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HomeMy WebLinkAbout11-17-89 . . , IN THE ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, Deceased CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION : NO. 21-86-398 IN RE: PETITION BY ROBERT M. MUMMA. II TO REVOKE DISCLAIMER BEFORE SHEELY. P.J. ORDER OF COURT AND NOW. this /7 (Ij- day of In' V['I'Je - , 1989. the motion to revoke disclaimer is GRANTED. By the Court. /</- J ;:- J/ , Ha~ol~-E' s'heel{/ P.'J. / William C. Costopoulos. Esquire For the Petitioner fl1~.& ~ '- 11-1'1-'89 Robert M. Frey, Esquire Guardian ad litem ~ /<"'1-] (, - '-I-<f-f ~ -A.. "'7 :pbf r ,~, '\) 7, (; ....# ... ~:~':;/ C),__ . We:;: d_ --0 "- N c.. r- - 2:': % ~ -, ~;b C::l .,:,:-...,- ;::::.3 ':ju '-' IN THE ESTATE OF ROBERT M. MUMMA, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 IN RE: PETITION BY ROBERT M. MUMMA, II TO REVOKE DISCLAIMER BEFORE SHEELY, P.J. OPINION AND ORDER OF COURT This case comes before the court pursuant to the death and subsequent estate distribution of Robert M. Mumma (Testator), who died on April 12, 1986. The Testator left a Last Will and Testament, dated May 19, 1982, together with a Codicil dated October 12, 1984, both of which have been duly probated in the Office of the Register of Wills in and for Cumberland County. The Testator was survived by his wife, Barbara McK. Mumma as well as four adult children, who were named as remaindermen of trusts created in Testator's will. Robert M. Mumma, II (Petitioner), one of Testator's four adult children, executed a disclaimer dated January 6, 1987, which was filed in the Office of the Register of Wills on January 12, 1987. On June 20, 1989, Petitioner filed a petition to revoke said disclaimer in the form of a rule to show cause. Answers to the rule were timely filed by the Executricesl Trustees, by Robert M. Frey, Esquire, guardian ad litem of the minor children of Petitioner, and by Linda Roth, surviving adult child of the Testator. A hearing was held on August 28, 1989, at .:ni) NO. 21-86-398 which time the court directed that briefs be filed addressing the question of whether Petitioner may revoke his disclaimer. DISCUSSION The first question which must be addressed is whether the Petitioner's disclaimer is, on its face, valid. For if the disclaimer is invalid, further inquiry is unnecessary. The three requirements for a valid written disclaimer are spelled out in the Probate, Estates and Fiduciaries Code, 20 Pa. C.S.A. S6201. They are: 1) describes the interest disclaimed; 2) declares the disclaimer and extent thereof; and 3) be signed by the disclaimant. An examination of the petitioner's disclaimer reveals that these requirements have been met. In paragraphs three, four, five, and six the petitioner clearly describes the interest he is disclaiming, fulfilling requirement number one. The Petitioner proceeds, in paragraphs seven and nine, to declare his desire to disclaim a testamentary interest and explains the extent of that disclaimer, thereby fulfilling requirement number two. Finally, the Petitioner signed the document, fulfilling requirement number three. The disclaimer was written pursuant to the proper section of the Probate, Estates and Fiduciaries Code, S6201, and fulfilled the requirements of that statute. Having established that Petitioner's disclaimer is valid, we must now examine the true question, whether Petitioner can revoke his disclaimer. In attempting to answer this question, we are confronted with the fact that the law provides very little guidance. As the court stated in Zepp Estate, 4 Fiduciary Rep.2d 281 (Mont. Co. 1984). "There is little legal t,;; -2- NO. 21-86-398 authority on point." Id. at 282. Consequently, we must focus on the effect of the disclaimer in reaching our decision. One of the basic considerations in this entire matter is what effect the disclaimer has on the Testator's desires and intentions. The basic premise around which all of trusts and estates law revolves is that absent certain extenuating circumstances, the Testator's desires and intentions must be fulfilled. With that in mind, we turn to the pertinent statutory provision of the Probate, Estates and Fiduciaries Code, 20 Pa. C.S.A. S6205, entitled "Effect of Disclaimer." As S6205 points out, a disclaimer relates back for all purposes to the date of the death of the decedent and for purposes of determining the rights of other parties, is equivalent to the disclaimant having predeceased the Testator. The relevant parts of Testator's will are paragraph 5, section 7, page 3 and paragraph 3, section 8, page 4. The former states: Upon the death of my said wife, the principal of this Trust, as it is then constituted, shall be paid over by my surviving trustee unto my children, ROBERT M. MUMMA, II, BARBARA M. McCLURE, LINDA M. ROTH and LISA M. MUMMA, free of this Trust, share and share alike, per stirpes and not per capita. The latter states: In the event any of my said children shall predecease me leaving issue (including adopted children) surviving, then and in that event their share above provided shall pass to such issue. If, however, any of my children shall predecease me without leaving issue, (including adopted children) surviving, then and in that event their respective shares above provided shall lapse -3- NO. 21-86-398 and their share shall be equally divided among my surviving children. The effect of the disclaimer is that petitioner predeceases the Testator, with Petitioner's share under the will passing to any issue petitioner has living at that time. This is where the conflict arises. As Petitioner points out, the effect of the disclaimer is that petitioner's children will not be treated equally, as the Testator intended, because only those children alive prior to the Testator's date of death will take under the will. Currently, petitioner has one child born prior to Testator's date of death and one child born after Testator's date of death. It also follows that any children born subsequently to petitioner will not take under the will, just like their sibling who was born after the Testator's date of death. Not only is such a result manifestly unjust, but, as both sides agree, it is not what the Testator intended nor desired, which was to treat all his grandchildren equally in terms of their share of the estate. The guardian ad litem cites the case of HOqq'S Estate, 329 Pa. 163, 196 A. 503 (1938) for the proposition that members of a class are determined as of the time appointed for distribution, rather than at the time the Testator executed his will. This case is distinguishable in two significant ways. In Hoqq's Estate, there was no disclaimer involved, and therefore the court did not have to take into account the effect a disclaimer has on estate distribution. Secondly, the effect of the disclaimer in the case at bar has significant impact because the Testator specifically accounts for one of his four adult s 81 -4- NO. 21-86-398 children predeceasing him. This was not the case in Hoqq's Estate, where the grandchildren were given direct bequests of the residuary estate in their own capacity, not in lieu of parents who were to be the direct beneficiaries if they were alive at the Testator's death. The guardian ad litem also cites Kirk Estate, 7 Fiduciary Rep.2d 215, 369 Pa. Super. 515 (1985) to stand for the proposition that a disclaimer can be treated as if the disclaimant has predeceased the Testator for purposes of taking under a will, while at the same time recognizing the disclaimant as having survived for purposes of intestacy. In Kirk Estate, the court was attempting to determine to whom, under intestate provisions, a lapsed residuary devise should pass. The problem in the Kirk case was that the deceased widow should have received the lapsed residuary devise according to the laws of intestacy, but the widow had executed a disclaimer as to all property disposed of by the will. The court reasoned that because the lapsed residuary devise was an intestate share of the decedent's estate rather than property passing under the will, the widow was entitled to said intestate share despite her disclaimer. In the case at bar, there is no lapse involved. Petitioner's disclaimer effectuates a passage of his share under Testator's will to petitioner's child who was born prior to the Testator's date of death. Even if there was a lapse created by petitioner not having issue born prior to Testator's death date, the intestate share according to the terms of Testator's will, would be shared equally among his surviving children, there being no disclaimer to prevent their receipt of said lapsed share, as was the case in Kirk Estate, supra. ,$ 8'S' -5- NO. 21-86-398 The guardian ad litem further argues that Petitioner did not properly nor timely plead fraudulent inducement and mistake of fact as a basis for revocation. These allegations, whether true or not, become moot, however, for this court's granting of Petitioner's motion for revocation of disclaimer is based on its finding that Testator's testamentary intentions and desires must be honored and, in turn, Testator's grandchildren be treated equally. And so, for the aforementioned reasons, petitioner's motion to revoke disclaimer is granted. ORDER OF COURT AND NOW, this ;'?tl day of ~),' C /,[ L!"l, j, 1989, the r" , motion to revoke disclaimer is GRANTED. By the Court, /s/ Harold E. Sheely P.J. William C. Costopoulos, Esquire For the Petitioner Robert M. Frey, Esquire Guardian ad litem :pbf .;. itb -6-