J-A07020-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN S. LUCCI, A MARRIED : IN THE SUPERIOR COURT OF
WOMAN : PENNSYLVANIA
:
Appellant :
:
v. :
:
THE LILLIAN J. ROEHL REVOCABLE :
TRUST DATED MARCH 21, 2014, ALICE :
E. ROBERTS, AND PAUL S. ROBERTS, :
INDIVIDUALLY AND IN THEIR :
CAPACITY AS TRUSTEES OF THE :
LILLIAN J. ROEHL REVOCABLE TRUST :
:
Appellees : No. 1027 WDA 2016
Appeal from the Order Entered July 6, 2016,
in the Court of Common Pleas of Beaver County,
Orphans’ Court at No(s): 04-14-1059
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED SEPTEMBER 29, 2017
Because the orphans’ court erred by denying Appellant the opportunity
to conduct discovery, I respectfully dissent and offer the following analysis.
The orphans’ court set forth accurately the requirements for Appellant
to establish the existence of a lost will. See Orphans’ Court Opinion,
11/14/2016, at 9.
In order to establish the existence of a lost will which was in the
custody of the testatrix prior to her death, the proponent of the
will must overcome the presumption that the testatrix destroyed
or revoked her will. As such, the proponent of the will must
prove the following factors by utilizing evidence which is positive,
clear, and satisfactory: (1) that the testatrix duly and properly
*Retired Senior Judge assigned to the Superior Court.
J-A07020-17
executed the original will; (2) that the contents of the executed
will were substantially the same as on the copy of the will
presented for probate; and (3) that the testatrix had not
destroyed or revoked her will prior to her death.
In re Estate of Keiser, 560 A.2d 148, 150 (Pa. Super. 1989) (internal
citation omitted).
At issue in this case is the evidence presented by Appellant to
overcome the presumption that the Decedent destroyed her will. The
orphans’ court concluded that, “based upon the weight and credibility of all
evidence and testimony presented, [Appellant] failed to overcome the
presumption[.]” Orphans’ Court Opinion, 11/14/2016, at 9.
However, the orphans’ court had denied Appellant the opportunity to
discover and therefore present evidence that could have aided her in
overcoming that presumption. Decedent was 97 years old at the time of the
2014 will and trust. Appellant sought discovery of Decedent’s medical
records. It is certainly not inconceivable that Decedent’s intellect was
weakened to the extent that she would have been subject to undue influence
by the Trustees. Likewise, she may have lacked the intellect to destroy any
2011 will.
The learned Majority relies on the testimony of Attorney Nalli to find
that Decedent was of sound mind, and that even if there had been evidence
to the contrary, the orphans’ court could still have believed Nalli. But we will
never know whom the orphans’ court would have believed because the court
never allowed Appellant to discover Decedent’s medical records.
-2-
J-A07020-17
If the orphans’ court had permitted this discovery, it would then have
been able to assess whether the 2014 will and trust were signed or whether
the 2011 will was destroyed or revoked as a result of the undue influence by
the Trustees, or whether Decedent even had the capacity to revoke or
destroy the earlier will. Accordingly, I would vacate both the July 6, 2016
order and the April 19, 2016 decree of the orphans’ court. In addition, I
would deny Appellees’ motion for protective order and grant Appellant’s
motion to compel production of documents.
-3-