HomeMy WebLinkAbout04-02-91
IN THE ESTATE OF
ROBERT M. MUMMA,
DECEASED
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DMSION
NO. 21-86-398
EXCEPTIONS OF GUARDIAN AD LITEM
TO ORDER OF ORPHANS' COURT
AND NOW this 2nd day of April, 1991, comes Robert G. Frey, attorney for the
Guardian ad litem for the minor children of Robert M. Mumma, II, who takes exceptions to the
adjudication of the Honorable Harold E. Sheely, President Judge, dated March 21, 1991 for the
following reasons:
1. The Order of the Orphans' Court dated March 21, 1991, granted the motion of Robert
M. Mumma, IT ("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 that "[olne 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.
3. The Order of the Orphans' Court 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. S 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.
4. 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
729
of the Testator as the intetpretation 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.
5. 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. The Order of the Orphans' Court 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 consequences which accrue to the
benefit of a disclaimant. The Orphans' Court 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.
7. The Order of the Orphans' Court 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' Court 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,
v'~,o ~. 1J~
Robert G. Frey, Esquire
for Guardian ad litem
for the minor children of Robert M. Mu
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243-5838
730
,~
>)>
t;l 01"'0-1
(f)acno-f"
-g.~g;-O:D
O=S:~:Om
~~:ro'Z-<
_ _CD Q) j m
~"tJg~-<Ra
~><('")q>-f
~:::j~Q>-
f:jOCJ)~-fr-
&.W~""'r-m
~ m.~l><
CD g ::E
~
~
C".l
~
"'=
~
...
o
z
~
to- . ""
C" "" ;) "
t.u::::- ~- .
U:" ;a: '.- Q
L;:~ <0
LL.. \~._ N ":;0
~: :.::z
o;,~ I ,...<(
ww C:: ':'--J
0..'- i.C,.,....
Cl... .J-
.ft::U:' -=c-- .__m._..W
0-- . CO
Ue ~....
t.c C.-::5
~.:i ~ ::;<->
P' <->
r::l
~
C".l
~
>
~
~
r::l
~
o
=
l"'!
~
~
~
i:=
e
~
~
~
z
....
=1
~
~
~
~
~
~
o
"'l
.
'""
tY",=Z
Ot"'....
el'"l=
Z>~
....~':lh
~~oo
"'le
"'=b~
~e""
~~O
~=...,.
~l'"lC".l
t"'~o
-<r~
>>,..
ZZ"",
>,1::10
Z
~