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HomeMy WebLinkAbout03-03-06 F\FILESIDA T AFILEIEST A TESI1201 I.l.petitioncodicil Created 1/24/06 917AM Revised 313106 254PM IN RE: ESTATE OF DALE A. BRITTEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA NO: 21-06-0145 ORPHAN'S COURT DIVISION PETITION FOR RULE TO SHOW CAUSE WHY APPEAL FROM PROBATE SHOUL'J) NOT BE SUSTAINED AND NOW, comes Ronald H. Britten, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby requests that the Court reverse the Register of Wills admission of the "Directive" to probate in the above captioned case, and in support thereof avers as follows: 1. Petitioner, Ronald H. Britten (hereinafter "Petitioner"), son of decedent, Dale A. Britten, is a resident of7506 Lairds Way, Clarksville, Howard County, MD 21029. 2. Respondent, Judy S. Britten (hereinafter "Respondent"), daughter of decedent, Dale A. Britten, is a resident of 158 South Hanover Street, Carlisle, Cumberland County 17013. 3. On May 28, 1986, Dale A. Britten (hereinafter "Decedent"), validly executed a Last Will and Testament (hereinafter "Will"). 4. The Will was prepared by an attorney, signed and dated by Decedent, subscribed by two disinterested witnesses, and was notarized. 5. The Will, inter alia, splits the bulk of the estate between decedent's two children, Petitioner and Respondent. 6. Because of the Will's relatively equal treatment of Petitioner and Respondent, Petitioner does not object to using the Will as a vehicle for distributing the assets of the estate. 7. Prior to Decedent's death, Decedent became seriously ill. 8. Petitioner believes, and therefore avers, that Respondent played a role in directing the Decedent's medical care and financial affairs during his last days by using a power of attorney. 9. On November 29, 2005, decent allegedly signed a document titled "Directive," (hereinafter "Directive"). A true and accurate copy of said document has been filed by Respondent with the Register pJ( of Wills office. 10. The Directive purportedly accounts for certain assets that have been transferred during the life of decent and provides for further inter vivos transfers to be made. 11. At no point in the Directive is a transfer conditioned on the death of the Decedent; the Directive is not testamentary in nature. 12. Decedent died on February 5, 2006. (Local Registrar's Certification of Death, February 7, 2006). 13. On February 14,2006, Decedent's Will and alleged Directi ve were admitted for probate. 14. Respondent sought admission of the Directive as a codicil as is evidenced by Respondent's Application for Probate and Grant of Letters. 15. The Register of Wills granted admission of said Directive as a Codicil to the Will. (Decree of Probate and Grant of Letters, Feb. 14,2006). 16. It is the admission of the Directive to probate and its treatment as a Codicil to the Will that Appellant challenges. 17. Concurrence of opposing counsel was sought on this petition on March 2,2006. On March 3, 2006, counsel indicated that he did not concur with said petition. COUNT I - LACK OF TESTAMENTARY CAPACITY 18. Paragraphs 1-17 are incorporated herein by reference. 19. One of the very basic requirements of a will under Pennsylvania law is that the testator have testamentary capacity. In re: Protyniak's Estate, 427 Pa. 524,529,235 A.2d 372,375-76 (1967). 20. Testamentary capacity requires an intelligent knowledge regarding: 1) those who are the natural objects of the testator's bounty; 2) of whattestator' s estate consists; 3) and of whattestator desires done with it, even though testator's memory has been impaired by age or disease. Id 21. While the Directive seems to satisfy element one and two, it fails to satisfy element three of testamentary capacity. 22. A plain language reading of the Directive indicates that testator's intent, if anything, was to 2 make transfers of his asserts during his life. 23. There is no language in the Directive tying any transfer of decedent's assets to the death of the decedent. 24. All transfers noted in the Directive are either made in the past tense, evidencing the fact that they have already been made, or in the present tense, evidencing an intent to transfer as of the date of the execution of the document, which was purportedly the 29th of November, 2005. 25 . To the extent that any transfers under the Directive have not been made, these assets are probate assets and must be distributed pursuant to the Will. 26. The Directive must not be given affect in the estate distribution process because it is completely void of testamentary language, and indicates that Decedent lacked testamentary capacity when he allegedly signed the document. WHEREFO RE, Petitioner requests that this Court issue a Rule to Show Cause why the Register of Wills' admission of the Directive into probate should not be reversed. COUNT II - FORGERY 27. Paragraphs 1-26 are incorporated herein by reference. 28. The Directive is purportedly signed by Decedent and dated November 2<Jh, 2005. 29. Notably, the Directive is unwitnessed and not notarized. 30. Appellant received a 2005 Christmas card from Decedent. 31. The signature on the 2005 Christmas card is shaky and reflects the penmanship of a seriously ill individual. 32. Appellant is familiar with Decedent's signature from growing up in Decedent's household. Appellant is also familiar with how Decedent's signature had changed because of Decedent's illness. 33. It is believed and therefore averred that the signature on the Directive is not that of Appellant's father, Decedent. 34. It is believed and therefore averred that someone forged Decedent's signature likely in an attempt to defraud the Register of Wills office into probating a document that was not validly executed by 3 Decedent. WHEREFO RE, Petitioner requests that this Court issue a Rule to Show Cause why the Register of Wills' admission of the Directive into probate should not be reversed. COUNT III-UNDUE INFLUENCE 35. Paragraphs 1-34 are incorporate herein by reference. 36. The Will, inter alia, splits the bulk of Decedent's estate between Petitioner and Respondent. 37. During Decedent's last days, Respondent, as a Cumberland County resident, had frequent access to Decedent. 38. Petitioner, being a Maryland resident, did not have daily contact with Decedent. 39. As Decedent became weaker, Respondent began asserting influence over Decedent, including over legal and financial matters through the use of a power of attorney. 40. Before Decedent was ill, he owned over a million dollars worth of assets. 41. Also, before Decedent was ill, he did not disinherit his son, Petitioner. 42. After Decedent became ill, the lion's share of his assets were transferred to Respondent. The Directive acts, in part, as an attempted justification for these inter vivos transfers. 43. It is believed, and therefore averred, that Respondent exercised her relationship with Decedent to influence him to sign the Directive (if, indeed, Decedent actually signed it) and to transfer the bulk of his assets to Respondent, thereby disinheriting Petitioner. 44. It is believed, and therefore averred, that Respondent would not have made said transfers, nor signed the Directive, but for the undue influence that Respondent exerted on him. 45. It is believed, and therefore averred, that Decedent was in a weak physical and mental state when Respondent exercised her influence over him and was thus powerless to resist her. 4 WHEREFORE, Petitioner requests that this Court issue a Rule to Show Cause why the Register of Wills' admission of the Directive into probate should not be reversed. MARTS ON DEARDORFF WILLIAMS & OTTO BY:~~ Carl C. Risch, Esquire v PA Attorney LD. No. 75901 Michael J. Collins, Esquire P A Attorney LD. No. 200427 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Appellant DATE: March 3, 2006 5 VERIFICATION I, Ronald H. Britten, acknowledge I have the authority to execute this Verification and certify the foregoing is based upon information which has been gathered by my counsel in the preparation of the Petition. The language is that of counsel and not my own. I have read the document and to the extent it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent the content ofthe document is that of counsel, I have relied upon counsel in making the Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S.9 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. By: ~V.~ CERTIFICATE OF SERVICE I, Michael 1. Collins, an authorized agent of Marts on Deardorff Williams & Otto, hereby certify that a copy of the foregoing Petition for Rule to Show Cause why Appeal from Probate Should not be Sustained was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Robert O'Brien, Esquire 19 West South St. Carlisle, P A 17013 Atty. for Appellee MARTSON DEARDORFF WILLIAMS & OTTO By ltfM ~ Michael J. Collins, ~squire P A Attorney J.D. No. 200427 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: March 3,2006 7