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HomeMy WebLinkAbout06-30-06 f II'ILES\DA T AFILEIEST A TES\ 120 II. I petitionexecutrix wpd Created 1/24/06 9: 17 AM Revised 6/29/06 4:27PM IN RE: EST ATE OF DALE A. BRITTEN : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 21-06-0145 ;--.) r:::" ~ ORPHAN'S COURT DIVISION-) PETITION FOR REMOVAL OF EXECUTRIX AND APPOINTMENT OF ADMINISTRATOR PURSUANT TO 20 PA.C.S.A. ~ 3182 ( .J C) AND NOW comes Ronald H. Britten, by and through his attorneys, Martson DeardorffWillian!S N & Otto, hereby requests that the Court remove Judy S. Britten as Executrix in the above captioned case and appoint an Administrator d.b.n.c.t.a., 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"). A true and accurate copy of said will is attached hereto as Exhibit A. 4. Item IV ofthe Will appoints Judy. S. Britten as Executrix of the Estate. In the event Judy S. Britten fails to qualify or ceases to act as Executrix, Item IV appoints Petitioner as Executor. 5. Item I(B) ofthe Will essentially splits the entire Estate between Petitioner and Respondent. 6. The executor or administrator of an estate has the fiduciary duty to investigate possible claims on behalf of the estate. 7. Respondent's personal interests in the administration of the estate conflict with her fiduciary responsibilities as executrix of the estate. 8. During the time that decedent was sick and dying, Respondent held a power of attorney enabling her to make certain transfers on Decedent's behalf. 9. Before Respondent assumed legal responsibility over Decedent, Decedent held assets over $1 million dollars. v.- -';"i :,- -) ~3 - .... ) ::-Y1 f~? 10, After Respondent took control, Petitioner believes, and therefore avers, to have transferred the bulk of De cedent' s assets to herself or to accounts held jointly with Decedent, draining Decedent's estate and consequently changing the testamentary scheme under the Will. 11. It is believed, and therefore averred, that in making the inter vivos transfers, Respondent breached her fiduciary duty, under the power of attorney, to Decedent. 12. It is unlikely that Respondent, as executrix, is going to seriously consider making a claim against herself for making the inter vivos transfers, despite the fact that it might be in the best interests of the Estate to do so. 13. In other words, Respondent's personal interests in the administration of the estate directly conflict with her duties as fiduciary of the Estate. 14. 20 Pa. C.S.A. S 3182(5) grants the court statutory authority to remove an executrix when, inter alia, "the interests of the estate are likely to be jeopardized by [her] continuance in office." 15. Moreover, the court may summarily remove an executrix when such action is "necessary to protect the rights of... parties of interest." 20 Pa. C.S.A. S 3183; In re Estate of Westin, 874 A.2d 139, 143 (Pa. Super. 2005). 16. Petitioner is a party in interest because he stands to inherit half of the Estate under the Will. 17. Sufficient reason for removal of an executor has been found where the executor's personal interest is in conflict with that of the Estate. See Westin, at ~8, 143. 18. Respondent has a personal interest in not investigating or pursuing claims against her own inter vivos transfers on behalf of decedent, because doing so might cost her financially and subject her to potential civil and criminal liability. 19. Respondent has a fiduciary obligation, as executrix, in at least investigating these claims against the inter vivos transfers because successful claims would add assets to the estate to distribute. 20. Respondent's personal and fiduciary interests are in direct conflict. 21. This court should exercise its authority under 20 Pa. C.S.A. S 3182(5) to remove Judy S. Britten as executrix of the estate of Dale A. Britten. 22. While Petitioner would be the natural replacement Executor for the Estate given that he is 2 so named in the Will, Petitioner acknowledges that he also has a fiduciary interest. Therefore, Petitioner does not oppose the appointment of a neutral third party as Administrator d. b.n.c. t.a. with no personal interest in the outcome of any challenges to the Estate and can focus entirely on its fiduciary responsibilities to the Estate. WHEREFO RE, Petitioner requests that this Court issue a Rule to Show Cause why Judy S. Britten should not be removed as Executrix and an Administrator d. b.n.c. t.a. be appointed as administrator to replace her. MARTS ON DEARDORFF WILLIAMS & OTTO ~ UJA~ Carl C. Risch, Esquire PA Attorney LD. No. 75901 Michael J. Collins, Esquire PA Attorney LD. No. 200427 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Appellant DA IE: June 30, 2006 3 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 of the document is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. c.S. S 4904 relating to unsworn falsification to authorities, which provides that if! knowingly make false averments, I may be subject to criminal penalties. By: ~ /;1-. ~ 6 CERTIFICATE OF SERVICE I, Michael J. Collins, an authorized agent of Marts on Deardorff Williams & Otto, hereby certify that a copy of the foregoing Petition for Removal of Executrix and Appointment of Administrator Pursuant to 20 P A.c.S.A. 93182 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 Atry. for Respondent MARTSON DEARDORFF WI LIAMS & OTTO By 7IluJ fV~ Michael 1. Collins, Esquire P A Attorney LD. No. 200427 Ten East High Street Carlisle, P A 17013 (717) 243-3341 <I Dated: June i...50, 2006 ... 4