James were in confidential relationships with the Decedent.
When the scrivener is himself a legatee (in this case, his wife is the legatee), it is
at most a suspicious circumstance of more or less weight according to the facts of each
particular case, demanding the vigilant care and circumspection of the court investigating
the case. Appeal of Harrison, 12 W.N.C. 17, 1882 WL 14240 Pa. (1882). Where the
scrivener is in a confidential relation with decedent and there is an unnatural inequitable
division among the children, it is more than suspect. Id.
It has been repeatedly held that a misrepresentation may be sufficient in itself to
constitute undue influence that will void a will, In re Phillips'Estate, 244 Pa. 35, 43, 90 A.
457, 460 (1914); . May v. Fidelity Trust Co. 375 Pa. 135, 99 A2d 880 (1953). These
misrepresentations are not confined just to affirmative statements. 'The deliberate
nondisclosure of a material fact amounts to culpable misrepresentation no less than
does an intentional affirmation of a material falsity'. Neuman v. Corn Exchange National
Bank & Trust Co., 356 Pa. 442, 451, 51 A.2d 759, 764, 52 A.2d 177 (1947). In
Restatement of Torts, § 529, cmt a, it is said "Whether or not a partial disclosure of the
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facts is materially misleading depends upon whether the person making the statement
knows or believes that the undisclosed facts might affect the recipient's conduct in the
transaction in hand." See also § 551. May, supra. 375 Pa. at 163-4.
It is impossible to say what conversations took place between Richard, James
and Decedent. However, based on Richard's testimony that at the time Decedent signed
her will, no discussion was even held as to the inheritance by Decedent's first two
children, fraud and misrepresentation seem apparent. it makes more sense that Richard
and James had convinced Decedent that since she inherited from her second husband,
only his children could inherit what she now had. This logically would take the first two
children out of any discussion of inheritance. This just is not the law in Pennsylvania.
Had the Decedent been taken to an attorney, she would have been properly
advised of law and counseled as to the many ways she could dispose of her estate.
Further, had Decedent actually wanted to disinherit her first two children, a lawyer could
have effectuated those wishes in a manner that would have limited questions of her
informed decision. A lawyer would also have been able to provide guidance on
disinheriting children without disinheriting grandchildren. Further, a lawyer would have
been able to guide the Decedent in the proper execution of the will with witnesses, self-
proving clause and notary.
6. Testamentary act:
A will is a legal declaration of one' intention which she wills to be performed after
her death. In Re McCune's Estate. Appeal of Findly, 265 Pa 523, 109 A. 156 (Pa 1920).
A will is intended to take effect upon the death of the testator and not before. Book v.
Book, 3 Pennyp. 252, 1883 WL 13491 (Pa. 1883). James put in Decedent's will a clause
directing Richard and Patti to self Decedent's home prior to her death to pay for her
healthcare until her death. This again shows James' lack of understanding and training
in the preparation of the will.
7. Unauthorized practice of law:
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James, in preparing the will, may have committed the unauthorized practice if law.
He is a CPA and not an attorney. The law is clear that drafting a will, except for drafting
one's own will, is the practice of law. Cases describe "legal practice" as exercising
judgment which "requires the abstract understanding of legal principles and a refined skill
for their concrete application"—in those circumstances where legal judgment is called
for. Kohiman v. Western Pennsylvania Hospital, 438 Pa. Super. 352, 357, 652 A.2d 849,
851 (1994),
An attorney applies legal knowledge or judgment in at least three ways:
(1) He instructs and advises clients in regard to the law, so that they may
properly pursue their affairs and be informed as to their rights and obligations;
(2) He prepares for clients documents requiring familiarity with legal principles
beyond the ken of the ordinary layman—for example, wills, and such contracts as
are not routine nature;
(3) He appears for clients before public tribunals to whom is committed the
function of determining rights of life, liberty, and property according to the law of the
land, in order that he may assist the deciding official in the proper interpretation
and enforcement of the law.
Id. James lacks formal training as an attorney, yet took it upon himself to draft
Decedent's will. This again places the validity of Decedent's will into question.
SUMMARY:
What was submitted to probate was not the will of a well counseled Ruth A. Benfer,
but of a Ruth A. Benfer influenced by two of her children as against her other two
children. There are far too many irregularities with this will, from its questionable
drafting, lack of testamentary intent, improper execution, indications of exchanged pages
and outright disinheritance of those naturally the objects of Decedent's affection, all of
which calls into question the validity of the entire document. It is apparent that
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Decedent was in a weakened condition in that she relied on Richard and Cathy for her
care and transportation; Richard and James stood in a confidential relationship with
Decedent; and they both benefited under the will.' The document presented for probate
will not be admitted as Decedent's Last Will and fetters will not issue. Therefore
decedent's estate is intestate. Petition for Administration will be taken into consideration
when filed.
DECREE OF THE REGISTER OF WILLS
AND NOW, this 22nd day of April 2014, upon consideration of the Petition for
Grant of Letters filed by Richard J. Benfer, for the above decedent, the instrument
offered for'probate as the Last Will and Testament, which is dated May 20, 2013, and the
testimony given at a hearing held on March 11, 2014, it is DECREED that Petition for
Grant of Letters is DENIED for the reasons set forth in the foregoing Opinion of the
Register.
Lisa M. Grayson, Esq.,
Register of Wills & Clerk of Orph ns' Court
Distribution:
Stephen J. Hogg, Esq.
Ronald McGraw
Dennis McGraw
Patty Griffin
Richard Benfer.
1 Richard was a named beneficiary while it was James'wife who is the named beneficiary. lames also could benefit
directly under the will as he was listed as the executor and executor's can take fees for their duties.
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ORPHANS' COURT DIVISION
COURT OF COMMON PLEAS OF
In Re: ESTATE OF RUTH A.BENFUR CUMBERLAND COUNTY
PENNSYLVANIA
NO.21-14-0112
CERTIFICATE OF SERVICE OF ORDER
ORDER DATE: APRIL 22,2014
JUDGE'S INITIALS: LMG
TIME STAMP DATE: APRIL 22,2014
IN RE: PETITION FOR GRANT OF LETTERS
........... ..........................—.......... ........... ...................--........... ........
SERVICE TO: RONALD MCGRAW 31 PADDOCK LANE COLTS NECK NJ 07722
D IS MCGRAW 1201 FLORENCE DRIVE HARRISBURG,PA 17112
iTT�FY GRIFFIN 1506 PASSION VINE CIRCLE WESTON FL 33326
RICHARD BENFUR 102 EWE ROAD MECHANICSBURG PA 17055
METHOD OF MAILING: ENVELOPES PROVIDED BY:
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❑HAND DELIVERED CLERK OF ORPHANS COURT
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MAILED:04-22-2014
................................--........
SERVICE TO: STEPHEN J HOGG,ESO SUITE 101 19 S HANOVER ST CAR-LISLE PA 17013-3326
METHOD OF MAILING: ENVELOPES PROVIDED BY:
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