J-A09004-17
2017 PA Super 246
RE: ESTATE OF CHARLES F. MADDI, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: MARY SUE GORESCHAK AND
CHARLETTE MADDI
No. 1121 MDA 2016
Appeal from the Decree June 14, 2016
In the Court of Common Pleas of Lackawanna County
Orphans' Court at No(s): 2015-01429
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
OPINION BY OTT, J.: FILED JULY 25, 2017
Mary Sue Goreschak and Charlette Maddi (“Appellants”) appeal the
decree entered June 14, 2016, in the Court of Common Pleas of Lackawanna
County, that denied Appellants’ petition for appeal from the Register of Wills’
decision to admit to probate a duplicate original of the Last Will and
Testament of Charles F. Maddi (Decedent), their father. Appellants claim
the orphans’ court erred (1) in failing to hold Decedent’s sister, Lillian
Saracino (“Sister”), to the correct legal standard for rebutting the
presumption of revocation of a lost will, and (2) in allowing inadmissible
hearsay testimony and relying upon circumstantial evidence to conclude
Sister defeated the presumption. See Appellants’ Brief at 3. Based upon
the following, we affirm.
J-A09004-17
The orphans’ court judge, the Honorable Thomas J. Munley,
summarized the procedural background and facts of this case, as follows:
Before this Court is the Petition of Mary Sue Goreschak and
Charlette Maddi (“Petitioners”) seeking a reversal of the Register
of Wills’ decision to admit a copy of the Last Will and Testament
of Charles F. Maddi to probate. The Petitioners are the adult
daughters of the Decedent and they request that the Letters
Testamentary issued to Respondent Lillian Saracino be reversed,
and that this Estate consequently be administered through the
Commonwealth’s laws of intestacy. …
The testimony at the [April 13, 2016] hearing revealed the
following facts. In the spring of 2013, Charles Maddi contacted
Sandra Boyle, an attorney practicing in Northeastern
Pennsylvania, and advised her that he wanted to hire her to
prepare a new will, an advanced health care directive, and a
power of attorney; Atty. Boyle’s recollection was that Mr. Maddi
had a prior, existing will and wished to change it. When Mr.
Maddi met with Atty. Boyle, he brought his sister, Lillian
Saracino, with him. He explained to Atty. Boyle that he wanted
his sister to be named Executrix in the Will he wanted her to
draft, that he had a list of named charities that he would like to
leave certain amounts of money to, that he had other specific
bequests for relatives, and finally, that he intended to leave any
residuary estate to his sister. Mr. Maddi mentioned to Atty. Boyle
that he had two adult daughters, and that he was not going to
include them in any bequest in his will because he felt his
daughters were well taken care of by him during his lifetime.
Weeks after the initial meeting with counsel, [on May 6, 2013,]
Mr. Maddi returned to Atty. Boyle’s office to review and sign the
documents that she had prepared for him. Atty. Boyle testified
that she, along with her secretary, who was also a notary,
witnessed his signature, as did an adult individual named Curtis
Stevens. As far as duplicate copies of the will, Atty. Boyle
explained her usual process to be that she would produce
several duplicates at her office, all of which are computer
generated duplicates of the original, all to be individually and
authentically signed. She emphasized that they are not
photocopies of an original will, but duplicates, identical to the
first computer-generated will, and they were all signed
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individually by Mr. Maddi. Generally, this attorney’s clients, Mr.
Maddi included, were asked to sign or initial the margin of every
page of each duplicate will until he or she got to the last page,
which would then be signed and dated by the client, and that
signature would be witnessed and notarized.
At the end of her meeting with Mr. Maddi, where he signed the
duplicate wills and other documents Atty. Boyle had prepared for
him, she gave him the “original” with one duplicate copy, and
she kept a duplicate copy; again, each was originally signed,
witnessed, and notarized, as were the financial power of
attorney documents. After this appointment, Mr. Maddi left with
two of the three “originals”, leaving one for safekeeping with
Atty. Boyle, and never again contacted Atty. Boyle with respect
to changing or revoking his will.
Charles Maddi departed this earth on October 31, 2015, and at
death, he was unmarried and was survived by two adult
children, Mary Sue Goreschak and Charlette Maddi. He was also
survived by his sister Lillian Saracino. On December 9, 2015, Ms.
Saracino filed a Petition seeking to admit to probate a duplicate
copy of her brother’s will, and this duplicate copy contained
original signatures of Mr. Maddi and other witnesses. No
“original” will was found among the Decedent’s possessions in
his home, nor was any will found in the safe deposit box the
[Decedent] maintained at his bank. According to Lillian Saracino,
neither she nor anyone else was able to find the will among his
possessions, most likely because Charles Maddi had an unusual
way of filing and storing papers, bills, and other documents
which was essentially known only to him. Also, within hours after
the passing of Charles Maddi, she as well as other relatives of
the Decedent began removing many items of personal property
from his home in an attempt to begin cleaning out the home;
Mary Sue Goreschak described what was initially being cleared
from the home as “bags of paperwork, folders”. The will
eventually presented by Respondent Saracino to the Register of
Wills was the signed duplicate from Atty. Boyle’s files. After a
hearing, the Register admitted it to probate.
Other significant facts revealed at the hearing include Lillian
Saracino’s statements that she had an extremely close
relationship with her brother, spoke with him every evening, and
that he never expressed to her any desire to revoke or destroy
the will prepared for him by Atty. Boyle. She also stated that it
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was Charles Maddi’s acknowledged intention, memorialized in his
will, to not make any bequest for his daughters because he
believed that he had fully provided for his children while he was
alive, in fact transferring several income-generating properties to
his daughter Mary Sue Goreschak just prior to making the will in
question. Ms. Goreschak testified that she lived near to her
father and was a regular visitor at his home. She herself, along
with her son, had keys to Mr. Maddi’s residence, as did her one
of her uncles and the Decedent’s sister. She also stated her
belief that prior to his death, her father could have been looking
for another lawyer to make a new will for him, although to her
knowledge her father never spoke with another attorney and
never had another will created. While she had given her father
the business card of an attorney she herself was familiar with,
said attorney testified at the Court hearing and definitively
stated that Charles Maddi had never contacted him for any
reason.
Orphans’ Court Opinion, 6/14/2016, at 1–4. Based on the evidence
presented at the hearing, the orphans’ court concluded:
Having heard the testimony, considered the factual
circumstances and legal considerations of this matter, and
evaluated the witnesses’ credibility, it is this Court’s decision that
the Register of Wills was correct in admitting the duplicate
original will of Charles Maddi to probate.
Id. at 9. This appeal followed.1
Our scope and standard of review on appeal from a decree of the
Orphans’ Court adjudicating an appeal from probate is as follows:
In a will contest, the hearing judge determines the credibility of
the witnesses. The record is to be reviewed in the light most
favorable to appellee, and review is to be limited to determining
whether the trial court’s findings of fact were based upon legally
competent and sufficient evidence and whether there is an error
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1
The orphans’ court did not order Appellants to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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of law or abuse of discretion. Only where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of
evidence may the court’s findings be set aside.
Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014) (citation omitted).
See also Burns v. Kabboul, 595 A.2d 1153, 1161 (Pa. Super. 1991).
Appellants first argue that the orphans’ court failed to hold Sister to
the correct legal standard in rebutting the presumption that Decedent
destroyed and revoked his will prior to this death.
The legal principles regarding a lost will are well settled:
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 Murray, 404 Pa.
120, 129, 171 A.2d 171, 176 (1961). See also In re Estate of
McCaffrey, 453 Pa. 416, 418 n.3, 309 A.2d 539, 540 n.3 (1973)
(same). “To overcome that presumption, the evidence must be
positive, clear and satisfactory.” In re Estate of Murray, 404
Pa. at 129, 171 A.2d at 176. Moreover, to prevail over the
presumption and establish the existence of a lost will, “the
proponent of the copy of the will must prove that: 1) the testator
duly and properly executed the original will; 2) the contents of
the will were substantially as appears on the copy of the will
presented for probate; and 3) when the testator died, the will
remained undestroyed or revoked by him.” Burns v. Kabboul,
407 Pa. Super. 289, 595 A.2d 1153, 1167-68 (Pa. Super. 1991).
****
… “Declarations of intent, condition, and circumstances of family
are insufficient to establish [whether a will remains undestroyed
or unrevoked by a decedent] and thus rebut the existent legal
presumption.” In re Estate of Keiser, 385 Pa. Super. 24, 560
A.2d 148, 150 (Pa. Super. 1989) (citing Gardner v. Gardner,
et al., 177 Pa. 218, 35 A. 558 (1896). “Accordingly, a court will
not weigh the probability of the decedent’s wishes or otherwise
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speculate as to the motives which may or may not have
influenced the [testator] in the direction of intestacy.” Id. (citing
O'Neill’s Estate, 58 Pa.D.&C. 351 (1946)).
In re Estate of Janosky, 827 A.2d 512, 519-20, 521 (Pa. Super. 2003)
(finding evidence of the decedent’s close relationship with appellant and lack
of any relationship with appellees was “in and of itself [] insufficient to rebut
the presumption of destruction”).
Appellants concede that Sister has proved the first two factors
necessary to overcome the presumption that the Decedent revoked or
destroyed the original will, i.e., that (1) the testator duly and properly
executed the original will; (2) the contents of the will were substantially as
appears on the copy of the will presented for probate. Appellants only
dispute that Sister proved the third factor, i.e., that “when the testator died,
the will remained undestroyed or revoked.” Janosky, supra, 827 A.2d at
520, citing Burns v. Kabboul, supra. See Appellants’ Brief at 10.
The orphans’ court, in finding that Sister had established the third
factor, opined:
… In looking at the known facts in light of the third element,
which concerns whether the testator revoked or destroyed the
will during his lifetime, the Decedent’s daughters point to the
significant fact that their father’s will was not found in his home
after his passing, a circumstance that, they believe, shows that
he must have destroyed the will which Atty. Boyle prepared for
him. Also, Ms. Goreschak recalled her father mentioning on at
least one occasion that he might be interested in creating a new
will, although no new will was contained among his possessions,
and the attorney Ms. Goreschak referred to her father was never
contacted by him. The only person who testified about the
possibility of the Decedent wanting to change his testamentary
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plans was Ms. Goreschak, who was not included in the will
drafted by Atty. Boyle, and whose interests would be greatly
enhanced should this estate be administered as one that is
intestate.
In regard to the third component of the test set forth in Burns
v. Kabboul, supra, there are several facts and circumstances
relied on by Ms. Saracino reflecting her proposal that her
brother’s will was not destroyed or revoked by him, and simply
not found in any of the places his relatives thought they might
find it, such as Mr. Maddi’s safe deposit box and the boxes in his
house where he would normally keep items such as bills and
bank statements. She was close with her brother, and he not
only brought her with him to Atty. Boyle’s office on the occasions
he met with the attorney to discuss and execute his will, but she
stated that, when Atty. Boyle asked her brother if he wanted to
meet with counsel privately, without Ms. Saracino being present,
Mr. Maddi insisted that he have his sister with him while he
discussed his plans with Atty. Boyle. Ms. Saracino interprets the
circumstance of her being included in this confidential meeting
by her brother as a detail which supports the idea that, if Mr.
Maddi decided to revoke his 2013 Will and rework his
testamentary plans, he surely would have told his sister, as she
was the residuary beneficiary of that will, the person who was
intimately familiar with his estate planning, and a relative with
whom he had a caring and very long-standing relationship. Ms.
Saracino also asks the court to take notice of the fact that her
brother transferred numerous properties to one of his daughters
before the execution of his will, which seems reflective of his
written wishes to leave his legacy to persons other than this
daughter, since, as the will stated, he believed he had
generously provided for her prior to his death. Moreover, the
Decedent’s sister points to his convoluted filing system as
suggestive of the circumstance that the will was still in existence
at the time of Mr. Maddi’s passing and not located because either
no one knew where in the Decedent’s home to look for it, or it
was inadvertently misplaced while the Decedent’s home was
being cleaned and emptied.
The Decedents’ daughters point to what they term a lack of
positive evidence shown by [Sister] to rebut the legal
presumption of the Decedent having destroyed his will. The
daughters maintain that, while [Sister] might have offered
interesting suppositions as to what could have happened with
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the will in question, she hasn’t presented sufficient, direct
evidence which would demonstrate to the Court that the
presumption was defeated. We disagree. Having heard all the
evidence presented and considering the credibility of the
witnesses’ testimony and the fact pattern which emerged from
their remarks, we find that the most logical conclusion is the one
put forth by [Sister].
The Decedent hired Atty. Boyle to prepare a will to his
specifications, which she did, and which he then executed. Mr.
Maddi stated in his will that he had financially provided for his
daughters in his lifetime, and consistent with this, he had
transferred approximately twelve different properties to his
daughter in exchange for one dollar prior to executing his will.
No one who testified was aware of Mr. Maddi contacting any
other attorney to prepare a new will, and it was only Ms.
Goreschak, who was to receive no bequest under the will drawn
for her father by Atty. Boyle, who recalled her father expressing
dissatisfaction with that will. Despite this alleged discontent with
his Estate planning, the Decedent never, to anyone’s knowledge,
changed his will. Mr. Maddi had a document filing system known
only to him, and though the will was not seen among his
possessions after his passing, all of the evidence, other than the
testimony of Ms. Goreschak, points to the Decedent’s will
prepared by Atty. Boyle being the embodiment of his wishes for
his testamentary estate, and being overlooked or unseen in the
process of Mr. Maddi’s relatives cleaning out his home after his
death.
… Having heard the testimony, considered the factual
circumstances and legal considerations of this matter, and
evaluated the witnesses’ credibility, it is this Court’s decision that
the Register of Wills was correct in admitting the duplicate
original will of Charles Maddi to probate. No fact in this case
points to Mr. Maddi second-guessing his careful estate planning,
let alone destroying his written wishes; every fact, including the
deeding of many properties to his daughter just prior to creating
his will, suggests that he and Atty. Boyle created a thorough and
considered scheme of intended distribution, by way of his will,
which we believe was unfound by relatives, as opposed to
revoked or destroyed by the testator. Lillian Saracino has
overcome the presumption that Charles Maddi destroyed or
revoked his May 6, 2013 will through proof by positive, clear,
and satisfactory evidence and therefore, the request that the
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duplicate original of the May 6, 2013 will provided by Atty. Boyle
should be admitted to probate.
Orphans’ Court Opinion, 6/14/2016, at 5–8, 9.
Appellants cite the orphans’ court’s finding that “Mr. Maddi mentioned
to Atty. Boyle that he had two adult daughters, and that he was not going to
include them in any bequest in his will because he felt his daughters were
well taken care of by him during his lifetime,”2 and question “how these facts
help at all in concluding that when the testator died, his Will remained
undestroyed or revoked by him.” Appellants’ Brief at 11. Appellants also
claim that the orphans’ court’s statement that “[t]he only person who
testified about the possibility of the Decedent wanting to change his
testamentary plans was Ms. Goreschak,”3 suggests the orphans’ court
misplaced the burden of proof on Appellants, when the law requires Sister to
produce “positive, clear and satisfactory” evidence to overcome the
presumption. Appellants’ Brief, id. Appellants further assert the orphans’
court’s conclusion that because Sister and Decedent were close, “if Mr.
Maddi decided to revoke his 2013 will … he surely would have told his
sister,”4 is “not based on direct evidence, but it is simply speculation.”
____________________________________________
2
Orphans’ Court Opinion, 6/14/2016, at 2.
3
Orphans’ Court Opinion, supra, at 6.
4
Id. at 7.
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Appellants’ Brief at 12. Appellants contend the orphans’ court’s conclusion
that the Decedent’s Will was not found because Decedent had a “convoluted
filing system”5 is also speculation. Appellants’ Brief, id. In this regard,
Appellants maintain the evidence that the Will was not found after a search
of Decedent’s house and the bank safety deposit box establishes — not
overcomes — the presumption of revocation of the Will.
Appellants stress that proof to overcome the presumption must be
“positive, clear and satisfactory evidence.” Id. at 14. Appellants point out
“declarations of intent, condition and circumstances of family are insufficient
to establish the[] factors [the proponent of a contested will must prove to
establish the existence of a lost will] and thus rebut the existent legal
presumption.” Id. at 14, citing Gardner v. Gardner, et al., 35 A. 558 (Pa.
1896). Appellants, in support of their position, claim the orphans’ court
“relied heavily upon declarations of intent, condition, and circumstances of
family in rebutting the presumption in the instant matter.” Appellants’ Brief,
id.
Based on our review, we conclude the arguments presented by
Appellants fail to warrant relief. The orphans’ court correctly recognized
Sister bore the burden of proof to overcome the presumption of revocation
and that “the contrary evidence presented must be positive, clear and
____________________________________________
5
Id. at 7.
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satisfactory.” Orphans’ Court Opinion, 6/14/2016, at 5, citing Murray Will,
171 A.2d 171 (Pa. 1961). Furthermore, we find the orphans’ court correctly
applied Gardner, supra, wherein the Pennsylvania Supreme Court indicated
that “all presumptions of this kind may be rebutted by proof of the actual
facts.” Id., 35 A. at 561.
Regarding the above arguments presented by Appellants, it is
important to note that the court’s consideration of Decedent’s statement to
Attorney Boyle that he had two adult daughters, and that he was not going
to include them in any bequest in his will because he felt his daughters were
well taken care of by him during his lifetime was a proper consideration.
See Gardner, supra 35 A. at 561 (“[N]ot only the testator’s character,
condition, acts, and declarations, but the conduct and interest of those who
were around him from and after the date of the making of his will [are]
legitimate subjects of inquiry. Each of these lines of proof is important in
strengthening the other and both together seem necessary to constitute full
proof.”).
Further, the orphans’ court’s statement that “[t]he only person who
testified about the possibility of the Decedent wanting to change his
testamentary plans was Ms. Goreschak,”6 evidenced proper consideration of
“all of the evidence, not only that offered on part of the plaintiffs but that
____________________________________________
6
Id. at 6.
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offered on part of the defendants, bearing upon the same subject-matter.”
Gardner, supra, 35 A. at 561.
Finally, the court’s statements to the effect that Decedent “surely
would have told his sister” if he decided to revoke his 2013 Will, and that the
Will was not found because Decedent had a “convoluted filing system” are
the court’s reiteration of Sister’s testimony, not findings in support of its
decision. See Orphans’ Court Opinion, 6/14/2016, at 7.
Here, the orphans’ court considered the facts (1) that Decedent told
Attorney Boyle, and stated in his Will, that he believed he had adequately
provided for Appellants during his lifetime, (2) that, consistent with his
statement to Attorney Boyle, Decedent transferred numerous properties to
Appellant Goreschak prior to the execution of his May 6, 2013 Will, (3) that
the attorney referred to Decedent by Appellant Goreschak testified he was
never contacted by Decedent for a new will, and (4) that no one else who
testified was aware that Decedent contacted any other attorney to prepare a
new will.
Based on this evidence, the orphans’ court could properly infer that
Decedent’s testamentary plan was finalized with the Will and transfer of
property to Appellant Goreschak, that he was not dissatisfied with his
current will, and that the decedent’s Will was overlooked by family members
when Decedent’s home was cleaned out after his death. See Gardner, 35
A. at 561 (“[C]ircumstantial evidence … may be sufficient for [the fact-
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finder] to infer that the testator did not destroy this will.”). Accordingly,
Appellants’ first claim fails.
In the second claim raised in this appeal, Appellants argue that the
orphans’ court erred in allowing inadmissible hearsay evidence and relying
on circumstantial evidence. In this regard, Appellants complain “the
[orphans’ court] relied heavily on the statement that ‘Mr. Maddi mentioned
to Atty. Boyle that he had two adult daughters, and that he was not going to
include them in any bequest in his will because he felt his daughters were
well taken care of by him during his lifetime.’” Appellants’ Brief at 15.
“[I]t is well settled that the admissibility of evidence is a determination
left to the sound discretion of the trial court, and it will not be overturned
absent an abuse of discretion or misapplication of law.” In re Fiedler, 132
A.3d 1010, 1025 (Pa. Super. 2016) (quotations and citations omitted).
At the hearing, the following exchange occurred during the direct
examination of Sandra Boyle, Decedent’s attorney:
Q. Did he tell you what his intention would be as far as his daughters
in the will?
[APPELLANTS’ ATTORNEY]: Just note my objection, your Honor.
THE COURT: Do you want to answer that before I make a
ruling?
[SISTER’S ATTORNEY]: Your Honor, I don’t think – the dead man’s
rule would apply. She’s testifying to her conversation. There’s no
privacy or privilege issues. There was a third party present.
THE COURT: I’ll allow it.
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A. He indicated to me that his daughters were well provided for and
that he did not wish to include them in the will.
THE COURT: For the record, attorney, that’s the issue here. If I
exclude that kind of evidence we’ll never be able to find out
what’s going on here.
[APPELLANTS’ ATTORNEY]: I understand your Honor, I just don’t
know of any exception to the hearsay rule for that.
N.T., 4/13/2016, at 13-14.
Pennsylvania Rule of Evidence 801(c) defines hearsay as “a statement
that (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” Pa.R.E. 801(c). However, our Courts have
explained:
Evidence of a decedent’s declaration of intention is admissible in
Pennsylvania as an exception to the hearsay rule where such intent is
itself a material fact. Ickes v. Ickes, 237 Pa. 582, 85 A. 885 (1912).
In addition, a decedent’s declaration of intention to do a relevant act
may be admissible as some evidence that he later performed that act,
e.g., the declarations of the victim of a homicide that she intended to
go to the accused’s office on the night of her death (Commonwealth
v. Marshall, 287 Pa. 512, 135 A. 301 (1926)), or the declaration of
the alleged victim that she intended to take her own life
(Commonwealth v. Santos, 275 Pa. 515, 119 A. 596 (1923)). See
also McCormick, Evidence, §§ 269-270.
Hughes v. Bailey, 195 A.2d 281, 284 (Pa. Super. 1963).
Pennsylvania Rule of Evidence 803 provides:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness: …
(3) Then-existing Mental, Emotional, or Physical
Condition. A statement of the declarant’s then existing state
of mind (such as motive, intent or plan) or emotional, sensory,
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or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the
validity or terms of the declarant’s will.
Pa.R.E. 803(3). With regard to Rule 803(3), this Court, in Schmalz v.
Mfrs. and Trade Trust Co., 67 A.3d 800 (Pa. Super. 2013), stated:
Traditionally, statements of the declarant’s then existing state of
mind are considered reliable based on their spontaneity.
Commonwealth v. Hess, 378 Pa. Super. 221, 548 A.2d 582,
585 (Pa. Super. 1988) (citing Packel & Poulin, Pennsylvania
Evidence, § 803(3)). There are ordinarily three instances in
which the state of mind exception is applicable. First, the
exception may apply to prove the declarant’s state of mind when
that state of mind is an issue directly related to a claim or
defense in the case. See [Commonwealth v.] Laich, [566 Pa.
19, 777 A.2d 1057, 1060-1061 (Pa. 2001)]. Second, the
exception can apply to demonstrate that a declarant did a
particular act that was in conformity with his or her statement
after having made the statement. See Commonwealth v.
Riggins, 478 Pa. 222, 386 A.2d 520, 526 (1978); Ickes v.
Ickes, 237 Pa. 582, 85 A. 885, 887-888 (Pa. 1912). Finally, an
out of court statement related to the person’s memory or belief
is admissible in the limited instance where it relates to the
“execution, revocation, identification or terms of the declarant’s
will.” Pa.R.E. 803(3).[7]
____________________________________________
7
Prior to March 18, 2013, Pa.R.E. 803(3) read:
(3) Then existing mental, emotional or physical condition. A
statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition, such as intent, plan,
motive, design, mental feeling, pain, and bodily health. A
statement of memory or belief offered to prove the fact
remembered or believed is included in this exception only as it
relates to the execution revocation identification, or terms of
declarant’s will.
Pa.R.E. 803(3). As noted in Schmalz,
(Footnote Continued Next Page)
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Id. at 804-805.
Based on our review, we conclude Decedent’s statement was
admissible under Rule 803(3). Furthermore, as discussed above, Gardner
indicates that circumstantial evidence is properly considered by the fact
finder in deciding whether the evidence is sufficient to rebut the presumption
of revocation. Gardner, 35 A. at 561. Accordingly, we find the orphans’
court properly allowed the challenged statement of Decedent into evidence.
In sum, we conclude that Judge Munley correctly recognized the
burden of proof was upon Sister to overcome the presumption, properly
found Sister presented positive, clear and satisfactory evidence that
defeated the presumption, and correctly admitted Decedent’s statement as
an exception to the hearsay rule.
Decree affirmed.
_______________________
(Footnote Continued)
The Pennsylvania Supreme Court has promulgated new rules of
evidence, which take effect on March 18, 2013. The rule changes
result in no substantive change and are intended to conform the
Pennsylvania rules, which reference the federal rules of
evidence, with the stylistic changes made to the federal rules
that became effective on December 1, 2011.
Id., 67 A.3d at 804 n.4.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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