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HomeMy WebLinkAbout21-2007-388 Orphans' IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CLAIR BEINHOWER, : DECEASED : : 21-07-0388 ORPHANS’ COURT IN RE: PETITION FOR ACCOUNTING OPINION AND ORDER OF COURT Bayley, J., November 1, 2007:-- Clair Beinhower died on March 17, 2007. His daughter, Terri Cassel, is the Executrix of his estate. Beinhower’s last will and testament, which has been admitted to probate, designates his wife Nancy Beinhower as his sole beneficiary. Petitioner, as Executrix, filed a petition on this estate docket for Barry Beinhower, the son of Clair Beinhower to whom Clair Beinhower granted a power of attorney, to “show cause why an account should not be filed in accordance with 20 Pa.C.S.A. § 5610.” Petitioner avers that decedent owned annuity policies with Washington National Insurance Company in the approximate amount of $36,500 and Jefferson Pilot Financial in the approximate amount of $16,650 that named Nancy Beinhower as sole beneficiary. Petitioner avers that Barry Beinhower, acting as power of attorney for Clair Beinhower, changed the beneficiary designation on both annuities to himself, decedent’s step- daughter, Nancy Rogowicz, and Rodowicz’s daughter, Courtney Myers, two days before Clair Beinhower died. Petitioner avers that by doing so Barry Beinhower engaged in self-dealing, exercised undue influence over Clair Beinhower, and [b]reached his fiduciary duty to act in the best interests of the Decedent and failed to exercise his powers granted under Decedent’s Power of Attorney for the benefit of Decedent’s known estate planning and probate with respect to the disposition of the decedent’s Estate. All assets of the Decedent were intended for the care of Decedents’ wife, Nancy 21-07-0388 ORPHANS’ COURT Beinhower. Petitioner further avers: The Petitioner desires and demands the filing of a full and accurate accounting, under oath, pursuant to applicable court rules, regarding the agent administration of Decedent’s affairs, in order to present certain matters and frame certain issues involved in the administration of the Estate, which by way of further objections, if necessary or appropriate, can come under the scrutiny and determination of this Court in appropriate further proceedings involving any party in interest. The Petitioner believes and avers that, only through the production of such accounting and the processing of this matter under the Court’s supervision, can the concerns of the Petitioner be addressed fairly, and adequately. Presumably this means that if the court in an accounting found that the exercise by Barry Beinhower under the power of attorney in changing the beneficiaries on the two annuities was invalid, petitioner would then seek to surcharge the agent for any loss. Barry Beinhower filed a response to the Rule denying the claims and alleging that petitioner lacks standing to seek an accounting because (1) the annuities are not assets of the estate, (2) decedent retained a right during his lifetime to change the beneficiary at any time, (3) the power of attorney signed by Clair Beinhower is not 1 being contested by petitioner, and (4) petitioner has an adequate remedy in law. et seq. The Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 101 , in Chapter 56 covering Powers Of Attorney, provides in Section 5610 that: An agent [the person appointed as power of attorney] shall file an account 1 The pleadings aver that representatives of Washington National Insurance Company and Jefferson Pilot Financial have indicated that they intend to institute an interpleader action and pay the amounts due on the annuities into court pending a further order. -2- 21-07-0388 ORPHANS’ COURT of his administration whenever directed to do so by the court and may file an account at any other time. All accounts shall be filed in the office of the clerk in the county where the principal resides. Taylor v. Vernon, In 438 Pa. Super. 479 (1995), decedent, George R. Hickson, had four children, including Lois Vernon and Drusilla Taylor. Hickson’s last will and testament named Drusilla Taylor as the sole residual beneficiary and executrix of his estate. Subsequently, decedent executed a power of attorney, appointing Lois Vernon as his attorney-in-fact. As Hickson’s health deteriorated, Hickson executed a power of attorney to Lois Vernon. Vernon signed a deed for George Hickson as grantor and as joint grantee transferring real estate owned by Hickson into Hickson and herself as joint tenants with the right of survivorship. After Hickson died, Drusilla Taylor, as executrix of his estate, filed a suit in equity to set aside the conveyance arguing that the power of attorney did not give Lois Vernon authority to convey the property as a gift. A trial judge ordered Taylor to convey the property to the decedent’s estate. The Superior Court reversed on the basis that the power of attorney granted Taylor the authority to make the gift of Hickson’s real estate. sub judice In the case , the annuities of Clair Beinhower with Washington National Insurance and Jefferson Pilot Financial are outside of Clair Beinhower’s estate because they are payable directly to the named beneficiaries. If the change in beneficiary designation is challenged and declared invalid, the annuities will be Taylor v. Vernon, payable to Nancy Beinhower, not Clair Beinhower’s estate. As in supra , we conclude that any claim by Nancy Beinhower that the change in -3- 21-07-0388 ORPHANS’ COURT beneficiaries in the two annuities by Barry Beinhower acting as power of attorney for Clair Beinhower are invalid, should be made in a lawsuit. That way, if relief is granted, an order can be entered against Washington National Insurance Company and Jefferson Pilot Financial to pay the annuities to Nancy Beinhower rather than to the current named beneficiaries. This is not a dispute to be resolved in an accounting in the estate of Clair Beinhower. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of November, 2007, the Rule to issue a Citation against Barry Beinhower “to show cause why he should not be required to prepare and IS DISMISSED. file, under oath, an accounting of his action under Power of Attorney,” By the Court, Edgar B. Bayley, J. Jacqueline M. Welby, Esquire For Petitioner Steven K. Portko, Esquire For Respondent :sal -4- IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CLAIR BEINHOWER, : DECEASED : : 21-07-0388 ORPHANS’ COURT IN RE: PETITION FOR ACCOUNTING ORDER OF COURT AND NOW, this day of November, 2007, the Rule to issue a Citation against Barry Beinhower “to show cause why he should not be required to prepare and IS DISMISSED. file, under oath, an accounting of his action under Power of Attorney,” By the Court, Edgar B. Bayley, J. Jacqueline M. Welby, Esquire For Petitioner Steven K. Portko, Esquire For Respondent :sal