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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF JEAN F. RICHARDS, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: BARBARA A. MOZICK AND
ANTHONY J. MOZICK
No. 1169 WDA 2014
Appeal from the Order June 25, 2014
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): 1507 of 2013
BEFORE: BENDER, P.J.E., LAZARUS, J. and MUNDY, J.
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED September 1, 2015
I respectfully dissent because I disagree with the Majority that the
orphans’ court erred in finding that Daughter presented prima facie evidence
of undue influence. The Majority’s decision here centers on the second
prong of the three-pronged test set forth in In re Estate of Clark, 334 A.2d
628 (Pa. 1975),1 concluding that Daughter failed to establish that Decedent
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1
The applicable burden of proof in a case in which the contestant of a will
asserts the existence of undue influence is as follows:
“The resolution of a question as to the existence of undue
influence is inextricably linked to the assignment of the burden
of proof.” In re Estate of Clark, 334 A.2d 628, 632 (Pa.
1975). Once the proponent of the will in question establishes
the proper execution of the will, a presumption of lack of undue
influence arises; thereafter, the risk of non-persuasion and the
burden of coming forward with evidence of undue influence shift
to the contestant. Id. The contestant must then establish, by
clear and convincing evidence, a prima facie showing of undue
influence by demonstrating that: (1) the testator suffered from
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was in a confidential relationship with Mrs. Mozick, the proponent of the will.
Mrs. Mozick acknowledges that as the proponent of the will she will receive a
substantial benefit from the will (prong 3), and the Majority concludes that
the “weakened intellect” prong (prong 1) was proven by sufficient evidence,
namely, by way of Dr. Nicotero’s deposition testimony. See Majority, at 10
n.2.2
With regard to prong 2, the orphans’ court discussed the following
pertinent facts derived from the testimony, and upon which it concluded that
a confidential relationship existed between Decedent and Mrs. Mozick. The
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(Footnote Continued)
a weakened intellect; (2) the testator was in a confidential
relationship with the proponent of the will; and (3) the
proponent receives a substantial benefit from the will in
question. Id. Once the contestant has established each prong
of this tripartite test, the burden shifts again to the proponent to
produce clear and convincing evidence which affirmatively
demonstrates the absence of undue influence. Id.
In re Estate of Smaling, 80 A.3d 485, 493 (Pa. Super. 2013) (en banc)
footnote omitted) (emphasis added).
2
Specifically relating to the “weakened intellect” prong, the orphans’ court
explained:
[T]he medical records reveal, as does the deposition testimony
of Dr. Nicotero, that [D]ecedent had bouts of confusion and
forgetfulness, coupled with hallucinations. Indeed, Dr. Nicotero
testified, and [D]ecedent’s medical records indicate, that
[D]ecedent suffered from an inferior mind [(prong 1)]. Thus,
the requirement of weakened intellect has been satisfied, and
[Daughter] has provided sufficient evidence of all three
necessary elements to a claim of undue influence.
Orphans’ Court Opinion (OCO), 9/26/14, at 6 (unnumbered).
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court found that Mrs. Mozick was given a power of attorney over the
Decedent’s finances, but it recognized that she never exercised that
authority. However, the court found “unpersuasive the notion that simply
because [Mrs.] Mozick did not exercise her authority under the power of
attorney, no confidential relationship ensued.” OCO, at 4 (citation to notes
of testimony (N.T.) omitted). The court also found that Mrs. Mozick spent “a
copious amount of time by [D]ecedent’s side in the weeks leading up to her
death.” Id. (citation to N.T. omitted). The court further found that Mrs.
Mozick
was at the hospital so often, and was so involved in [D]ecedent’s
care, that the doctors recognized her as the person to whom
they should communicate regarding [D]ecedent’s condition and
care. [She] effectively oversaw who [D]ecedent visited with and
spoke to while hospitalized. Furthermore, [Mrs.] Mozick
procured the attorney who drafted [D]ecedent’s February 19th
will.
Id. (citation to N.T. omitted).
As for the procurement of Attorney Costa, the testimony revealed that
Mr. Weaver told Decedent about Attorney Costa and that he called Attorney
Costa, indicating that Decedent would be calling to set up a meeting.
However, Decedent did not call Attorney Costa; rather, Mrs. Mozick was the
one who called Attorney Costa, asking him to come to the hospital to see
Decedent in connection with her writing a new will, which in fact occurred at
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the visit on February 19, 2013.3 Based upon the totality of the
circumstances and its recognition that “in a will contest, the assessment of
secrecy of the relationships, not unlike the evaluation of credibility of the
witnesses, must be a factor which is properly within the sole discretion of the
trier of fact[,]” the court found that a confidential relationship existed. See
OCO, at 4 (citing In re Estate of Clark, 334 A.2d at 635).
My disagreement with the Majority’s position rests on its reversal of
the orphans’ court’s decision due to its own fact finding rather than relying
on the orphans’ court’s determinations regarding credibility. “[O]n review,
we will not reverse [the lower court’s] credibility determinations absent an
abuse of discretion.” In re Estate of Fritts, 906 A.2d 601, 606 (Pa. Super.
2006) (citation omitted). Moreover, ‘[i]f the court’s findings are properly
supported, we may reverse its decision only if the rules of law on which it
relied are palpably wrong or clearly inapplicable.” Id. (citation omitted).
The Fritts decision further states:
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3
Specifically, Attorney Costa testified that Decedent told him that she did
not want to leave anything to Daughter because Daughter had an alcohol
abuse problem, and that Daughter was not in her life and only visited when
she needed money. Attorney Costa also testified that he suggested a
“special needs trust where she could put some of her estate in the trust for
the benefit of her daughter but her daughter would not have any access to
it.” N.T., at 58. Attorney Costa further indicated that Decedent seemed
open to the idea and that she would consider it. However, the next morning
he received a call that Decedent “was in a coma and a little later she had
passed.” Id.
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In a case of undue influence, a trial court has greater latitude to
consider medical testimony describing a decedent’s condition at
a time remote from the date that the contested will was
executed. Clark, supra at 634. However, “[i]f the court's
decision rests upon legally competent and sufficient evidence, we
will not revisit its conclusions.” Owens [v. Mazzei, 847 A.2d
700,] 707 [(Pa. Super. 2004)] (citing Clark, supra at 635).
“[O]ur review of the court's factual findings is limited to
considering whether those findings have support in the record
….” In re Estate of Geniviva, 450 Pa. Super. 54, 675 A.2d
306, 310 (Pa. Super. 1996), appeal denied, 546 Pa. 666, 685
A.2d 545 (Pa. 1996).
Id. at 607.
The Mozicks’ arguments all center on the court’s credibility
determinations and in reversing the orphans’ court’s decision here, it is
evident that the Majority substituted its credibility determination for that of
the orphans’ court. For that reason, I am compelled to dissent.
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