HomeMy WebLinkAbout02-13-15 IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Orphans' Court Division
C�
IN RE: -rl
ESTATE OF THOMAS M. HARBERT, r' r a--a , #
Deceased '
CASE NO. n
DATE OF DEATH — December 1, 2014 w ,
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PETITION TO ADMIT COPY OF WILL FOR PROBATE
1 TO: REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA:
i
AND NOW comes Petitioner, Cynthia C. Harbert, by and through her attorneys,
David R. Getz, Esquire, and the law firm of Wix, Wenger & Weidner, and states that:
1. Thomas M. Harbert died on December 1, 2014 at Claremont Nursing Home. His
legal residence was 802 Briarwood Lane, Camp Hill, Hampden Township,
Pennsylvania (the "Decedent").
2. Petitioner is the Decedent's surviving spouse.
3. Decedent left a Will dated July 1, 1994, a copy of which is attached hereto as
Exhibit A (the "Will").
4. The Will was prepared by David R. Getz, Esquire (counsel for both the Decedent
and Petitioner) (hereafter "Counsel") and was witnessed by Vicki A. Bolinger and
Shauna C. Vezina, both of whom were employees at the law firm of Wix, Wenger
& Weidner. The Will was self-proving.
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5. Following execution of the Will by Decedent, the Will was photocopied and one
photocopy was placed in Counsel's file. The original Will was delivered to
Decedent.
6. Decedent's Will names Petitioner as executor of the Will, and bequeathed his
entire estate to Petitioner.
7. Decedent contacted Counsel in 2008 to request that a Power of Attorney form be
prepared that named Petitioner as Agent. Decedent signed the Power of
Attorney on July 29.2008. At that time, Decedent did not indicate that he wished
to change his estate plan, and Counsel confirmed with Decedent that no changes
needed to be made to his Will.
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8. Petitioner contacted Counsel in October 2014 to request that Counsel prepare a
Living Will. Counsel met with Decedent on October 12, 2014, at which time
Decedent signed the Living Will. At that time, Decedent did not indicate that he
wished to change his estate plan.
9. Decedent never told Petitioner or Counsel that he had revoked or changed his
Will.
10.Counsel met with Decedent many times in the last several years, both as his
attorney and as a friend, and had many telephone conversations with Decedent.
At no time did Decedent ever indicate that he wished to change his Will.
11.Decedent told Counsel of his deep love and affection for his wife, the Petitioner,
on many occasions.
12.Decedent lived at his parents' family cottage near Catawissa, Pennsylvania,
while seeking treatment for bladder cancer at Geisinger Medical Center in
Danville, Pennsylvania. His legal residence remained at 802 Briarwood Lane,
Camp Hill, Pennsylvania.
13.On or about July 2012, Petitioner provided Decedent with a plastic folder that
contained Decedent's birth certificate, baptismal certificate, passport, and original
Will (the "Envelope") for the purpose of completing a Social Security Disability
Application.
14.Since Decedent's death, Petitioner'has diligently searched Petitioner's home in
Camp Hill, Pennsylvania and in Decedent's family's cottage, but has been unable
to locate the original Will or the Envelope (or any portion of the Envelope's
contents) and believes them to be lost.
15.If Decedent had died intestate, Petitioner would receive the first $30,000 of his
estate and would also be entitled to one-half of the residue; his daughters,
Megan E. Harbert (20 years of age) and Rebecca A. Harbert (15 years of age),
would be entitled to the remaining one-half of the residue.
16.The current value of Decedent's estate is anticipated to be less than $2,000.
17.Decedent had suffered from diabetes, and died as a result of bladder cancer.
18.Decedent believed, and Petitioner believes, that Decedent's bladder cancer was
caused by prescription medication taken for Decedent's diabetes. Before his
death, Decedent was part of a mass tort action against the manufacturer of the
diabetes medication.
19.Petitioner desires to open an estate because she is pursing the litigation against
the prescription drug manufacturer on behalf of Decedent's estate. It is unknown
whether the litigation will be successful, and if so, what portion of any future .
judgment or settlement might be allocated to survivor benefits or wrongful death.
20.All parties having an intestate interest in the estate have joined in this Petition.
Petitioner, as the surviving parent of decedent's minor daughter, Rebecca A.
Harbert,joins in this Petition on such minor's behalf.
WHEREFORE, Petitioner respectfully requests that an Order be issued
authorizing the photocopy of the Will dated July 1, 1994 of Thomas M. Harbert,
Deceased, to be admitted to probate as if it were the original.
Respectfully submitted,
WIX, W - GER & WEIDNER
By:
David R. Getz, Esquire
Attorney ID No. 06363
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
Dated: February 9, 2015
F:\dbw\Estates\3455-Harbert\Petition to Probate Will Copy.doc
LAST WILL AND TESTAMENT
OF
THOMAS M. HARBERT
I, Thomas M. Harbert, of East Pennsboro Township,
Cumberland County, Pennsylvania, being of sound and disposing
mind and memory, do make, publish and declare this my Last Will
and Testament, hereby revoking all wills and codicils by me at
any time made.
ITEM 1: 1 direct that all inheritance and estate taxes
becoming due by reason of my death, whether such taxes may be
payable by my Estate or by any recipient of any property, shall
be paid by my Executor out of the property passing under this
Will, which is not specifically devised or bequeathed, as an
expense and cost of administration of my Estate. My Executor
shall have no duty or obligation to obtain reimbursement for any
such tax paid by my Executor even though on proceeds of
insurance or other property not passing under this Will.
ITEM II: I give and bequeath all of my household
furniture and furnishings, automobiles, books, pictures,
jewelry, china, linen, silverware, wearing apparel and all other
like articles of household or personal use and adornment to my
wife, Cynthia C. Harbert, it she survives me, or if she does not
survive me, to my issue, per stirpes.
ITEM III: I give, devise and bequeath unto my wife,
Cynthia C. Harbert, all of the rest, residue and remainder of my
property, real, personal and mixed. In the event my wife,
Cynthia C. Harbert, does not survive me, then I give, devise and
bequeath unto my sister-in-law, Martha C. Parvis, of Newtown,
Connecticut, AS TRUSTEE, (the "Trustee") , all the rest, residue
and remainder of my property, real, personal and mixed, not
disposed of by the preceding portions of this Will, IN TRUST
NEVERTHELESS, for the following uses and purposes:
(a) Upon my death, my Trustee shall divide the
principal of the Trust into as many shares or parts as
there are then living children of mine and then
deceased children of mine represented by then living
EXHIBIT A
issue. The Trustee shall hold one such share as a
separate Trust Fund for the benefit of each then living
child of mine and one such share as a separate Trust
Fund for the benefit of the issue of each such then
deceased child of mine.
(b) In each"Trust thus established for a then
living child of mine, the Trustee shall have, hold,
manage, invest and reinvest the principal thereof and
shall, if the child has not attained twenty-two (22)
years of age, pay to or for the benefit of such child
in not less than quarterly installments so much of the
net income and principal of said Trust as the Trustee,
in the Trustee' sole discretion, shall deem necessary
and appropriate to maintain said child in the proper
station in life, including proper support, maintenance,
medical, hospital, nursing and nursing home care, and
high school, vocational, college, university,
post-graduate and other education. Any undistributed
income shall be accumulated. Upon such child's
attaining the age of twenty-two (22) years, he or she
shall be paid one-third (1/3) of the then assets of the
Trust and shall also be paid, directly, all income from
the Trust. Upon such child's attaining the age of
twenty-five (25) years, he or she shall be paid
one-half (1/2) of the then assets of the Trust. Upon
such child's attaining the age of thirty (30) years, he
or she shall be paid all of the remaining assets of the
Trust. (If, at the establishment of the Trust, said
child has already attained" an age at which he or she
would have been entitled to one or more distributions
of assets, as above provided, the portion(s) which
would have been distributed at such prior age(s) shall
be paid to such child forthwith.) Should such child of
mine die before final distribution of the assets of
said Trust, but be 'survived by then living issue, the
Page 2 of 8
Trustee shall quarterly pay the net income from said
Trust to or for the benefit of said issue, per stirpes,
living at each time of quarterly distribution. Twenty
(20) years following the death of such child, all then
remaining assets of said Trust shall be paid to the
then recipients of the income, in the proportion by
which they are then entitled to the income. Should
such child die before final distribution and not be
survived by then living issue, the provisions of Item
III(d) herein shall obtain.
(c) In each Trust established for the benefit of
the issue of a deceased child of mine, the Trustee
shall have, hold, manage, invest and reinvest the
principal thereof and shall quarterly pay the net
income to or for the benefit of the issue of such
deceased child of mine, per stirpes, living at the time
of each quarterly distribution. Twenty (20) years
following my death, the Trustee shall pay over all of
the then assets in the Trust to the then recipients of
the income in the proportions by which they are then
entitled to the income.
(d) If, at any time before final distribution of
the assets of the Trusts established for my children or
the issue of any deceased children of mine, there are
no living beneficiaries of a Trust, that Trust shall
terminate, and its assets shall be divided into as many
equal shares as there are then existing Trusts created
under this Item III, and one such share shall
be added to each such then existing Trust, provided
that if any of said Trusts herein created has
previously been terminated by payment of all of its
principal to its beneficiaries, said beneficiaries who
received payment of the principal of that Trust shall
collectively be considered an "existing Trust" for the
purposes of this Item III(d) , and one such equal share
Page 3 of 8
shall be paid directly to each beneficiary in the same
proportion by which he received the principal of the
Trust or, if deceased, to his issue, per stirpes. If,
at the time of termination described in this Item
III(d) , there is no then existing Trust, or if at any
time before final distribution of assets under this
Item, none of my issue is living, the Trust shall
terminate, then all of my property, real, personal and
mixed, not disposed of by the preceding portions of
this Will, shall be distributed one half to my parents,
Donald D. Harbert and Mary E. Harbert of Atco, New
Jersey, or the survivor; and one half to my wife's
parents, Roy E. Coombs, Jr. and Frances T. Coombs of
Berkeley Heights, New Jersey, or the survivor. If both
of my parents predecease me, then one half share of my
property shall be distributed, in equal shares, to my
brothers, James M. Harbert of Taylor, Pennsylvania, and
David L. Harbert of Atco, New Jersey, or the survivor.
If I am not survived by either of my wife's parents,
then one half share of my property shall be distributed
to my sister-in-law, Martha C. Parvis. If all of the
above persons do not survive me, then all of my
property, real, personal and mixed, not disposed of by
the proceeding portions of this will, shall be
distributed as if I had died intestate, a resident of
the Commonwealth of Pennsylvania.
(e) In the event of the death, resignation,
refusal or inability of my sister-in-law, Martha C.
Parvis, to serve as Trustee (and Successor Executor)
hereunder, I nominate, constitute and appoint my
brother, James M. Harbert of Taylor, Pennsylvania, to
serve.
ITEM IV: In the settlement of my Estate and during the
continued existence of the foregoing Trusts, my Executor and
Trustee of each Trust shall possess, among others, the following
Page 4 of 8
powers to be exercised for the best interests of the
beneficiaries:
(a) To retain any investment I may have at my
death, so long as my Executor or Trustee may deem it
advisable to my Estate or Trusts to do so.
(b) To vary investments, when deemed desirable by
my Executor or Trustee, and to invest in such bonds,
stocks, notes, money markets, real estate mortgages or
other securities other than options or futures, and in
such other real or personal property as my Executor or
Trustee shall deem wise, without being restricted to
so-called "legal investments."
(c) In order to effect a division of the
principal of my Estate or a Trust or for any other
purpose, including any final distribution of my Estate
or any Trust, my Executor or Trustee are authorized to
make said divisions or distributions of the personalty
and realty, partly or wholly in kind. If such division
or distribution is made in kind, said assets are
required to be divided or distributed at their
respective values on the date(s) of their division or
distribution.
(d) To sell, either at public or private sale,
and upon such terms and conditions as my Executor or
Trustee may deem advantageous to my Estate or Trusts,
any or all real or personal estate or interest therein
owned by my Estate or Trusts, severally or in
conjunction with other persons, or acquired after my
death by my Executor or Trustee, and to consummate said
sale(s) by sufficient deeds or other instruments to the
purchaser(s) conveying a fee simple title, free and
clear of all Trust, and without obligation or liability
of the purchaser(s) to see to the application of the
purchase money or to make inquiry into the validity of
said sale(s) ; also, to make, execute, acknowledge and
Page 5 of 8
deliver any and all deeds, assignments, options or
other writings which may be necessary or desirable to
effect any of the bequests or devises made in my Will
or in carrying out any of the powers conferred upon my
Executor or Trustee in this Item IV(d) or elsewhere in
my Will.
(e) To mortgage real estate and to make leases of
real estate.
(f) To borrow money from any party to pay
indebtedness of mine or of my Estate or Trusts,
expenses of administration, or inheritance, legacy,
estate and other taxes.
(g) To pay all costs, taxes, expenses and
charges., except as herein noted, in connection with the
administration of my Estate or a Trust. My Executor
shall pay expenses of my last illness and funeral
expenses.
(h) To vote any shares of stock which form a part
of my Estate or a Trust and otherwise to exercise all
the powers incident to the ownership of such stock.
(i) To assign to and hold in a Trust an undivided
portion of any asset.
(j) In the discretion of my Trustee, if the size
of any Trust herein established shall become so small
that it is impractical or uneconomical to continue said
Trust, my Trustee may distribute all accumulated income
and principal to the then income beneficiaries in
proportion to their income interests.
(k) The right and discretion to elect the most
appropriate settlement options for any pension plans,
individual retirement accounts or other employee
benefit options payable to my Estate or any Trust,
assuming such election shall be in accordance with
procedures established by the plan's administrative
committee or administrator, as the case may be.
Page 6 of 8
(1) The right to engage accountants, attorneys,
appraisers and other agents, as deemed necessary by my
Executor or Trustee, to render advice to and/or to
represent my Executor or Trustee, as my Executor or
Trustee deem necessary or appropriate to the
administration and preservation of my Estate or the
assets of any Trust.
ITEM V: If at any time, any minor child or mentally
incapacitated person shall be entitled to receive any assets
hereunder, my Trustee shall act as Guardians of the assets
payable to such minor child or mentally incapacitated person and
shall have full authority to use such assets in any manner as
such Guardians shall deem advisable for the best interests of
such minor child or mentally incapacitated person, including
proper support, maintenance, medical, hospital, nursing and
nursing home care and high school, vocational, college,
university, post-graduate or other education, without securing
court order.
ITEM VI: Any person who shall have died at the same
time as Testator, or in a common disaster with him, or under
such circumstances that it is difficult or impossible to
determine who died first, or who shall fail to survive Testator
by ninety (90) days, shall be deemed to have predeceased him.
ITEM VII: I hereby nominate, constitute and appoint my
wife, Cynthia C. Harbert, to be my Executrix (herein referred to
as "Executor") . In the event of the death, resignation, refusal
or inability of my said wife to serve as Executor, I nominate,
constitute and appoint my Trustee to serve as Executor in her
place. My Executor, Trustee and Guardian are specifically
relieved from the duty or obligation of filing any bond or other
security.
ITEM VIII: If I survive my spouse, Cynthia C. Harbert,
and am survived by minor children, I nominate, constitute and
appoint my sister-in-law, Martha C. Parvis, of Newtown,
Connecticut to be the Guardian of the person of each such minor
Page 7 of 8
COMMONWEALTH OF PENNSYLVANIA
SS. .
COUNTY OF DAUPHIN
I, Thomas M. Harbert, the Testator whose n4me is signed
to the attached or foregoing instrument, having been duly
qualified according to law, do hereby acknowledge that I signed
and executed the instrument as my Last Will; and that I signed
it willingly and as my free and voluntary act for the purposes
therein expressed.
Sworn to or affirmed and acknowledged before me by .
Thomas M. Harbert, the Testator, this 1st day of July, 1994.
-7/-,-/7;
Thomas M. Harbert, Testator
-)-n . C;
Notary Public
My Commission Expires:
(SEAL)
NOTARIAL SEAL
LISA M.LONG,Notary Public
City of Harrisburg,Dauphin County
Ma Commission Ex ires A ril 28.1997
child. In the event of the death, resignation, refusal or
inability of my sister-in-law, Martha C. Parvis to serve as
guardian hereunder, I nominate, constitute and appoint my
brother, James M. Harbert of Taylor, Pennsylvania, to serve.
IN WITNESS WHEREOF, I have hereunto set my hand and
seal to this, my Last will and.Testament, consisting of this
page and the preceding seven (7) pages, this 1st day of July,
1994.
Thomas M. Harbert
SIGNED, SEALED, PUBLISHED AND DECLARED by the above-
named Testator, Thomas M. Harbert, as and for his Will, in the
presence of us, who, at his request,, in his presence and in the
presence of each other, have hereunto subscribed our names as
witnesses in attestation thereof.
Address
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Address /;Uq e'e
TMHARBERT.WIL DRG14 July 1, 1994
Page 8 of 8
COMMONWEALTH OF PENNSYLVANIA :
: SS. :
COUNTY OF DAUPHIN
We, 6-)
and the witnesses whose names �re
signed to the attached or foregoing instrument, being duly
qualified according to law, do depose and say that we were
present and saw the Testator, sign and execute the instrument as
his Last Will; that the Testator signed willingly and executed
it as his free and voluntary act for the purposes therein
expressed; that each subscribing witness, in the hearing and
sight of the Testator, signed the Will as a witness; and that to
the best of our knowledge, the Testator was at that time 18 or
more years of age, of sound mind and under no constraint or
undue influence.
Sworn to or affirmed and subscribed to before me by
R and
�\rscvv\e' C- witnesses, this 1st day of July,
1994.
Witness
Witn 's
i-Witness
AC-1- .
Notary Public
My Commission Expires:
(SEAL)
NOTARIAL SEAL
LISA M.LONG,Notary Public
City of Harrisburg,Dauphin County
M
y Commission
Expires Ann]28.1997
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Orphans' Court Division
IN RE:
ESTATE OF THOMAS M. HARBERT,
Deceased
CASE NO.
DATE OF DEATH —December 1, 2014
VERIFICATION
I, Cynthia C. Harbert, Petitioner in the foregoing pleading, have read the
foregoing pleading and hereby affirm and verify that it is true and correct to the best of
my personal knowledge, information and belief. I verify that all of the statements made
in the foregoing are true and correct and that false statements made therein may
subject me to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to
authorities.
Cynthia C. arbert
Dated: , 2015
JOINDER IN PETITION TO ADMIT COPY OF WILL FOR PROBATE
Megan E. Harbert, adult daughter of Thomas M. Harbert, Deceased, having been
provided a fully executed copy of the foregoing Petition to Admit Copy of Will for
Probate ("Petition"), and having had the opportunity to discuss the Petition with counsel
of her own choosing, hereby waives notice of the filing of the aforesaid Petition, and
joins in the Petition to request that the copy of the Will attached thereto be admitted for
probate.
WITNESS:
JMegan E6Harbert
Dated: _, 2015
JOINDER IN PETITION TO ADMIT COPY OF WILL FOR PROBATE
Cynthia C. Harbert, the natural parent and guardian of Rebecca A. Harbert,
minor, having been provided a fully executed copy of the foregoing Petition to Admit
Copy of Will for Probate ("Petition"), hereby waives notice of the filing of the aforesaid
Petition, and joins in the Petition to request that the copy of the Will attached thereto be
admitted for probate.
WITNESS:
Cynthio C. Harbert, Guardian
Dated: old 15
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Orphans' Court Division
IN RE:
ESTATE OF THOMAS M. HARBERT,
Deceased
CASE NO.
DATE OF DEATH — December 1, 2014
CERTIFICATE OF SERVICE
AND NOW this 9th day of February, 2015, the undersigned hereby certifies that I
served a copy of the Petition to Admit Copy of Will for Probate by depositing a true and
correct copy of the same in the Unites States Mail, first class mail, postage prepaid,
addressed to the following.-
Cynthia
ollowing:Cynthia C. Harbert, individually and as
Guardian of Rebecca A. Harbert
802 Briarwood Lane
Camp Hill, PA 17011
Megan E. Harbert
802 Briarwood Lane
Camp Hill, PA 17011
WIX, WENGER & WEIDNER
By:
David R. Getz, Esquire
Attorney ID No. 06363
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
(717) 234-4182