Estate of Louis G. Hill

J. A12043/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF LOUIS G. HILL, DECEASED : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: CRAWFORD HILL, :
LESLIE HILL, THOMAS HILL AND : No. 2342 EDA 2017
MICHAEL HILL :

Appeal from the Order Entered June 16, 2017,
in the Court of Common Pleas of Montgomery County
Orphans’ Court Division at No. 2013-X3016

BEFORE: BOWES, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 10, 2018

Crawford Hill, Leslie Hill, Michael Hill, and Thomas Hill (collectively,

appellants) appeal the June 16, 2017 order of the Court of Common Pleas of

Montgomery County, Orphans’ Court Division (“orphans’ court”), that denied

appellants’ petition to invalidate the transfer of assets from Louis Hill’s

(Decedent) account with Raymond James Associates (“Raymond James”) into

a joint account in the names of Decedent and Marilyn A. Hill (“Mrs. Hill”), the

wife of Decedent. After careful review, we affirm.

Decedent was originally married to Jane Cox (“Cox”), a member of the

Bancroft family that owned a substantial interest in the Dow Jones Company

(“Dow Jones”) that previously owned the Wall Street Journal. Decedent had

seven children1 with Cox. After divorcing Cox, Decedent married Mrs. Hill.

1 Appellants are four of the seven children.
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Decedent died on July 13, 2013. Mrs. Hill and appellants were named as

co-executors of Decedent’s estate based on a will dated April 1, 2004.

On July 2, 2014, appellants filed a petition for citation to show cause

why the purported transfer of substantially all the contents of the

Raymond James account from an account in Decedent’s name alone to a joint

account in the name of Decedent and Mrs. Hill should not be declared invalid.

Appellants alleged that Decedent lacked capacity to make the transfer that he

purportedly authorized on June 27, 2007, due to advanced dementia. In the

alternative, appellants alleged that the purported transfer was the product of

undue influence exercised by Mrs. Hill who, appellants claimed, was so

convinced that Decedent’s children did not have any need to inherit any money

from Decedent and of her relative need to inherit money from Decedent that

she prevailed upon Decedent to change his long-established estate plan.

(“Petition for Citation to Show Cause Why Purported Transfer of Substantially

All the Contents of a Brokerage Account Owned by Decedent to a Newly

Opened Account Owned Jointly with his Spouse Should Not be Declared

Invalid,” 7/2/14 (“Petition”) at 8, ¶¶ 41-42.)

Appellants further alleged in the petition:

31. On June 26, [2007,] on the afternoon of the day
on which [Mrs. Hill] had taken [Decedent] to the
Chestnut Hill emergency room for treatment of
anxiety and agitation, after returning home
from the hospital [Decedent] apparently
contacted Ralph McDevitt, a broker at
[Raymond James], who had long served as his
broker.

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32. [Decedent] purportedly told Mr. McDevitt that
he wanted to transfer substantially all of the
assets in his individually owned brokerage
account at Raymond James to a newly opened
account owned jointly with [Mrs. Hill]. The
individually owned account held the lion’s share
of [Decedent’s] most liquid assets, worth
approximately $4,779,000 at that time.

33. [Decedent] had never purported to express any
such wish before June 27, 2007. To the
contrary, prior to June 2007, when Mr. McDevitt
had unilaterally raised with [Decedent] the topic
of whether he wished to transfer assets owned
by him to joint ownership with [Mrs. Hill],
[Decedent] told Mr. McDevitt affirmatively that
he did not want to do so. He told McDevitt on
another occasion that he “had his reasons” for
not putting assets in joint names.

34. Those statements to Mr. McDevitt were
consistent with [Decedent’s] statements made
over many years to his children that he had
made specific provision for [Mrs. Hill] in his Will,
but that the bulk of his financial assets would
pass to them on his death.

35. [Decedent’s] probated Last Will and Testament
is consistent with these often expressed wishes.
The Will, whose terms he discussed with his
children, provides for a substantial bequest to
[Mrs. Hill], including financial assets, personalty
and real estate, with the remainder divided
among his issue. Pursuant to those terms, had
the assets not been transferred to joint
ownership with [Mrs. Hill], most of them would
pass to his children, a result changed by the
purported transfer made on June 27, 2007.

36. Moreover, the purported transfer also had
another deleterious effect on his long
established estate plan. By removing the
contents of the transferred account from his
estate, the transfer depleted his estate of

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sufficient financial assets to pay all of its
obligations, including taxes, thereby requiring
abatement of many of the carefully planned
bequests in his Will.

Petition at 6-7, ¶¶ 31-36.

On August 5, 2014, Mrs. Hill answered and denied the material

allegations of the petition. As new matter, she asserted that appellants’ claim

was barred by laches. Appellants denied that the claim was barred.

The orphans’ court heard the matter on June 20-22, 2016. Thomas Hill

(“T. Hill”), one of the appellants, testified that he first became aware of his

father’s dementia in approximately 2002 when Decedent and Mrs. Hill lived at

a house on St. George’s Road in the Chestnut Hill section of Philadelphia.

(Notes of testimony, 6/20/16 at 38.) T. Hill testified that Decedent and

Mrs. Hill moved to a house on Germantown Avenue in 2003 that was directly

across the street from Chestnut Hill Hospital. (Id. at 41.) Around that time,

T. Hill began to notice Decedent repeating questions and conversations. In

addition, Decedent who had been an avid runner and walker stopped taking

walks in the neighborhood because he was afraid of getting lost. (Id. at 42.)

T. Hill testified that in December 2005, Decedent did not recognize him. (Id.

at 47.) T. Hill reported that Decedent, in various conversations over the years,

stressed that it was important to him to pass on the wealth he inherited to his

children. (Id. at 55.) T. Hill did not learn of the June 27, 2007 transaction

until after Decedent’s death. However, shortly before Decedent’s death,

Mrs. Hill told T. Hill that some accounts of hers and of Decedent’s had been

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consolidated for convenience purposes. (Id. at 57.) T. Hill reported that some

specific bequests in Decedent’s will had not been paid because there were

insufficient assets to do so. (Id. at 58.)

On cross-examination, T. Hill admitted that he only saw Decedent once

or twice a year from 2005-2007. (Id. at 70.) On redirect, T. Hill testified that

when he visited Decedent at Jefferson Hospital in the summer of 2007,

Decedent was in a locked ward and could do no more than exchange

pleasantries and ask to leave the hospital. (Id. at 83.)

Leslie Hill (“L. Hill”), another one of the appellants and a co-executor of

Decedent’s estate, testified that she was a member of the board of directors

of Dow Jones from 1997-2007 and that the Bancroft family decided to sell the

company in mid-July of 2007. (Id. at 96, 98.) L. Hill corroborated some of

her brother’s testimony. She also testified that Decedent repeatedly said that

he had no money and told her in 2006 that he had no children. (Id. at 104.)

L. Hill testified that at a funeral, Decedent did not realize that he was no longer

married to Cox. (Id. at 108.)

Michael Hill (“M. Hill”), another appellant and a co-executor of

Decedent’s estate, testified that he first believed Decedent exhibited signs of

dementia such as forgetting names and repeating stories in the late 1990’s or

2000. At a dinner shortly after Decedent’s birthday in March 2007, Decedent

did not believe that he had seven children and ten grandchildren and did not

know their names. (Id. at 159.) M. Hill reported that Decedent told him

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during telephone conversations that Mrs. Hill was trying “to take everything

from me.” (Id. at 162.) On cross-examination, M. Hill admitted that

Decedent did not make those claims after 2003. (Id. at 181.)

Jessie B. Hill (“J.B. Hill”), a daughter of Decedent, testified that before

she moved to Hawaii in July 2006, she saw Decedent at least weekly. She

first noticed signs of dementia in Decedent in 1998 when he stopped working.

(Notes of testimony, 6/21/26 at 207.)

Charlotte Hill, another child of Decedent, testified that she would see

Decedent two or three times a year between 2000 and 2007. (Id. at 227.)

She first noticed a decline in Decedent in 1998 when he visited her in California

and forgot their plan to spend the day together. (Id. at 228-229.)

Crawford Hill, III (“C. Hill”), another child of Decedent and an appellant,

testified that Decedent was unable to give him advice about a legal matter in

2005. (Id. at 244-245.) C. Hill testified that when he visited Decedent at

Chestnut Hill Hospital in 2007, Decedent was attempting to undo restraints

and did not know who his children were. (Id. at 255-258.)

Barry Rovner, M.D. (“Dr. Rovner”), a board-certified psychologist,

testified on behalf of appellants as an expert witness. Dr. Rovner reviewed

medical records and depositions from family members and other witnesses.

Dr. Rovner concluded that Decedent suffered from Alzheimer’s disease. (Id.

at 315.) When asked whether Decedent was capable of calling a stockbroker

on June 26, 2007, to explain that he wanted to change the ownership of his

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broker account without evidence of cognitive impairment, Dr. Rovner opined,

“all the evidence would say no.” (Id. at 378.) He also believed that Decedent

would have been susceptible to influence from another person. (Id. at 380.)

Edwin R. McDevitt (“McDevitt”), senior vice president of investments for

Raymond James, testified on behalf of Mrs. Hill. He testified that Decedent

had been a client of his since the early 1990’s. (Notes of testimony, 6/22/16

at 455.) McDevitt testified that he did not remember Decedent ever discussing

the Bancroft family’s holdings in Dow Jones prior to meeting with him on

June 27, 2007, to change his account to a joint account with Mrs. Hill except

for the Dow Jones stock. (Id. at 466.) McDevitt also testified that he met

with Decedent alone at Decedent’s house on June 27, 2007. He explained the

substance of the meeting:

[W]e talked about the Dow Jones merger. I think I
was surprised that it was actually going to take place.
I told him that. That’s when he shared with me that
it was an important event for his family and for his
kids.

And then he shared with me that he wanted to change
his single-name account to a joint account. I asked
him why. He told me his reasoning for that. . . .

....

To the best of my recollection, he said, “This is a very
big event for my kids. This will give them a lot of
money, more money than they will ever need, a
multiple of what I own. And then he said, I need to
take care of [Mrs. Hill] now.”

Id. at 477-478.

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McDevitt did not notice anything unusual about Decedent’s mental state

and had a normal conversation with him. (Id. at 479.) McDevitt never noticed

Decedent having any cognitive problems until he moved to The Hill at

Whitemarsh in 2008. (Id. at 490.)

With respect to the June 27, 2007 meeting with McDevitt, Mrs. Hill

testified that Decedent did not tell her why McDevitt was coming to their

house. (Id. at 583.)2

On June 15, 2017, the orphans’ court denied appellants’ petition. The

orphans’ court concluded that appellants failed to establish that Decedent

lacked capacity or acted under undue influence when he changed his

Raymond James account from an individual account to a joint account with

Mrs. Hill. Regarding the question of whether Decedent possessed sufficient

capacity to make the transaction, the trial court reasoned:

[A]fter considering all the evidence, included that
presented contra [appellants], the weaknesses in
their contest surfaced. For example, all but one of the
children who testified as to their father’s decline had
very limited actual contact with him at or around the
crucial time period. Crawford, the only child who lived
locally and saw [Decedent] on a regular basis,
testified to some incidents of confusion and

2 Margaret Yanni, who provided housecleaning services for Decedent and
Mrs. Hill, testified regarding her interactions with Decedent. Barbara Houldin,
a retired attorney and a neighbor of Decedent and Mrs. Hill, testified that she
did not see any evidence of cognitive impairment in her dealings with him
when they were neighbors. (Id. at 689-691.) Everett Kenyatta, a personal
trainer for Decedent commencing in March 2007, testified that he never had
difficulty communicating with Decedent though Decedent did have trouble
remembering the sequence in which exercises were to be completed. (Id. at
720.)

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disorientation which would not alone support a finding
of lack of capacity as of June of 2007. [Appellants’]
medical expert had no contact with [Decedent]. As
for the value of his opinion, case law is replete with
the admonition that testimony from experts who
testify only from medical records and witness
depositions is entitled to little weight.

Orphans’ court opinion, 6/15/17 at 28 (citations omitted).

Contrary to most of [appellants’] witnesses, Mrs. Hill’s
witnesses had regular contact with [Decedent] on or
around June 27, 2007. Ms. Yanni, the Hills’
housekeeper, saw him every week, and testified
credibly that she observed no unusual behavior at the
time in question. Mr. Kenyatta, the person [sic]
trainer, saw him twice a week. He noticed some
memory issues, but stated he was able to have normal
conversations with [Decedent] and detected no
confusion or disorientation in his client. Most
persuasive was the testimony of [McDevitt] who
testified, without hesitation, that [Decedent]
articulated clearly why he was making the change in
the title to the account and understood what this
would accomplish. The fact that [Decedent]
instructed his broker not to transfer his Dow Jones
holdings was especially telling. The testimony of
these three disinterested witnesses was compelling
and leads us to conclude, without hesitation, that
[Decedent] had the requisite capacity to direct the
transfer of his assets to a joint account on June 27,
2007.

Id. at 30.

Regarding the issue of undue influence, the orphans’ court determined

that this claim failed because Mrs. Hill was not in a confidential relationship

with Decedent, and Decedent did not have a weakened intellect at the time of

transfer. (Id. at 31-32.)

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On July 10, 2017, appellants moved for reconsideration. 3 On July 14,

2017, appellants filed a notice of appeal. On August 3, 2017, the orphans’

court directed appellants to file a concise statement of matters complained of

on appeal pursuant to Pa.R.A.P. 1925(b). Appellants complied with the order

on August 24, 2017. On October 10, 2017, the orphans’ court filed a

supplemental opinion pursuant to Pa.R.A.P. 1925(a).

Appellants raise the following issues for this court’s review:

1. Did the [o]rphans’ [c]ourt abuse its discretion in
finding that [Decedent] lacked the capacity to
make the contested gift where [Mrs. Hill’s] own
testimony and contemporaneous reports to his
treating physicians showed he lacked awareness
of his wealth and what he wished done with it?

2. Did the [o]rphans’ [c]ourt err as a matter of law
by failing to place the burden of proof and risk
of non-persuasion upon Mrs. Hill, the proponent
of a testamentary gift effective on the death of
the donor, to prove the absence of undue
influence in the making of that gift, as required
under the controlling Pennsylvania Supreme
Court authority of In re Estate of Clark[, 334
A.2d 628 (Pa. 1975),] and Estate of Reichel[,
400 A.2d 1268 (Pa. 1979)], where facts
establishing a weakened intellect, confidential
relationship and a substantial benefit were
found by the [o]rphans’ [c]ourt, but still
declined to do so for reasons not permitted
under Clark and Reichel?

3 The Orphans’ Court did not rule on the motion. Under Orphans’ Court
Rule 8.2 and the explanatory comment, a motion for reconsideration is not
required from a final order and does not toll the period for filing an appeal
unless the Orphans’ Court grants the motion for reconsideration prior to the
expiration of the appeal period.

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Appellant’s brief at 2.

This court’s review of a decree entered by the orphans’ court is limited

to a determination of whether the record is free from legal error and whether

the evidence supports the factual findings of the orphans’ court. Because the

orphans’ court serves as the fact-finder, it determines the credibility of

witnesses. This court will not reverse credibility determinations absent an

abuse of discretion. In re Estate of Harrison, 745 A.2d 676, 678 (Pa.Super.

2000).

Initially, appellants contend that Decedent lacked capacity to make the

transfer of the Raymond James account.4

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.

4 The gift did not take effect until the death of Decedent as Decedent made
the gift as a transfer from an account in his own name to an account he held
jointly with Mrs. Hill with a right of survivorship. The parties and the orphans’
court treated this transfer as a testamentary gift with its validity subject to
the law determining the validity of wills. That is consistent with this court’s
prior holdings. See In re Sachetti, 128 A.3d 273 (Pa.Super. 2015).

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In re Estate of Smaling, 80 A.3d 485, 494 (Pa.Super. 2013) (en banc)

(citations omitted).

Under Pennsylvania law, testamentary capacity is presumed to exist

until it is established that it does not. In re Estate of Brantlinger, 210 A.2d

246, 249 n.11 (Pa. 1965). Further, in general, a person may leave his or her

property to whomever he or she wishes. In re Estate of Angle, 777 A.2d

114, 125 (Pa.Super. 2001). A party seeking to prove that a testator lacked

testamentary capacity must overcome the presumption of testamentary

capacity through strong, clear, and compelling evidence. In re

Masciantonio’s Estate, 141 A.2d 362, 370 (Pa. 1958).

Appellants assert that the orphans’ court abused its discretion when it

determined that Decedent possessed the capacity to make the contested

transfer from his individual account into a joint account with Mrs. Hill.

Appellants assert that at approximately the same time as the transfer,

Decedent suffered from serious dementia and was anxious due to a deluded

belief that he had no money and that these conditions were documented in

contemporaneous medical records that were based on reports from Mrs. Hill.

Appellants concede that none of them or their witnesses witnessed Decedent’s

June 2007 behavior first hand. (Appellant’s brief at 24). However, Mrs. Hill

did witness this behavior and reported it at the time. In addition, appellants

claim that nothing in McDevitt’s testimony demonstrated that Decedent did

not have these problems. (Id.).

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In its supplemental Rule 1925(a) opinion, the orphans’ court opined that

it found McDevitt credible. The orphans’ court explained its determination:

“Mr. McDevitt provided direct evidence of the decedent’s capacity to make

financial decisions on that date. On the basis of this testimony, this Court

determined that the appellants had not borne their burden of proving that the

decedent lacked testamentary capacity on June 27, 2007.” (Supplemental

orphans’ court opinion, 10/10/17 at 3.)

Once again, McDevitt testified that Decedent explained to him that his

children were going to reap a financial windfall due to the sale of Dow Jones.

Decedent explained to McDevitt that as a result of the Dow Jones sale, he did

not have to provide for his children to the same extent and that he had a

desire to “take care of [Mrs. Hill].” (Notes of testimony, 6/22/16 at 477-478.)

In evaluating evidence in the area of testamentary capacity, “the testimony

of those who observed the speech and conduct of the person on the day of

execution of the instrument whose validity is challenged . . . . outranks

testimony as to observations prior to and subsequent to that date, although

the latter testimony is admissible and entitled to weight.” In re Meyers

Estate, 189 A.2d 852, 862 (Pa. 1963).

Appellants also argue that Mrs. Hill reported Decedent’s unusual

behavior on the day that he called McDevitt to set up the meeting where the

transfer occurred. A review of the record indicates that Decedent was taken

to the hospital on June 26, 2007, for agitation and/or confusion. Appellants

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assert that Mrs. Hill, who was otherwise found credible, testified in support of

Decedent’s confusion prior to the transfer and that the orphans’ court abused

its discretion when it ignored this evidence. However, the orphans’ court

explained that it found the testimony of McDevitt credible and compelling. The

orphans’ court did not either abuse its discretion or commit legal error when

it found that Decedent possessed the capacity to make the transfer.

Appellants next contend that Decedent made the transfer due to the

undue influence of Mrs. Hill.

The party raising the issue of undue influence in a will, or here the

transfer of funds in the Raymond James account from Decedent’s name into

joint names of Decedent and Mrs. Hill, bears the burden of proving that the

transfer was procured by undue influence. In re Estate of Stout, 745 A.2d

645 (Pa.Super. 2000). Once, a party establishes a prima facie case of undue

influence, the burden shifts to the proponent of the will or transfer to prove

that the will was not obtained by undue influence. Angle, 777 A.2d at 123.

In order to establish a prima facie case of undue influence, a party

must establish 1) that a confidential relationship existed between the testator

and the proponent; 2) that the proponent received a substantial benefit; and

3) the testator possessed a weakened intellect. For the purposes of this test,

weakened intellect does not rise to the level of testamentary incapacity. Id.

The parties do not dispute that Mrs. Hill received a substantial benefit

from the transaction. With respect to the weakened intellect requirement,

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appellants assert that they established that Decedent suffered from a

weakened intellect due to his dementia.

Although our cases have not established a bright-line
test by which weakened intellect can be identified to
a legal certainty, they have recognized that it is
typically accompanied by persistent confusion,
forgetfulness and disorientation. The Orphans’
Court’s mandate in assessing such evidence is
relatively broad. If the court’s decision rests upon
legally competent and sufficient evidence, we will not
revisit its conclusions. Under no circumstance will we
substitute our judgment of credibility for that of the
Orphans’ Court.

Owens v. Mazzei, 847 A.2d 700, 707 (Pa.Super. 2004) (citations omitted).

The orphans’ court concluded that apart from an undisputed diagnosis

of dementia, the record was largely devoid of facts upon which a finding of

weakened intellect is usually based. (Orphans’ court opinion, 6/15/17 at 32.)

Similarly, in the supplemental Rule 1925(a) opinion, the orphans’ court stated

that despite some evidence of cognitive decline, appellants failed to carry their

burden of proving that Decedent suffered from a weakened intellect.

Appellants believe that the trial court applied the wrong burden of proof.

It is appellants’ burden to prove that a confidential relationship existed

between Decedent and Mrs. Hill, that Decedent had a weakened intellect, and

that Mrs. Hill benefited from the transaction. While there is no dispute that

Mrs. Hill benefited from the transaction, the orphans’ court found that

appellants failed to prove the existence of either a weakened intellect or a

confidential relationship. There is no indication that the orphans’ court applied

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the incorrect burden of proof. In order for the burden of proof to shift to

Mrs. Hill, appellants must have established those three elements. The

orphans’ court determined that appellants did not meet this burden, so the

burden did not shift to Mrs. Hill.

Alternatively, appellants argue that the orphans’ court erred when it

determined that Decedent did not suffer from a weakened intellect when there

was testimony concerning Decedent’s dementia that manifested itself in

confusion and disorientation.

However, even though Decedent clearly suffered from dementia, that in

and of itself does not constitute a weakened intellect. In Angle, the

contestants alleged that the will of Amos A. Angle, the testator, was procured

by undue influence. This court explained weakened intellect in the context of

undue influence:

There is no doubt that Mr. Angle suffered from
Alzheimer’s disease; however, the existence of that
disease, in itself, does not establish incompetency to
execute a legal document. Since there are periods of
lucidity with the disease, the relevant inquiry is
whether at the time of the execution of the document,
the decedent was lucid and competent. A doctor’s
opinion on medical incompetence is not given
particular weight especially when other disinterested
witnesses establish that a person with Alzheimer’s
disease was competent and not suffering from a
weakened intellect at the relevant time.

Angle, 777 A.2d at 123.

Here, the orphans’ court determined that appellants failed to establish

any evidence that Decedent suffered from a weakened intellect at the time of

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the transfer, other than the undisputed diagnosis of dementia. However,

McDevitt testified that at the time of the transfer, Decedent did not exhibit

any signs of dementia and clearly indicated his desire to transfer the account

and explained his reason for doing so. The orphans’ court did not abuse its

discretion or commit an error of law when it found that appellants failed to

prove that Decedent had a weakened intellect at the time of the transfer.5

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/18

5 As appellants failed to prove this prong of undue influence, we need not
address appellants’ contention that the orphans’ court abused its discretion
when it determined that appellants’ failed to establish that a confidential
relationship existed between Decedent and Mrs. Hill.

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