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HomeMy WebLinkAbout09-13-06 (2) . -.. INRE: : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF LINWOOD B. PHILLIPS, JR, : Deceased ALICE R. PHILLIPS, ORPHANS' COURT DIVISION Petitioner v. : NO. 21-06-0122 ROBERT G. FREY, LINDA L. STULL, ROBERT M. FREY, SUSAN R. HENRY, r--." = = 00-' p .~O <D )=Fo : "',:;'-- i~~~ w Respondents C/.) rT1 -0 ,'---', .....-', . -_.- '---' PETITION FOR RELIEF CITING UNDUE INFLUENCE AND TORT1~tfS INTERFERENCE WITH TESTAMENTARY EXPECTANCY~D--l ~,...;" \) :x w .. oJ:"" en TO THE HONORABLE JUDGES OF SAID COURT: Alice R. Phillips of 93 Encks Mill Road, Carlisle, Pennsylvania 17013 (herein the "Petitioner"), surviving spouse of the decedent, Linwood B. Phillips, Jr. (the "Decedenf'), hereby petitions this Honorable Court to revoke the admission to probate certain paper writings dated March 3, November 17 and December 5, 2005 submitted as the last will and codicils of Linwood B. Phillips, Jr., respectively, and revoke the letters of testamentary issued therein to Robert G. Frey, as the executor, and enjoin the Respondents, including Robert M. Frey, Linda L. Stull and Susan R. Henry, from distributing any assets of the estate pending adjudication of the claims herein and avers upon information and belief in support thereof the following: 1. The Decedent, Linwood B. Phillips, Jr., a married man, died on February 2, 2006, leaving to survive him as the persons entitled to his estate under the intestate laws, his spouse, namely the Petitioner, and four children from a prior marriage: A. Alice R. Phillips, widow (Petitioner) ~:'J ~~ (~.,) :=0 c.iJ I ,r-rj ,;dj CiJ :'") C) ~, :.' -,-, - ('""") IT1 I ~__-,'J (.:~ -n . -. B. Linwood B. Phillips, III C. Linwood B. Phillips, IV D. Linda L. Stull E. Michael A. Phillips 2. Certain paper writings alleged to be the last will and codicils of the Decedent and purporting to have been executed on March 3, 2005 (the "Wilf'), November 17, 2005 (defined below as the First Codicil) and December 5, 2005 (defined below as the Second Codicil), respectively, have been offered to probate at the Register of Wills of Cumberland County by Robert G. Frey. True and correct copies of the paper writings are attached hereto as Exhibit "A." 3. Robert G. Frey is the named Executor as per the Will. 4. Robert G. Frey is the son of Robert M. Frey. 5. Robert G. Frey and Robert M. Frey are partners in the law firm of Frey and Tiley, a Pennsylvania General Partnership with its principal office at 9 South Hanover Street, Carlisle, Pennsylvania 17013. 6. Robert M. Frey and the Decedent were also partners in a Pennsylvania general partnership that predominantly engaged in commercial and residential real estate development called Phillips and Frey (herein "Phillips and Frey'J. 7. Phillips and Frey employed and still employs Linda L. Stull (the daughter of the Decedent)(herein "Ms. Stulf'). 8. Phillips and Frey employed Ms. Susan Henry as the General Manager (herein "Ms. Henry"). (Robert G. Frey, Robert M. Frey, Linda L. Stull and Susan R. 2 Henry shall be collectively known as the "Respondents" and individually by name.) Mental Infirmities 9. During Christmas 2004, the Decedent was ill suffering from congestive heart failure, diabetes, pneumonia, and other related ailments. 10. The Decedent was admitted to the hospital on or about December 26, 2004, and he occupied a room at Carlisle Hospital until the first week of January, 2005. 11. Upon discharge from the hospital, the Decedent returned home under several medications. 12. In March 2005, the Decedent was physically and mentally infirmed. 13. In fact, on March 3, 2005, the Decedent was taking 100MCG of Transdermal Fentanyl (Duragesic) and was under duress the day of executing his Will as he was preparing for certain medical procedures at the Carlisle Hospital. 14. Transdermal Fentanyl is an opiad in a constant form released over a period of72 hours. 15. The Decedent was also taking Oxycodone. 16. The Decedent was also taking Spirona1actone. 17. The Decedent was also taking 20 MG of Bextra. 18. The Decedent was also taking 125 MCG of Digoxin. 19. Upon information and belief, the Decedent was addicted to his pain medications. 20. In mid-January, 2005 through and including March 3, 2005, the Decedent was suffering from the effects and side effects of prescriptions he was taking, diabetes, 3 congestive heart failure, and other conditions from which he was largely bedridden. 21. The Decedent was unable to make many day to day decisions for himself. 22. As a result of the Decedent's mental and physical infirmities as aforesaid and the medications prescribed for same, the Decedent suffered from a weakened mental intellect. 23. Respondents (including specifically Ms. Henry and Ms. Stull) assmned total control over the management of the Decedent's financial and personal affairs at some point early in mid-January, 2005 on a full-time basis. 24. From at least January 20, 2005 until the Decedent's death, Respondents controlled the Decedent's financial and personal affairs and excluded other family members from all financial and personal decisions (specifically the Petitioner). 25. The Decedent trusted, depended and relied upon Respondents to handle his financial and personal affairs on or about January 1, 2005. 26. Prior to his hospitalization in December 2004, the Decedent requested his Will be drafted to provide the house to Petitioner, a large sum of illiquid assets and liquid assets not limited to the Orrstown Bank Stock and Certificates of Deposit (collectively called the "Orrstown Accounts") be transferred into joint accounts with the Petitioner. 27. Ms. Henry confirmed the Orrstown Bank accounts would be transferred out of Ms. Lucy Phillips' (Decedent's deceased prior wife) name into joint accounts with Alice Phillips, but Ms. Henry failed to complete such a transfer. 4 . . 28. Ms. Stull was aware of the estate plan proposal and joint accounts, but did nothing to assist the Decedent. 29. Ms. Stull and/or Ms. Henry often gave the Decedent his medications (including his pain medications). The Will Execution 30. Ms. Henry requested the revised Will be sent over to the house as the Decedent's health was deteriorating rapidly. 31. Upon information and belief, Robert M. Frey, as the scrivener, drafted the Will for the Decedent, but did not account for the Decedent's desires (i.e., to provide for the Petitioner as set forth above). 32. Ms. Stull was an instrumental part in insisting the Will be executed. 33. Robert M. Frey did not take any steps to assure the mental competency of the Decedent at the time of the execution (he was not there) despite the abyss of conflicts. 34. Ms. Henry retrieved the Will from Robert M. Frey, and brought the Will (dated March 3, 2005) to the residence where the Decedent was being cared for, for him to sign. 35. The Decedent did not read the Will (nor did Ms. Henry explain or read the Will to the Decedent). 36. Robert M. Frey did not read the Will to the Decedent. 37. Other than the Petitioner, only Ms. Henry was present at the Decedent's execution of the Will on March 3, 2005, and Ms. Henry served as the subscribing witness 5 (See Exhibit "A"). 38. Ken Blosser, another alleged witness, did not view the Decedent executing the Will (he arrived after the fact and was not present at the time). 39. The Will is not notarized. 40. The Decedent was so confused and disoriented, he did not even know it was the month of March (Ms. Henry completed the information as to the date (specifically March 3, 2005)). 41. Prior to the execution of the alleged Will, Ms. Henry administered several doses of medications to the Decedent (including various pain medications)(although the Transdermal Fentanyl is in the form of patch and constantly administered over a period of72 hours). 42. After the Will was allegedly executed by the Decedent, neither the Petitioner nor the Decedent were provided copies of the original. 43. It is believed that Ms. Henry delivered the alleged executed Will to the Respondents, but the Decedent was not left a copy. 44. Ms. Henry has a vested interest in assuring the continuation of Phillips and Frey after the death of the Decedent and a position of employment. 45. Ms. Stull had a vested interest to assure the Will was executed to assure that any portion of Phillips and Frey did not pass to the Petitioner (the business of which she was employed and a significant owner thereof). 6 . .. First Codicil 46. Robert M. Frey, as the scrivener, drafted the first codicil to the alleged Will for execution on November 17,2005 (the "First Codicir). 47. Contemporaneous with this execution, the Decedent was again hospitalized for congestive heart failure. 48. The Decedent was still unable to travel to Robert M. Frey's office and he delivered the First Codicil to the residence where the Decedent was being cared for, for him to sign. 49. The Decedent did not read the First Codicil and relied upon Ms. Stull, Ms. Henry and the other Respondents as his confidential advisors. 50. The First Codicil is witnessed by Ms. Henry and Robert M. Frey. 51. The First Codicil is not notarized. 52. Remarkably, Robert M. Frey, a licensed practitioner and business partner, did not take adequate steps to assure the First Codicil was executed by third party independent witnesses. 53. Again, the Decedent was confused and disoriented at the time of the execution of the First Codicil. In fact, from January 2005 until the Decedent's death, he was in a constant state of confusion, often failing to recognize even the Petitioner, but also engaging in very threatening behavior and desirous of satisfYing his addictions. 54. The Decedent was still taking Transderma1 Fentanyl and other pain medications (including oxycodone). 7 . . 55. Ms. Stull and Ms. Henry would administer a number of the prescriptions to the Decedent. 56. After the First Codicil was allegedly executed by the Decedent, neither the Petitioner nor the Decedent were provided copies of the original. 57. As a result of the Decedent's mental and physical infirmities as aforesaid and the medications prescribed for same, the Decedent suffered from a weakened mental intellect at the execution of the First Codicil. Second Codicil 58. Robert M. Frey, as the scrivener, drafted the second codicil to the Will for execution on December 5, 2005 (the "Second Codicif'). 59. Robert M. Frey delivered the Second Codicil to the residence where the Decedent was being cared for, for him to sign. 60. It is believed Ms. Stull was instrumental in the drafting of the Second Codicil as she did not want the Petitioner to have the ability to reside in the residence. 61. The Decedent did not read the Second Codicil dated November 17, 2005 and relied upon Ms. Stull, Ms. Henry and Robert M. Frey as his confidential advisors. 62. The Decedent was still taking Transdermal Fentanyl and other pain medications (including oxycodone). 63. As a result of the Decedent's mental and physical infirmities as aforesaid and the medications prescribed for same, the Decedent suffered from a weakened mental intellect at the execution of the Second Codicil. 8 . . 64. The Second Codicil is witnessed by Ms. Henry and Robert M. Frey; and again remarkably, in an abuse of his confidential relationship with the Decedent, Robert M. Frey fails to procure an independent witness, but instead continues to act cavalier and witness the Second Codicil as though he was independent. 65. The Second Codicil is not notarized. 66. After the Second Codicil was allegedly executed by the Decedent, neither the Petitioner nor the Decedent were provided copies of the original. Confidential Relationships 67. Upon information and belief, there was frequent contact between the Respondents and Decedent at all times relevant hereto. 68. The Respondents knew the Decedent did not have a revised Will after the marriage to the Petitioner and in an effort to preserve their own self interests, the Respondents drafted the Will and utilized Ms. Henry specifically as a agent for their actions. 69. The Respondents also knew that absent a revised Will, the Petitioner would inherit her intestate share as per 20 Pa. C.S. ~2507 (3) irrespective of any Prenuptial Agreement. 70. The Respondents were specifically involved in several real estate transactions with the Decedent. 71. The Respondents knew the Decedent was not competent at the time of the executions and they elected to proceed without notaries. 72. Shortly after the death of the Decedent, Robert M. Frey offered Ms. Henry ajob. 9 . . 73. The Will and the Codicils substantially limited the benefits to the Petitioner and were inconsistent with the various discussions the Decedent had with the Petitioner (not limited to the joint property and failure to transfer). 74. The Decedent's prior Will gave the Decedent's estate to his first wife and by law, the Petitioner would have received her intestate share as the marriage to the Petitioner followed the prior Will. 75. Ms. Henry also told the Decedent and the Petitioner that the Orrstown Accounts had been transferred into joint names, and but for this misrepresentation, the Decedent would have taken additional steps to assure said transfer. 76. Ms. Stull knew that in the absence of the Wills and Codicils her interest in Phillips and Frey would be jeopardized because the parties did not have the financial liquidity to purchase the Decedent's interest from his estate thereby allowing it to pass to the Petitioner. Undue Influence 77. The Petitioner incorporates herein by reference paragraphs 1 through 76 of this petition as if set out in full. 78. The Petitioner avers and expects to be able to prove that on the date of the execution ofthe paper writings (specifically the Will, First Codicil, and Second Codicil), the physical and mental condition of the Decedent was greatly impaired and that he was not a person of sound mind and capable of disposing of his estate by Will, in that: a. Decedent was then suffering from congestive heart failure, diabetes, and 10 other related ailments, was being cared for in Carlisle Hospital and subsequently in his residence where he was largely bedridden. b. Decedent was disoriented as to time, person and place and Ms. Henry would provide his medications in such a manner that the Decedent depended upon Ms. Henry to administer the medications to alleviate his pain (including his addiction). c. Decedent suffered from confusion and disorientation from the vanous prescriptions including addiction to the pain medications, symptoms or side- effects of anxiety, behavior disorders, headaches, dizziness, drowsiness, obstinacy, impairment of memory, impairment of intellectual function or comprehension, calculation, knowledge and learning, judgment and perseveration. 79. Petitioner avers and expects to be able to prove that at the time of the execution of said paper writings (specifically the Will, First Codicil, and Second Codicil) that the Decedent had no knowledge of his property and/or natural objects of his bounty, was dependent upon various pain medications, and, therefore, did not posses testamentary capacity and was deceived into a testamentary pattern that was inconsistent with his own personal wishes. 80. The Petitioner avers and expects to be able to prove that at the time of the execution of said paper writings, the physical and mental conditions of the Decedent was greatly impaired by addictions, sickness and infirmity, and the said writings were procured by undue influence exerted upon the Decedent by a person or 11 persons occupying a position of confidential relationship to the Decedent, in that: a. The Decedent's weakened intellect resulted from the same medical conditions described above. b. The undue influence was asserted upon the Decedent by one or more of the following persons acting severely or jointly consisting of the Decedent's partners, Robert M. Frey and Robert G. Frey, and Ms. Stull and Ms. Henry, each of whom occupied a position of confidential relationship to the Decedent and exploited his impussiance to their own benefit. 8!. The exploitation by the persons named in paragraph 80 of the Decedent's weakened intellect and his/her position of confidential relationship is demonstrated by the provisions of the alleged Will and Codicils (Exhibit "A") which purports to give the Decedent's estate entirely to others (including specifically Ms. Stull) in contrast to the intestacy statute which gives the Petitioner significantly more. Tortious Interference 82. The Petitioner incorporates herein by reference paragraphs 1 through 81 of this petition as if set out in full. 83. The Petitioner avers and expects to be able to prove a cause of action for tortious interference with testamentary expectancy. 84. Specifically, Petitioner avers: a. Decedent indicated an intent to change the Will; b. The Respondents used fraud, misrepresentation and/or undue influence to 12 prevent execution of the intended will that reflected the Decedent's desires; c. The Decedent was desirous of transferring the Orrstown Accounts into joint names with the Petitioner, and the Respondents used fraud, misrepresentation and/or undue influence to prevent the transfer of the accounts into joint names. d. The Respondents were successful in preventing the execution of a will that reflected the Decedent's desires; and, e. But for the Respondents' conduct, Decedent would have changed his will. 85. The parties-in-interest, in addition to the Petitioner, are: Linwood B. Phillips, III 1530 Centerville Road Newville, P A 17241 Linwood B. Phillips, IV 80 East Main Street Newville, P A 17241 Mark Phillips 344 Pond View Drive Harleysville, P A 19438 Linda L. Stull c/o Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PAl 7013 Michael A. Phillips P. O. Box 122 Newville, PAl 7241 13 . - Kelly Diodato 205 West Yellow Breeches Road Carlisle, P A 17013 John C. Miller, III 689 Valley View Drive Boiling Springs, P A 17007 Merle R. Phillips 938 Rockledge Drive Carlisle, PA 17013 Walter Allen Phillips 2261 Walnut Bottom Road Carlisle, P A 17013 April R. Phillips Cumberland County Prison 1101 Claremont Road Carlisle, P A 17013 WHEREFORE, the Petitioner respectfully requests that this Honorable Court order a hearing to determine the validity of the Decedent's Will dated March 3, 2005, and the subsequent Codicils dated November 17,2005 and December 5,2005, and the claim for tortious interference with testamentary expectancy. ITH DIETTERICK & CONNELLY, LLP 14 ..---: , .. LAST WILL AND TESTAMENT OF LINWOOD B. PHILLIPS, JR. I. LINWOOD B. PHILLIPS, JR., of Dickinson Township (mailing address: 93 Encks Mill Road, Carliele, Pennsylvania 17013), Cumberland County, Pennsylvania, being of sound and disposing mind, memory and understanding, do hereby make, publish and declare this as and for my Last Will and Testament hereby revoking and making void any and all Wills by me at any time heretofore made. 1. I direct my hereinafter named Executor or Executrix to pay all of my just debts and funeral expenses as soon after my death as may be found convenient to do so. I further direct that my funeral services be conducted by Ewing Brothers Funeral Home, 630 South Hanover Street, Carlisle. Pennsylvania in a manner substantially similar to the arrangements which I made ,for my wife Edna Lucille Phillips and that my body be interred beside her grave on mybwiallot in Cumberland Valley Memorial Gardens located along Governor Ritner Highway near the Borough of Carlisle, Pennsylvania I further direct that on Lot 8C-I the same shall be reserved for the bwial of my wife, Alice Renee Phillips, her body to be located at the head of my body and a headstone placed there substantially the same as the headstone marker at my grave. 2. I direct that all inheritance, transfer, succession, estate and death taxes which may be payable on account of my death shall be payable from the assets which give rise to such taxes and charged to the person or persons receiving the assets. 3. I give. devise. and bequeath to my hereinafter Trustee. his successors and assigns, in trust, the maximum amount which will qualify for the unified credit for federal estate tax which is presently $1.000,000.00 and scheduled to reach $3,500,000.00, to be divided into equal shares for each of my four children who are LINDA L. STULL, LINWOOD B. PHILLIPS, III. MERLE R. PHILLIPS AND ALLEN W. PHILLIPS. provided each one so sharing shall survive me by a period of ninety (90) days, but should any of them fail to so survive me then the provision for such deceased child shall lapse unless such deceased child shall have legitimate issue as hereinafter defined who shall survive me by a period of ninety (90) days, in which case the provisions for the deceased child of mine shall be divided between or among such legitimate issue. per stirpes. The share allocated for each child of mine as above provided shall be invested by my hereinafter named Trustee and each child of mine shall receive from income and principal the sum of at least $12.000.00 per year or each child's share of the income. whichever shall be greater. If the amount allocated for each child of mine shall be invested in any mutual fund or funds. my Trustee is authorized and directed to allocate any ordinary income distributions and any capital gain distributions partly or wholly to principal or to distributable income as the Trustee shall deem best. Upon the death of the child of mine for whom the share has been allocated, any balance remaining in that child's share shall be paid to his or her legitimate issue as hereinafter defiped who shall survive that child. per stirpes. and if there be no such legitimate issue as hereinafter defined, then the ' same shall be added to the shares of my other children. If one or more of the other shares have been distributed to the issue of that child for whom such share was held. then the amount which would have been added to such share shall be distributed to the then living legitimate issue as hereinafter defined of the child of mine whose share had been distributed. The meaning of "legitimate issue" as used a~ve shall be limited to a child or children whether legitimate of not who were born to a female descendant of Testator. and shall be limited to a child or children born to a male descendant of Testator where the father of such child or children was married to the mother either before or after the birth of such child or children. In any case. the meaning of "child" or "children" or "legitimate issue" as used above shall not include any adopted child or children. No title in any Trust hereby created, or in tlre--income accruing therefrom, or in its accumulation, shall vest in any beneficiary and no beneficiary shall have the right or power to transfer, assign, anticipate or encumber his or her interest in said Trust, or the income therefrom prior to the actual distribution thereof by the Trustees to such beneficiary. Further. neither the income nor the principal of said Trust shall be liable in any manner, in the possession of the Trustees. for the debts. contracts or engagements of any of the beneficiaries. Page 1 of 4 Pages ~ 44~~:;...; ~ ." '" .' 4. If at the time of my death I am married to Alice R. Phillips and if she survives me, I give, devise. and bequeath to my hereinafter named Trustee, his successors and assigns, in Trust. my residence at 93 Encks Mill Road in Dickinson, Township in Cumberland County. Pennsylvania. together with its curtiledge and in addition the duplex dwelling house adjacent thereto, and a garden house and garage building but not the various farm buildings and acreage, together with the sum of $2.000.000.00. (fwo Million Dollars) the income from which shall be used for the benefit of my wife, ALICE R: PHILLIPS. she to have the right to occupy the principal residence and the income to be used to pay real estate taxes and hazard insurance with appropriate limits of coverage, make all necessary repairs and maintain both the buildings and grounds, and the income in excess of that required for these purposes shall be paid at regular intervals, at least annually. to or for the benefit of my wife Alice R. Phillips. Upon the death of my wife. Alice R. Phillips, the assets of this Trust shall be retained by my hereinafter named Trustee, his successors and assigns, in Trust and the income and principal distributed as provided in the Trust established in paragraph no. 3 hereinabove. I direct my Executor to elect under Internal Revenue Code Section 2056 to qualify this Trust set forth in paragraph no. 4 above for the Federal Estate Tax marital deduction, limited, however to those assets which otherwise would qualify for the marital deduction if transferred to my wife, Alice R. Phillips and to elect to have this Trust treated as a qualified tenninable interest Trust (QTIP). ! i ,;: r 1 " ! t 5. All of the rest, residue and remainder of my Estate, real, personal and mixed, and wheresoever the same may be situate, I give, devise and bequeath to my hereinafter named Trustee, his successors and assigns, in Trust as a separate Trust to be held by him for the benefit of my four children as provided in paragraph no. 3 above. and the income and principal of this Trust shall be held and distributed in the same manner as provided in said paragraph number 3 above. Should the Trustee find it necessary or desirable to combine the assets of this Trust with the assets of the Trust provided in paragraph number 3 above if such combining is advantageous to the operation of the Trust and its beneficiaries. I I '! I { f ! f ; 6. Any share or portion of a share of any Trust created hereunder, or any other property of mine that is not disposed of under any other provision of this Will. shall go and be distributed to the persons who would constitute my heirs-at-law had I died ninety (90) days after my actual date of death. intestate and unmarried. i ! I ! I t I r t 7. If my wife and I should die under such circumstances that the order of our deaths cannot be established by proof, it shall be presumed that my wife survived me. 8. I hereby nominate, constitute and appoint my friend's son, ROBERT G. FREY as Executor of this my Last Will and Testament, but should he predecease me or fail to qualify or cease serving as such. then in such event I nominate. constitute and appoint my daughter LINDA A. STULL as alternate or successor Executrix and I further direct that neither of them shaH be required to post any bond to secure the faithful perfonnance of his or her duties in the Commonwealth of Pennsylvania or in any other jurisdiction. :,~ 9. I hereby nominate. constitute. and appoint my friend's son ROBERT G. FREY as Trustee of all the Trusts hereinbefore set forth. The compensation of said Trustee and of his successors. shall be limited to a total of one-half of 1 % of the value of the cOlpus of the Trust calculated annually as of December 31st of the immediately preceding year. In any year in which said Trustee declines or fails to accept compensation, the same shall be deemed waived and shall not be accumulated for payment in a future year. 10. In addition to the powers conferred by law. my hereinbefore named Executor and Trustee, and his successors. are empowered: a. To invest any part of the trust corpus in such securities. investments. or other property as may be deemed advisable and proper, irrespective of whether the same are authorized for the investment of trust funds under the laws of any governing jurisdiction. r i I I I I I J Page 2 of 4 Pages ~4'~~ ~ .....-.....'- . , -. , b. With respect to any corporation. the stocks, bonds. or other securities of which may be ~eld, to vote in person or by proxy on any shares of stock; to con~ent to the ~erger, consolidation or reorganization of such corporations; to consent to the leasmg. mortgagmg or sale of the property of any such corporations; to make any surrender, exchange or sub~tilll:tion of such stocks, bonds or other securities as an incident to the merger" consoltdatlon or reorganization of such corporations; to pay all assessments. subscriptions and other sums of money which may be deemed wise and expedient for the protection and maintenance of the proportionate interest of the investment in s~ corporations; to exercise any optio~ ?r privilege which may be conferred upon the holders of such stocks, bonds. or other secuntles of such corporations either for the conversion of the same into other securities or for the purchase of additional securities, and to make any and all necessary payments which may be required in connection therewith; and generally to have and exercise as to all such stocks. bonds and other securities, the powers of an individual owner who is not under trust obligation. c. To hold the trust corpus in one or more consolidated funds in which separate shares shall have undivided interests. d. To sell at public or private sale for cash or upon credit, or partly for cash and partly on credit, and upon such terms and conditions as shall be deemed proper. any part or parts of my estate or the trust estate, and no purchaser at any such sale shall be bound to inquire into the expediency or propriety of any such sale or to see to the application of the purchase moneys arising therefrom. e. To keep on hand and uninvested such money as may be deemed proper and for such period as may be found expedient f. To compromise, settle or arbitrate any claim or demand in favor of or against my estate or the trust estate. g. And authorized in the discharge of fiduciary duties. to employ counsel and to determine and to pay such counsel reasonable compensation which shall be charged against the principal or income of the trust fund, and shall further be entitled to charge against the principal or income such other reasonable expenses and charges as may be necessary and proper to incur for the proper discharge of fiduciary duties and for the proper management and administration of the trust estate. h. In making any division of property into shares for the purpose of any distribution thereof directed by the provisions of the trust, to make such division or distribution, either in cash or in kind. or partly in cash and partly in kind, as shall be deemed most expedient, and in making any division or distribution in kind may allot any specific security or property or any undivided interest therein to anyone or more of such shares, and to that end may appraise any or all of the property so to be allotted and the judgment as to the propriety of such allotment and as to the relative value for purposes of distribution of the securities or property so allotted shall be final and conclusive upon ail persons interested in the trust or in the division or distribution thereof. i. And authorized to register any shares of stock or other assets of any trust in their own names or in the name of a nominee. j. To retain and invest in shares of stock of my Trustee. k. To retain any investments including mutual funds which I may own at the time of my death and in addition to invest any part of the Trust corpus in such mutual fund or mutual funds as may be deemed advisable or proper, irrespective of whether the same are authorized for the investment of trust funds under the laws of any governing jurisdiction. l. To determine from time to time whether ail or some portion of realized capital gains shall be treated as ordinary income for distribution to a beneficiary or treated as principal to be retained as part of the corpus. and such designation need not be consistent from one year to another. Page 3 of 4 Pages ~/3~~ /". ./ ....? J~-'-- -a IN WITNESS WHEREOF, I hav~ h~r;,~~o set nv ~~d _~d !~al to tl?is my Last Will and Testament'written on three (3) pages. thicrl.Y1l.lay of 7 ntUl.{]/,...:J.effr: . 8C05 . '-..;::;T~~ /3/z'~~ (SEAL) Linwood B. Phillips. Jr. Signed. sealed, published, and declared by LINWOOD B. PHILLIPS, JR., the Testator above named. as and for his Last Will and Testament, in our presence. who. in his presence, at his request. and in the presence of each other. have hereunto subscribed our names as attesting witnesses. 1:aV{ < Bfi<uZ~ ... Page 4 of 4 Pages .. FIRST CODICIL TO LAST WILL AND TESTAMENT OF LINWOOD B. PIDLLIPS, .{& DATED MARCH 3, 2005 I, LINWOOD B. PHILLIPS, JR., of Dickinson Township (mailing address: 93 Encks Mill Road, Carlisle, PA 17013), Cumberland County, Pennsylvania, bein~ of sound and disposing mind, memory and understanding, do hereby make, publish, and declare this as and for a First Codicil to my Last Will and Testament dated March 3,2005. 4. I hereby revoke in its entirety paragraph number four (4) of said Last WiH and Testament dated March 3, 2005, and substitute therefore the following: If at the time of my death I am married to Alice R. Phillips and if she survives me, I give devise and bequeath to my Trustee named in paragraph number eight (8) of said Last Will and Testament, his successors and assigns, whatever dwelling house and lot of ground fmay have hereafter had constructed or acquired, it being my intention to have constructed a dwelling house on one of my lots located in the Subdivision known as Clarendon, in Dickinson Township, Cumberland County, Pennsylvania, which house and lot of ground shall be used for the benefit of my wife, Alice R. Phillips, she to have a life estate in the same so long as she shall live, and in addition, I give devise and bequeath to . said Trustee the sum of $2,000,000.00 in trust, the income from which or 5% of the principal thereof as of December 31st of the year preceding the year of distribution to her, whichever shall be larger, which shall be used for the benefit of my wife,Alice R. Phillips, so long as she shall live, she to have the right to occupy said house and lot of land and said income shall be used to pay real estate taxes and hazard insurance with appropriate limits of coverage, and for the making of all necessary repairs and maintenance of the buildings and land, and the income in excess of that required for these purposes shall be paid to her or for her benefit at regular intervals, at least annually. Upon the death of my wife Alice R. Phillips, the assets of this trust shall be retained by my said Trustee, his successors and assigns, in trust, and the income and principal distributed as provided in the trust established in paragraph number three (3) of my said Last Will and Testament dated March 3, 2005. In the event that I have not constructed a dwelling house on one of my lots in Clarendon, Dickinson Township, Cumberland County, Pennsylvania, then I direct my Executor to do so for use by my wife, or to acquire a suitable dwelling elsewhere in which she shall have a life estate, cost of which shall not exceed $300,000.00 if a new house is constructed or $350,000.00 if a house and lot are purchased, which shall be in addition to the $2,000,000.00 to be held in trust as above provided. I direct my Executor to elect under Internal Revenue Code Section 2056 to qualify this trust as set forth in this paragraph number four (4) above for the Federal Estate Tax Marital Deduction, limited, however, to those assets which otherwise would First Codicil to Last Will and Testament of Linwood B. Phillips, Jr. Page 1 of2 ~~~rr~ .. qualify for the marital deduction if transferred to my wife Alice R. Phillips and to elect to have this trust treated as a Qualified Terminable Interest Trust (QTIP). Except as h~reinabove provided, I hereby ratify and affirm the provisions of my said Last Will and Testament dated March 3, 2005. IN WITNESS WHEREOF, I have hereunto set my hand and seal1!J!!1 First ~t Will and Testament, dated March 3, 2005, on this 1 . day of J..e.Jt/ ,2005. \ J . / /;::> N/ /t? d ~~~ -h.'. LINWOOD B. PHILLIPS, JR. u (SEAL) Signed, sealed, published and declared by LINWOOD B. PHILLIPS, JR., the Testator above named, as and for a First Codicil to his Last Will and Testament dated March 3, 2005, in our presence, who in his presence, at his request, and in the presence of each other have her.eunto subscribed our names as attesting witnesses. ~-k, ~~ First Codicil to Last Will and Testament of Linwood B. Phillips, Jr. Page 2 of2 SECOND CODICIL TO LAST WILL AND TESTAMENT OF LINWOOD B. pmLLIPS. JR. DATED MARCH 3.2005 I, LINWOOD B. PHILLIPS, JR., of Dickinson Township (mailing address: 93 Encks Mill Road, Carlisle, PA 17013), Cumberland County, Pennsylvania, being of sound and disposing mind, memory and understanding, do hereby make, publish, and declare this as and for a Second Codicil to my Last Will and Testament dated March 3, 2005. A. If at the time of my death I am married to Alice R. Phillips and if she survives me, until such time as she shall actually occupy the dwelling house contemplated to be acquired either by new construction or purchase of an existing house and lot of ground, etc., as provided in the First Codicil to my Last Will and Testament which Codicil is dated November 17,2005,1 direct that Alice R. Phillips shall have the right to occupy my residence at 93 Ellcks Mill Road in Dickinson Township, in Cumberland County, Pennsylvania, together with its curtilege and in addition the duplex dwelling house adjacent thereto, and a garden house and garage building, and ' garden area and pond located between said dwelling house and Encks Mill Road, but not the various farm buildings and acreage. During the time my wife Alice R. Phillips shall choose to occupy this property,o she shall be responsible for paying the real estate taxes and hazard insurance with the appropriate limits of coverage, make all necessary repairs, and maintain both the buildings and grounds, applying the income from the duplex dwelling houses and any other income generated by the premises to these expenses. All expenses in excess of that generated from said duplex dwelling house and any other income generated from the premises, shall be paid from the Trust fund provided for her as set forth in the First Codicil to my Last Will and Testament dated November 17,2005. It is my expectation that my said wife Alice R. Phillips shall choose to occupy the residenee contemplated to be constructed or acquired as set forth in said First Codicil to my Last Will and Testament, and upon her choosing to do so, the right to occupy the property herein . provided at 93 Encks Mill Road shall terminate. B. No title in any Trust created under any provision of my Last Will and Testament dated March 3, 2005 or in the First Codicil to said Last Will and Testament dated November 17, 2005, or in the within Second Codicil to said Last Will and Testament, or in any future Codicil to said Last Will and Testament, or in the income accruing therefrom, or in its accumulation, shall vest in any beneficial:}' and no beneficiary shall have the right or power to transfer, assign, anticipate or encumber his or her interest in such Trust or Trusts, or in the income therefrom prior to the actual distribution thereof by the Trustee or Trustees to such beneficiary. Furthermore. neither the income, nor the principal of any such Trust shall be liable in any manner, in the possession of the Trustee or Trustees, for the debts, contracts or engagements of any of the beneficiaries. C. Except as hereinabove provided, I hereby ratify and affirm the provisions of my said Last Will and Testament dated March 3,2005, and the provisions of the First Codicil to my said Last Will and Testament dated November 17, 2005. IN WITNESS WHEREOF, I have hereunto set my hand.,!nc;! seal to this Second Codicil to my Last Will and Testament, dated March 3,2005, on this ~ay of Nmembtr, 2005. p~ ~3 4~_(&?AL) LINWOOD B. PHILLIPS, JR. plf-. Signed, sealed, published and declared by LINWOOD B. PHILLIPS, JR., the Testator above named, as and fora Second Codicil to his Last Will and Testament dated March 3,2005, in our presence, who in his presence. at his request, and in the presence of each other have hereunto subscribed our names as attesting witnesses. ~ '7- k.. 'l..~ (J~R~ ''" VERIFICATION I, Alice R. Phillips, verify that the facts set forth in the foregoing document are true and correct to the best of my information, knowledge 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. Date: 7 - J,^ - c1tJOb a.&~~~ /~ Alice R. Phillips -. . .. IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA ESTATE OF LINWOOD B. PHILLIPS, JR, : Deceased ALICE R. PHILLIPS, Petitioner v. : ORPHANS' COURT DIVISION : NO. 21-06-0122 ROBERT G. FREY, LINDA L. STULL, ROBERT M. FREY, SUSAN R. HENRY, Respondents CERTIFICATE OF SERVICE I, Neil WamerYahn, Esquire, of James, Smith, Dietterick & Connelly, LLP, attorney for Petitioner, Alice R. Phillips, hereby certify that I have served a copy of the foregoing Petition for Relief Citing Undue Influence and Tortious Interference with Testamentary Expectancy upon the following, on the date and in the manner indicated below: Robert G. Frey, Esquire Frey & Tiley 5 South Hanover Street Carlisle, P A 17013 Attorney for the Estate of Linwood B. Phillips, Jr. and Executor Dated: September ~, 2006 u.S. MAIL. FIRST CLASS. PRE-PAID George B. Faller Jr., Esquire Michael J. Collins, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, P A 17013 Attorney for Attorney for Robert G. Frey Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 Attorney for Linda Stull and Linwood B. Phillips, III , D TTERICK & CONNELLY, LLP By: