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HomeMy WebLinkAbout03-29-06 F :\FILES\DA T AFILE\General\Current\ 12011.1.motionforjudgment Created: 3/29106 8:34AM Revised: 3/29/06 2:33PM IN RE: EST ATE OF DALE A. BRITTEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 21-06-0145 ORPHAN'S COURT DIVISION MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes Ronald H. Britten, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and move as follows: 1. On November 29, 2005, DaleA. Britten, deceased, allegedly signed a document titled "Directive." A true and accurate copy of said document has been filed by Respondent with the Register of Wills office. 2. The Directive was admitted for probate on or about February 14,2006. 3. The Directive is the subject matter of Petitioner's Appeal from Probate. 4. For the purposes of this motion, the Petitioner's argument that the "Directive" is not testamentary in nature by its own terms is purely legal. 5. Now that the pleadings are closed, Petitioner is entitled to a Judgment as a Matter of Law that the Directive is not testamentary in nature. 6. Because the Directive is not testamentary in nature, it never should have been probated by the Register of Wills. LACK OF TEST AMENT ARY CAPACITY 7. Paragraphs 1-6 are incorporated herein by reference. 8. One of the very basic requirements of a will under Pennsylvania law is that a testator has testamentary capacity. In re: Protyniak's Estate, 427 Pa. 524,29,235 A.2d 372,75-76 (1967). 9. 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; and 3 ) ofwhattestatordesires done with it, even though testator's memory has been impaired by age or di~ase.ld 10. The Directive is completely devoid of any testamen~ 1~~~g~:~! , ~, -~.J tJ {:. c ;- L.-.rf . 11. While gifts appear to be made under the Directive to Judy S. Britten, none of them are effectuated by means of the death of decedent. 12. A plain language reading of the Directive indicates that the testator's intent, if anything, was to make transfers of his assets during his life. 13. 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. 14. 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. 15. While Respondent argues in her answer that the Directive indicates decedent's intent to give the lion's share of his property to his daughter, it is not the decedent's present intent to transfer that is relevant for probate. Rather, it is the decedent's testamentary intent that drives the probate process. 16. The Directive must not be given effect in the estate distribution process because it is completely devoid of testamentary language, and indicates that Decedent lacked testamentary capacity when he allegedly signed the document. 17. If the Decedent wanted to change the testamentary scheme outlined in his will, he would have needed to write a new will or codicil using testamentary language. WHEREFORE, Petitioner requests this Honorable Court enter an Order declaring as a matter of law that the Directive is deficient as a testamentary document and reverse the Register of Wills' decision to grant the Directive probate. Respectfully Submitted, MARTSON DEARDORFF WILLIAMS & OTTO By 1tUJ k~ Carl C. Risch, Esqu~ J.D. No. 75901 Michael J. Collins, Esquire J.D. No. 200427 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiffs Date: March 29, 2006 4- IN RE: ESTATE OF DALE A. BRITTEN : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 21-06-0145 ORPHAN'S COURT DIVISION CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Judgment on the Pleadings 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 Respondent MARTSON DEARDORFF WILLIAMS & OTTO BY~~ / Dated: March 29, 2006