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HomeMy WebLinkAbout06-12-06 (2) - - ------.,.- ~ IN RE: ESTATE OF DALE A. BRITTEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-06-0145 ORPHANS' COURT IN RE: APPEAL FROM THE ADMISSION TO PROBATE OF A "CODICIL" ORDER OF COURT AND NOW, this --1'( day of June, 2006, the admission to probate the Directive of Dale A. Britten dated November 29, 2005, as a codicil of his will dated May 28, 1986, IS REVERSED. Carl S. Risch, Esquire For Ronald H. Britten Robert L. O'Brien, Esquire For Judy S. Britten, Executrix :sal >--- ") .i t.......-, , ,......: , i .) -rj e'l ~ IN RE: ESTATE OF DALE A. BRITTEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-06-0145 ORPHANS' COURT IN RE: APPEAL FROM THE ADMISSION TO PROBATE OF A "CODICIL" OPINION AND ORDER OF COURT ><~ Bayley, J., June 12, 2006:-- Dale A. Britten, born September 10, 1921, died on February 5, 2006. Judy S;' Britten, the daughter of decedent, was named executrix in his will dated May 28, 19~6. -) I The will and a "codicil" dated November 29, 2005, were admitted to probate. Judy '$'. Britten was granted letters testamentary by the Register. The will devises one-half of decedent's estate to his son Ronald H. Britten, and one-half to his daughter Judy S. Goodling (Britten). The "codicil" is titled a "Directive," that provides: Directive I direct that my following existing accounts be given, irrevocably, to my daughter, Judy S. Britten. The balances are all calculated on or about October 15, 2005. 1. Members 1st checking, balance of $90,989.00 2. Members 1st savings, balance of $217,015.00 3. Members 1st money mgt., balance of $38,546.00 4. Members 1st IRA, balance of $7,687.00, Judy has already been designated as my beneficiary on this account. 5. USAA, USAAX Growth Fund, balance $272,989.00 6. USAA, USTEX Tax Exempt Long-Term Fund, balance $469,780.00 All of the aforesaid accounts, other than the IRA, had already been placed in joint ownership with Judy, evidencing my intent that she receive these funds upon my death. It is my intent to transfer these funds during my lifetime, rather than at my death. However, I direct that the sum of $62,280.00, from the assigned proceeds, be placed in a trust for my cost of nursing home care. I have calculated that amount based upon the current average annual cost at the Todd Home for nursing care in the amount of $79,500.00 per year, less my current annual income of $58,740.00. This will guarantee my ability to pay the first thirty six months of nursing home care, should I need NO. 21-06-0145 ORPHANS' COURT to continue in nursing home care. My daughter Judy to make the choice on my behalf as to place me in assisted living, if I qualify after undergoing rehabilitation, or in nursing home care. I give my residence, and all the furnishings therein, at 7 Greystone Road, Carlisle, Pennsylvania to my daughter Judy S. Britten. I give my Winnebago motor home, the coin sets at my home and my lot with three car garage in Cambria County, to my son Ronald H. Britten. I acknowledge that I fully understand and am aware that I am currently giving to my heirs virtually all my assets and this is done not through any undue influence but because of my love for all of them. I also acknowledge that I am giving substantially more of my assets to my daughter, Judy S. Britten, and that I am doing this not because I do not love my children equally, but because I believe that Judy needs more of my assets to meet her future needs. I have accumulated US Savings bonds in joint names for my son, Ronald H. Britten and his sons, Michael Britten and Andrew Britten. I irrevocably give those bonds to those individuals and direct Judy, who is my agent, to see that the bonds are delivered. I have accumulated US Savings Bonds in joint names for my daughter, Judy S. Britten and her children, Robert S. Young and Morgan Goodling. I irrevocably give Judy her bonds. I do not wish that those for Robert S. Young and Morgan Goodling be delivered directly to them, but that the bonds be transferred to Judy S. Britten as Trustee. The value of the bonds for Morgan Goodling as of October, 2005, amount to $79,240.00 and for Robert Young $76,355.00. The provisions of the trust follows. 1. My Trustee shall set up a separate Trust for each grandchild. My Trustee shall pay principal and income to or for the benefit of my grandchild during his or her life as my Trustee, in her sole discretion, shall deem advisable for the health, maintenance, support and complete education of such grandchild. In addition, my Trustee in her sole discretion may advance funds to said beneficiary for the costs of marriage, or the purchasing of a home or costs of entering a business or profession, if my said Trustee shall deem such expense reasonably prudent. 2. Any and all payment or payments of any sum or sums, whether in cash or in kind and whether for principal or income, payable to a grandchild, or any of them, shall be made upon the sole receipt of the respective individual to whom the payment is made, and free from anticipation, alienation, assignment, attachment, and pledge, and free from control by the creditors of any such beneficiary. -2- NO. 21-06-0145 ORPHANS' COURT 3. Should the principal of any trust herein provided for be or become too small in my Trustee's discretion to make establishments or continuance of the trust advisable, my Trustee may distribute the remaining principal and any accumulated or undistributed income outright to the beneficiaries in the proportions to which they are then entitled to. The receipts and releases of the distributee will terminate absolutely the rights of all persons who might otherwise have future interest in the trust, whether vested or contingent, without notice to them and without the necessity of filing an account with the court. 4. Any funds not distributed to a grandchild, at the time of my daughter's death, shall be distributed to the grandchild, subject to the terms and conditions of any trust that she may hereafter create. All the gifts in this Directive, shall be split between the years of 2005 and 2006 so as to maximize the federal unified gift and estate tax credit. (Emphasis added.) Ronald H. Britten filed an appeal to the Orphans' Court from the decision of the Register of Wills "to admit to probate the 'Directive' as the alleged codicil of Dale A. Britten, the deceased, a writing dated November 29,2005." The issues have been briefed and argued. Britten maintains that the Directive is not testamentary and therefore should not have been admitted to probate. In Hengen's Estate, 337 Pa. 547 (1940), the Supreme Court of Pennsylvania stated: A writing need not assume any particular form or be couched in language technically appropriate to its testamentary character to take effect as a will or codicil. If the instrument is in writing and signed by the decedent at the end thereof and is an otherwise legal declaration of his intention which he wills to be performed after his death, it must be given effect as a will or codicil, as the case may be . . .. (Emphasis added. ) In Hengen's Estate, the instrument probated as a codicil contained the words "I want Mamie to have my House 544 George St. M.L. Henge." This document was found in a drawer, together with the decedent's will and other important papers. The real -3- NO. 21-06-0145 ORPHANS' COURT estate was owned by the decedent at her death. The Supreme Court of Pennsylvania concluded that the document "necessarily must be taken to refer to a time in the future, to wit, after the death of the testatrix, and therefore the court below rightly held the instrument to be testamentary in character." The Court, citing Tozer v. Jackson, 164 Pa. 373 (1894), "where an informal writing offered for probate read 'High James Rogers do give to John Jackson, Sr., my property known as 'Pen argul Hotel' and the land adjoining. . . ,'" stated: . . . since undoubtedly the language was intended to have the effect of conveying the real estate described and since it could not possibly have that effect except as a testamentary instrument, after the death of the donor, the paper was prima facie testamentary in character; further that the circumstances that the deceased, instead of destroying the paper as he would have done if he did not intend it to be operative, preserved it and placed it in a conspicuous position that would certainly be discovered, entirely excluded any interference other than that the instrument was intended as a testamentary disposition. Here, as in the Tozer Case, the paper would accomplish its intended purpose of conveying the real estate only as a testamentary disposition, and here, as there, the paper was in the possession of the decedent to the moment of death and placed by her where it would certainly be discovered after death. If the testamentary character of a writing is ambiguous, the court should take extrinsic evidence. See In re Estate of Ritchie, 480 Pa. 57 (1978). The Directive of Dale S. Britten executed on November 29,2005, nineteen and a half years after he executed his will on May 28, 1986, is not ambiguous. Britten sets forth six specific assets, after which he states: "It is my intent to transfer these funds during my lifetime rather than at my death," except for a portion of those funds to be placed into a trust for the costs of his nursing home care. He then gives his residence to his -4- NO. 21-06-0145 ORPHANS' COURT daughter, and a Winnebago motor home, a coin set and a lot with a three car garage in Cambria County to his son, stating: "I acknowledge that I fully understand and am aware that I am currently giving to my heirs virtually all my assets." He then irrevocably gives some US Saving Bonds to various people, some of them in trust for which he provides directives. He then concludes "All the gifts in this Directive, shall be split between the years of 2005 and 2006 so as to maximize the federal unified gift and estate tax credit." It is clear that Dale Britten is immediately gifting the property set forth in the Directive. Notwithstanding, the executrix argues that the Directive is a clear indication of the Decedent's wishes to the disposition of his assets, and to the extent the intent of the Directive was not carried out during his lifetime, it serves as a codicil to his last will and testament and became testamentary in nature at the time of his death. To be testamentary, however, "The writing must be depositive in character, and the disposition must be intended to take effect after the testator's death." (Emphasis added.) In re Estate of Ritchie, supra. The position of the executrix is without legal merit. The Directive of Dale A. Britten executed on November 29, 2005, not being testamentary in character, the following order is entered. ORDER OF COURT AND NOW, this It.... day of June, 2006, the admission to probate the Directive of Dale A. Britten dated November 29,2005, as a codicil of his will dated May 28, 1986, IS REVERSED. -5- NO. 21-06-0145 ORPHANS' COURT Carl S. Risch, Esquire For Ronald H. Britten Robert L. O'Brien, Esquire For Judy S. Britten, Executrix :sal -6- In Re: DALE A. BRITTEN ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 21-06-0145 CERTIFICATE OF SERVICE OF ORDER ORDER DATE: 06-12-06 JUDGE'S INITIALS: EBB TIME STAMP DATE: 06-12-06 IN RE: ORDER OF COURT """""""""""""""""""""""""""""""""""""""""""""""..."',,,"',"""""""""" SERVICE TO: CARL S RISCH, ESQ AND ROBERT L. O'BRIEN, ESQ METHOD OF MAILING: ENVELOPES PROVIDED BY: [g'] USPS DRRR o HAND DELIVERED o OTHER_ o PETITIONER [g'] JUDGE o CLERK OF ORPHANS COURT MAILED: 06-12-06 """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" SERVICE TO: METHOD OF MAILING: ENVELOPES PROVIDED BY: o USPS DRRR o HAND DELIVERED o OTHER_ o PETITIONER o JUDGE o CLERK OF ORPHANS COURT MAILED: Q \', . r'\ ~c. \".' j Q... \.. ~d- D.e uty Clerk of Orphans' Court