J-A09021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ESTATE OF IN THE SUPERIOR COURT OF
VIRGINIA SEAY, DECEASED PENNSYLVANIA
APPEAL OF: DAVID EDMONSTON AND
PETER EDMONSTON
No. 1871 MDA 2015
Appeal from the Order October 9, 2015
In the Court of Common Pleas of Clinton County
Orphans' Court at No(s): 18-2015-50
BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED JUNE 20, 2016
Appellants David Edmonston and Peter Edmonston appeal from an
order entered in the Orphans’ Court of Clinton County granting the petition
for revocation of surviving spousal election filed by Robert Seay, the spouse
of decedent Virginia Seay. We affirm.
Robert and Virginia Seay married on September 8, 1998, and
remained married at the time of Virginia’s death on February 21, 2015. On
June 13, 2014, Virginia executed a will, without informing Robert. David and
Peter Edmonston, Virginia’s sons, were beneficiaries under the will and were
to receive Virginia’s personal property and the residuary of the estate.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Following Virginia’s death, Robert signed a right of election against the will
and conveyances. Shortly thereafter, Robert informed the Estate that he
wished to revoke the election. On June 26, 2015, Robert filed a petition for
revocation of surviving spouse’s election. On July 7, 2015, Appellants filed a
petition for injunction to freeze assets and to compel surrender of assets
forfeited by Robert’s right of election against the will and conveyances. The
trial court conducted a hearing to address the petitions and the parties
submitted supplemental briefs.
The trial court made the following findings of fact:
1. Robert [] resides at 411 Guardlock Drive, Lock Haven,
Clinton County, Pennsylvania.
2. Robert [] has resided at said address since April of
1999.
3. Robert [] married Virginia[] in September of 1998 and
they were married continuously from the marriage date
until Virginia[’]s death on February 21, 2015.
4. From the marriage date through Virginia[]’s death on
February 21, 2015, Robert [] and Virginia [] resided jointly
at 411 Guardlock Drive, Lock Haven, Clinton County,
Pennsylvania.
5. The residence at 411 Guardlock Drive, Lock Haven,
Clinton County, Pennsylvania was purchased jointly by
Robert [] and Virginia [] on or about April 15, 1999.
6. Robert [] continues to reside at 411 Guardlock Drive,
Lock Haven, Clinton County, Pennsylvania.
7. Robert [] is a retired Air Force Master Sergeant who
made a career in the United States Air Force for
approximately twenty (20) years.
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8. Robert [] and Virginia [] began their relationship in June
of 1996 and, as previously stated, were married on
September 8, 1998.
9. The jointly owned property situate at 411 Guardlock
Drive, Lock Haven, Clinton County, Pennsylvania,
contained various items of household contents that were
accumulated over the period of twenty (20) years including
household contents that were originally owned by Robert
[] and household contents that were originally owned by
Virginia [].
10. During the course of the marriage, Robert [] and
Virginia [] jointly owned bank accounts.
11. Virginia [] retained property in her own name located
in Clearfield County, Pennsylvania.1
12. Virginia [] received dividends and royalties from the
Clearfield County properties during the marriage.
13. Robert [] did not know the extent of Virginia[]’s
Clearfield County holdings at the time of her death.
14. The jointly owned real estate, 411 Guardlock Drive,
Lock Haven, Clinton County, Pennsylvania, had a fair
market value between $186,000.00 and $200.000.00 at
the time of Virginia[]’s death.
15. At the time of Virginia[]’s death, Robert [] and Virginia
[] possessed four (4) jointly owned bank accounts worth
approximately $17,000.00 in total.
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1
Margaret L. Ake, Virginia’s sister, testified that Virginia previously owned
properties in Clearfield County, but that Ms. Ake assisted in transferring the
properties in June of 2014. N.T., 9/1/2015, at 50-52. The assets were
valued at $42,811.96, were transferred to Appellants for no consideration
within one year of Virginia’s death, and were transferred without Robert’s
knowledge. Id.; see 20 Pa.C.S. §2203(a) (surviving spouse has right to
elective share of one-third of “[p]roperty conveyed by the decedent during
the marriage and within one year of his death to the extent that the
aggregate amount so conveyed to each donee exceeds $3,000, valued at the
time of conveyance”).
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16. Robert [] understood that at the time of Virginia[]’s
death, the jointly owned real estate would transfer in its
entirety to the survivor.
17. Robert [] believed that the household contents would
transfer to the survivor.
18. Near the end of her life, Virginia [] suffered from a
brain tumor and was confined to a hospital bed at 411
Guardlock Drive, Lock Haven, Clinton County,
Pennsylvania.
19. Until her death, Robert [] was Virginia[]’s primary
caregiver.
20. At the time of Virginia[]’s death, and for some time
thereafter, Robert [] was in poor physical and mental
condition.
21. Robert [] was drinking excessively.
22. Robert [] was in a depressed state and pondered
whether he should just “lay down and die right there”.
23. During the final months and weeks of Virginia[]’s life,
and as Robert [] was caring for her, Robert [] lost thirty-
five (35) pounds because he was not eating.
24. Robert [] had a “worn” mental condition.
25. Following Virginia[]’s death on February 21, 2015,
Robert [] was invited to meet with the Executors of the
Virginia L. Seay Estate.
26. The meeting between Robert [] and the Executors
occurred at the law office of Donald L. Faulkner, Esquire.
27. The meeting between Robert[,] the Executors and
Attorney Faulkner was scheduled approximately three (3)
weeks following the death of Virginia [].
28. The meeting was attended by Executors, William G.
Ake and Margaret L. Ake, Donald L. Faulkner, Esquire, and
his administrative assistant.
29. Margaret L. Ake is the surviving sister of Virginia []
and William G. Ake is the surviving brother-in-law of
Virginia [] and is married to Co-Executor, Margaret L. Ake.
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30. Robert [] was presented with various documents at the
meeting.
31. Virginia [] died testate with a Last Will and Testament
dated June 13, 2014.
32. A copy of the Last Will and Testament was presented
to Robert [] at the initial meeting with the Executors and
Attorney Faulkner.
33. Robert [] was not aware of the existence of Virginia[]’s
Last Will and Testament dated June 13, 2014 until the
meeting with the Executors and Attorney Faulkner.
34. At the time of the presentation of Virginia[]’s Last Will
and Testament, Robert [] did not understand the meeting
and sought the counsel of Robert H. Lugg, Esquire.
35. Following the meeting with Attorney Lugg, Robert []
believed that the real estate at 411 Guardlock Drive, Lock
Haven, Clinton County, Pennsylvania, was his solely owned
property.
36. Attorney Lugg prepared a document referenced as
Letter/Spousal Election form, which Robert [] signed on
April 10, 2015.
37. When Robert [] executed the Letter/Spousal Election
form, he believed that the purpose of the document was to
permit him to negotiate the return or retention of one
hundred thirty-seven (137) items of personal property
previously requested to be returned to the Estate by the
Executors.
38. Robert [] was also making a claim against the Estate
for the expenses he had incurred in connection with his
deceased wife’s illness, funeral and undertaker expenses
and cremation expenses.
39. Robert [] believed that the Letter/Spousal Election
form he signed disputed ownership of the one hundred
thirty-seven (137) items of personal property that were
requested by the Executors.
40. At the time Robert [] executed the Letter/Spousal
Election form, he did not have an understanding of the
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nature or value of his deceased wife’s assets located in
Clearfield County, Pennsylvania.
41. At the time Robert [] executed the Letter/Spousal
Election form, he did not understand that the execution of
the document could potentially be creating forfeitures of
his interest in the real estate located at 411 Guardlock
Drive, Lock Haven, Clinton County, Pennsylvania.
42. At the time Robert [] executed the Letter/Spousal
Election form, he “thought the real estate was in stone.”
43. At the time Robert [] executed the Letter/Spousal
Election form, he did not have any appreciation that
signing it would potentially cause him to forfeit interest in
the jointly owned bank accounts.
44. At the time Robert [] executed the Letter/Spousal
Election form, it was his understanding that he was only
going to potentially have a claim to some of the one
hundred thirty-seven (137) items of personal property that
were being requested by the Executors.
45. Subsequent to executing the Letter/Spousal Election
form, Robert [] became aware that the Spousal Election
had implications beyond what he understood at the time of
execution.
46. Subsequent to the execution of the Letter/Spousal
Election form and between the dates of April 10, 2015 and
April 16, 2015, Robert [] learned from his attorney, Robert
H. Lugg, Esquire, that the Spousal Election had potential
implications beyond Robert[]’s understanding as of April
10, 2015.
47. Upon learning that the Spousal Election could
potentially cause forfeitures of portions of jointly owned
property, Robert [] advised his attorney, Robert H. Lugg,
Esquire, that he did not want to take any action that would
potentially put the real estate located at 411 Guardlock
Drive, Lock Haven, Clinton County, Pennsylvania, at risk.
48. Because Robert [], “jumped” on Attorney Lugg,
Attorney Lugg prepared a Request to Withdraw the
Election dated April 10, 2015, and forwarded the same to
counsel for the Estate on or about April 16, 2015.
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49. Robert [] desires to withdraw his Notice of Spousal
Election dated April 10, 2015 and maintain sole ownership
of the real estate located at 411 Guardlock Drive, Lock
Haven, Clinton County, Pennsylvania.
50. Robert [] desires to withdraw his Notice of Spousal
Election dated April 10, 2015 and maintain ownership of
the jointly owned bank accounts.
51. Robert [] is willing to surrender any household
contents that were owned by his deceased wife, Virginia [],
at the time of her death and permit them to be distributed
in accordance with Virginia[]’s Last Will and Testament.
52. Robert H. Lugg, Esquire, is a licensed attorney in the
Commonwealth of Pennsylvania, with his practice located
at 350 East Water Street, Lock Haven, Clinton County,
Pennsylvania.
53. Robert H. Lugg, Esquire, has been in practice in Lock
Haven, Pennsylvania, for approximately thirty (30) years.
54. At some point in the earlier part of 2015, Attorney
Lugg provided legal representation to Robert[.]
55. Attorney Lugg did not have an attorney/client
relationship with Robert [] prior to this meeting.
56. Robert [] made an appointment with Attorney Lugg to
review a list of demands from the Executors of his
deceased wife’s Estate.
57. The Executors were requesting surrender of a
considerable list of personal property that was located in
the jointly owned residence at 411 Guardlock Drive, Lock
Haven, Clinton County. Pennsylvania.
58. Robert [] desired to preserve some of the items of
personal property that were contained on the list.
59. Attorney Lugg prepared a claim that listed three (3)
different reasons why Robert [] should be permitted to
retain at least some of the personal property that was
included on the Executors’ list.
60. In the same document, Attorney Lugg included a
Spousal Election.
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61. In addition to the Spousal Election, Attorney Lugg also
claimed a Family Exemption and a Claim for Contribution
of the Estate for payment of the funeral bill.
62. The Notice exercised in the Spousal Election requesting
the Family Exemption and reimbursement, was contained
in a document prepared by Robert H. Lugg, Esquire, dated
April 10, 2015.
63. At the time of the Spousal Election on April 10, 2015,
Attorney Lugg did not have any discussion with Robert []
concerning potential forfeiture consequences as a result of
the filing of the Spousal Election.
64. Attorney Lugg was not personally aware of any
potential claim against entireties property at the time he
prepared the Spousal Election Notice for Robert[].
65. Attorney Lugg became aware, for the first time, that
jointly owned property could possibly be forfeited as a
result of the Spousal Election when he received a letter
from Attorney Englert in response to the April 10, 2015
Spousal Election Notice.
66. Attorney Lugg received Attorney Englert’s response on
or about April 13, 2015.
67. Upon receipt of Attorney Englert’s response. Attorney
Lugg reviewed the applicable Statute and became aware
that Robert[]’s Spousal Election had potentially placed
jointly owned assets at risk of forfeiture.
68. Attorney Lugg attempted to confront the issue head-on
and immediately contacted Robert [] and had Robert []
report to his office.
69. At the office meeting between Attorney Lugg and
Robert[], Attorney Lugg advised Robert [] that the
entireties assets may be in play.
70. Attorney Lugg provided Robert [] with a copy of the
“law” to help him better understand what Attorney Lugg
was explaining.
71. At the same meeting, Attorney Lugg provided Robert
[] with a copy of Attorney Englert’s letter.
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72. This is the first time Attorney Lugg discussed with
Robert [] the possibility of forfeiture as a result of the
Spousal Election.
73. As a result of meeting with Robert[], Attorney Lugg left
a voice message with Attorney Englert advising that Robert
[] desired to withdraw the election against the Will he had
previously made.
74. Attorney Lugg did not receive a response from
Attorney Englert to the voice message.
75. Attorney Lugg prepared correspondence dated April
16, 2015, addressed to Attorney Englert, seeking
permission on behalf of Robert [] to withdraw the Spousal
Election.
76. The April 16, 2015 written request was placed in the
Courthouse mailbox of Attorney Englert on the same date
of the letter, April 16, 2015.
77. Attorney Lugg did not receive a response from
Attorney Englert.
78. Attorney Lugg referred Robert [] to C. Edward S.
Mitchell, Esquire, for independent representation regarding
the withdrawal of the Spousal Election.
79. On June 26, 2015, Attorney Mitchell, on behalf of
Robert[], surviving spouse of the decedent, Virginia[], filed
a Petition for Revocation of Surviving Spouse’s Election
pursuant to Pennsylvania Orphans’ Court Rule 12.3.
80. At the time the Spousal Election was made by
Robert[], the Executors had not filed any form of
accounting.
81. At the time the Spousal Election was made by
Robert[], the Executors had not provided Robert [] with
any informal type of accounting.
82. At the time the Spousal Election was made by
Robert[], he did not have a full understanding of the
assets and liabilities of the Estate.
83. Granting the petition of Robert [] will not result in any
prejudice to the Estate.
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Opinion, 10/9/2015.
On October 9, 2015, based on the above findings of fact, the trial court
granted Robert’s petition to revoke the spousal election and vacated his
election to take against the will. On October 23, 2015, Appellants filed a
timely notice of appeal. Appellants and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Appellants raise the following claims on appeal:
1. Whether the trial court erred in allowing [Robert] to
revoke his spousal election due to a claim of ignorance of
the law concerning the disclaimer of beneficial interests
flowing from a spousal election set forth at 20 Pa.C.S. §
2204 where he hired independent counsel to represent him
and file the election on his behalf and any ignorance or
misapprehension of the law on his part was not due to any
party interested in the estate?
2. Whether the trial court erred in relying upon “Martin
Estate, 3 Pa. Fiduc. 2d 356, 357 (1983)” in a case
involving a spousal election disclaimer of beneficial interest
for the legal premise that “the executor of an estate owes
a duty to the surviving spouse to disclose to him the value
of the assets of the estate and the value which he would
receive under the alternatives available to him” where
neither the [Probate, Estates, and Fiduciaries] Code nor
common law imposes such a duty.
Appellant’s Brief at 4 (footnote removed).
This Court applies the following standard of review to orphans’ court
decisions:
When reviewing a decree entered by the Orphans’ Court,
this Court must determine whether the record is free from
legal error and the court’s factual findings are supported
by the evidence. Because the Orphans’ Court sits as the
fact-finder, it determines the credibility of the witnesses
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and, on review, we will not reverse its credibility
determinations absent an abuse of that discretion.
However, we are not constrained to give the same
deference to any resulting legal conclusions. Where the
rules of law on which the court relied are palpably wrong
or clearly inapplicable, we will reverse the court’s decree.
In re Estate of Fuller, 87 A.3d 330, 333 (Pa.Super.2014) (quoting In re
Estate of Hooper, 80 A.3d 815, 818 (Pa.Super.2013)).
Pursuant to Pennsylvania law,
(a) Property subject to election.--Except as provided in
subsection (c), when a married person domiciled in this
Commonwealth dies, his surviving spouse has a right to an
elective share of one-third of the following property:
(1) Property passing from the decedent by will or
intestacy.
(2) Income or use for the remaining life of the spouse of
property conveyed by the decedent during the marriage to
the extent that the decedent at the time of his death had
the use of the property or an interest in or power to
withdraw the income thereof.
(3) Property conveyed by the decedent during his lifetime
to the extent that the decedent at the time of his death
had a power to revoke the conveyance or to consume,
invade or dispose of the principal for his own benefit.
(4) Property conveyed by the decedent during the
marriage to himself and another or others with right of
survivorship to the extent of any interest in the property
that the decedent had the power at the time of his death
unilaterally to convey absolutely or in fee.
(5) Survivorship rights conveyed to a beneficiary of an
annuity contract to the extent it was purchased by the
decedent during the marriage and the decedent was
receiving annuity payments therefrom at the time of his
death.
(6) Property conveyed by the decedent during the
marriage and within one year of his death to the extent
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that the aggregate amount so conveyed to each donee
exceeds $3,000, valued at the time of conveyance.
In construing this subsection, a power in the decedent to
withdraw income or principal, or a power in any person
whose interest is not adverse to the decedent to distribute
to or use for the benefit of the decedent any income or
principal, shall be deemed to be a power in the decedent
to withdraw so much of the income or principal as is
subject to such power, even though such income or
principal may be distributed only for support or other
particular purpose or only in limited periodic amounts.
20 Pa.C.S. § 2203(a). A spouse invoking his or her right to the elective
share also disclaims interest in certain property.
(a) Disclaimers.--Except as provided in subsections (b)
and (c), an election by a spouse to take his elective share
shall be deemed a disclaimer of any beneficial interest of
the spouse in the following, to the extent that such interest
would otherwise be payable to or enjoyed by the spouse
after the decedent’s death:
(1) Property subject to the spouse’s election not awarded
to the spouse as part of his elective share.
(2) Property appointed by the decedent’s exercise of a
general or special power of appointment, and property
passing in default of appointment to the extent that the
decedent had power to exclude his spouse from any
interest therein.
(3) Property in any trust created by the decedent during
his lifetime.
(4) Proceeds of insurance, including accidental death
benefits, on the life of the decedent attributable to
premiums paid by him, his employer, partner or creditor.
(5) Any annuity contract purchased by the decedent, his
employer, partner or creditor.
(6) Any pension, profit sharing, stock bonus, deferred
compensation, disability, death benefit or other plan
established by an employer for the benefit of its employees
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and their beneficiaries, exclusive of the Federal social
security system and railroad retirement system, by reason
of services performed or disabilities incurred by the
decedent.
(7) Community property in the proportion that it
represents the decedent’s earnings or contributions.
(8) All intangible or tangible personal property and all real
property owned by the decedent and his spouse by the
entireties or jointly with right of survivorship, in the
proportion that such property represents contributions by
the decedent.
(9) All intangible or tangible personal property and all real
property given to his spouse by the decedent during his
lifetime which, or the proceeds of which, are still owned by
his spouse at the time of the decedent’s death.
20 Pa.C.S. § 2204.
The Supreme Court of Pennsylvania has stated:
The general rule is that the party is not bound to make an
election until all the circumstances are known, and the
state, condition and value of the funds are clearly
ascertained; for until that is known it is impossible to make
a discriminating and deliberate choice, such as ought to be
binding in reason and justice[.] To bind the widow she
must have full knowledge of the facts[.] As a general rule
a receipt for part of a legacy will not bar dower without a
full knowledge of the situation of the estate[.] Our own
books are to the same effect. The election must be
evidenced by plain and unequivocal acts, with full
knowledge of the situation of the estate[.]
Appeal of Kreiser, 69 Pa. 194, 200-01 (1871) (citations omitted). The
Supreme Court has further stated:
If an election is made with full knowledge of all essential
facts, it cannot be withdrawn. But, no intervening rights
appearing, the expression of intent once may be retracted
upon discovery of the true situation. If action has been
taken by the wife or husband in ignorance of the value of
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the estate, or of the rights which would accrue under the
provisions of the will as compared with the interests given
by the intestate laws, then the first election may be set
aside, and the distribution be made in the way provided by
law.
McCutcheon’s Estate, 128 A. 843, 845 (Pa.1925) (citations omitted).
In Bailey’s Estate, 132 A. 343 (Pa.1926), the Supreme Court of
Pennsylvania did not permit a spouse to revoke her election 10 months after
the election was filed. The spouse admitted that “at the time [she] made
her election, she was aware of the terms of her husband’s will that, if she
took against its provisions, she would receive one-third of the estate, knew
approximately the amount and value of the property, and that, if knowledge
of these facts was sufficient to bind her, she was bound by her election.” In
re Bailey’s Estate, 132 A. at 343. She claimed she should be permitted to
revoke the election because, at the time she made the election, she believed
that, by making the election, it would disrupt her husband’s will as to all
provisions, and it would be as though he died intestate. Id. The Court
noted that this misapprehension had to do with the interests of others, not
her interest. Id. at 344. The Court concluded “the intention of the
legislation was to promote certainty in settlement of estates, [and] we would
fail to carry out the spirit of the act by permitting a revocation of an election
a long time after it has been made, with full knowledge of all the facts, and
for reasons such as are given in the present case.” Id.
The trial court did not err in permitting Robert to revoke his election.
Unlike the spouse in Bailey’s Estate, Robert did not know the value of the
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estate. At the time of the election, no accounting had been filed and Robert
did not know the value of the property owned by Virginia in Clearfield
County. Further, Robert informed the estate that he would like to revoke
the election six days after making the election. Although he had counsel, he
also had a misapprehension of his rights, did not know the value of the
estate, and did not know the value of the property to which he would be
entitled if he elected against the will.
Appellants next challenge the trial court’s statement that the executor
of an estate owes a duty to the surviving spouse to disclose the value of the
assets of the estate and the value which he would receive under the
alternatives available to him. Opinion and Order, 10/9/2015, at 12.
Robert did not have full knowledge of his rights and of the value of the
estate property. Because we find the trial court did not err in allowing him
to revoke the election based on this lack of knowledge, we do not reach the
issue of whether the executor had a duty to inform Robert of the value his
share under each alternative available.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2016
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