J-A14026-20
2020 PA Super 299
IN RE: ESTATE OF CALEEM L. : IN THE SUPERIOR COURT OF
JABBOUR, DECEASED : PENNSYLVANIA
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APPEAL OF: MAURA NICOTRA, CO- :
EXECUTRIX :
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: No. 1275 WDA 2019
Appeal from the Order Entered July 24, 2019
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): 02-15-01692
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
OPINION BY McLAUGHLIN, J.: FILED DECEMBER 30, 2020
Maura Nicotra (“Maura”) appeals from the order granting the petition of
Arlene Jabbour (“Arlene”) to revoke her election to take against the will, and
granting in part and denying in part Maura’s petitions to compel Arlene to
return assets to the estate. We affirm.
Decedent married Arlene in 1995; each had three children from prior
marriages. Maura is one of Decedent’s children. In anticipation of the
marriage, Decedent and Arlene entered into a nuptial agreement that set forth
their assets, waived interest in each other’s pensions, and allocated $150,0001
for Decedent’s children. This sum could be reduced if funds were needed to
cover Decedent’s institutional care. See In re Estate of Jabbour, No. 1952
WDA 2016, unpublished memorandum at 2 (Pa.Super. filed July 17, 2018).
Decedent and Arlene executed a Joint and Mutual Will on November 25, 1998.
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1Decedent and Arlene executed an addendum in 2007, increasing the sum
designated for Decedent’s children to $200,000.
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“During his lifetime, the Decedent, who was a Certified Public Accountant,
operated an accounting business out of his home. The business was entitled,
‘C.L. Jabbour, P.A.’ He had a stroke in early August 2014 and was hospitalized
for approximately thirty (30) days.” Orphans’ Court Opinion, filed July 25,
2019, at 1.
After his hospitalization, Decedent, with the advice of his attorney,
executed a power of attorney naming Arlene as his attorney-in-fact. Acting
within the scope of the power of attorney, Arlene closed a savings account
that had been in Decedent’s name (and designated as an “in trust for” account
for Maura). Arlene then transferred the money into an existing account in her
own name and added Decedent to that account. Arlene used funds from that
account to purchase a stair lift, a bed, a refrigerator, and a hot water tank,
and to pay doctor co-pays. See Estate of Jabbour, No. 1952 WDA 2016, at
*4-5. “Having never fully recovered from the stroke, the Decedent died testate
on December 22, 2014. His Will, dated November 25, 1998, was admitted to
probate and Letters Testamentary were issued to the Co-Executrices, Maura
Nicotra and Terri L. Vargo, on April 16, 2015.” Orphans’ Ct. Op., at 1.
On July 18, 2015, Arlene filed an election to take against the Decedent’s
will. She later testified that she filed the election “out of an abundance of
caution because she did not have sufficient information about the Decedent’s
non-probate assets, as her [h]usband was very secretive about his finances.”
Id. at 2 (record citations omitted).
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On December 29, 2015, Maura filed a petition for citation challenging
Arlene’s use of the power of attorney, and requesting that Arlene return to the
estate $106,209.83, the full balance of the account before Arlene transferred
the money into her own account. The orphans’ court denied the motion and
placed the funds remaining in Decedent’s account in the estate. Maura
appealed and this Court affirmed, stating, “Decedent authorized the closing of
the account and transfer of funds or ratified Arlene’s use of the [power of
attorney] for that purpose.” See Estate of Jabbour, No. 1952 WDA 2016, at
*17.
Upon return to orphans’ court, on January 15, 2019, Arlene filed a
petition for revocation of her spousal election. On June 6, 2019, the court held
a hearing on the petition to revoke, as well as Maura’s petition for Arlene to
return funds to the estate and for distribution of assets.
On July 24, 2019, the orphans’ court entered an order granting Arlene’s
petition to revoke the spousal election. It also ordered her to return to the
estate funds withdrawn from an account that the court found was solely in
Decedent’s name, and after reimbursing Arlene for funeral expenses, ordered
distribution of funds in the escrow account. This timely appeal followed.
Maura raises the following questions on appeal:
1. Should Arlene have been permitted to revoke her spousal
election against will when she did not demonstrate fraud and the
petition was filed 3 years and 6 months after the statutory
deadline?
2. Should Arlene have been permitted to revoke her spousal
election against will given she had full knowledge of essential
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facts, including the full value of every non-probate asset passing
to other persons?
3. Are Decedent’s children entitled to inherit the funds remaining
from Decedent’s liquid investments based on the plain,
unambiguous language of the joint will and various nuptial
agreements?
4. Should the orphans’ court have ordered the reimbursement of
expenses to Arlene without a hearing when there was no pending
petition for reimbursement of those expenses, the record
contained no evidence in admissible form as to those expenses
and the court said it would schedule a hearing but did not do so?
Maura’s Br. at 6 (unnecessary capitalization omitted).
Our standard of review is well settled.
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. 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)) (some capitalization
omitted).
In her first two issues, Maura contends that the orphans’ court erred
when it found that Arlene was entitled to revoke the spousal election to take
against Decedent’s will. Maura argues that there is a “statutory deadline”
applicable to revoking a spousal election. Maura’s Br. at 23. She claims that
because Arlene’s petition to revoke was not timely, Arlene bore the burden of
proving that she was a victim of fraud and failed to carry that burden.
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Alternatively, Maura asserts that Arlene could not revoke the spousal election
because she made it with full knowledge of the facts of the estate. We
disagree.
Pursuant to Pennsylvania law, a surviving spouse has a right to an
elective share of one-third of certain property of the deceased, as set forth in
20 Pa.C.S.A. § 2203(a)(1)-(6). The statute provides a procedure for a
surviving spouse to elect whether or not to take this elective share.
Procedure for election; time limit
(a) How election made.—A surviving spouse’s election to take
or not to take his elective share shall be by a writing signed by
him and filed with the clerk of the orphans’ court division of the
county where the decedent died domiciled. Notice of the election
shall be given to the decedent’s personal representative, if any.
(b) Time limit.—The election must be filed with the clerk before
the expiration of six months after the decedent’s death or before
the expiration of six months after the date of probate, whichever
is later. The court may extend the time for election for such period
and upon such terms and conditions as the court shall deem
proper under the circumstances on application of the surviving
spouse filed with the clerk within the foregoing time limit. Failure
to file an election in the manner and within the time limit set forth
in this section shall be deemed a waiver of the right of election.
20 Pa.C.S.A. § 2210(a)-(b).
Despite Maura’s repeated references to a “statutory deadline,” no
statute sets forth a deadline for revocation of a spousal election. Rather,
Maura relies on case law—In re Daub’s Estate, 157 A. 908 (Pa. 1931)—in
support of her argument that a spousal election must be revoked within a
“statutory” period. There, the Pennsylvania Supreme Court held that a
surviving widow could not revoke her election to take under the will and
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instead opt to take a forced share. The widow contended that the executor’s
statements about the extent of her late husband’s estate were inaccurate. The
Court stated that under its cases, a surviving spouse ordinarily must petition
to revoke an election within the statutory period for taking the election, except
“where actual fraud has been committed to obtain the widow’s election, and
no laches appears . . . .” Daub’s Estate, 157 A. at 911.
The Court rejected the orphans’ court’s conclusion that the executor had
failed to disclose full information to the widow such that her election was the
product of “constructive fraud,” and “laches should not be attributed to her .
. . .” Id. at 910. The Court acknowledged that a surviving spouse is entitled
to full information about the deceased’s estate before having to make a
binding election, but stated that that rule did not control. The Court explained
that the widow had not been on friendly terms with the executor during the
statutory period and for long after, such that she was under “no stress to act
as she did.” Id. at 911. The Court concluded that because the widow had
delayed seeking to revoke her election for more than five years, “during which
important evidence was lost by death,” laches barred her from obtaining relief.
Id.
As the Court acknowledged in Daub’s Estate, the Court has established
a rule that the period for revoking an election is tolled until the spouse knows
all relevant information. The Court has explained:
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
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true situation. If action has been taken by the wife or husband in
ignorance of the value of 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.
. . . The authorities are clear that nothing less than unequivocal
acts will prove an election, and they must be done with a
knowledge of the party’s rights, as well as of the circumstances of
the case. Nothing less than an act intelligently done will be
sufficient. She should know, and, if she does not, she should be
informed, of the relative values of the properties between which
she was empowered to choose; in other words, her election must
be made with a full knowledge of the facts.
In re McCutcheon’s Estate, 128 A. 843, 845 (Pa. 1925) (citations omitted).2
The two rules are easily harmonized. A surviving spouse may revoke an
election to take under the will within the statutory period in which the spouse
must ordinarily make such an election, unless there is fraud “and no laches
appears.” Daub’s Estate, 157 A. at 911. However, that time does not begin
to run until the spouse has “full knowledge of all essential facts.”
McCutcheon’s Estate, 128 A. at 845.
Instantly, the orphans’ court found that Arlene testified credibly that she
filed the election in an “abundance of caution because she did not have
sufficient information about the Decedent’s non-probate assets, as her
Husband was very secretive about his finances and she had no knowledge
about his finances.” Orphans’ Ct. Op., at 2. The court also found that Arlene
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2 See also Daub’s Estate, 157 A. at 910 (“[A] widow is entitled to full
information regarding her deceased husband’s estate before she can be called
upon to make her election. . . .”); Appeal of Kreiser, 69 Pa. 194, 200 (1871)
(“To bind the widow she must have full knowledge of the facts”).
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was “entitled to revoke the [e]lection, now that she has full knowledge of the
extent of the Decedent’s estate.” Id.
The orphans’ court did not abuse its discretion when it allowed Arlene
to revoke her spousal election. The record supports the court’s finding that
Arlene did not have full knowledge of the essential facts when she made her
spousal election. In the absence of such knowledge, she could not have
balanced the alternative options intelligently. See McCutcheon’s Estate, 128
A. at 845. Further, while the time between her initial taking of the election
and her petition to revoke it was not short, the court did not find that the
delay resulted in prejudice to others such that the court should have denied
equitable relief. We likewise perceive no such prejudice.
Maura’s citation to the Court’s statement in Daub’s Estate, and her
assertion that the tolling principle of McCutcheon’s Estate does not apply,
are thus wide of the mark. The Court in Daub’s Estate was not stating that
the tolling principle does not apply unless there was actual fraud. Rather, the
Court held that the tolling principle was not controlling because, under the
facts of that case, the widow’s long delay resulted in the loss of important
evidence such that others were prejudiced. As we have explained, no such
prejudice exists here. Hence, here, the orphans’ court was well within its
discretion when it found that Arlene was entitled to revoke the election now
that she has full knowledge of the estate. Maura’s first two issues are
meritless.
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In her third issue, Maura claims that the orphans’ court erred when it
did not direct the distribution of escrowed funds to Decedent’s children. Her
argument centers on an account that contained approximately $106,000. The
account was the subject of an earlier appeal in which this Court held that
Arlene acted within her authority as attorney-in-fact for Decedent when she
closed the account and transferred the money into an existing account in her
name, to which she later added Decedent. See Estate of Jabbour, No. 1952
WDA 2016, at *4-5. Presently Maura claims that the court erred when it did
not direct distribution of the remaining funds from the account to Decedent’s
children in accordance with Decedent’s joint will and nuptial agreements. See
Maura’s Br. at 37-38.
Upon review, it appears that the orphans’ court found that Arlene was
entitled to reimbursement from that account of $22,136.47 ($7,622.22 for
Decedent’s care and $14,514.25 for funeral expenses). The court then
directed Arlene to transfer the balance of the funds in that account to the
estate account. See Orphans’ Ct. Op., at 3. Although the court rejected
Arlene’s argument that she was entitled to the funds because they were in a
joint account, the court did not rule on Maura’s claim that she is entitled to
the funds based on Decedent’s joint will and nuptial agreements. See id. at
3-4. Accordingly, this issue is not ripe for our review and we express no
opinion whether Maura is entitled to relief in this regard.
Finally, in her fourth issue, Maura claims that the orphans’ court erred
when it found that Arlene was entitled to reimbursement for $22,136.47, for
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funds spent on Decedent’s care and funeral expenses. She claims that Arlene
never properly filed a petition seeking such funds and did not substantiate her
claim for reimbursement, such that the court abused its discretion when it
granted her reimbursement. See Maura’s Br. at 49-50
According to documents in the certified record, after the evidentiary
portion of the June 6, 2019 hearing, the court asked the parties about Maura’s
petition for partial distribution of the escrow account. Counsel for Arlene
responded that Arlene should be reimbursed from the escrow account for
$7,622.22, which she spent on the Decedent’s care, as well as for funeral bills.
See N.T. Hearing, 6/06/19, at 148. The parties stipulated to the admission of
exhibits, and the court allowed counsel for Arlene to submit the exhibits after
the hearing, without objection. See id. at 69, 155-56. The court asked the
parties to file proposed findings of fact and conclusions of law, and they did
so. Thereafter, on July 24, 2019, the orphans’ court issued its opinion and
order in which it found that Arlene was to be reimbursed for Decedent’s care
and funeral expenses, citing the exhibits submitted following the hearing.
Unfortunately, the exhibits on which the orphans’ court relied in allowing
reimbursement are not in the record certified to this Court on appeal. Ensuring
that the certified record contains everything this Court needs to resolve the
appeal was Maura’s responsibility as the appellant. See Commonwealth v.
Bongiorno, 905 A.2d 998, 1000-01 (Pa.Super. 2006) (en banc) (“Our law is
unequivocal that the responsibility rests upon the appellant to ensure that the
record certified on appeal is complete in the sense that it contains all of the
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materials necessary for the reviewing court to perform its duty”). In the
absence of the exhibits, we cannot determine that the orphans’ court abused
its discretion when it ordered the reimbursement. Therefore, Maura has
waived this issue. See Commonwealth v. Holston, 211 A.3d 1264, 1277
(Pa.Super. 2019) (en banc) (finding waiver where absence of necessary
documents from certified record hindered appellate review).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2020
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