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Estate of Agnew v. Ross

Superior Court of Pennsylvania

February 2, 2015

ESTATE OF ROBERT H. AGNEW, MARGARET ALZAMORA, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT H. AGNEW, WILLIAM AND SHEILA HENNESSY, H/W, MARGARET HENNESSY, JAMES AND CHRISTINE HENNESSY, H/W AND PAUL AND EILEEN JANKE, H/W, Appellants
v.
DANIEL R. ROSS, ESQUIRE, MEGAN MCCREA, ESQUIRE AND ROSS & MCCREA, LLP, Appellees

Submitted November 24, 2014

Appeal from the Order of the Court of Common Pleas, Chester County, Civil Division, No(s): 12-09300. Before SOMMER, J.

Kevin W. Gibson, Media, for Estate of Agnew, appellant.

Jeffrey B. McCarron, Philadelphia, for Ross, appellee.

BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.[*] OPINION BY: STRASSBURGER, J.

OPINION

Page 1021

 STRASSBURGER, J.:

The Estate of Robert H. Agnew, Margaret Alzamora, individually and as executrix of the Estate of Robert H. Agnew, William and Sheila Hennessy, Margaret Hennessy, James and Christine Hennessy, and Paul and Eileen Janke (collectively, Appellants) appeal from the order granting summary judgment against them and in favor of Daniel H. Ross, Esquire, Megan McCrea, Esquire, and their firm, Ross & McCrea, LLP (collectively, Appellees). Upon review, we reverse the order of the trial court and remand for proceedings consistent with this opinion.

The trial court summarized the underlying facts as follows.

[I]n November of 2003, Robert H. Agnew retained Ross to draft estate planning documents. Ross drafted a Revocable Trust and Will in order to effectuate Mr. Agnew's intent. Over the next several years, Ross prepared various amendments to the Trust and the Will, as requested by Mr. Agnew.
As of 2010, Mr. Agnew's estate plan was comprised of specific gifts of cash and property to selected family members, friends and five $250,000 scholarship funds to four different colleges. The beneficiaries of the residue of the trust were several colleges.
In March of 2010, Mr. Agnew suffered a fall at his residence and was taken to Paoli Hospital. He underwent a variety of tests which included a CAT scan, where it was revealed he was suffering from an inoperable cancerous tumor. Based upon Mr. Agnew's age and condition, he was advised that he was not a viable candidate for chemotherapy and there was nothing further that could be done. In March of 2010, Mr. Agnew returned to Devon Senior Living and was admitted into a hospice program.
In the summer of 2010,...Margaret Alzamora, [Mr. Agnew's niece,] contacted Ross to tell him that Mr. Agnew wanted to make changes to his estate

Page 1022

plan. Mr. Agnew retained Ross and they met at his residence on August 18, 2010. The purpose of this was to discuss amendments to various documents and to establish a trust relating to property owned by [Mr. Agnew] in Florida (hereinafter " Florida Trust" ). While Ms. Alzamora participated in a portion of the meeting, she was not present at the meeting when Mr. Agnew discussed his estate plan with Ross.
Ross acknowledged that Mr. Agnew advised that he wanted to make changes to his estate plan to limit the amounts going to charity[1] and provide more funds to go to his [nieces and nephews]. Mr. Agnew advised Ross that Ms. Alzamora would provide further details.
Later in August of 2010, Ms. Alzamora contacted Ross by email and communicated details of these additional instructions. The email indicated that the residue should be divided into five equal shares [among] ... William and Sheila Hennessy, James and Christine Hennessy, Eileen and Paul Janke, Margaret Hennessy[,] and Margaret Alzamora[, all of whom are Mr. Agnew's nieces and nephews].
Ross prepared a draft of an Amendment to the Trust (hereinafter " 2010 Trust Amendment" ) which continued to provide for gifts in the amount of $250,000 to each of the colleges and universities and a revised Will for Mr. Agnew. Of note, the drafted 2010 Trust Amendment did provide that the residue of the assets of the Revocable Trust were to be distributed equally to [Appellants] in this action.
The revised Will and the 2010 Trust Amendment, which Ross prepared, were sent by email on August 27, 2010 to Ms. Alzamora for the purpose of providing them to Mr. Agnew. Ms. Alzamora did provide Mr. Agnew with copies of the revised Will and the Trust Amendment. Mr. Agnew reviewed the documents. However, Mr. Agnew did not execute the revised Will or the 2010 Trust Amendment.
In September of 2010, Ross met again with Mr. Agnew. Following a discussion between Ross and Mr. Agnew, the revised Will and an amendment to the Florida Trust were executed. Importantly, the 2010 Trust Amendment was not executed.
Ross did not speak with Mr. Agnew about the 2010 Revocable Trust Amendment in part because they [did not] have copies with them. However, it was clear and Ms. Alzamora acknowledged that Mr. Agnew was aware that the 2010 Trust Amendment had been prepared. Mr. Agnew had the document presented and described to him. Ms. Alzamora acknowledged that Mr. Agnew would have known that the 2010 Trust Amendment was not among the documents executed at the September 2, 2010 meeting.
After the September 2, 2010 meeting, Mr. Agnew never mentioned the 2010 Trust Amendment again. Ross retained all of the documents that had been executed and stored them in the firm's will vault. Mr. Agnew died January 15, 2011.
On February 1, 2011, Letters Testamentary were granted to Margaret Alzamora and the September 2, 2010 Will was admitted to probate as the Last will of [Mr. Agnew]. Sometime between the probate of [Mr. Agnew's] Will and February 10, 2011, Ross realized that the 2010 Trust Amendment was never ...

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