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Home My WebLink About11-30-89 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 RXCEPTIONS OF GUARDIAN AD LITEM TO ORDER OF ORPHANS' COURT AND NOW this 30th day of November, 1989, comes Robert M. Frey, Guardian ad litem for the minor children of Robert M. Mumma, n, who takes exceptions to the adjudication of the Honorable Harold E. Sheely, President Judge, dated November 17, 1989 for the following reasons: 1. The Order of the Orphans' Court dated November 17, 1989 and delivered to the Guardian ad litem by the Register of Wills on November 21, 1989, granted the motion of Robert M. Mumma, n ("Disclaimant") to revoke his previously executed Disclaimer to his share of the above-captioned Estate. 2. The Order of the Orphans' Court ruling that the Disclaimant could revoke his disclaimer was in error for fmding as a matter of law that the effect of Section 6205 of the Probate, Estates, and Fiduciaries Code (20 Pa.C.S.A. ~ 6205) has the effect that "only those children alive prior to the Testator's date of death will take under the will." See Discussion at page 4. The Orphans' Court should have found as a matter of law that the membership of the class of beneficiaries is speculative at the time of petition as the determination of class membership under Pennsylvania law is determined at the time of distribution. 3. The Order of the Orphans' Court ruling that the Disclaimant could revoke his disclaimer was in error for finding as a fact that the Testator's intent as expressed in his will "was to treat all his grandchildren equally in terms of their share of the estate." See Discussion at page 4. This finding ignores the relevant clauses in Testator's will establish that grandchildren are not to be treated equally, or per capita, but are to be treated through descent, or per stirpes. The Orphans' Court should have found as a fact that the Testator's intent was to provide for his widow during her life and, at her death, to give it to his children in equal shares, or to the surviving issue of any child who predeceased the Testator. .sZ? 4. The Order of the Orphans' Coun ruling that the Disclaimant could revoke his disclaimer was in error for finding that "[o]ne of the basic considerations in this entire matter is what effect the disclaimer has on the Testator's desires and intentions." See Discussion at page 3. The Orphans' Court should have found that the central question was what effect the revocation of a valid disclaimer would have on the Probate, Estates and Fiduciaries Code, Section 6201 et seq. and the statutory intent to allow and enforce disclaimers. 5. The Order of the Orphans' Coun ruling that the Disclaimant could revoke his disclaimer was in error for failing to find as a matter of law that the law of Pennsylvania authorizing disclaimers, 20 Pa. C.S.A. !i 6201 et seq. is one of the "extenuating circumstances" (Discussion at page 3) which can prevent the fulfilling of the Testator's intentions. The Orphans' Court should have found that the Probate, Estates and Fiduciaries Code of Pennsylvania, through its statutory scheme recognizing and enforcing disclaimers, expressly alters the intent of the testator in situations when a valid disclaimer is exercised and, in those instances, the intent of the legislature in allowing disclaimers rather than the intent of the testator is to be enforced. 6. The Order of the Orphans' Coun ruling that the Disclaimant could revoke his disclaimer was in error its interpretation of the Probate, Estates and Fiduciaries Code, Section 6201 et seq., in ruling that a disclaimer may be revoked whenever a revocation furthers the intent of the Testator as the interpretation fails to follow the cannons of statutory construction codified in the first volume of the Pennsylvania Consolidated Statutes and tends to diminish and nullify to effect of the Probate, Estates and Fiduciaries Code in authorizing and enforcing disclaimers. 7. The Order of the Orphans' Court ruling that the Disclaimant could revoke his disclaimer was in error its interpretation of the Probate, Estates and Fiduciaries Code, Section 6201 et seq., in ruling that a disclaimer may be revoked whenever a revocation furthers the intent of the Testator as the interpretation is in conflict with the established law of Pennsylvania concerning inter vivos gifts, of which a disclaimer is a type, which requires that valid gifts are enforceable and not revocable absent a showing of incompetence of the donor or fraud or undue influence. The Orphans' Court should have required a showing of incompetence, fraud, or undue influence. ,6' 8~ Respectfully submitted, Robert M. Frey, Esquire Guardian ad litem for the minor children of Robert M. Mumma, II 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 I verify that the statements made in this complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. 4904 relating to unsworn falsification to authorities. I further verify that the above-recited exceptions are not filed for the purpose of delay, but have been filed because it is believed that they raise material questions regarding the administration and distribution of the estate of the said decedent and the assets and liabilities thereof, and in order to prevent injustice. Dated: November 30,1989 ;; Vi 9 8. The Order of the Orphans' Coun ruling that the Disclaimant could revoke his disclaimer was in error in failing to recognize as a matter of law that the exercise of the disclaimer by a disclaimant is an act with substantial federal and state tax which accrue to the benefit of a disclaimant The Orphans' Coun should have recognized the effect of the disclaimer as a benefit to the disclaimant when it considered the effect of the disclaimer at pages 3 and 4 of the Discussion. 9. The Order of the Orphans' Coun ruling that the Disclaimant could revoke his disclaimer was in error in failing to recognize as a matter of law that the revocation of a disclaimer by a disclaimant is an act with substantial consequences for the issue of a disclaimant as they are removed as beneficiaries. The Orphans' Coun should have recognized when it considered the effect of the disclaimer at pages 3 and 4 of the Discussion that the revocation of the disclaimer had the effect of removing the children of the Disclaimant as parties in interest in the estate and having the potential consequence that the children would receive no part of Testator's estate. Respectfully submitted, ~~. -J-,( Robert M. Frey, Esquire Guardian ad litem for the minor children of Roben M. Mumma, II 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 I verify that the statements made in this complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. 4904 relating to unsworn falsification to authorities. I further verify that the above-recited exceptions are not filed for the purpose of delay, but have been filed because it is believed that they raise material questions regarding the administration and distribution of the estate of the said decedent and the assets and liabilities thereof, and in order to prevent injustice. ~- A-,. 1->; Dated: November 30, 1989 ,:-: '7 () ZO"'Oz O::ot<1,." ('l . t<1 . ",Z -:I )0 .. :>:>1 ""0:: Zoo:: ,:>",Clt<1 ~~)O::O 00 aoZ><:;S:O III C ::/ 0 0t"'t<1 ::0..... '1'",t"'ttlO r-" (l CII ::0.....'" OZ - <t<1 I":J: ;II /II ",,-:I:j ttI ;';O:>::OCl ;d ~~ 0::t<10 Ot<1-:1 aooZt"'::<:I :>;s:z t<1::<:1:Z:: Cl;;:>-:I z 0 -< Z-:I'" 0-:1"" z" :>. ~ ::t1 Zo .. oj' <:1200 t<1;s:e5 -:I 0", tD:I , "II 00'" :>. -:I 0 00 ~ ~ > :II 0::t10 gj;s::> ..... 00 )0 = ~ /II ~ z ~ '< Clt!Cl t;lO-:l Cl;s: > ::t1"":> ;s:t<1 ..... 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