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HomeMy WebLinkAbout03-21-91 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 REs PETITION BY ROBERT M. MOMMA, II TO REVOKE DISCLAIMER BEFORE SHEELY, P.J. DECREE NISI AND NOW, this L f ,~ day of k1/Y" CIA. ov------- , 19 91 , the court directs that Robert M. Mumma, II may revoke the disclaimer he filed on January 12, 1987, in the estate of his father, Robert M. Mumma. By the Court, H P.J. William C. Costopoulos, Esquire For the PetitionerfY1~ c..n -3-",..<1"\ Robert M. Frey, Esquirl Guardian ad litem 'f "2 z("t I fe a.'v..J Cd '"'7 Ol.G-. f :pbf I 655 :r. L.:.'V 0__ td.. ~,?~ ~' c" ',( [:iW) ~~~ 0<-" Ww ''''a.: ex: cD C? '" 0... ...:.;.....t - N ~ _0 '(.) .::r:.> iZ ~;::: <:':{ }~~ <-:JW , en ':-s..:::c "':::> wu -' OJ - ~ 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 '1'0 REVOKE DISCLAIMER BEFORE SHEELY, P.J. OPINION AND DECREE NISI This matter is before us on remand from the Superior Court for us to set forth findings of fact and to allow the parties to file post-trial motions. FINDINGS OF FACT 1. Robert M. Mumma (Testator), died testate on April 12, 1986. 2. The testator left a Last Will and Testament dated May 19, 1982, together with a codicil dated October 12, 1984. 3. Both the Last Will and Testament and subsequent codicil have been duly probated in the office of the Register of Wills in and for Cumberland County. 4. The testator was survived by his wife, Barbara McK. Mumma, and four adult children. 5. The testator's four children were all named as remaindermen of trusts created in the testator's will. 6. Robert M. Mumma, II, (Petitioner), the testator's only son, executed a properly prepared disclaimer dated January 6, 1987. 656 NO. 21-86-398 7. Through use of the disclaimer, petitioner hoped to pass his share of the inheritance to his children. 8. The disclaimer was properly filed on January 12, 1987, in the office of the Register of Wills of Cumberland County. 9. On June 20, 1989, petitioner filed a petition to revoke such disclaimer in the form of a rule to show cause. 10. After review of the will, petitioner believed that his disclaimer would not allow for the equal treatment of petitioner's children. 11. Answers to the rule were timely filed by the executrices/trustees, by Robert M. Frey, Esquire, guardian ad litem for the petitioner's minor children, and by Linda M. Roth, surviving adult daughter of the testator. 12. The administration of the estate was not completed in 1989. 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. S620l. 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 657 -2- NO. 21-86-398 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, ~620l, 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). nThere is little legal authority on point.n 12. 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. ~6205, entitled nEffect of Disclaimer.n Section (a) and the relevant portion of Section (b) provides as follows: 56205. Effect of disclaimer (a) In general.--A disclaimer relates back for all purposes to the date of the death of 658 -3- NO. 21-86-398 the decedent or the effective date of the inter vivos transfer or third-party beneficiary contract as the case may be. The disclaimer shall be binding upon the disclaimant and all persons claiming through or under him. (b) Rights of other parties.--Unless a testator or donor has provided for another disposition, the disclaimer shall, for purposes of determining the rights of other parties, be equivalent to the disclaimant's having died before the decedent in the case of a devolution by will or intestacy. . . . As Section 6205 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 and their share shall be equally divided among my surviving children. 659 -4- , '. NO. 21-86-398 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 children predeceasing him. This was not the case in Hoqq's 660 -5- NO. 21-86-398 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 ~ 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. 661 -6- "': ". 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. CONCLUSIONS OF LAW 1. The disclaimer filed in the Register of Wills office on January 12, 1987, by Robert M. Mumma, II was valid. 2. Robert M. Mumma, II may revoke the disclaimer filed on the above date. AND NOW, this DECREE NISI .14' 7-1 - day of f.r.....~~ ,1991, the court directs that Robert M. Mumma, II may revoke the disclaimer he filed on January 12, 1987, in the estate of his father, Robert M. Mumma. By the Cour t, /s/ Harold E. Sheely P.J. William C. Costopoulos, Esquire For the Petitioner Robert M. Frey, Esquire Guardian ad litem :pbf 662 -7-