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Home My WebLink About07-30-99 O.;l~~,-\ f - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY IN RE ESTATE OF ROBERT M. MUMMA, ORPHANS' COURT DIVISION Deceased. NO.2J-B6-398 \j: ,.'. \..: MEMORANDUM OF LAW OF BARBARA McK. MUMMA AND LISA M. MORGAN IN RESPONSE TO PETITION OF ROBERT M. MUMMA. II FOR ACCOUNTING Barbara McK. Mumma ("Mrs. Mumma") and Lisa M. Morgan ("Mrs. MOIgan") submIt this memorandum with respect to certain issues raised in their New Matter in response to the Petition of Robert M. Mumma, II ("Mr. Mumma II") for accounting as to the Estate of Robert M. Mumma ("Mr. Mumma, Sr."). I. BACKGROUND Mr. Mumma, Sr. died testate on April 12, 1986. Mr. Mumma S[,'s Will and the codicil thereto ("the Will") were probated on June 5,1986. The Will appoints Mrs. Mumma, decedent's widow, and Mrs. Morgan as executrices thereof and as trustees of a Marital Trust and a Residuary Trust created thereunder ("the Trusts"). Under the Will, the presumptive remaindermen of the Trusts are Mr. Mumma Sr.'s children: Mr. Mumma II, Linda M. Mumma, Barbara M. Mumma and Mrs. Morgan, if they survive Mrs. Mumma. On January 6,1987, Mr. Mumma II executed an irrevocable disclaimer of his interest under the Will (the "Disclaimer") in which he "absolutely, irrevocably and unqualifiedly" revoked and disclaimed all his rights in and to the principal of the Trusts. A true and correct copy ofthe Disclaimer is attached hereto as Ex. "A." The Disclaimer was filed in the Office of the Register of Wills on January 12, 1987. The Internal Revenue Code (the "Code") provides significant tax advantages to the families of persons who disclaim interests under wills. In a nutshell, the Code provides that a person who within nine (9) months of death irrevocably disclaims an interest in a deceased person's estate will be deemed to have predeceased the deceased person -- thereby allowing the property which would have passed to the disclaimant to pass directly to the alternate takers named in the deceased person's will without being considered a transfer by the disclaimant. 26 D.S.C. 9 2518(a); 20 Pa. C.SA 996201-6206. In Mr. Mumma II's case, his disclaimer had the effect of substituting his children as remaindermen of his share of the Trusts in his place, thereby avoiding the substantial Federal Transfer Tax (estate or gift), which would have been imposed had Mr. Mumma II received his share of the Trusts' property outright on his mother's death, and then transferred it to his children. At the time of the execution and filing of the Disclaimer, Mr. Mumma II had two minor children. He now has three minor children. On December 27, 1988, Mrs. Mumma and Mrs. Morgan filed a petition seeking appointment of a guardian ad litem to represent all the minor beneficiaries under Mr. Mumma Sr.'s Will. President Judge Sheely granted the petition, and on December 29, 1988, Robert M. Frey, Esquire ("Mr. Frey") was appointed as guardian ad litem for the minor persons interested in the estate of Robert M. Mumma, deceased, with authorization to represent said minor persons in all matters related to the sale of [certain Estate-owned businesses] and the actions for Declaratory Judgnlent and Other Relief pertaining thereto, which actions are now pending before this Court, and in any further proceedings in the Court of Common Pleas of Cumberland County or in the Court of Common Pleas of Dauphin County, Pennsylvania relating to or arising out of such matters. A true and correct copy of the Decree is attached hereto as Ex. "R" 2 On June 20, 1989, almost two-and-a-halfyears after filing it, Mr. Mumma II petitioned this Court to revoke his Disclaimer. A true and correct copy of the petition is attached hereto as Ex. "c." Ris petition was opposed by Mr. Frey on behalf of Mr. Mumma II's children. On November 17, 1989, Judge Sheely granted Mr. Mumma II's petition. A true and correct copy of the Order granting Mr. Mumma II's petition to revoke his disclaimer is attached hereto at Ex. "D." On November 30,1989, Mr Frey filed exceptions to the Order and filed an appeal to the Superior Court on December 12, 1989. On January 31,1990, Judge Sheely refused to rule on the exceptions as the matter had been appealed to the Superior Court. On January 7,1991, the Superior Court remanded Mr. Frey's appeal from Judge Sheely's ruling "for determination of exceptions pending in the trial court." A true and correct copy of the Superior Court's Memorandum is attached hereto at Ex. "E." On March 21,1991, Judge Sheely entered an Opinion and Decree Nisi directing that Mr. Mumma II be permitted to revoke his Disclaimer. A true and correct copy of the Order and Decree Nisi is attached hereto at Ex. "F." Mr. Frey again filed exceptions on April 2, 1991, which were denied by the Court on July 21,1993. A true and correct copy of the Exceptions and the Order denying the Exceptions is attached hereto at Exs. "G" and "R," respectively. Mr. Frey again appealed. In a Memorandum filed July 18, 1994, the Superior Court dismissed Mr. Frey's appeal from the denial of his exceptions on the ground that "Mr. Frey lacks standing to appeal the decision to revoke Mr. Mumma II's disclaimer. . .." In its opinion, the Superior Court concluded that the attempt to represent the minor children with respect to the revocation of Robert [Ill's disclaimer is beyond the scope of Mr. Frey's limited appointment. 3 Mr. Frey was appointed in anticipation of a dispute over the sale ofthe decedent's business from the estate. It was expected that Robert [II] would oppose the sale, contrary to the desires of the executrices, [Mrs.] Mumma, wife, and Lisa Morgan, daughter. Therefore, when the minors became remaindermen after Robert's disclaimer, it was essential that they have a representatlve in the event Robert opposed the sale. Mr, Frey's role was circumscribed to ensure the children's interests were best-served by either the sale or the failure to sell the businessY In re Estate of Robert M. Mumma, Mem, Op., at 2 (pa. Super. July 18, 1984) (internal citations omitted) (attached hereto as Ex. "I"), The Superior Court's ruling that Mr. Frey had no standing to test the validity ofMr. Mumma II's revocation of his Disclaimer on behalf ofMr. Mumma II's minor children means that those minor children have not been represented in this matter. On August 9, 1991, Mrs. Mumma and Mrs. Morgan filed interim accounts of their acts and transactions as executrices and as trustees. Those accounts covered the period from April 12, 1986 to March 31, 1991 with respect to the Estate, the period from November 19, 1986 to March 31, 1991 with respect to the Marital Trust, and the period from November 4, 1986 through March 31, 1991 with respect to the Residuary Trust. As to those accounts, Mrs. Mumma and Mrs. Morgan provided detailed information with respect to the financial condition of the Estate and of the Trusts, and also as to their activities with respect thereto.21 11 The Superior Court acknowledged "that it was conscientious of Mr. Frey to pursue this action, for there was a remote possibility we would have found the disclaimer issue related to the issue of the sale of the business." In re Mumma, Mem. Op., at 2 n.l. v On October 2,1991, Mr. Mumma II filed objections to the accounts filed by Mrs. Mumma and Mrs. Morgan, including objections to the Estate Account consisting of fourteen pages ofline-by-line inquiries and protests with regard to numerous account entries, objections to the Marital Trust Account consisting of seven pages ofline-by-line inquiries and protests regarding numerous account entries; and a statement of general (continued...) 4 By petition dated December 22, 1998, Mr. Mumma II seeks "an immediate final accounting for the Estate herein." In support of his reason for the accounting, Mr. Mumma II states that he "believes that the Estate assets have been improperly diverted for the benefit of the Executrixes." Petition '11 5. By rule returnable January 12, 1999, this Court ordered Mrs. Mumma and Mrs. Morgan to show cause why an accounting should not be ordered. Mrs. Mumma and Mrs. Morgan filed their Answer and New Matter to Mr. Mumma II's petition for accounting, which was intended to establish a record as to the issue ofMr. Mumma II's disclaimer of his interests in the Will. Mrs, Mumma and Mrs. Morgan file the instant memorandum ofiaw setting forth their positions relating to Mr. Mumma II's petition for an accountmg. II. ARGUMENT A. Mr. Mumma II's Petition For An Acconnting Cannot Be Resolved Until The Issue Relatinl: To His Disclaimer Is Adjudicated. As an initial matter, there is no dispute that Mrs. Mumma and Mrs. Morgan must (and will) at an appropriate time file a final accounting directed to those interested in the Estate and an updated intermediate accounting for the Trusts. Rock v. Pyle, 720 A.2d 137, 142 (pa. Super. 1998) (noting that a request by a beneficiary of a trust requires a trustee to file an Y(...continued) objections to all three accounts consisting of twelve pages of allegations and mismanagement challenging the overall administration of the Estate and the Trusts. No other person interested in the accounts, including Mrs. Linda M, Mumma, Mrs. Barbara M. Mumma or the guardian ad litem, has filed any objection to the accounts. 5 accounting); 20 Pa. C.S.A. ~ 7181 ("A trustee shall file an account of his administration whenever directed to do so by the court and may file an account at any other time."). The issue for this Court is not whether accountings must be filed, but to whom the accounting should be directed and notices sent. Specifically, the issue is whether Mr. Mumma II has an interest in the Estate or the Trusts which would give him standing to request an accounting and whether he is a proper party to any accounting. Mr. Mumma II purported to terminate his interest in the Estate and Trusts by his 1987 execution and filing ofa Disclaimer. Two-and-a-halfyears later, he petitioned to revoke his Disclaimer. If the Disclaimer is still valid, Mr. Mumma II has absolutely no interest in the Estate or the Trusts and would be an improper party to any accounting proceeding. Although Judge Sheely granted Mr. Mumma II's 1989 petition to revoke his Disclaimer over the objections of the guardian ad litem, on appeal by the guardian ad litem, the Superior Court found that the ad litem had no standing to represent Mr. Mumma II's children and that his role was limited to monitoring the sale of certain family businesses. See Ex. I, at 2. Consequently, the issue of the validity of Mr. Mumma, II's revocation of his disclaimer is still open and Mr. Mumma's minor children have never been properly heard on the matter. Moreover, Mrs. Mumma and Mrs. Morgan face substantial legal uncertainty as to the validity of the Disclaimer. Shortly after Judge Sheely permitted Mr. Mumma II to revoke his disclaimer, the Orphan's Court Division of the York County Court of Common Pleas faced a nearly identical issue and rendered a decision flatly inconsistent with Judge Sheely's ruling. Tn re Pedrick Estate, 13 Fiduc. Rep. 240 (O.C. York 1993) (a copy of which is attached hereto as Ex. "J"). In Pedrick, the widow of the deceased attempted to revoke her disclaimer because of an 6 alleged mistake as to the distribution to her husband's child from a former marriage. [d. at 242. In determining that the widow was not entitled to revoke her disclaimer, Judge Miller found that the applicable statutory provisions were insufficient to permit her to revoke her disclaimer of her interests in her late husband's will. Id. at 243. B. Mrs. Mumma and Mrs. Morgan May Not Account To A Party Who Has No Interest In The Estates Or The Trusts. Mrs. Mumma and Mrs. Morgan have fiduciary obligations to account to the proper parties, to protect the privacy of beneficiaries, and prevent excess fees. 20 Pa. C.S.A. S 3182(1); In re Georgiana's Estate, 312 Pa. Super. 339,458 A.2d 989 (1983), afj'd, 504 Pa. 510, 475 A.2d 744 (1984). The production ofan accounting to a party who is not a beneficiary will a breach of Mrs. Mumma's and Mrs. Morgan's fiduciary obligations to the real beneficiariesY 'JJ The issue confronting Mrs. Mumma and Mrs. Morgan is illustrated by questions as to who must be served with any accounting. As executrices and trustees of the trusts and estates under the Will, Mrs. Mumma and Mrs. Morgan must serve notice of the accounting upon persons who possess an interest in Mr. Mumma, Sr.'s estate or the trusts established under his Will. 20 Pa. C.S.A. ~ 7183(1) (requiring notice of accounting to be provided to parties in interest). While Mrs. Mumma and Mrs. Morgan know the current residence of some remaindermen, i.e. Linda M. Mumma, Barbara M. Mumma and Mrs. Morgan, they are uncertain as to the current residence of Robert III. Accordingly, Mrs. Mumma and Mrs. Morgan request the guidance from the Court also seeking an order that they are entitled to serve any materials as may be required and to which Robert III may be entitled upon him care of Mr. Mumma II at the latter's address. 7 III. CONCLUSION / For the foregoing reasons, Mrs. Mumma and Mrs. Morgan respectfully request that this Court appoint a guardian ad litem to represent Mr. Mumma II's minor children with respect to a determination of the validity of Mr. Mumma II's revocation of his disclaimer. Mrs. Mumma and Mrs. Morgan further request that the Court enter an order that they are entitled to serve any materials to which Robert III may be entitled upon him care of Mr. Mumma II at the latter's address at Box 58, Bowmansdale, Pennsylvania. J6sep \<\. O'Connor, J; . Marc 1. Sonnenfeld Brady L. Green MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (215) 963-5212, 5572, 5079 ~ Ivo V. Otto, III MARTS ON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Barbara McK. Mumma and Lisa M. Morgan 8 " . ,,-::_~~_~"'_"""h_ .'-~-,,-' -..-....-.- A28 , . RECOWE;' ftE'J!~' j ::. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAN189 .I,'N 12 'J1" ORPHANS' COURT DIVISION '" .' Estate of Robert M. Mumma, Decea&~ft~?c'P~Pd,:'.;'" . No. 21-86-398' . EFr.M.... DISCLAIMER BY ROBERT M. MUMMA, II WHEREAS, ROBERT M. MUMMA ("the Testator"); of the Borough of Wormleysburg, County of Cumberland and Commonwealth of Pennsylvania, died on April 12, 1986, leaving a last Will and Testament dated May 19, 1982 with a Codicil thereto dated October 12,1984 (hereinafter "the Will"); and WHEREAS, the Testator was survived by his wife, BARBARA McK. MUMMA, and all four of his children, ROBERT M. MUMMA, II, BARBARA M. McCLURE, LINDA M. ROSS and LISA MUMMA MORGAN; and WHEREAS, under Article SEVENTH of the will, the Testator bequeathed to his testamentary trustees an amount equal to fifty percent (50%) of his total gross estate to be held in trust exclusively for the benefit of his said wife during her lifetime; and WHEREAS, in the fifth paragraph of said Article SEVENTH, the Testator directed that upon the death of his 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. ROSS and LISA M. MUMMA, free of trust, share and share alike, per stirpes and not per capita"; and WHEREAS, under Article EIGHTH of the Will, the Testator gave his residuary estate to his testamentary trustees to be held in trust exclusively for the benefit of his said wife during her lifetime; and WHEREAS, under the second paragraph of Article EIGHTH, the testator directed that upon the death of his said wife, "the principal of this [residuary] 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. ROSS and LISA M. MUMMA, share and share alike, per stirpes and not per capita"; and WHEREAS, the undersigned, ROBERT M. MUMMA, II, wishes to make a qualified disclaimer, withJn the meaning of Section 2518 of the Internal Revenue Code, of his entire interest in both such trusts;.and I ,'.' j}}[k~ , .," .,;,,;........;.::;:,. .,... .......:. , ,I WHEREAS, ROBERT M. MUMMA, II has not accepted an interest in either of such trusts nor any benefits therefroml NOW, THEREFORE, ROBERT M. MUMMA, II, for himself, his successors and assigns, intending to be legally bound, does hereby, pursuant to Section 6201 of the Pennsylvania Probate, Estates and Fiduciary Code, absolutely, irrevocably and unqualifiedly renounce and disclaim all right, title and interest in and to the principal of the trust under Article SEVENTH of the Will and the principal of the trust under Article EIGHTH of the Will and refuses to accept any benefits whatever under said Articles of the Will. Dated: ~L C ( ( C(@ 7 d It~\f OB RT M. MU MA, II A30 29a DECREE DATED DECENBER 29, 1988 i COURT 01" CO!!HON PLEAS 01" CUMBERLAND COUh'TY, PENNSYLVANIA ORPHANS' COURT DIVISION .;II-ib - aqg No. of 10 ESTATE 01" ROBERT M. MUMMA, Deceased DECREE ., t:/ r fl AND NOW, this ~ / day ot ~ , 19&"~, Ro ~ /'^- upon consideration ot the annexed Petition, \="Nl~\ Es'h , is hereby appointed Guardian ad Litem tor the minor persons interested in the estate ot Robert M. Mumma, deceased, with authorization to represent said minor persons in all matters related to the sale ot Nine Ninety-Nine, Inc. and Hummelstown Quarries, Inc. and the actions tor Declaratory Judgment and Other Rsliet pertaining thereto, which actions are now pending before this Court, and in any turther or other proceedings in the Court ot Common Pleas of cumberland County or the Court of Common Pleas of Dauphin County, ,Pennsylvania relating to or arising out of such matters. r!a::; E .fl:y I. . J eCCK 118 pm 190. - 30a' LETTER DATED JANUARY 3, 1989 FROM ROBERT M. MUMMA II TO HON. HAROLD E. ROBERT M. MUMMA, II Sox 2255 H........l:Si.UI"I.c. P... 17105 . . A'} ., , ..- ,"...... ,- , SHEELY rt / January 3, 1989 HAND DELIVER Honorable Harold E. Sheely President Judge Judge's Chambers Cumberland County Court House Carlisle, Pennsylvania Dear Sir: I am in receipt of documents regarding the Estate of Robert M. 'Mumma.. Apparently this Court. has appointed an ad litem to represent the interests of my children. I have no knowledge of ever filing or instructing to be filed in Cumberland County Court a renunciation of my interest in the estate. If such a document was filed at the Court House, it was done against my wishes. Could you please inform us who filed such a document and send us a copy of the document. It has also come to my attention that I am to be in Cumberland County Court on January 20,1989. As you are aware, .this is Inauguration Day and I have long-standing plans to participate in the Inauguration of the President in Washington. These plans have been in effect for over one month and require my presence in Washington from January 17,1989 through January 22,1989. We have guaranteed room reservations, purchased tickets for all of the Inaugural events and have arranged to take my son to the Inauguration on that day. We would respectfully request that this Court reschedule the hearing for any day during the following week in order to allow me the privilege to participate in the Inaugural event and allow my son the privilege to participate in the swearing-in ceremony. Very truly yours, "7'J. -"7r' =;,- . r,,' ....;.~ j~d /11, /(!t-7.~:~/I!,.L- / t?L- ./ ~ - ., Robert M. Mumma II RMM/aa ~ ,-' (- - A32 31a PETITION TO REVOKE DISCLAIMER DATED AUGUST 29, 1989 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 TO REVOKE DISCLAIMER Proceedings held before the Honorable HAROLD E. SHEELY, P.J.. Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, August 28, 1989, commencing at 1:30 p.m. in Courtroom Number One. 1 ,I :~ !u I , i !1 '. '. I I, Ii i' " , .1 \ " n I i 'J APPEARANCES: William C. Costopoulos, Esquire For Robert M. Mumma II Joseph A. O'Connor, Esquire For the Estate of Robert M. Mumma Robert M. Frey, Esquire guardian ad litem . A33 32a 1 2 MR, COSTOPOULOS: Good afternoon, Your Honor. THE COURT: Let's see, the only party that's 3 here, I guess, is Mr. Mumma. Mr. Martson, Mr. O'Connor, and 4 Mr. Frey, they are here. Do you wish to submit any factual 5 testimony today? Anything YOU want to put on the rEcord, 6 Mr. CostoPoulos? 7 MR. COSTOPOULOS: If the Court deems it 8 necessary. Your Honor. 9 THE COURT: I don't really knOH. I knOH 10 nothing about this issue. I never had a similar issue 11 before. If you feel that some factual testimony is 12 necessary -- I think Hhat I'm going to do is list it for 13 special argument. and then counsel can brief it, and He can 14 decide it then, 15 MR. COSTOPOULOS:' I suggest He con do it in 16 phases. As the Court has indicoted, counsel for the Estate 17 are here, specifically Bill Martson as local counsel and 18 Joseph O'Connor from Morgan, LeHis, and Bockius, and they 19 are here on behalf of the estate, 20 Also, Mr. Bob Frey is here on behalf of the 21 children as a guardian ad litem. and I. Bill Costopoulos. is - 22 here on behalf of Boo Mumma. And the reason we're here, 23 Judge, is He aid file a petition to revoke 0 disclaimer. 24 THE COURT: I'm familiar Hith that. MR. COSTOPOULOS: And I know the Court is. 25 , . 2 A34 33a 1 And on behalf of Bob Mumma at this point in time, our 2 position, our legal position, is that if Bob Mumma, at this 3 point in time, wants to revoke the disclaimer and put back 4 into effect the depositlve intent of his father, he con do 5 that, and he doesn't have to present any testimony, He 6 doesn't have to present any reasons. He doesn.t have to 7 present any evidence os to why, at this point in time, he's 8 changed his mind, although he has reasons. 9 THE COURT: Why must you file a petition 10 then? Why didn't yOU just go down and file something saying 11 I withdraw my disclaimer, and then it's ended? , , i: 12 , , 'j 'I ~I f! 1 d I ! 13 14 15 16 17 18 MR. COSTOPOULOS: I think that would end it. THE COURT: Why file a petition to do it if yOU don't hove to do it? MR, COSTOPOULOS: Well, procedurally -- THE COllRT: Well, look, I'm not going -- MR, COSTOPOULOS: No, but I agree, and I think that maybe what we should do is give further rise to 19 this issue because that's what we want to do. He wants to 20 revoke his disclaimer. I I i' 21 22 23 24 25 ~ .1 , The Estate's position is -- we have it recorded -- they take no position as to whether he should be allowed to or not, but Mr, Frey as guardian ad Ii tern, for the record" has filed an objection, and we don't. think his objection should even be token into consideration at this point, ,.i" ./: ~..-~ 3 A35 34a 1 I mean, if there Has 0 distribution of the estate 2 and something would hove vested, then I coulo see where it 3 Hould be of concern to them; but at this point in time, Bob 4 Mumma Hants to revoke his disclaimer. and what I'm 5 representing to the Court is we don't hove to toke any 6 testimony, 7 We're aSking for a court order, but if you're 8 saying to the parties, Gentlemen, I don't think yOU need a 9 court order, just go do it 10 THE COURT: I'm not, saying that. Don't get 11 me HrOng, 12 MR, COSTOPOULOS: I know you're not, Judge, 13 but that's where we are, and maybe we should just leave it 14 at that .for the record and ask for a ruling from this Court 15 on the petition and the pleadings as they presentlY exist, 16 And the Court can say one of severo} t~ings, 17 procedurally we're out of order. or the Court can say. yes. 18 I think I con issue 0 lawful order in this matter at this 19 time,and my order is we don't have to take any testimony, 20 He con revoke his disclaimer, 21 Or the Judge con soy. Gentlemen, legally I think I 22 hove to have 0 reason for the revocation. and in that 23 instance we'll set aside G special date. time, and place for 24 the taking of testimony so we. os the Petitioners. can give 25 you the reasons for it. 4 A36 35a 1 THE COURT: I'd just like to have counsel 2 give me any law on this, This was entered pursuant to 0 ,3 section of what? The Internal Revenue Code permits 0 4 disclaimer to be filed, Isn't that where it come from~ 5 It didn't come from Pennsylvania Law, it come 6 under the Internal Revenue Code, I think; but do I 7 understand tne Estate, yo~ hove no objection to this? 8 There's nothing os for os -- 9 MR. O'CONNOR: No. Your Honor, the Estate's 10 position is that this is between Bob and Bob's children. I I . i I I I think the low is that once 0 disclaimer is flIed, it's 11 12 13 irrevocable. and that's both under Pennsylvania Low and the Internal Revenue Code. That's something, I guess, the Court 14 will wont to decide, 15 The Estate takes the position that os executors 16 they have no interest reallY in whether Bob revokes his , 17 disclaimer or not, The executrixes believe that the facts 18 alleged in Mr, Mumma's petition are mostly not true, 19 particularly the allegations or implications thot my 20 partner, our client, in some way defrauded or induced Bob 21 through fraud to make his disclaimer, 22 1 think it would be a~propriate if there is a 23 full-fledged hearing and expenses involved, that any ~ ~ J M I 24 25 expenses in connection with it be charged' against Bob's share of the estate or his children's share of the estate 5 ...n 36a 1 depending on the outcome, because the matter does not affect 2 the other Quarter of beneficial interest in the estote, the 3 three sisters. 4 I don't think that it Hould be appropriate for the 5 Estate to take a position except Insofar as to state that He 6 don't think that the facts in the petition are true, and we 7 don't think they state cause of action and relief should be 8 granted. 9 MR. COSTOPOULOS: Your Honor, for the record, 10 I want to make the fOlloHing knoHn to the Court os' to Hhat 11 Mr. Mumma's position is. Joseph O'Connor has addressed the 12 Court, and Hith respect to this disclaimer, is holding 13 himself out as the attorney for the Estate; and if the 14 Estate is gOing to be heard, our position is that the Estate 15 cannot be represented by Margan, Lewis, and Bockius on this 16 issue of the disclaimer, 17 Now, I know there was a ruling by you, Your Honor, 18 regarding a conflict of interest as to other aspects of this 19 Estate, but on this disclaimer, on this isolated issue. the 20 disclaimef, Hhf~h we raised with our petition to revoke. it 21 was Art Klein of that firm that was representing Bob Mumma 22 in his individual copacity advising him on Hhat was in t~e 23 best interest of his children os Art Klein believed it to be 24 at the time, and it's inappropriate now for that law fIrm to 25 come int6 this courtroom and say with respect to this 'OJ .. 6 ,-- ~' tl,' I: I' , , " I' i, I , , , , " " ~ I j :i J I , J J , , . I 1 , A38 37a 1 2 disclaimer, we represent the Estate. And. so --, but we might not have to get into that .3 aspect of it if this Court concludes that it doesn't have to 4 hear from anybody; that if he wants to reVOKe his 5 discliamer, he can, and nobody has to be heard from for any 6 reason. 7 8 THE COURT: I'm here today to offer the chair to anYbody that wonts to testify. Nobody wants to testify? 9 Then I'm going to decide it solely on briefs to be 10 submitted. That's the way it is. so you don't have to 11 testify. I don't core. 12 MR. COSTOPOULOS: I'm trying to save the 13 Court some time. I'm saying we don't have to testify, and 14 you can decide, without having to hear from anybodY, in our 15 favor; but if the Court feels that the law is -- if the 16 Court determines that well, I have to have reasons in order 17 to grant this petition. then we're prepared to testify. 18 THE COURT: In any event -- 19 MR, FREY: I want to testify, Your Honor, It 20 seems to me my clients ore the ones that are seriouSly 21 interested, and just to cavalierly imagine that YOU can 22 ,revoke a disclaimer because somebody has a change Of mind. 23 has very serious impacts on these minor children. 24 THE COURT: WelL what I'm going to do, I'm 25 gOing to give counsel an opportunity to brief the issue if , _: ir ~.. . \",. 7 ,. ~~~ 38a 1 it can be revoked without any reason, then obviously the 2 fact that it might hurt the children isn:t going to matter, 3 If you're talking about it hurting somebody, then we'll look 4 at it in 0 different light. 5 I think what I'm going to do is. Why don't YOU 6 guyS come bock to chambers. We'll get a briefing schedule 7 set UP, and then based on that if it comes out that there 8 has to be factual testimony to support something, then we'll 9 set it up; but os of this time, I don't know. 10 (Whereupon, the above proceeding concluded.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MO . . 39a CFRTTFTCATTON I hereby certifY that the proceedings are contained fullY and accuratelY in the notes token by me on the above cause ond that this is a correct transcript of the some. ~~/aJYl rn~~~f'Cl\e~. Official Court Reporter -------------------------------- ~he for~going record of the proceedings on the hearing of the within matter is herebY approved and directed to be filed. Jj-(. \ft.L.,(- /9 11J:; - J . ,.;~~.JL :jl>~ H'oi'"old E. SheelY, P. r ,...~~\' f'Z-.. . ..) (/)"-I!rr I IN THE ESTATE OF ROBERT M. MU~~, 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. ORDER OF COURT AND NOW, this /7 Irf- day of frn, V1~-, 1989, the motion to revoke disclaimer is GRANTED. By the Cour t, /1 )t iI' .-- / rf-.-. J /-" . .':t ,__ ,,' r' v (.\.. ~ 1-. , Harold E~ SheelY', P.J. / William C. Costopoulos, Esquire For the Petitioner , /,Robert M. Frey, Esquire ~ Guardian ad litem :pbf A TRUE COPY FRO~,1 RECORD In Tes~imt)n:' ;;:;lc;"'~oft I h.?iQ~l1tC':::..")t rn~' hc:nd 1-' _.1.. -......... _~ I....'.I:~I.. ......\ Gt':c t~.~ 0:31 (;1 ::._.~ ........:~~:. ...~.. ...,~t ._._, - I . d. _C:;,:'':~ Y1tJV. f~ CIeri< 01 the Or hans Court Cumberland County Th}~ H' j A44 ., IN THE ESTATE OF ROBERT M. MU~~, 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 DISC~IMER 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 fout 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 Executrices/ 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 .t\q.:: 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 requ.irements 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 -2- A46 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 ptirposes 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, I I j j I i , ! ; 1 1 j. 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: ~n 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 p~ovided shall lapse -,/0 -"'- ,) , ,I J I A4i ,- 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 Hagg'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 ! dfstribution, rather than at the time the Testator executed his , will. This case is distinguishable in two significant ways. In I . Hoqg's EstateJ 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 -4- A48 NO. 21-86-398 children predeceasing him. This was not the case in ~~ Estate, where the grandchildren were given direct bequests of the I;., residuary estate in their own capacity, not in lieu of parents , , Ii ! i , 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, . i 4 j .1' I I 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 , 1 I j 1 l j' 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 I j I I I' I \. 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 Petitjoner not having issue born prior to Testafor'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. -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, th is day of '--Y1 / !"".'C'l'l..{.:."--,-/. 1989, the " / .1.t:.c motion to revoke disclaimer is GRANTED. By the Court. /s/ F.arold E. Sheely P.J. William C. Costopoulos. Esquire For the Petitioner Robert M. Frey, Esquire Guardian ad litem :pbf -6- I i Ij I; I I. , , I i j , " ASO J. A28013/90 IN THE ESTATE OF ROBERT M. MUMMA, DECEASED IN. THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: ROBERT M. FREY, GUARDIAN AD LITEM, BARBARA MCK MUMMA and LISA M. MORGAN, INDIVIDUALLY AND AS EXECUTRIXES OF ESTATE OF ROBERT M. MUMMA, DECEASED, BARBARA M. McCLURE, LINDA M. ROTH, ROBERT M. MUMMA, II NO. 39 Harrisburg, 1990 Appeal from Order Pleas, Orphans' cumberland County, of the Court of Common Court Division, of No. 21-86-398. BEFORE: WIEAND, DEL SOLE. and MONTEMURO, JJ. MEMORANDUM: FILED: JANAURY 7, 1991 Robert M. Mumma died testate on April 12, 1986. By his last will and testament, Mumma created several trusts, naming as remaindermen his four children. On January 6, 1987; one of the children, Robert M. Mumma, II, disclaimed his remainder interest. On June 20, 1989, however, in an apparent change of mind, he filed a petition to revoke the prior disclaimer and obtained from the Orphans' Court of cumberland County a rule to show cause. The petition was opposed by the Executrices/Trustees; by Linda Roth,. a child of the testator;.. and by Robert M. Frey, Esquire, guardian ad litem for minor children of the petitioner. A hearing was held on t~e petition, and, on November 17, 1989, the Orphans' Court entered an order allowing the petitioner to revoke his disclaimer. The guardian ad litem filed exceptions and, on December 12, 19'/1"9, an appeal to this Court. BecauseI' of the \. - 1 - iJ .11 "k (- ,.28013/90 appeal, the exceptions have not been decided by the Orphans' court.l The Superior court wrote in In re Adoption of Hamilton, 362 Pa.Super. 249, 523 A.2d 1176 (1987), as tollows: Under the rules of equity procedure governing orphans' court matters, (appellant) must have the opportunity to raise his issues before the court in motions for post-trial relief. Pennsylvania Orphans' Court Rule 3.1 provides that pleading and practice in orphans' court shall conform ~o pleading and practice in equity, unless otherwise prescribed by statute, supreme court rule, or local orphans' court special order or rule. (Where) there are no local orphans' court rules . . governing the filing of exceptions or decrees nisi, the court and parties should . o. . follow{] the procedure in equity cases. Pennsylvania Rule of civil Procedure 1517 provides that in equity actions, the court shall proceed by entering an adjudication including a decree nisi. Post-trial practice then proceeds in accordance with Pa.R.C.P. 227.1 which requires the filing of a motion for post- trial relief from an adjudication or decree nisi. ~. at 251, 523 A.2d at 1177. At all times pertinent to the instant case, Rule 77 of the CUmberland county Orphans' Court Rules provided as follows: IThe court wrote: "(P]ending resolution of the appeal filed with the Superior court, we are without jurisdiction to rule on the guardian ad litem'S exceptions pursuant to Pa.R.A.P. 1701(a). Should the Superior Court remand for a ruling on said exceptions, we will obviously do so at that time." - 2 - _---0 , . d l' k ~ t ---------ASl J. A28013/90 "Exceptions shall be filed at such place and time, shall be in such form, copies thereof served and disposition made thereof as local rules shall prescribe. ,,2 Similar rules have been interpreted as requiring-motions for post-trial relief. Thus, the Court in In re Adoption of Hamilton, supra, said: "In the absence of statutory law specifying a different procedure, or of any special order or general rule in [Cumberland) County regarding the filing of exceptions or decrees nisi in orphans' court matters, Orphans' Courc Rule 3.1 dictates that the court and parties should have followed equity procedure, which in turn required a decree nisi and motions for post-trial relief before the entry of a final appealable decree." Id. See also: In re at 253-254, 523 A.2d at 1178. Involu~tarv Termination of Parental Riahts to B.M.D. and R.L.D., 487 Pa. 387, 389 n.l, 409 A.2d 404, 405-406 n.l (1979). The arguments advanced by appellant on appeal are (1) that the Orphans' Court decision is in conflict with the 2The rule in cumberland County was amended May 15, 1990, effective July 1, 1990, to provide as follows: EXCEPTIONS -GENERALLY RULE 7.1-1 No Exceptions shall be filed to decrees, adjudications, confirmations or other decisions or orders of court entered in proceedings unless the right to except thereto is _ expressly conferred by Act of ,Assembly. by general rule, or by special order; and all decrees, adjudications, confirmations or other decisions or orders of court, other than those to which Exceptions are so allowed to be taken, shall be final and definitive. - 3 - :J. A28013/90 la~ of inter vivos gifts and the law of third party beneficiary contracts: (2) that the decision nullifies the intent of .Section 6201 et seq. of the probate, Estates and Fiduciaries Code: and (3) that the decision constitutes an attempt to follow an improperly construed provision of the will. These issues do not appear to have been considered specifically by the Orphans' Court. Moreover, the decision of the Orphans' Court contains no findings of fact. Under these circumstances, we are of the opinion that a remand is ~ssential to permit the trial court to'consider the issues raised by appellant. "The opportunity to resolve disputes under pa.R.C~P. 227 and 227.1 is an essential aspect of the appellate process designed to effect the resolution of controversies, if possible, before they reach this court, and to. clarify the issues on appeal." In re Estate of Wood, 355 Pa.Super. 422, 425, 513 A.2d 993,994 (1986). Remanded for determination of exceptions pending in the trial court. Jurisdiction is not retained meanwhile. DATED: JANUARY 7. 1991 JUDGMENT ENTERED , .L . ... . ~:.o. ~- C. ~~- DEPUTY PROTHONOTARY - J - 4 - " A53 IN THE ESTATE OF ROBERT M. MUMMA, Deceased> IN THE COU>RT 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 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, t0ge~her 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, Batbara 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. AS4 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. g. 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, petitloner 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. DISCOSSION il " 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. , I I J I They are: I)-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 A~5 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, 56201, and fulfilled the requirements of that statute. Raving 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. 1984l. "There is little legal authority on point." ~. 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 I - , 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." Section (al and the relevant portion of Section (b) provides as follows: S6205. Effect of disclaimer (a) In general.--A disclaimer relates back for all purposes to the d~te of the death of -, A56 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: i I I .\ ., " H. Upon the death of my said wife, the principal of this Trust, as it is then constituted, ~hall 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: , , I Ii 'I In the event any of my said children shall predecease me leav ing issue (includ ing adopted children) surviving, then and in that event their share above provided shall pass to ~uch 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. i A57 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 ~o treat all his grandchildren equally in terms of their share of the estate. The guardian ad litem cites the case of Boqq'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 f distribution, rather than at the time the testator executed his I. will. Thistase 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 chi+dren predeceasing him. This was not the case in Hoqq's A58 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 (J985) 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. A59 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. CONCLDSIONS 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 pECREE NISI , vr 7.-1 -'day of f..-"--~~ ,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, Isl Harold E. Sheely P.J. William C. Costopoulos, Esquire For the Petitioner Robert M. Frey, Esquire Guardian ad litem :pbf -7- A52 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. l !l DECREE NISI AND NOW, this 2-!~day of !/VY' {Lc cV----- , 19 91 , the COUIt di=ects 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, f ,,~~A ~ Harold E. Sheely, .R~,// P.J. v William C. Costopoulos, Esquire For, the Petitioner ~ert M. Frey, Esquire Guardian ad litem ,J, :pbf I ! I. I 1 A TAUE COpy FROM RECORD In Testimony whereof,l har6unto Soll my tlbI1d arK] tho stlalof said COUlt a~ CRrii.,:"la. PA. This C1 J.ot day Of~_ 1,81- ~"L &~L~ \ ~~L Clerk of the Orphans court r--i Cumbe<1and county .~.. .;i! , -','; A60 IN THE ESTATE OF ROBERT M. MUMMA, DECEASED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLV ANIA ORPHANS' COURT DMSrON 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, PIesident 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, II ("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 finding 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 maner 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 fulft.!!ii1g 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 inient 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 ,I \. ~v. of the Testator as the interpretation fails to follow the cannons of statutory consCllction codified in the first volume of the Pennsylvania Consolidated Starutes 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 hts 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 enfon:eable 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 a=ue to the benefl.t 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 t..'le 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 mat the revocation of a disclaimer by a disclaimant is an act with substantial consequences for the issue of a disclaimant as iliey 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 mat 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 pan of Testator's estate. Respectfully submitted, ~.JJr A TRUE COPY FROM RECORD In Testimony whereof, I hereunto set my hand and the seal of said Court at Carlisle, PA. ThIs d::>y.oK1hJ)~;'. , .'rn Cl6r1<. of the Orphans Cou Cumberiand County 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 . J A70 IN THE ESTATE OF ROBERT 11. I1Uf.U'!A, DECEASED IN THE COURT OF COMMON PLEAS OF CUI1BERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 IN RE: EXCEPTIONS OF GUARDIAN AD LITEM TO ENTER OF ORPHANS' COURT BEFORE SHEELY, P.J. ORDER OF COURT AND NOW, July 21, 1993, having previously considered the exceptions raised by the guardian ad litem in our previous opinions, we hereby DENY the exceptions of the guardian ad litem dated April 2, 1991. The delay in issuing this order on the exceptions is the fault of this office in that we had forgotten further action was required on this issue. By the. Court, ~bCl Harold E. Shee~p~ Charles E. Shields, III, Esquire For Robert M. Mumma, II ...... ---- Marc J. Sonnenfeld, Esquire Brady L. Green, Esquire For Barbara McK Mumma and Lisa M. Morgan Ivo V. Otto, III, Esquire For Barbara McK Mumma and Lisa M. Morgan Richard W. Stevenson, Esquire For Barbara M. McClure . A TRUE COpy FROM RECORD In Tes!ii~o~"/'..;:"I~:'~!of.J heroJ~:to set my hand sr.:! th'J :;~l:1i 01 "",,< CO:Jrlat.Carlisle, PAc This OJ . dayol ., 19'(..3 John H. Young, Esquire For Linda M. Roth Gerald K. Morrison, Esquire For Robert M. Mumma, II ~~ert M. Frey, Esquire:, G1,1ardian ad litem ,....,.,.!..; . J. A16038/94 IN THE, ESTATE OF: ROBERT M. MUMMA, DECEASED BARBARA MCK. MUMMA AND LISA M. MORGAN, INDIVIDUALLY AND AS EXECUTRICES OF THE ESTATE OF ROBERT M. MUMMA, DECEASED; BARBARA MCCLURE, LINDA M. ROTH, ROBERT M. MUMMA, II APPEAL OF: ROBERT M. FREY, GUARDIAN AD LITEM IN THE SUPERIOR COURT OF PENNSYLVANIA NO. 561 HARRISBURG 1993 : ." Appeal from the Order Entered July 21, 1993, in the Court of Common Pleas, Orphans Divi- sion, of Cumberland County, No. 21-86-398; BEFORE: ROWLEY, P.J., and KELLY and POPOVICH, JJ. MEMORANDUM: F I LEO JUL 1 8 199, Robert M. Frey appeals as guardian ad litem for. the' minor children of Robert M. Mumma, II ("Robert"). This conflict arose when Robert disclaimed his interest as one of four remaindermen under two trusts created by his father's Last Will and Testament. When Robert disclaimed his interest, his minor children became remaindermen in his place. As a disclaimant, Robert was deemed to have predeceased his father, the testator. Subsequently, ~the trial court appointed Robert Frey as guardian ad litem "with authorization' to represent said minor persons ~n all matters relating to the sale of [businesses of the decedent] and the actions ... pertaining thereto, ... and in any further or other proceedings relating to or arising out of such matters." Decree of Trial Court 12/29/88. , For a number of reasons, Robert later petitioned to revoke his disclaimer, and the court granted this petition. Thereby, Robert was restored as a remainderman under the trusts. Robert M. AH03S/94 - 2 now appeals on. behalf of the minor children and complains Robert Mumma's disclaimer should not have been revoked. We carefully considered the positions of the parties, and we dismiss this appeal due to Robert Frey's lack of standing. Robert Mumma asserts that he initially sought to disclaim his in part, to benefit his minor children. Following the Robert was displaced as the natural guardian of his interests, and now opposes his children in this action by. the guardian ad litem, Robert M. Frey. We conclude, that the attempt to represent the minor children with ,espect to the revocation of Robert Mumma's disclaimer is. beyond scope of Mr. Frey's limited appointment. 1 Mr. Frey was appointed in anticipation of a dispute over the of the decedent I s businesses from the estate. See Petition or Appointment of Guardian Ad Litem. It was expected that Robert would oppose the sale, contrary to. the desires of the Barbara McK. Mumma, wife, and Lisa Morgan, daugh~er. . when the minors became remaindermen after Robert' s it was essential that they have a representative in event Robert opposed the sale. Mr. . Frey's role was to ensure the children'S interests were best-served either the sale or the failure to sell the businesses. Whether children actually had an interest in the sale was not a which Mr. Frey had authority, or standing, to address. h7 We acknowledge that it was conscientious of Mr. Frey to pursue t J.S action, for there was a remote possibility we would have ~O~d the disclaimer issue related to the issue of the sale of the USJ.nesses. Al603S/94 - 3 his appointment as guardian ad litem assumed the existence such an interest. Because we conclude that Mr. Frey lacks standing to appeal decision to revoke Robert Mumma's disclaimer, we dismiss the Even though the trial court considered Mr. Frey's pposition to the revocation, he was not the proper party to 'epresent the minor children in opposing their father. Appeal dismissed. ,. . .. . . . 240 Pedrick Estate ,~ ')11' 'Jf.': ";'(' 2. There is satisfactory evidence that Gertrude Viden made a . gift. of a coral necklace, a lapus lazuli, a pin with blue pearls, a car- nelian, a small bar pin, a garnet bracelet, a star sapphire pin, and a crystal necklace to Adelaide Healy, and there is no reason to order her to return them. 3. There is no evidence that Adelaide Healy has any other jew- elry in her possession that belonged to Gertrude Viden, nor any iden- tifiable papers. 4. There is no evidence that in bringing this petition, the bank acted in an arbitrary or vexatious manner. EDITORS' NOTE: See Black Est, 7 FlDuc. REP. 2d 287; Go1d8tein Est, 7 FlDuc. REP. 2d 289 and editors' notes thereto. Pedrick Estate Disclaimer - Revocability - Executri.z' cammi3sion Widow not permitted to revoke her disclaimer because oC alleged mistake as to distnoution including her husband's child by a Conner marriage; widow did not waive her right to executrix' commission by Calling to claim same on the Pa. inheritance tax return or prior to transCer oC estate assets to the testamentary trust. (Hunter - Commissions 9(a); Renunciation 2(a)). In the Orphans' Court Division of the Court of Common Pleas of York County. Estate of Richard G. Pedrick, deceased. Objections to first and final account. No. 67-91-653. Jrm C. Countess, John D. Flinchbaugh, and Ccruntess Gilbert Andrews, Cor Mollie P. Pedrick. Maria Must; Cook. for Margot A. Currie. OPINION BY MILLER, J., JUNE 4, 1993: This matter is before the Court on the objections filed by Margot A. Currie to the first and final account of Mollie P. Pedrick, executrix of the estate of Richard G. Pedrick, deceased, late of Spring Garden Township, York County, Pennsylvania. The factual background is relatively straightforward. Richard G. Pedrick (hereinafter "decedent") died on May 8, 1991, testate and survived by his wife, Mollie P. Pedrick, and three children: Margot A. Currie, who is decedent's daughter by a former marriage that ended in divorce; Richard G. Pedrick, Jr., and Katharine P. Noel, both of whom are decedent's children of his marriage to Mollie Pedrick. "',. . , . ' " , .ade a a car- and a order r jew- iden- " bank ~EP. 2d {e as to t waive nee tax 1.ter - eas of ms to ws, for ?d by :Irick, Ite of :hard eand ~otA. 'nded lth of Pedrick Estate 241 .. ., " In Item IV of his last will and testament, dated June 29, 1990, and admitted to probate in the office of the Register of Wills of York County on May 13, 1991, the decedent provided for the creation of a "Credit Equivalent Trust" and designated that his son, Richard Pedrick, Jr., and his daughter, Katharine Noel, would serve as co- trustees. The purpose of the trust was to provide a source of income for Mollie Pedrick for her lifetime, and upon her death the balance of the trust funds would pass to his children. Specifically, Items IV A-D of the testamentary trust provided that Mollie Pedrick would receive the income of the trust and would have the power to withdraw from the principal in anyone given year an amount not in excess of the greater of $5,000 or five percent (5%) of the market value of the prin- cipal. Upon Mollie Pedrick's death, the decedent provided that the principal and undistributed income remaining in the trust would ''be divided into as many equal shares as there shall be children of mine then living. . ." On August 13, 1991, Mollie Pedrick executed an unconditional partial disclaimer specifically disclaiming her interest in the income of the trust as well as her $5,000/5% right to withdraw from the prin- cipal of the trust. Paragraph 4 of the disclaimer specifically provides as follows: I hereby irrevocably disclaim all powers and beneficial rights and interests enjoyed by me, with respect to the income of said "Credit Equivalent Trust. .. On November 5, 1991, Mollie Pedrick, Katharine Noel, and Richard G. Pedrick, Jr., entered into a family settlement and indem- nification agreement which provided for the disposition of the estate assets to Katharine Noel and Richard G. Pedrick, Jr. The agreement provided further that the parties named above were "all of the par- ties interested. . . in the estate of Richard G. Pedrick." Decedent's daughter, Margot Currie, was not mentioned in the agreement nor was she ever contacted by the other beneficiaries regarding the agreement. On or about September 30, 1992, Mollie Pedrick, as executrix of the decedent's estate, filed a first and final account of the estate with this Court. On the same date, Mollie Pedrick filed a petition for adju- dication in which she requested the Court's permission to revoke her unconditional, irrevocable partial disclaimer and in which she claimed her executor's fees in the amount of $18,386.89. On or about November 4, 1992, Margot Currie filed objections to the first and final account of Mollie Pedrick in which Margot Currie .l! 1 1l ; :11 1 ill I " Ii I I' . 1 i ' ~ i 242 Pedrick Estate requested that the Court: deny Mollie Pedrick's request to revoke" her disclaimer; disallow the executor's commission of $18,386.89; appoint Margot Currie as co-trustee with the decedent's other chil- dren, or, in the alternative, appoint an independent successor trustee; and require an annual accounting of the trust. An evidentiary hearing was held on January 26,1993, and this opinion follows: Issues Presented The following issues are before the Court: 1. Whether Mollie Pedrick should be permitted to revoke her unconditional partial disclaimer of her interest and rights in the decedent's estate, where she declared in the disclaimer that the dis- claimer was irrevocable; 2. Whether Mollie Pedrick should be permitted to claim her executor's fees of $18,386.89; and 3. Whether Margot Currie should be appointed co-trustee of her father's testamentary trust; and 4. Whether the co-trustees should file an annual account of the trust assets. Discussion We consider first whether Mollie Pedrick should be permitted to revoke her unconditional partial disclaimer. Chapter 62 of the Probate, Estates and Fiduciaries Code, 20 Pa. C.S.A. ~H01 et seq., deals with disclaimers. Section 6201 provides that in order for a disclaimer to be valid, it must (1) describe the interest disclaimed; (2) declare the disclaimer and extent thereof; and (3) be signed by the disclaimant. We are satisfied from our review of the disclaimer in the instant case that Mollie Pedrick com- plied with all of the above requirements, and, accordingly, we find the disclaimer to be valid. The parties do not dispute, however, the validity of the disclaimer. What they do dispute is whether Mollie Pedrick may now revoke her disclaimer; With regard to the effect of a disclaimer, Section 6205(a) pro- vides that a disclaimer "relates back for all purposes to the date of the death of the decedent." As to the effect of the disclaimer on the rights of other parties, the disclaimer is "equivalent to the dis- claimant's having died before the decedent in the case of a devolution by will or intestacy:" Section 6206(b). ~ ~ ,"" "' ',~ " '<'; ,* , '> . ."rl! "voke 86.89; r chil- essor ld this ke her in the he dis- im her ! of her ; of the itted to ,20Pa. rovides ibe the :hereof; om our ck com- we find ver, the ~ Mollie (a) pro- date of r on the the dis- volution Pedrick Estate v ~i-'i. l~ 1Y ~I";;' ~. ,: .J ,. .; j ,. '!;: ,,~~: :I>t '.',', " -~. , f. :. ;~ t 'I: "'1f, ';;, ~ l!; -~~ 'j -'\1: ;If t: Applying the above statutory provisions to the instant case, Mollie Pedrick's disclaimer effectively meant that she would be con- sidered as having predeceased the decedent, a situation contem- plated by the decedent in Item IVD of his will, which provides, in pertinent part, that [u]pon the death of my wife, Mollie p, Pedrick, ur in tJuJ event that ahe alwuld predecea.e me, the principal and any undistributed income of the Credit Equivalent Trust . . . shall be divided into as many equal shares as there shall be children of mine then living.. . [emphaais added] Thus, the disclaimer had the effect of accelerating the bequests to the decedent's children and terminating the trust. It follows then that revocation of the disclaimer would effectively reinstate the trust until Mollie's death, unless, of course, Mollie were to execute another disclaimer at a later date. We find no provision in Chapter 62 that specifically authorizes revocation of a disclaimer. We note, however, the language of Section 6205(a) which states that the disclaimer "shall be &inding upon the disclaimant and all persons claiming through or under him" [empha- sis added], and we are satisfied that such language is sufficient to hold Mollie Pedrick to her disclaimer. Such a result is clearly what she must have contemplated when she executed the document which provided in Paragraph 4 as follows: 4. I hereby irrevocably disclaim all powers and beneficial rights and inter- ests enjoyed by me, with respect to the income of said "Credit Equivalent Trust." [emphasis added] And in Paragraph 5, she went on to disclaim all rights and inter- ests with regard to the principal of the trust. While the word "irre_ vocably" does not appear in Paragraph 5, we have no doubt that at the time she signed the disclaimer Mollie Pedrick intended to be bound by her agreement Mollie Pedrick argues that she should be allowed to revoke her disclaimer because it was the intention of the decedent to provide a source of support for her. As in all will cases, we recognize that it is the responsibility of the court not to protect the interest of the fam- ily but to give effect to the intent of the testator: Estate of Stewart, 325 Pa. Super. 545, 473 A.2d 571. While we agree with Mollie Pedrick that the decedent's intention was to provide for her as his surviving spouse, we also recognize that the decedent wanted the balance of the trust funds distributed to his children in the event his wife pre- deceased him. As noted above, the effect of Mollie Pedrick's dis- 243 !: i t , t j II I., _I' I I : 1 , f . t !I ~ ,i ~ " . 244 Pedrick Estate claimer is that she is considered as having predeceased her husband. The "event" occurred upon execution of the disclaimer, and we are satisfied that the decedent's intent has been protected. We agree with counsel for both parties that there is little guid- ance from our appellate courts on the subject of revocation of dis- claimers. The lower court cases cited by Mollie Pedrick are inappo- site. In Zepp Estate, 4 FIDUC. REP. 2d 281, the trial court permitted revocation of a disclaimer by a church where the disclaimer was based solely on the church's desire to avoid involvement in a family dispute. When the executors then offered the bequest to a different church which had not been mentioned in the will, the disclaiming church sought to revoke its disclaimer on the grounds that to disal- low revocation would frustrate the testator's intentions. The situa- tion is clearly different in the instant case where the disclaimer merely accelerates the date of distribution to the intended beneficia- ries. Nor do we find Days Estate, 22 FIDUC. REP. 662, persuasive because that case involved fraud upon the disclaimant. There is noth- ing in the instant case to support a finding that Mollie Pedrick was fraudulently induced into signing the disclaimer. Mollie Pedrick further argues that revocation should be permit- ted because she was mistaken as to fact and law regarding the con- sequences of her disclaimer. Specifically, she contends that had she known that anyone other than her two children from the decedent would benefit by her disclaimer, she would not have disclaimed her interest. The language of decedent's will, however, is clear. In Item III, the decedent devised his entire estate, in the event Mollie Pedrick had predeceased him, as follows: "in equal shares to my sur- viving children, to be divided among them in kind as they may agree." In Item IVD, the decedent provided for the contingency that Mollie might survive him. In that event, the decedent devised his entire estate, in trust, to his son, Richard G. Pedrick, Jr., and his daughter, Katharine P. Noel, for the benefit of Mollie during her life- time, and upon Mollie's death the balance of the trust corpus would devolve as follows: "[to] be divided into as many equal shares as there shall be children of mine then living..." We find no ambiguity in the language of decedent's will. When selecting those he intended to serve as trustees, he nominated two of his children by name, and when selecting those he intended to be his residuary beneficiaries, he named them by class, "my children." Courts have generally held that the designation of beneficiaries by a Id. re 'fi " J d- ..'" , ' IS- ~\. .- lo- .~ ~, ed "l'i '~:~';' as ;k .,."r ily ,ft' ?Fi' nt .lj, ng , , al- , la- '" "t.' er la- j ve J ;h- 'as . '.l . it- " In- , he 'J' '\'= nt er ,~'i I ,m I " lie . tr- ay ,~ i at ~ lis ..~ " <... us I 'e- lid as ~n of us I, " a Pedrick Estate 245 class description only, such as "grandchildren" or "children," strongly reveals the testator's group-mindedness. Conversely, des- ignation by names alone indicates an intention to make a gift to indi- viduals: Estate of Clark, 460 Pa, 41, 331 A2d 408. "Children" means the natural cllildren ofthe testator: Kurtz Estate, 145 Pa. 637, 23 At!. 322. Only if the testator's intent does not appear with reasonable cer- tainty will a court resort to canons of construction. Since we find no ambiguity, we look no further than the language itself. While we recognize that Mollie Pedrick may have misinter- preted the decedent's will as providing that only her two children would benefit therefrom, we are not persuaded that such a misun- derstanding supports the revocation of a valid, binding disclaimer. Mistake may be relevant in the law of contract, but there is nothing to suggest that a disclaimer is a contract. " Similarly, the argument that the disclaimer was not supported by consideration is without merit, Again, consideration is required to sup- port a contractual promise, not a disclaimer of a testamentary devise. Even if we were to conclude the contrary, we are satisfied that suffi- cient "consideration" would be shown in the benefit to the two children of the disclaimant, they being the natural objects of her bounty. Accordingly, for the reasons set forth above, we are satisfied that the unconditional partial disclaimer executed by Mollie Pedrick is valid and that it is irrevocable. To conclude otherwise would con- tr:wene the language of Section 6205(a) of the PEF Code that a "dis- claimer shall be binding upon the disclaimant and all persons claim- ing through or under him." We therefore grant Margot Currie's prayer to refuse Mollie Pedrick's request to revoke her disclaimer. The next issue for our determination is whether Mollie Pedrick isentitJed to compensation for her performance as executrix and whether she waived compensation by failing to claim compensation on the Pennsylvania inheritance tax return or prior to the transfer of estate assets into the testamentary trust. We note first that paragraph XI of the decedent's will ex- pressly provides for reasonable compensation for the personal repre- sentative and that such compensation is further authorized by the PEF Code. Section 7185(a) specifically provides that "[t]he court shall allow such compensation to the [fiduciary] as shall in the cir- cumstances be reasonable and just." Section 7185(c) provides that: [w]here compensation of a fiduciary is expressly prescribed either by provision of . will or deed of trust or other instrument under which he is acting or by 246 Pedrnk Estate ." provisions or an agTeement between him and the creator or a trust, nothing in this section shall change in any way the rights or any party in interest or or the fiduciary. The general role is that fiduciaries in this Commonwealth are entitled to fair and just compensation for their services: Estate of Salus, _ Pa. Super. _, -> 617 A.2d 737, 740, citing Ischy Trust, 490 Pa. 71, 415 A.2d 37. While the compensation claimed must be based on services actually perlormed and not on some arbitrary for- mula and while the court may allow only those fees as are reasonable in view of the nature and extent of the fiduciary's service, the deter- mination of what compensation is fair and reasonable in a given case is left to the sound discretion of the trial court: I d. The fiduciary bears the burden of sho\\ing the reasonableness of the claim, but once reasonableness has been established, the burden shifts to the contestant to demonstrate why the commission claimed should not be allowed: Ischy Trust, 490 Pa. at 82, 415 A.2d at 42-43. Of course, a fiduciary may waive his or her right to compensation, either by express disavowal or by conduct or omission: Id. Preliminarily, we are satisfied that Mollie Pedrick has not waived her right to compensation for her services as executrix of the decedent's estate. Margot Currie argues that such a waiver may be found since Mollie Pedrick neither claimed her commission on the inheritance tax return nor claimed it prior to the transfer of the estate assets into the testamentary trust. We disagree. In Ischy, our Supreme Court found that the mere failure to express an intention to collect compensation in the future was not sufficient to support a finding of waiver. In that case, the trustee had filed several informal accounts with the court without claiming its commission in those accounts and, after negotiations, entered into a settlement agree- ment, again without claiming its commission. Despite such circum- stances, the court found no waiver. In Salus, Superior Court likewise found no waiver either in the trustee's failure to seek payment of commissions at any time during his actual administration of the trusts or in the failure to include provisions regarding the payment of commissions in the family settlement agreement executed by the trustee and the other beneficiaries. In the instant case, although Mollie Pedrick did not submit a claim for her compensation to the estate until she filed her first and final account on September 30, 1992, her explanation was that at the time there was no cash available to pay the commission and that the , ' nothing in It or of the ,alth are iJstate of ~y Trust, must be rary for- asonable 1e deter- ven case leness of 2 burden I claimed at 42-43. :msation, has not -ix of the , may be n on the ~r of the ;chy, our ention to upport a informal in those It agree- , circum- likewise rment of 1 of the yment of j by the mbmit a first and at at the that the . estate would have had to sell stocks to pay it. We are satisfied that on the facts before us Mollie Pedrick did not waive her prima facie right to compensation. That decided, the next inquiry is whether the amount claimed, $18,386.89, is reasonable and just. As noted above, the determination of the reasonableness of com- pensation is discretionary with the Court. Mollie Pedrick testified as to her duties as executrix. She met frequently with counsel for the estate and with investors, assisted counsel in preparing the inven- tory of estate assets, and performed all administrative tasks requested of her by counsel. The amount she now claims represents approximately five per cent ofthe value ofthe estate. Our experience has shown us that courts across this Common- wealth have employed, from time to time, various fee schedules similar to the one presented in Johnson Estate, 4 FIDuc. REP. 2d 6.' The schedule in Johnson presents an example of compensation cal- culated on a graduated percentage, which is expressly authorized by the PEF Code in Section 7185(a). We are satisfied that the following schedule will produce a fair and reasonable compensation for Mollie Pedrick: 5% of the first $100,000, or $5,000; 4% of the second $100,000, or $4,000; and 3% on the balance of approximately $168,000, or $5,040. Thus, we find that Mollie Pedrick is entitled to compensation in the amount of $14,040, which represents a reduction in the commission claimed of approximately $4,346. Even in the absence of the sug- gested fee schedule, we are satisfied that a commission of $14,040 is reasonable and just under the facts of this case. Next, we consider Margot Currie's request to be appointed co- trustee of her father's testamentary trust in which he named his daughter, Katherine P. Noel, and his son, Richard G. Pedrick, Jr., as co-trustees of the trust for the benefit of Mollie Pedrick. Margot Currie argues that such an appointment is necessary to protect her share of the trust funds from depletion by Mollie Pedrick. We are satisfied, however, that such a step is not appropriate given the dece- dent's wishes in his will nor is it necessary in view of our refusal to permit Mollie Pedrick to revoke her disclaimer. Because we have determined that the disclaimer is binding, the trust will terminate as of course and the trust assets will be distributed according to the provisions of the decedent's will. Accordingly, we refuse Margot Currie's request that she be appointed co-trustee. [' . i , ' 11 '/11 [f ' j~( I : I/i: ./11 ,II !i' h I ":1 ! :1 : j, f I' I I Pedrick Estate 247 ~ ,; " .,;.' ,- ." .' :.' :~ ';; , ,I J ), 1. 1 :;~ J :~ i i I I i J , I, , I 11 I 1.:1 ., , ! 1. We note that the Attorney General has disclaimed the tee schedule let torth in JohRMm as not being endorsed by that otlice. , .- 248 Fitzpatrick Will Finally, we consider Margot Currie's prayer for an annual accounting of the trust. Because we have determined that the dis- claimer is irrevocable, the trust is terminated, and, therefore, an accounting is no longer necessary. EDITORS' NOTE: See Hallmall TnLst, 11 FlDUC. REP. 2d 150 and editors' note thereto for effect of disclaimer. For compensation of exeeutrix based on guidelines see Bailey Est., 10 FlDuc. REP. 2d 55. See Carter Estate, 13 FlDUC. REP. 2d 285 Fitzpatrick Will Probate - Appeal- Testamentary capacity - Undue influence Proponent's demurrer, after contestants presented their evidence., granted as to issue of testsmentsry capacity, granted as to undue influence as to person who receives no part of the estste, and denied as to party in confidential relation receiving a benefit from testatrix of weakened intellect. (Hunter - Contests 1O(f), 12(b); Orphans' Court 11 (n)). In the Orphans' Court Division of the Court of Common Pleas of Adams County. Estate of Elizabeth J. Fitzpatrick, deceased. No. OC-78-92. Joseph E. Erb, for contestants. Glenll C. Vaughll, for estate. OPINION BY KUHN, J., Nov. 6, 1992: This matter comes before the Court after partial hearing held October 16,1992, on a petition for citation sur appeal from probate filed June 22,1992, by contestants, Bentley G. Sharar and Joanne P. Hossler. This opinion disposes of proponent's demurrer raised after contestants had presented their evidence. The record reveals that Elizabeth Jane Fitzpatrick died on March 9, 1992. On March 20, 1992 letters testamentary were granted to Laura Miller in compliance with the last will and testa- ment of decedent dated December 23, 1991, and attested to before a notary public by two subscribing witnesses, Laura Miller and Nancy Starry. Contestants have raised two issues; first that decedent lacked testamentary capacity and, second, that her will was the product of undue influence. Mo., I ~" )- . " - CV,RTTFTCA TV, OF SERVICE I, Lori A. Sullivan, an authorized agent for Martson Deardorff Williams & Otto, hereby/ certify that a copy of the foregoing Memorandum of Law was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma, II, Pro Se 6880 S.E. Harbor Circle Stuart, FL 34996 MARTSON DEARDORFF WILLIAMS & OTTO By {X'~ lJ. 4~'_ Lori A. Sullivm\ Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: July 30,1999 '. ...,!:,':i!;,'X:j~~r.';.i.., ....~,;1!;:ltiltl~.