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HomeMy WebLinkAbout03-28-06 IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF DALE A. BRITTEN NO. 21-06-0145 ORPHAN'S COURT DIVISION REPLY TO RULE TO SHOW CAUSE AND NOW, comes Judy S. Britten, Executrix of the Estate of Dale A. Britten, by it's attorneys, O'Brien, Baric & Scherer, and responds as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. The Decedent, during his lifetime, had placed most of his assets jointly with his daughter, Judy S. Britten. Decedent discussed with Robert L. O'Brien, Esquire his desire to change the disposition of his assets and arrangements were made to put into writing his directions. The Directive that was signed by Decedent was carefully reviewed by the Decedent. At the same time that the directive was signed by the Decedent, Decedent signed two deeds. Subsequent to the directive and deeds being signed, the Respondent met with her accountant, Joel Flinchbaugh, CPA, and after the meeting, Mr. Flinchbaugh researched the tax consequences relative to carry out the directive. In subsequent conversations with Mr. Flinchbaugh, he recommended that since Mr. Britten was not returning to the home, and given the fact that the home was listed or would be listed for sale, the home should remain in Mr. Britten's name; and if it sold, the proceeds should go to his daughter. In reference to transfers of the savings bonds, Mr. Flinchbaugh was of the opinion that if those bonds transferred, the full amount of income that had accrued on them would have to be reported when they were received rather than when they may have been negotiated. 7. It is correct that the Decedent became ill resulting in his hospitalization and placement in a nursing home for rehabilitation. Despite his physical illness, the Decedent remained in full control of his mental faculties up until the time of his death. It should be noted that, despite the Decedent's illness, the petitioner never took the time to come to Carlisle to visit his father after the illness. 8. The Respondent did assist her father, at his direction, to arrange for medical care. She assisted her father in his financial affairs by paying bills that became due in the last few months of his life, arranging his home for sale and other matters that were discussed with her father. 9. Admitted. 10. Admitted. 11. The Directive is a clear indication of the Decedent's wishes as to the disposition of his assets. To the extent the intent of the Directive was not carried out during decedent's lifetime, the Directive serves as a codicil to the decedent's Last Will and Testament and became testamentary in nature at the time of his death. 12. Admitted. 13. Admitted. 14. Ad m itted. 15. Admitted. 16. Admitted. 17. Admitted. COUNT I - LACK OF TESTAMENTARY CAPACITY 18. The responses in Paragraphs 1-17 are incorporated herein by reference. 19. It is admitted that a testator must have testamentary capacity. 20. Admitted. 21. The Directive indicates what the Decedent wanted to express as far as the disposition of his assets during his lifetime; and to the extent that had not occurred, the disposition of his assets after his death. So, the allegation that element three is not present is incorrect. 22. The Directive is a clear indication of the Decedent's wishes as to the disposition of his assets. To the extent the intent of the Directive was not carried out during Decedent's lifetime, the Directive serves as a codicil to the Decedent's Last Will and Testament and became testamentary in nature at the time of his death. 23. The Directive is a clear indication of the Decedent's wishes as to the disposition of his assets. To the extent the intent of the Directive was not carried out during decedent's lifetime, the Directive serves as a codicil to the Decedent's Last Will and Testament and became testamentary in nature at the time of his death. 24. The Decedent executed two deeds that same day, one giving his home to his daughter and another giving a garage to his son. Any unfulfilled direction in the Directive became testamentary in nature at the time of Decedent's death. 25. As stated, the Directive serves as a codicil to the extent the provisions had not been carried out. 26. The executed deeds are evidence of a portion of the Decedent's wishes being completed and any unfulfilled portion became testamentary in nature. WHEREFORE, Plaintiff respectively requests that the Petition be dismissed. COUNT II - FORGERY 27. The responses in Paragraphs 1 through 26 are incorporated herein. 28. The Directive was signed by the Decedent. 29. The signing of the Directive was witnessed by Robert L. O'Brien, Esquire. 30. Admitted. 31. The Christmas card was purchased by the Petitioner at Decedent's request, signed by the Decedent and mailed by the Respondent. To the extent that Petitioner avers that the signature was shaky and reflects the penmanship of a seriously ill person, the Respondent states that the Decedent was ill but his condition had improved since his admission to the nursing home. 32. After reasonable investigation the Respondent is unable to determine how the Respondent could assess how Decedent's signature changed and especially in light of the allegation in paragraph 33. 33. The signature on the Directive is that of the Decedent. 34. The signature on the Directive is that of the Decedent. WHEREFORE, Plaintiff respectively requests that the Petition be dismissed. COUNT III - UNDUE INFLUENCE 35. The responses in paragraphs 1 through 34 are incorporated herein. 36. The Will speaks for itself and the Directive indicates the Decedent's wishes closest to the time of his death. 37.Admitted, it is also of note that despite the Petitioner's averment that the Christmas card reflects" the penmanship of a seriously ill individual", that the Petitioner could not find the time to travel from his home, about a two hour drive, to visit with his father. 38. Petitioner could have had more frequent contact with his father but chose not to. Petitioner last visited with his father in the spring of 2005. 39. The Respondent denies that she asserted any influence over the Decedent. Her father knew exactly what he wanted and expressed the same in his Directive. 40. Admitted. 41. Decedent, during his lifetime, made arrangements for certain of his assets to pass to his son the son's children. Likewise he made arrangements for assets to be given to his daughter and her children. 42. The transfer of the aforesaid assets were made many years earlier. At the time the Directive was signed it appears that the only property remaining in Decedent's name were the two parcels of real estate, an E-Trade account, motor vehicle, coins and an IRA. 43 - 45. It is denied that the Respondent exercised any control over the Decedent. The signature affixed to the Directive was that of the Decedent who was fully competent when the Directive was signed. WHEREFORE, Respondent respectfully requests that the Petition be dismissed. Respectfully submitted, O'BRIEN, BARIC & SCHERER ~D.6,~ Robert L. O'Brien, Esquire 1.0. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Rao\Estates\Britt\ReplytoRuletoShowCause VERI FICA liON I verify that the statements made in the foregoing Reply To Rule To Show Cause are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. /l /1 /) 7-; ; '/:~~.tj / .xf'. .'I;)z,.{lA_(/!,'L/ . tI Juct:Y S. Britten