J. A29012/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF : IN THE SUPERIOR COURT OF
PETER MIHOLOVICH A/K/A : PENNSYLVANIA
PETER R. MIHOLOVICH A/K/A :
PETE MICHOLOVICH :
:
APPEAL OF: PATRICIA BALZER, : No. 1865 WDA 2014
:
Appellant :
Appeal from the Order Entered October 29, 2014,
in the Court of Common Pleas of Westmoreland County
Orphans’ Court Division at No. 65-10-0928
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 19, 2016
Patricia Balzer appeals from the October 29, 2014 order which entered
a copy of her father’s, Peter Miholovich (hereinafter “testator”), Last Will and
Testament into probate. We affirm.
The trial court provided the following relevant facts and procedural
history:
Peter Miholovich, a/k/a Peter R. Miholovich,
a/k/a Pete Miholovich, the decedent (hereinafter
“Decedent,”), died on February 17, 2010. He had
four children: Katherine Duriga, Patricia Balzer,
Alex Miholovich and Edward Miholovich. On
October 8, 2013, letters of administration were
granted to Katherine Duriga. Following Ms. Duriga’s
appointment as Administratrix of the Estate, a copy
of what Petitioner purports is the last notarized Will
of Decedent was located. The Will, dated May 27,
2003, names Ms. Duriga as Executrix of Decedent’s
estate. The purported last Will distributes all
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household furnishings to Katherine Duriga and the
rest, residue and remainder of the estate to
Katherine Duriga, Alex Miholovich and
Edward Miholovich in equal shares. The alleged Will
expressly disinherits Patricia Balzer.
Ms. Balzer has filed an Answer to the Petition
of Ms. Duriga, wherein she alleges that Decedent
destroyed his Will. A hearing occurred before the
Court on April 9, 2014, relative to the Petition and
Answer. Thereafter, Ms. Balzer filed a Memorandum
of Law in which counsel on her behalf argued that
when a decedent’s original Will cannot be found, a
presumption arises that the testator himself
destroyed the Will, and the burden of overcoming
the presumption rests upon the proponent of the
Will. Counsel for Ms. Duriga filed a Brief wherein
Ms. Duriga countered that any presumption of
destruction of the Will should not arise, because the
Will was in the possession of Ms. Duriga, not the
Decedent, at the time of Decedent’s death. In her
Brief, Ms. Duriga suggests that the Will was
destroyed by Patricia Balzer.
Trial court opinion and order, 10/29/14 at 1-2. Following the April 9, 2014
hearing, the trial court issued an order and opinion admitting the testator’s
will dated May 27, 2003, into probate on October 29, 2014.1 Appellant filed
a notice of appeal on November 12, 2014. On November 14, 2014, the trial
court ordered appellant to file a concise statement of matters complained of
on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied with the trial
court’s order on December 5, 2014. On December 10, 2014, the trial court
1
An amended order, dated November 7, 2014, was issued by the trial court
in order to correct a typographical error in the original order.
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filed an opinion pursuant to Pa.R.A.P. 1925(a) in which it incorporated
language from the October 29, 2014 opinion and order.
Appellant raises the following issues for our review:
I. Whether the trial court erred in failing to apply
the presumption of testator revocation by
concluding the testator did not have “ready
access” to the stored Will?
II. Whether the trial court erred by admitting the
copy of the Will without first finding the
proponent had explained the Will’s
nonproduction?
Appellant’s brief at 4.
When addressing appellant’s issues, we are held to the following
standard of review:
“Our standard of review of an orphans’ court’s
decision is deferential.” In re Estate of
Strahsmeier, 54 A.3d 359, 362 (Pa.Super.2012).
When reviewing an orphans’ court decree, this Court
must determine whether the record is free from legal
error and whether the orphans’ court’s findings are
supported by the record. Id. at 362-363. Because
the orphans’ court sits as the finder of fact, it
determines the credibility of the witnesses and, on
review, this Court will not reverse its credibility
determinations absent an abuse of discretion. Id. at
363. However, this Court is not bound to give the
same deference to the orphan’s court conclusions of
law. Id. (quotation marks and citation omitted).
Where the rules of law on which the orphans’ court
relied are palpably wrong or clearly inapplicable, we
will reverse the court’s decree. Id. (quotation marks
and citation omitted). Moreover, we point out that
an abuse of discretion is not merely an error of
judgment. However, if in reaching a conclusion, the
court overrides or misapplies the law, or the
judgment exercised is shown by the record to be
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manifestly unreasonable or the product of partiality,
prejudice, bias, or ill will, discretion has been
abused. Id. (citation omitted).
In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa.Super. 2013), appeal
denied, 94 A.3d 1010 (Pa. 2014).
In her first issue for our review, appellant avers that the trial court
erred by failing to find that the testator revoked his will. We must first
determine if the testator had “ready access” to the will prior to his death,
and by so doing, determine whether the presumption applies to this case.
“Our Supreme Court has repeatedly held that ‘where a testator retains the
custody and possession of his will and, after his death, the will cannot be
found, a presumption arises, in the absence of proof to the contrary, that
the will was revoked or destroyed by the testator.” In re Estate of
Janosky, 827 A.2d 512, 519 (Pa.Super. 2013), citing In re Estate of
Murray, 171 A.2d 171, 176 (Pa. 1961) (citations omitted). Our cases
indicate that if a testator has “ready access” to the will prior to his death, it
is tantamount to the testator having custody of the will. See In re Estate
of Mammana, 564 A.2d 978, 982 (Pa.Super. 1989), appeal denied, 578
A.2d 929 (Pa. 1990) (citations omitted).
In the instant appeal, we agree with the trial court that while the will
was stored in Duriga’s desk in the testator’s house, he did not have ready
access to the will. The trial court noted the following facts:
After the Will was signed, [the testator’s] attorney
made a copy of the Will and sent the original to [the
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testator], in a letter directed to him. Ms. Duriga
testified that she was there when [the testator]
received the letter enclosing the original Will.
Specifically, Ms. Duriga recalled handing her father
the letter, at which time he handed the letter and
Will back to her and told her, “It’s yours to keep.
You keep it.”
Trial court order and opinion, 10/29/14 at 3. Duriga testified that at the
time she received the will from her father, she and her father were living in
the same residence. (Notes of testimony, 4/9/14 at 12, 21.) Duriga also
testified that, after initially taking the will to her bedroom, she ultimately
decided to store it in her desk, which was located in the television room.
(Id. at 14.) The desk was not locked, and was accessible to anyone in the
house. (Id. at 26.) The testator spent a sizable amount of his time in the
television room. (Id. at 14.)
Despite these facts, the trial court also found the following as a matter
of fact:
. . . [Duriga] had never seen her father access the
desk, and she testified that with regard to accessing
the desk, she believed her father was “kind of like
afraid of it,” because he “just didn’t like to get
around that stuff.”[2] There was no testimony that
anyone had ever seen the [testator] access the desk.
There was no testimony that anyone had ever seen
[the testator] destroy the Will. There was no
testimony that [the testator] knew where the Will
was kept.
2
At oral argument, it was alleged that the testator was afraid of the
computer Duriga kept on her desk.
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Trial court opinion and order, 10/29/14 at 3. The trial court expanded
further in its findings of fact regarding the testator and his access to Duriga’s
desk:
Duriga’s testimony with regard to receiving the Will
and handing it to her father, as well as her stowing it
without his knowledge of its location, as noted, was
credible and unrebutted. Her testimony, moreover,
supports an inference that her father regarded the
desk in which the Will was stowed as [] Duriga’s
property, and regarded that area as one in which her
privacy would be respected. Other testimony
produced corroborates the fact that the [testator], in
the years between the time the Will was executed
and the time of his death, preferred to have others
handle his checkbook and other business papers.
This attitude is consistent with [] Duriga’s description
of her father’s actions with regard to the Will and its
storage.
Id. at 4. Based on the trial court’s factual findings, we agree that the
evidence does not establish that the testator had ready access to the will.
We now turn to appellant’s second issue for our review, in which
appellant avers that Duriga was unable to meet her burden of proof, as will
proponent, in having a copy of the lost will admitted into probate. As noted
above, the testator did not have ready access to the will. In such cases,
. . . if a will is lost while in the hands of one other
than the decedent, it is presumed that the person
who had possession of it lost the document. See
Thompson v. Dobbs, 234 S.W.2d 939 (Tex. Civ.
App. 1950). Thus, we have no dispute with the
tenet in the law that the failure to find a will, after a
careful and exhaustive search, raises a presumption
that the decedent destroyed it with the intent to
revoke it. Murray Will [at 175]. However, such a
presumption is rebutted by proof that after the
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execution of the will, it was deposited by the testator
or testatrix with a custodian (in this case, an
attorney) and that the decedent did not thereafter
have it in his/her possession or have access to it.
See In re Pinney's Will, 72 N.Y.S.2d 895 (1947).
Mammana, 564 A.2d at 981-982.
In this Commonwealth, the proof necessary to
permit the submission of a copy of a will destroyed
by one other than the decedent has been articulated
by Mr. Justice Benjamin R. Jones in Murray Will,
404 Pa. 120, 129 & n. 12, 171 A.2d 171, 175 & n. 12
(1961) as follows:
Certain proof is essential to establish a
destroyed or suppressed
will:[Footnote 12] (1) that [testator] duly
and properly executed the original will;
(2) that the contents of the executed will
were substantially as appears on the
copy of the will presented for probate;
(3) that, when [testator] died, the will
remained undestroyed or unrevoked by
[him]: Michelle v. Low, 213 Pa. 526, 63
A. 246.
[Footnote 12] That is,
“destroyed” or “suppressed”
by some one [sic] other than
the [testator].
Mammana, 564 A.2d at 980.
As previously noted, we may only disturb the trial court’s order if we
find that the trial court abused its discretion. Absent such a finding, we are
bound by the trial court’s findings of fact and credibility determinations.
Here, we agree with the trial court, which found that the proponent of the
will, Duriga, is able to meet all three elements required to admit a copy of a
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lost will into probate. The first two elements are not in dispute. The
testator properly executed his original will and the contents of the executed
will are substantially the same as the copy presented for probate.3 The only
element in dispute is whether the testator had destroyed or revoked his will
prior to his death.
The trial court, as noted above, found Duriga’s testimony regarding
her storage of the will and testator not accessing the will prior to his death
to be credible. The trial court also heard testimony from appellant, as well
as her husband, Joseph Balzer, which the trial court found to be incredible.
As noted above, the trial court determined that the evidence indicated that
the testator’s preference was to have others take care of his business and
financial affairs directly contradicts Mr. Balzer’s testimony that the testator
opened a letter addressed to Duriga and, upon discovering that it contained
a copy of his will, expressed his intent to, “get rid of this one, too.”4 (Notes
of testimony, 4/9/14 at 72.)
3
The copy of the will presented for probate is a photocopy of the original will
bearing the signature of the testator and two witnesses, John M.
O’Connell, Jr., and Katherine Duriga. The photocopy also depicts that the
original will was notarized by Kathleen M. Herrle.
4
Mr. Balzer also testified that, upon hearing complaints from the testator
that Duriga and Ed Miholovich, one of the testator’s sons, were failing to pay
the testator’s bills on time, he suggested that the testator should “take them
out of the will.” (Notes of testimony, 4/9/14 at 71.) Mr. Balzer testified that
the testator told him that he would not be able to do so because he already
destroyed his will. (Id.)
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Duriga presented testimony that contradicted the Balzers’ claims. The
will that was executed in 2003 contained a clause stating that appellant was
not due to inherit any of her father’s estate after his death. The testator and
appellant were estranged from one another for several years until the
testator reached out to appellant at Duriga’s suggestion; however, Duriga
testified that the change in circumstances did not compel the testator to
revoke or revise his will.
Q: Can you tell the Court when it was that you
asked your father if he wanted to change his
will?
A: My dad didn’t talk to my sister for several
years, and he had surgery, and I convinced
him that he should start talking to her again.
And after he started talking to her, I asked him
three separate times if he wanted to change
his will, and he said no, she has enough. And
he meant money.
Q: When did your father have surgery?
A: He was 87 years old when he had surgery, he
had hernia surgery.
Q: How old was he when he passed away?
A: 95.
Q: So it would have been seven or eight years
prior to his death that you asked him if he
wanted to change his will?
A: No. It would have probably been four or five
years before he died -- anywhere between four
years and two years, because I kept asking
him.
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Q: And did you say you asked him three separate
times?
A: At least three different times.
Q: And his answer was the same each time?
A: Yes.
Q: And what was that answer?
A: No.
Id. at 19-20. Furthermore, Duriga also testified that her father discussed all
of his business affairs with her. (Id. at 20.) The trial court found Duriga’s
testimony to be credible. Therefore, we find that the trial court did not
abuse its discretion when it concluded that the testator did not have ready
access to his will, and we further find that the trial court did not abuse its
discretion by admitting a copy of the lost will to probate.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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