Banashak v. Wittstadt

Decision Date06 March 2006
Docket NumberNo. 0589, September Term, 2005.,0589, September Term, 2005.
PartiesJoan M. BANASHAK et al. v. Gerard Wm. WITTSTADT, Sr., Successor Personal Representative of the Estate of Viola M. Uhl, et al.
CourtCourt of Special Appeals of Maryland

Clay M. Barnes (Barnes and Raine, PA, on brief), Towson, for appellant.

Robert L. Hanley, Jr. (Nolan, Plumhoff & Williams, Chtd., on brief), Towson, for appellee.

Panel KRAUSER, BARBERA and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

MOYLAN, J.

In this nine-year-old challenge to the administration of Viola M. Uhl's estate, there are haunting echoes of Jarndyce and Jarndyce.1 Ironically, what is now before us, even nine years down the track, is not yet an appeal from a decision boasting finality, but only the third attempt to have this Court intervene in a work still painfully in progress.2

The allusion to Jarndyce and Jarndyce is no mere literary flourish. This case, as will become clear, could literally end up the same way. A seventy-seven-year old widow left an uncomplicated estate, worth approximately $262,000 according to the Sixth and Final Administration Account of April 22, 2005, to her two sisters-in-law. One of them only outlived the testatrix by seven years and, therefore, collected nothing. The other, when the dust finally settles and all bills are in, could end up with little more than enough to buy a cup of coffee. Such a shocking result, should it come to pass, could bring down the glare of intense public scrutiny on the question of how such a travesty could be permitted to come about. We will not get to address that issue, however, because of an insurmountable preliminary hurdle. Our focus will be exclusively on the threshold issue of appealability.

A Long, Long Trail Awinding

As well befits a case that has lingered long in "chancery," its procedural trail is, or is rapidly becoming, labyrinthine. Viola M. Uhl died in Baltimore County on September 4, 1996. It has ultimately been established that she left a Last Will and Testament, signed by her on February 26, 1969, that was supplemented by a Codicil, signed by her on June 24, 1995.3 Dorothy Uhl Banashak and Margaret Uhl Thelen were the sisters-in-law of the testatrix and were initially the exclusive legatees under that Will and Codicil.4 The estate itself, represented by Gerard William Wittstadt, Sr., as its successor personal representative, is the formal appellee.

Complicating matters from the outset was an ostensible subsequent Last Will and Testament, allegedly executed by Viola Uhl on July 1, 1996. Unfortunately for the procedural history of this case, the ostensible Last Will and Testament of July 1, 1996 won the race to the courthouse door, and thereby hangs the tale.5

Phase I: September 20, 1996-April 13, 2000

Tenure of Charles Kresslein, Jr.

As Personal Representative/ Special Administrator

On September 18, 1996, two weeks after Viola Uhl's death, Charles H. Kresslein, Jr., Esq., filed a Petition for Probate with the Orphans' Court for Baltimore County, seeking the administrative probate of the July 1, 1996 Will. An order was signed by the Register of Wills on September 20, admitting the July 1, 1996 Will to probate and appointing Charles Kresslein, Jr. as personal representative of the estate.

The provisions of the ostensible Will of July 1, 1996, differed dramatically from those that had been made by Viola Uhl in her Will of 1969, supplemented by the Codicil of 1995. Whereas in her earlier Will, Viola Uhl had left her entire estate to her two sisters-in-law, the ostensible Will of July 1, 1996, left her home, along with its contents, "to my friend Opal Bowling." Of the remainder of the estate, 10% was left to each of the two sisters-in-law. Fifty percent was left to Marlene E. Higgins and her husband, James W. Higgins. Fifteen percent of the remainder of the estate was left to "my dear friend and attorney Charles H. Kresslein, Jr." In addition to being a legatee, Mr. Kresslein had 1) prepared the Will, 2) been one of the two witnesses to the Will, and 3) was appointed in the Will as personal representative. The remaining 15% was bequeathed to "my dear friend and financial advisor John R. Cameron," who was also the other witness to the ostensible signing of the Will.

Charles Kresslein, Jr. had, five weeks earlier, also prepared a Will, which Viola Uhl ostensibly signed on May 28, 1996. The only difference between the two 1996 Wills was that the July 1 version included the devise of the real property to Opal Bowling, which the May 28 version had not.

On March 17, 1997, the appellants filed with the Orphans' Court a Petition to Caveat the Last Will and Testament of July 1, 1996. In the nine-page petition, they alleged, inter alia, 1) the existence of the 1969 Will and 1995 Codicil; 2) that Viola Uhl was not, as of the time of the ostensible July 1, 1996 Will, of sound and disposing mind and lacked the testamentary capacity to execute a valid will; 3) that Viola Uhl had been subjected to undue influence by the new legatees who had been in a relationship of trust and confidence with her, especially Charles Kresslein, Jr.; and 4) that the ostensible July 1, 1996 Will had not actually been signed by Viola Uhl nor by any other person on her behalf and by her direction.

The petition also specifically requested that Charles Kresslein, Jr. be removed as Personal Representative and that an independent special administrator be appointed. On March 18, an order of the Orphans' Court directed Mr. Kresslein to answer the Petition to Caveat within 20 days. It also informed him 1) that, pursuant to Maryland Code, Estates and Trusts Article, § 5-207(b) and § 6-307, the administrative probate was now a judicial probate and 2) that his official status vis-a-vis the estate was changed from that of Personal Representative to that of Special Administrator. See Carrick v. Henley, 44 Md.App. 124, 407 A.2d 765 (1979). On April 4, Mr. Kresslein filed his Answer to the Petition to Caveat.

Charles Kresslein, Jr. hired the law firm of his son, Charles J. Kresslein, Esq., to defend the caveat. On September 18, 1997, Charles Kresslein, Jr. filed with the Orphans' Court a Petition for Attorneys' Fees in the amount of $5,355.93. The appellants filed an exception to that petition on September 26 and requested that a hearing be held. A little over six months later, on April 7, 1998, a hearing was held on the pending fee petition. As a result of that hearing, the Orphans' Court, on April 9, issued an Order as follows:

The Personal Representative failed to establish that he is defending the Caveat in good faith and with just cause.

The Court finds that the Personal Representative has a conflict of interest. He drafted the will, witnessed the will, named himself Personal Representative and also included a 15% specific bequest to himself.

It is therefore Ordered on this 9th day of April, 1998, the Orphans' Court shall defer all attorney fees requested by Charles H. Kresslein, Jr., Esq. until the conclusion of the Caveat litigation.

All attorney fees shall be returned to the estate.

Mr. Charles H. Kresslein, Jr., Esq. shall voluntarily resign until the conclusion of the Caveat proceeding.

If the will dated July 1, 1996 prevails, the named Personal Representative shall be reinstated.

The Court order dated September 26, 1997 is hereby rescinded.

(Emphasis supplied).

That fee petition for the payment of $5,355.93 to the former law firm of Charles J. Kresslein is not one of the petitions still before the Orphans' Court for resolution and forming the basis for this appeal. Although on September 26, 1997, the Orphans' Court ordered that the requested fee be paid to the law firm, that order was later rescinded as part of the decision on April 9, 1998. The successor firm to that law firm advised the Orphans' Court on January 28, 2005, that it was making no claim against the estate for legal fees.

On October 21, 1997, Mr. Kresslein switched legal representation from his son's law firm to the law office of Edward B. Rybczynski, Esq. Mr. Rybczynski was the attorney of record for the estate at the hearing of April 7, 1998. On May 7, Mr. Rybczynski appealed the Orphans' Court decision of April 9 to the Circuit Court for Baltimore County, asking for a trial de novo pursuant to Courts and Judicial Proceedings Article, § 12-502. On July 27, 1998, the Circuit Court dismissed that de novo appeal for reason that the appeal was premature in that it was not from a final judgment.

In the meantime, Mr. Kresslein had disputed the statement made by the Orphans' Court that he had, apparently in chambers, agreed voluntarily to resign as personal representative/special administrator.6 When he refused to resign, the appellants, on June 17, petitioned the Orphans' Court to remove him as Personal Representative (actually as Special Administrator). The appellants followed up, on July 10, with a Motion to Specifically Enforce Agreement Regarding Resignation of Charles H. Kresslein, Jr., as "Personal Representative." On July 31, the Orphans' Court, without holding a full evidentiary hearing, ordered Mr. Kresslein to resign.

1. ORDERED that the Motion to Specifically Enforce the Agreement of Charles H. Kresslein, Jr. to resign as Personal Representative of the Estate of Viola M. Uhl is hereby GRANTED: and

2. IT IS FURTHER ORDERED that Charles H. Kresslein, Jr., is hereby directed to resign as Personal Representative of the Estate of Viola M. Uhl until the conclusion of the caveat proceedings.

(Emphasis supplied).

There followed the first appeal to this Court. Our decision of December 20, 1999, reversed the July 31, 1998 order of the Orphans' Court because Mr. Kresslein had requested the right to call witnesses and had erroneously been denied the right to "a plenary hearing on the question of his removal as personal representative." Although this Court remande...

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