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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN RE: ESTATE OF IRENE A. LONG, : IN THE SUPERIOR COURT OF
A/K/A IRENE LONG : PENNSYLVANIA
:
:
APPEAL OF: MICHELE LEMMO : No. 1286 WDA 2015
Appeal from the Order July 20, 2015
in the Court of Common Pleas of Erie County
Orphans’ Court at No(s): 139-2015
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 25, 2016
Michele Lemmo (Lemmo) appeals from the order entered on July 20,
2015, which determined that the document allegedly executed by Irene A.
Long (decedent) on March 2, 2015, was not a valid will and affirmed the
appointment of Charlene A. Long (Charlene) as administatrix of Decedent’s
estate. We affirm.
The certified record in this matter reveals the following facts.
Decedent passed away on March 15, 2015, survived by three children,
Charlene,1 Linda McLean (Linda), and Patrick Long (Patrick), and her
granddaughter, Lemmo, with whom Decedent had lived for the eight months
prior to her death. Prior to her death, Decedent had been diagnosed with
colon and uterine cancer.
1
Charlene is Lemmo’s aunt.
*Retired Senior Judge assigned to the Superior Court.
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In the early months of 2015, Decedent allegedly executed two
purported wills. The first, dated February 11, 2015 (February 11, 2015
Document), was a handwritten document which stated as follows.
I, [Decedent,] on this day of Feb. 11, 2015, being of sound
mind and body, make this my will and my final wishes. I make
my granddaughter [] Lemmo and my daughter Charlene []
executresses [(sic)] of my entire estate. These two will be
responsible for my son[] Patrick[’s] needs and care.
To my daughter, Linda [], I leave the total sum of $20.00
(twenty). If she contests my will, she doesn’t get the $20.00.
There is a life insurance policy through my place of
employment, Carlisle. I name [Lemmo and Charlene]
beneficiaries of such policy.
February 11, 2015 Document.
The February 11, 2015 Document appears to be signed by Decedent
and witnessed by Charlene and Lemmo. Below all three signatures is the
following note: “Executresses [(sic)] shall make all funeral arrangements to
my wishes.” Id.
On or about March 1, 2015, Lemmo contacted the law offices of
George Schroeck, Esquire2 and spoke with paralegal Melissa Giles (Giles)
regarding execution of a new will for Decedent. At Lemmo’s request Giles
drafted a new will for Decedent, dated March 2, 2015 (March 2, 2015
2
Attorney Schroeck is representing Lemmo in the present action and
appeared on her behalf at oral argument.
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Document), using the February 11, 2015 Document as a template.3 Giles
testified at trial that she did not speak with Decedent prior to drafting the
March 2, 2015 Document. Attorney Schroeck did not review the document.
On March 2, 2015, Giles brought the March 2, 2015 Document to
Lemmo’s home for execution. Also present at the home were Decedent,
Lemmo, Charlene, Kathy Flynn (Flynn), and Michael Goetz (Goetz). Flynn
and Goetz witnessed the March 2, 2015 Document and Giles notarized it.4, 5
Following Decedent’s death on March 15, 2015, Linda and Patrick
renounced their rights to administer the Estate. On April 23, 2015, Charlene
filed a petition for probate and grant of letters testamentary. This request
was granted by decree on April 23, 2015.
On May 22, 2015, Lemmo filed the March 2, 2015 Document, along
with a petition for probate and grant of letters testamentary. On June 1,
2015, Charlene filed a petition seeking to invalidate the March 2, 2015
Document. In that petition, Charlene alleged that on March 2, 2015,
3
The March 2, 2015 Document substantially conforms to the terms of the
February 11, 2015 Document, except with respect to the inheritance of
Linda. While the February 11, 2015 Document left Linda twenty dollars
(payable only if the purported will was not contested), the March 2, 2015
Document contains no such provision.
4
Charlene chose the witnesses: Flynn is her life partner and Goetz is her
boss.
5
The orphans’ court recognized that this case raises issues concerning the
unauthorized practice of law. Orphans’ Court Opinion, 10/12/2015, at 3. We
trust that those concerns have been referred to the appropriate authorities.
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Decedent was not in the physical or mental state necessary to execute a will.
Charlene claimed that Lemmo had manipulated Decedent’s hand to get her
to sign the March 2, 2015 Document and had signed Decedent’s name to the
February 11, 2015 Document when she was unable to get Decedent to sign
it.
On July 20, 2015, a hearing was held, after which the orphan’s court
determined that the March 2, 2015 Document was not a valid will. On
August 19, 2015, Lemmo filed a notice of appeal.6 Both Lemmo and the
orphans’ court complied with the mandates of Pa.R.A.P. 1925.
Lemmo raises the following issues for our review.
1. Did the [orphans’ court] commit an abuse of discretion
and/or an error of law when it failed to apply case law,
specifically where [Charlene] presented no credible evidence that
[Decedent], who suffered from metastatic carcinoma and took
pain medication, was “non compos mentis,” in light of the fact
[that Decedent] had signed a similar hand-written will the
previous month, which showed the same general intent
regarding legatees?
2. Did the [orphans’ court] commit an abuse of discretion
and/or an error of law in finding that [Decedent] was not a
capable and competent individual, where no credible medical
6
Lemmo failed to serve her notice of appeal on the orphans’ court in
violation of Pa.R.A.P. 906(a)(2). However, because the orphan’s court
considered the issues Lemmo now raises before us, we decline to quash this
appeal. See Pa.R.A.P. 902 (“Failure of an appellant to take any step other
than the timely filing of a notice of appeal does not affect the validity of the
appeal, but is subject to such action as the appellate court deems
appropriate, which may include, but is not limited to, remand of the matter
to the lower court so that the omitted procedural step may be taken.”);
Meadows v. Goodman, 993 A.2d 912, 914 (Pa. Super. 2010).
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testimony or evidence was presented that evidenced [Decedent]
was unaware of her actions, specifically where [Decedent] was
question by a notary public as to whether she understood the
subject will and its intentions, and [Decedent] acknowledged
that she did?
3. Did the [orphans’ court] commit an abuse of discretion
and/or an error of law in finding that the will was not a valid will
properly executed by a capable and competent individual, where
the will was witnessed by two individuals who signed sworn
statements that they had witnessed [Decedent] sign the will?
4. Did the [orphans’ court] commit an abuse of discretion
and/or an error of law in failing to apply controlling precedent of
case law and statutory law to the facts of this case?
Lemmo’s Brief at 2-3 (unnecessary parentheticals omitted).
Our standard of review of the findings of an orphans’ court
is deferential. 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 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. [T]he orphans’
court decision will not be reversed unless there has been an
abuse of discretion or a fundamental error in applying the
correct principles of law.
In re Estate of Whitley, 50 A.3d 203, 206–07 (Pa. Super. 2012) (internal
citations, quotation marks, and unnecessary capitalization omitted).
In her first issue, Lemmo argues that the orphans’ court erred in
determining that Decedent was not capable or competent to execute the
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March 2, 2015 Document where Decedent had signed a similar document on
February 11, 2015. Appellant’s Brief at 14-21.7
The Probate, Estates and Fiduciary Code provides that “[a]ny person
18 or more years of age who is of sound mind may make a will.” 20 Pa.C.S.
§ 2501.
Testamentary capacity exists when the testator has
intelligent knowledge of the natural objects of his bounty, the
general composition of his estate, and what he or she wants
done with it, even if his memory is impaired by age or disease.
Neither old age, nor its infirmities, including untidy habits, partial
loss of memory, inability to recognize acquaintances, and
incoherent speech, will deprive a person of the right to dispose
of his own property.
In determining testamentary capacity, a greater degree of
proof of mental incapacity is required than would be necessary
to show the inability to conduct one’s business affairs. Finally,
testamentary capacity is to be ascertained as of the date of
execution of the contested document.
In re Estate of Smaling, 80 A.3d 485, 494 (Pa. Super. 2013) (citations
and quotation marks omitted).
A previous will executed by the testator who was admittedly of
sound mind is admissible upon the theory that such a will tends
to show the fixed and settled purpose of the testator, and any
sudden change in such purpose without adequate cause may be
evidence from which an unsound mind may be inferred.
Burns v. Kabboul, 595 A.2d 1153, 1162 (Pa. Super. 1991) (citations
omitted).
7
We note with displeasure that the argument section of Lemmo’s brief fails
to divide her argument into sections corresponding to the issues raised in
her statement of questions involved in violation of Pa.R.A.P. 2119(a).
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Instantly, the orphans’ court rejected Lemmo’s arguments, finding that
that Lemmo, and not Decedent, had hand written the February 11, 2015
Document, which Lemmo then signed, both on Decedent’s behalf and as a
witness, rendering that document invalid. Orphans’ Court Opinion,
10/12/2015, at 8. Thus, the court determined that the earlier document
could not be used to demonstrate the validity of the March 2, 2015
Document.
With respect to the February 11, 2015 Document, Lemmo testified that
she had a conversation with Decedent and Charlene about the terms of the
document prior to drafting it. N.T., 7/20/2015, at 20. Lemmo stated that
Decedent was “very coherent” at the time of this conversation. Id. at 21.
However, Charlene testified that, prior to February 11, 2015, Decedent had
indicated that she did not want a will. Id. at 84.
Charlene testified that she had fallen asleep in a chair at Lemmo’s
home one evening and awoke around 11:00 pm to find Lemmo “writing in
the dark.” Id. at 74. When questioned, Lemmo told Charlene she was
writing Decedent’s will. Charlene testified that she and Lemmo signed page
two of the February 11, 2015 Document, but that Decedent did not sign the
document to her knowledge or in her presence. Id.
Lemmo testified that Decedent discussed coherently the terms of the
February 11, 2015 Document with Lemmo and Charlene. However, hospice
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records, introduced at trial through Karen Moski, executive director of
Hospice of Metropolitan Erie, indicated that Decedent requested admission
into hospice on or about February 12, 2015. At that time, Decedent
described her pain as excruciating. Prior to her admission to hospice,
Decedent had been prescribed a regimen of pain management drugs,
including MS Contin (later changed to Fentanyl) and liquid morphine, which
are “narcotics that would impair cognitive abilities.” N.T., 7/20/2015, 63-64.
Hospice records admitted at trial noted that Decedent “would benefit from
pain control” and indicated that the medications previously prescribed would
be continued and/or increased at the order of Decedent’s treating physician.
Elaine Dombrowski (Dombrowski), a nurse manager at hospice,
testified that Decedent was prescribed what medical professionals would
consider to be “high doses” of her pain medication. Id. at 64. Dombrowski
also testified that hospice had encountered problems related to the
administration of Decedent’s in-home pain medication by Lemmo.
Decedent was involved in hospice from February 12 through March 3,
2015. She was ultimately discharged when hospice determined that it could
not accurately monitor the in-home medication, including the morphine and
Fentanyl, administered to Decedent. The notes created by hospice also
indicate that (1) hospice workers had a difficult time contacting Lemmo
during Decedent’s time in the program, and (2) Decedent was often
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unresponsive when hospice workers were performing wellness checks.
Christine Flannigan, the Community Relations Manager who conducted
Decedent’s hospice exit interview on March 3, 2015, testified that Decedent
was tired and not responsive. Id. at 71.
The law is clear that a testator must have intelligent knowledge of her
estate and what she wants to do with it at the time the will is executed.
Smaling, 80 A.3d 494. Moreover, we are cognizant that
[i]f the testator is unable to sign his name or to make his mark
for any reason, a will to which his name is subscribed in his
presence and by his express direction shall be as valid as though
he had signed his name thereto: Provided, That he declares
the instrument to be his will in the presence of two
witnesses who sign their names to it in his presence.
20 Pa.C.S. § 2502(3) (emphasis added).
Based on our review of the record, we find no error in the orphans’
court’s determination that the Decedent lacked testamentary capacity to
execute a will on February 11, 2015. Charlene testified that Decedent did
not want a will, was taking high doses of medication, and was being
evaluated for admission to hospice at the time the February 11, 2015
Document was signed. Additionally, Charlene’s testimony that, contrary to
what her signature on the February 11, 2015 Document would indicate, she
did not witness Decedent sign the document, supports the orphans’ court’s
determination that the February 11, 2015 Document was not a valid will.
Accordingly, we agree with the orphans’ court that the February 11, 2015
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Document cannot support Lemmo’s claim that the March 2, 2015 Document
is valid. Burns, supra.
In her second issue, Lemmo argues that the orphan’s court erred in
determining that Decedent was not capable or competent to execute the
March 2, 2015 Document because Charlene failed to present credible
medical testimony to contradict that of Giles and Lemmo, who claimed that
Decedent understood the March 2, 2015 Document and its ramifications.
Appellant’s Brief at 14-21.
We note that Lemmo does not challenge the admission of the Hospice
notes. Those notes indicate that Decedent was suffering from excruciating
pain, which was being inconsistently treated using high doses of narcotic
medication, and, as a result of her medical condition and treatment,
Decedent was often tired and non-responsive.
Further, Giles testified that when she arrived at Lemmo’s home,
Decedent was in a hospital bed watching television. Her eyes were open,
but would close occasionally. Giles indicated that, when responding to Giles’
questions regarding the March 2, 2015 Document, Decedent “may have
made a sound first, at which point, I repeated by question and I would
repeat it until either she said ‘yes’ or ‘no.’ She never said ‘no.’” N.T.,
7/20/2015, at 14. Giles testified that while Decedent signed all four pages
of the March 2, 2015 Document, she was incapable of holding her arm up
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and dropped the pen several times. Lemmo had to hold Decedent’s arm for
her to sign. Giles did not inquire as to Decedent’s medical condition or what
medications Decedent was taking, nor did she contact Decedent’s treating
physician for an opinion as to Decedent’s competency. Further, Giles
testified that she knew hospice had recently been fired and assumed
Decedent was close to the end of her life.
It is well-settled that “courts evaluate testamentary capacity on the
date of the execution of the contested will. Evidence of such state of mind
may be received for a reasonable time before and after execution as
reflective of decedent’s testamentary capacity. This information can be
supplied by lay witnesses as well as experts.” In re Estate of Nalaschi, 90
A.3d 8, 12–13 (Pa. Super. 2014). Contrary to Lemmo’s argument, Charlene
was not required to admit additional medical evidence. However, instead of
corroborating Lemmo’s claims that Decedent was lucid at the time the March
2, 2015 Document was executed, the testimony of Giles supports the
observations of the hospice employees who noted that Decedent was often
unresponsive. Moreover, as fact-finder, the orphans’ court was free to
believe all, part, or none of the evidence presented. See In re Bosley, 26
A.3d 1104, 1107 (Pa. Super. 2011). We find no abuse of discretion.
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Lemmo next argues that the orphans’ court erred in determining the
March 2, 2015 Document is invalid because Flynn and Goetz averred that
they had witnessed Decedent sign the document. Lemmo’s Brief at 19.
At trial, Flynn testified that at the time the March 2, 2015 Document
was signed, Decedent was “pretty well out of it. She wasn’t coherent all the
time and you really had to work on her to get answers or anything out of
her. Usually it was like an ‘uh.’” N.T., 7/20/2015, at 87. Flynn indicated
that Decedent dropped the pen when it was placed in her hand and that
Lemmo had to help her sign. She noted that Lemmo was supposed to
provide “a light[] assist, but there was just no way [Decedent] could hold
the pen.” Id. at 88.
Goetz’s testimony corroborated Flynn’s assessment that Decedent was
“pretty drugged” on March 2, 2015, but testified that she made eye contact
with him and that she could make a mark on the page, which he believed
was acceptable under the instructions Giles provided for execution of the
Document. Id. at 92. However, he indicated that Lemmo was “holding
[Decedent’s] hand.” Id. Importantly, Goetz testified that after the signing he
expressed concern to the other witnesses because he “expect[ed] a little bit
more positive communication” from Decedent. Id. at 94. He reiterated on
cross-examination that he did witness Decedent sign her name to the March
2, 2015 Document. Id. at 95.
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We are cognizant that
[i]f one having testamentary capacity, is unable from palsy
or other cause to steady his hand so as to make to his will the
signature required by law, another person may hold his hand
and aid him in so doing; and it is not necessary to prove any
express request from the testator for such assistance. The act is
his own with the assistance of another, and not the act of
another under authority from him.
In re Milleman’s Estate, 203 A.2d 202, 209 (Pa. 1964) (emphasis added).
The orphans’ court’s opinion demonstrates that it considered the
testimony presented by Flynn and Goetz, but still found that Decedent
lacked testamentary capacity to execute a will on March 2, 2015, rendering
her assisted signature invalid. Based on our review of the record, we find no
abuse of discretion in this determination.
Finally, Lemmo claims that the court erred in “failing to apply
controlling precedent of case law and statutory law to the facts of this case.”
Lemmo’s Brief at 3. However, in her argument section, she fails to detail
specifically which precedent the court overlooked. This Court has repeatedly
held that “failure to develop an argument with citation to, and analysis of,
relevant authority waives that issue on review.” In re Estate of
Schumacher, 133 A.3d 45, 51 (Pa. Super. 2016). Accordingly, we hold that
this claim is waived.
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Based on the foregoing, we hold that the orphans’ court properly
granted Charlene’s petition to invalidate the March 2, 2015 Document.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2016
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