J-A01010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF EVELYN F. SCHERMER IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: MARC A. SCHERMER,
EXECUTOR
No. 366 WDA 2016
Appeal from the Order February 12, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): 5043 of 2011
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED: OCTOBER 2, 2017
Marc A. Schermer appeals the ruling of the orphans’ court that
sustained an appeal from probate and invalidated a will1 on the ground that
it was procured by Marc’s undue influence. We affirm.
On August 13, 2011, then eighty-seven-year-old Evelyn F. Schermer
(“Evelyn” or “Decedent”) died of cancer. She was survived by three sons,
Gary, the eldest, Marc, the middle son, and Leland, the youngest son. Gary
and Leland are the Appellees herein.2 On August 16, 2011, a document
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1
We have jurisdiction over this appeal under Pa.R.A.P. 342(a)(2), which
permits an appeal to be taken as of right from the decision of an orphans’
court “determining the validity of a will[.]”
2
Gary and Leland have objected to Marc’s standing to pursue this appeal.
Appellees’ brief at 2 n.4. Marc purported to file this appeal in his capacity as
executor. As our Supreme Court observed in In re Estate of Hain, 346
(Footnote Continued Next Page)
* Retired Senior Judge assigned to the Superior Court.
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dated June 7, 2010, was admitted to probate as Decedent’s last will and
testament and letters testamentary were issued to Marc.
Gary and Leland filed a timely appeal to the orphans’ court from
probate, maintaining that the will was invalid based upon Evelyn’s lack of
testamentary capacity when it was executed and because it was procured by
undue influence exerted by Marc. The orphans’ court conducted nine
hearings and thereafter determined that the will was procured by undue
influence. Marc filed exceptions to that decision; 3 they were denied on
_______________________
(Footnote Continued)
A.2d 774, 776 (Pa. 1975), “Unless an executor has been surcharged or has
been ordered to distribute more than the admitted balance in the estate, the
executor is not a ‘party aggrieved’ by the final order or decree of the
orphans' court. The executor is merely a holder of the estate's assets for
the purpose of administration and distribution . . . .” See also In re
Faust's Estate, 73 A.2d 369 (Pa. 1950) (holding the executor cannot, at
the estate’s expense, employ legal counsel for purposes of a will contest
because executor is not a party to a will contest). However, Marc does have
standing in his individual capacity in that he was aggrieved by the order
invalidating the will, and we therefore can reach the merits of this appeal.
Hain, supra; But see Estate of Karahuta, 393 A.2d 22 (Pa. 1978)
(quashing an appeal by co-executors where order in question determined
who should benefit under the will). In this case, Marc filed his exceptions in
his capacity as executor, and Appellees raised no issue to his standing in
that respect. Hence, we conclude that their present objection is waived, as
it was not raised in the lower court proceedings.
3
We observe that the new rule pertaining to exceptions in orphans’ court
proceedings, Pa.O.C.R. 8.1, did not take effect until September 1, 2016,
after completion of the final adjudication and filing of this appeal. That rule
now states: “Except as provided in Rule 8.2 [relating to motions for
reconsideration], no exceptions or post-trial motions may be filed to any
order or decree of the court.” Pa.O.C.R. 8.1.
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February 12, 2016. This timely appeal followed. Marc raises the following
contentions.
[1.] Whether the Orphans' Court erred as a matter of law in
giving decisional weight to the testimony of three of the
individuals who cared for the Decedent in her final years
("caregivers") demonstrating the Testatrix showed signs of
forgetfulness, confusion and repeating herself, where the
caregivers were indefinite regarding when the instances of
forgetfulness and confusion occurred relative to the actual
signing of the probated Will, but unanimously testified the
Decedent's forgetfulness and confusion became distinctly worse
seven months after the Testatrix executed the probated Will.
[2.] Whether the Orphans' Court erred as a matter of law by
affording limited or no evidentiary weight to the credible
testimony of the Scrivener of the probated Will, on the theory
the attorney had only met the Testatrix "on limited occasions in
an office setting," where the record reveals the attorney had
worked with the Testatrix on several matters over a two year
period, was specifically consulted by the Testatrix on the matter
of the ongoing conflict with her two sons, and who advised the
Testatrix regarding the Will in which the Decedent disinherited
the Petitioners.
[3.] Whether the Orphans' Court erred as a matter of law in
disregarding all expert testimony presented below, on grounds
the expert opinion of an internist called by the Petitioners had
been "opposite" the opinion of a psychiatrist called by the Estate,
where the internist admitted he did not understand the legal
concept of "weakened intellect," only testified that conditions
from which the Testatrix had suffered "could" or "might" cause
cognitive impairment, and never testified that in his opinion the
Testatrix actually suffered from "weakened intellect" on or before
the date the Testatrix executed the probated Will.
[4.] Whether the Orphans' Court capriciously disregarded
evidence in the course of finding the Testatrix's decision to
disinherit two of her sons was presumptively due to undue
influence, where the Testatrix had decided to specially benefit
Marc Schermer in a will drafted years before any evidence of
"weakened intellect" was shown, and repeatedly declared to her
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attorney and in the probated Will that her decision to disinherit
the Petitioners was due to "the pain and heartache [the
Petitioners] have caused me by their actions" in trying to force
the Decedent to change her settled purpose to benefit Marc
Schermer, and the Testatrix's beliefs, even if mistaken, were
rational under the circumstances.
Appellant’s brief at 5-6.
We are duly cognizant of the applicable standard of review in these
matters:
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.
In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa.Super.
2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000)
(internal citations and quotation marks omitted). “The 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 Luongo, 823 A.2d
942, 951 (Pa.Super. 2003), appeal denied, 577 Pa. 722, 847
A.2d 1287 (2003).
In re Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (emphasis added).
The issues on appeal implicate the well-known doctrine of undue
influence. We observed in In re Estate of Smaling, 80 A.3d 485, 497
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(Pa.Super. 2013) (en banc) (citing In re Ziel's Estate, 59 A.2d 728 (Pa.
1976)), “A party claiming undue influence must establish, by clear and
convincing evidence, that: (1) when the will was executed the testator was
of weakened intellect and (2) that a person in a confidential relationship with
the testator (3) receives a substantial benefit under the will.” In the present
case, none of the contentions raised on appeal challenges the orphans’ court
determination that Marc was in a confidential relationship with the Decedent,
and the record contains evidence of the same. Similarly, there is no
averment raised that Marc did not receive a substantial benefit under the
June 7, 2010 will.4 Thus, the sole issue before this Court is whether the
evidence of record supports the conclusion of the orphans’ court that Evelyn
suffered from a weakened intellect on June 7, 2010.
As to that inquiry, the Smaling Court elucidated, “The weakened
intellect necessary to establish undue influence need not amount to
testamentary incapacity.” Smaling, supra at 498. While there is not a
“bright-line test by which weakened intellect can be identified to a legal
certainty,” a testator suffered from weakened intellect if he or she exhibited
“persistent confusion, forgetfulness and disorientation.” Id. Since undue
influence is often exerted by “a gradual, progressive inculcation of a
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4
At oral argument before this panel, Marc acknowledged that he was not
contesting on appeal either that he was in a confidential relationship with
Evelyn or that he obtained a substantial benefit under the probated will.
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receptive mind,” the benefit from undue influence may only manifest itself
after a period of manipulation of the decedent. Id. Thus, for purposes of
undue influence, “the particular mental condition of the testator on the date
he executed the will is not as significant when reflecting upon undue
influence as it is when reflecting upon testamentary capacity. More
credence may be given to remote mental history.” Id.
The pertinent facts follow.5 Between 1984 and 2010, Evelyn executed
ten different wills. In 1994, a will was prepared for her by Ed Grinberg, but
she did not sign that document. Of the ten wills that Evelyn did execute,
seven were prepared in the final five years of her life, and Marc took his
mother to the various attorneys who drafted them. In the nine
testamentary dispositions executed prior to June 7, 2010, Evelyn left her
residuary estate equally to her three sons. Wills that the Decedent executed
in 1984 and 1988, as well as the unsigned will that was prepared in 1994 by
Mr. Grinberg, stated that any money or loans received from Evelyn by Marc
or any of his companies would be accounted for at the time of the
distribution of the residuary estate and treated as advancements. A 2001
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5
This narrative is gleaned from the evidence adduced by Gary and Leland,
who prevailed in the orphans’ court. We observe that, based upon glaring
inconsistences that Marc related, the orphans’ court specifically found that
Marc was not a credible witness. Trial Court Opinion, 11/30/15, at
(unnumbered pages) 7-8. Accordingly, we discount any testimony that he
proffered.
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will was the first one that failed to treat those loans as advancements. As of
2001, Evelyn had loaned Marc approximately $140,000. Gary and Leland
were unaware of any of the wills executed after 1988, but they knew about
the 1994 will, which continued to treat Evelyn’s loans and gifts to Marc as
advancements, and, until 2008, Gary and Leland believed that Evelyn had
executed the 1994 Grinberg will.
In the June 7, 2010 probated will, the Decedent disinherited Gary and
Leland as well as their issue, and she left her residuary estate entirely to
Marc, to his wife Marjorie if Marc were deceased, and then to his daughter if
both Marc and Marjorie were deceased. Evelyn stated, “I leave no portion of
my property and estate to my sons, LELAND SCHERMER and GARY
SCHERMER, or their issue. I take this action [as] a result of their behavior
towards me and the pain and heartache they caused to me by their
actions[.]” Last Will and Testament of Evelyn F. Schermer, 6/7/10, at 1.
Evelyn recited in the will that the actions undertaken by Gary and Leland
that caused her pain included “suing my son Marc, alienating my
grandchildren from me, using my grandchildren to try to cause me to make
changes to my will, and failing to respect my wishes in handling my property
and estate.”
The June 7, 2010 will definitively stated that, during her life, Evelyn
had forgiven any loans that she made to Marc and any company that he had
owned. The will ratified the inter vivos loan forgiveness, confirming that
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there was no valid outstanding indebtedness owed to her by Marc so that
the loans were not to be treated as advancements. That will also provided
that stock that Evelyn had given to Marc was not to be treated as an
advancement.
Marc claimed that he was left the entirety of Evelyn’s estate because
she was estranged from Gary and Leland and their families. Marc
maintained that Evelyn’s estrangement from Gary and Leland occurred
because Gary and Leland and their children tried to coerce Evelyn into
changing a will that Evelyn made on November 7, 2007. See Appellant’s
brief at 51 (Evelyn “executed the probated will in reaction to the
machinations of Gary and Leland Schermer and their children, trying to force
the Decedent to change an earlier will.”). Gary and Leland presented
evidence, credited by the orphans’ court, that they were not estranged from
their mother, that their children were not estranged from Evelyn, and that
neither they nor their children tried to force Evelyn to change her
testamentary disposition.
The following background is relevant. Evelyn’s husband Joseph was
the father of Gary, Marc, and Leland (the “brothers”). In 1982, Joseph
worked at and co-owned a family-owned business, Feldman Brothers
Company, Inc. (“Feldman”), which was started by Evelyn’s father Herman
and Herman’s brother. In 1982, Marc worked at Feldman with his father and
other family members. That year, Herman died and Joseph died eight
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months later. At the time, Gary worked in the City of Pittsburgh Public
Schools as a teacher. After earning a law degree, Gary continued to work
for the school district until he retired. Gary had three sons and a
stepdaughter: Evan (a tennis pro in Hawaii), Gordon (a musician in New
York), Joseph (a child during the relevant events), and Gina (a teacher).
Leland, who had sons Phillip and Jonathan, was a lawyer who worked in New
York City in 1982. He eventually moved to Pittsburgh. As noted, Marc had
one daughter.
Evelyn was unsophisticated and subject to the control of her father
Herman. Joseph assumed management of her affairs after they married.
When Joseph died in 1982, Marc, who still lived at home, began to control
her assets. When Joseph died, Feldman was contractually obligated to
purchase the shares that Evelyn inherited from Joseph, but it was financially
unable to do so. Marc continued to operate the stores owned by Feldman,
and, after Feldman failed, other businesses. Eventually, Marc started to
work at various jobs.
Both Gary and Leland testified that their mother historically treated all
three of her sons and her seven grandchildren equally. Gary reported, “[A]t
holiday times or anything . . . . [when] she felt like she wanted to make a
gift, all the gifts were pretty much similar whether they were to the three
brothers or to the grandchildren.” N.T. Hearing 5/5/15 (Morning Session), at
60. Leland confirmed, “I think it’s fair to say that all three of us had a very
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similar relationship to our mother,” who “was adamant to go out of her way
to make sure that all three of her sons and that all three of her daughters-
in-law and that all seven of her grandchildren were always treated equally.
That was a big deal to her.” N.T. Hearing, 5/26/15, at 1452.
Gary and Leland presented evidence about Evelyn’s mental decline,
which began in the early 2000s, was marked by 2004, and was severe by
2010. Beginning in the early 2000’s, it was noticeable that the parties’
mother was having “some memory problems,” so the three brothers
discussed the situation at that time, and they jointly agreed that a long-term
care policy should be purchased. N.T. Hearing, 5/5/15 (Morning Session), at
51. In 2003 or 2004, a long-term care insurance policy was purchased for
her from Fortis, which assigned the policy to John Hancock. Gary reported
that by 2006, the degradation in Evelyn’s mental acuity was such that she
was repetitive, called her children by the incorrect names, and “would say
things that she had said earlier as if she couldn’t remember.” N.T. Hearing,
5/5/15 (Morning Session), at 61. Evelyn would also say things and then
deny saying them because she did not remember saying them.
In 2007, Evelyn was admitted to the hospital three times and was
diagnosed with dementia. On one occasion, she gouged her skin trying to
board a bus, was treated in the emergency room at the hospital, and, after
arriving home, fainted and hit her head on a stool, rendering her
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unconscious. The fall was the result of a mini-stroke, Evelyn was
hospitalized, and then entered rehabilitation.6
After Evelyn was diagnosed with dementia in 2007, she started to
receive caregiver services. John Hancock, which had issued the long-term
care policy, covered those services. The policy coverage was triggered only
when Evelyn had “cognitive impairment.” N.T. Hearing, 5/11/15, at 1155.
She briefly took Aricept, which is prescribed to treat dementia resulting from
Alzheimer’s disease. That medication was discontinued after it proved
ineffective. By summer 2010, Evelyn required full-time care.
The brothers had a good relationship with each other until 2008. This
relationship soured after Gary and Leland learned that Marc had influenced
their mother to alter the disposition of her estate so that the three brothers
no longer benefited equally. The events in question started on January 13,
2008, when Leland, Gary, and Marc met at a Panera Bread to discuss their
mother’s declining mental health, how each son would help her, and the
location of her power of attorney and will. Even though Marc knew that
Evelyn had executed a will in 2001, a will in 2006, and two wills in 2007,
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6
The record indicates that, on September 27, 2007, about one month after
Evelyn was released from rehabilitation, Marc took her to a lawyer, Thomas
Kessinger. Mr. Kessinger prepared a will stating that any loans that Marc
received were not advancements and also indicating that Evelyn had gifted
Marc her Feldman stock and the gift was not to be treated as an
advancement.
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Marc professed to his two brothers that he believed her latest will was the
one drafted in 1994. Marc told his brothers that he did not believe that
Evelyn had signed the 1994 document. Leland was shocked at this
revelation, as the will had undergone many iterations, and Gary and Leland
had always thought that the 1994 will, which treated all three sons equally,
was executed by Evelyn and that it was the last will that she had signed.
Leland immediately suggested the 1994 will be executed. Marc
responded, “Well, how do we know that that’s Mom’s intent?” N.T. Hearing,
5/26/15, at 1505-06. Leland said to Marc, “Well, why wouldn’t it be? It’s
been her intent for 20 years. What insight do you have that you’re alluding
to but not explaining?” Id. at 1506. When Marc would not answer, Leland
began to suspect that Marc was exercising undue influence over Evelyn.
On January 14, 2008, a Sunday, Leland went over to Evelyn’s house,
as he had been going there every Sunday for about four or five months. He
was helping with the bills when he saw an entry in her check register for a
check made payable to Kessinger and Klanica. When Leland asked her
about it, Evelyn responded, “That’s the law firm that Marc and Marjorie took
me to.” Id. at 1507. Evelyn directed Leland to go into her bedroom and get
the will.
The document in question was a November 7, 2007 will drafted by
Thomas Kessinger. Leland asked his mother “What does the Will say?” Id.
at 1509. She answered, “I don’t know. You tell me. You’re the lawyer.”
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Id. The November 7, 2007 will indicated that loans and gifts made to Marc
were not to be treated as advancements. Leland told Evelyn that the will
was inconsistent with “everything the family had discussed and agreed upon
for 25 years. What gave rise to this Will?” Id. at 1509. Evelyn said, “Marc
and [his wife] Marjie took me to get this Will.” Id. at 1513.
Leland then described the substance of the will to Evelyn, explaining to
her that it provided for an unequal distribution of her assets since it did not
treat gifts and loans to Marc as advancements. Evelyn told Leland, “That’s
not what I want.” Id. at 1514. Leland asked Evelyn what she did want, and
she answered, “I want the way it always was, that we would account for all
the moneys that Marc received, and whatever is left would be split three
ways.” Id. Leland informed Evelyn that the will that she signed on
November 7, 2007, was inconsistent with that stated intent, she asked what
could be done about it, and Leland stated that she had to write a new will.
Leland immediately called Marc, who denied knowing Kessinger or his
law firm. Leland then accused Marc of lying, since Evelyn told Leland that
Marc took her to the law firm, but Marc continued to insist that he did not
know anything about Mr. Kessinger. After January 14, 2007, Evelyn did
contact Mr. Kessinger for preparation of a new will as Mr. Kessinger called
Leland, and Leland prepared some suggestions for a new will.
The next time that Leland saw Evelyn, she had decided that she no
longer wanted to talk about the situation, appearing hostile and agitated
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when he broached the subject of a new will. As Evelyn had never treated
Leland with hostility, he was perplexed, “thought something must have
happened,” and concluded that “it was clear something was bugging her
about that.” Id. at 1519. He did not display any animosity toward Evelyn,
merely indicating that the family needed to talk about the will.
In February 2008, the three sons, their wives, and Evelyn had a
meeting that was intended to resolve the concerns of Gary and Leland about
Marc’s exercise of undue influence over Evelyn. At the February 2008
meeting, Marc claimed that Evelyn did not sign the 1994 Grinberg will
because “Evelyn couldn’t understand legalese.” N.T. Hearing, 5/5/15
(Morning Session), at 21. As it was apparent that Marc was insisting that his
loans and gifts not be treated as advancements and Evelyn remained silent
on the subject, that meeting ended in an argument. Evelyn was upset after
that event.
In September 2008, Gary and Leland sued Marc and Marjorie for
intentional interference with their expectation of an inheritance, a cause of
action that is viable in some states. That lawsuit was dismissed for failing to
state a claim in Pennsylvania, and the dismissal was upheld on appeal.
Gary and Leland were emphatic that, while they were estranged from
Marc, they did not involve their mother or their children either in the lawsuit
or the dispute over the uneven distribution of their mother’s estate outlined
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in the November 7, 2007 will. Evelyn was upset about the estrangement
among her sons.
Gary talked to Evelyn about the family problem once. He emphatically
denied making any demands on her or attempting to force her to sign
anything. He merely told Evelyn that she had the power to resolve the
controversy and that she should do so. Gary explained to Evelyn that he
was aware that she was resisting confronting the issue, as she had resisted
all “kinds of difficult situations in your life before,” but that the matter about
the will was important and that she should resolve it. N.T. Hearing 5/5/15
(Morning Session), 5/5/15, at 41. When Evelyn did not respond, he
immediately left and told her that he would see her later.
Gary and Leland testified that they continued to visit and telephone
their mother after February 2008, and that their children continued to
regularly visit and telephone Evelyn. In 2008, Evelyn attended the bar
mitzvah of Leland’s son, Jonathan, as well as the luncheon that followed that
ceremony.
On Thanksgiving 2008, Gary’s sons Gordon and Joseph, and Leland’s
son Phillip visited Evelyn. Neither Gary nor Leland knew about the visit
beforehand. Gordon described the meeting as non-confrontational and as
their attempt to resolve the family estrangement. The three grandchildren
merely asked Evelyn to resolve the situation by returning to her original
estate plan. They never tried to force her to do anything.
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After Gary and Leland initiated their litigation against Marc and his
wife, Marc Rosenwasser, Esquire, sent Gary and Leland a letter dated
December 5, 2008. The letter was prepared after Mr. Rosenwasser met with
Marc and Evelyn together, and Mr. Rosenwasser indicated that he did not
know whether Marc or Evelyn was the source of the information contained in
that document. Gary and Leland testified that the December 5, 2008 letter
1) falsely accused Gary and Leland of displaying hostility toward Evelyn at
the February 2008 family meeting; 2) incorrectly indicated that Gary tried to
force his mother to change her will; and 3) wrongly characterized the
Thanksgiving 2008 visit as initiated by Gary and Leland and as an attempt to
coerce Evelyn into equalizing the distribution of her estate.7
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7
At this juncture, we must point out that the record does not support
Marc’s representation that the information in the December 5, 2008 letter
that Mr. Rosenwasser sent to Gary and Leland “came directly from Evelyn
Schermer.” Appellant’s brief at 13. Mr. Rosenwasser said his notes from his
file, which he used to compose the letter, were taken during a December 1,
2008 meeting where both Evelyn and Marc were present. He was asked
whether Marc “was assisting in providing some of the detail that you
apparently set forth on your notes?” N.T. Hearing, 5/11/15, at 1124. He
responded, “Jeez, I can’t recall.” Id. He remembered only that Evelyn was
upset about the lawsuit that Gary and Leland filed and about “having signed
some document that she thought would be – was the wrong thing to do.”
Id. The orphans’ court directly asked Mr. Rosenwasser whether he was able
to “recall with any degree of precision” if Marc provided information
contained in the notes used to compile the December 5, 2008 letter. Mr.
Rosenwasser responded, “No, sir.” Id. at 1125.
We also are aware that Marc introduced into evidence certain
handwritten notes from Evelyn. The record does not substantiate that the
(Footnote Continued Next Page)
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Specifically, no hostility was displayed toward Evelyn at the February
2008 family meeting since Gary and Leland were upset with Marc and not
with Evelyn. Gary, aware that his mother was upset about the controversy
among the three brothers, merely asked his mother to resolve the family
situation. The three grandchildren visited Evelyn on Thanksgiving 2008
because they wanted to stop the dissention among Leland, Gary, and Marc.
Gordon, Phillip, and Joseph merely asked Evelyn to try to resolve the
unpleasant family situation by providing for an equal distribution of her
estate.
During the hearings before the orphans’ court, the three caregivers
who attended to Evelyn in 2010 testified, as did the scrivener of the June 7,
2010 will, Mr. Rosenwasser. The court specifically credited Mr.
Rosenwasser’s testimony and found that it established that Evelyn had
testamentary capacity on June 7, 2010. On the other hand, the court
concluded that Mr. Rosenwasser’s testimony had no value on the issue of
weakened intellect because Mr. Rosenwasser “only saw the decedent on
limited occasions in an office setting, not on a daily basis in her normal
environment.” Trial Court Opinion, 11/30/15, at (unnumbered page) 6.
_______________________
(Footnote Continued)
notes in question were prepared in anyone’s presence, and they could have
been written by Evelyn while she was under the influence of Marc.
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In addition, Gary and Leland presented the testimony of Dr. Robert
Bernstein, and Marc’s expert witness was Dr. Christine Martone. These
expert witnesses gave opposing viewpoints on the question of whether
Evelyn suffered from weakened intellect when the probated will was signed.
Given the conflicting opinions of the two experts, the orphans’ elected to rest
its decision as to whether Evelyn had weakened intellect in 2010 upon “the
testimony of other unbiased witnesses,” who consisted of “three of the
Decedent’s daily caregivers (Beth Simoni, Prudence Myers, and Jessica
Myers) who provided care for [Evelyn] between 2008 and 2011.” Id. Based
upon the testimony of Beth, Prudence, and Jessica, the orphans’ court found
that Evelyn suffered from weakened intellect in June 2010.
The following testimony was credited by the orphans’ court when it
concluded that Evelyn had a weakened intellect. Beth Simoni had a Bachelor
of Arts degree in psychology and sociology and an Associate’s Degree in
nursing. From the end of January 2009 until Evelyn’s death in August 2011,
Beth provided daily care to Evelyn from 2:00 p.m. until 10:00 p.m., except
for a maternity leave from the end of November 2010 to March 2011. Thus,
Beth was a caregiver for Evelyn in June 2010, when the contested will was
signed.
Beth testified as follows. In January 2009, Marc and Evelyn
interviewed her, and she was told that Evelyn already “had caregivers
because of short-term memory loss. . . . [S]he needed assistance in
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remembering to eat, taking her medicines, things like that.” N.T. Hearing,
5/7/15, at 524. In March 2009, Beth completed a form for John Hancock
and handwrote that Evelyn had both short-term memory difficulties and poor
judgment, which she underlined. Id. at 533. Beth also indicated on the
form that she provided continual supervision for Evelyn due to memory
impairment, and she also spoke with a representative of John Hancock on
two occasions. On August 18, 2010, Beth informed the representative that
Evelyn suffered from, “Cognitive changes with increasing forgetfulness and
some confusion.” Id. at 537.
Beth specified that Evelyn was chronically forgetful. “She would lose
her glasses, her credit card, her rings.” Id. at 527. When Beth and Evelyn
would go places, she would forget to place her credit card back in her wallet
or leave her rings in the bathroom. One time, Evelyn left a pot on a lit stove
burner, and it exploded. To remedy the problem, Marc ordered “Molly’s
Meals, which is the kosher version of Meals on Wheels,” and Marc and Beth
encouraged her not to use the stove. Id. at 528. Beth also reported that,
during Beth’s tenure as her caretaker, Evelyn was confused and often
repeated herself, telling the “same story or say[ing] the same thing over and
over again[.]” Id. at 528-530. Evelyn often forgot that she said something
shortly after she said it. Id. at 531.
Beth substantiated specific instances of confusion displayed by Evelyn.
Beth was unable to locate Evelyn a “couple of times” and found her
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wandering around on a different floor of the apartment building. Id. at 555.
At the grocery store, Evelyn would “find something interesting,” and would
“wander off in the store,” and would not have been able to find her way back
to her home. Id. at 556.
After Evelyn contracted cancer and was dying, she was not even aware
of her diagnosis. One day Beth was lifting Evelyn, and Evelyn experienced
significant pain. “She said, ‘What is wrong with me?’” Id. at 544. After
Beth told Evelyn that she had cancer, Evelyn asked to speak to Gary and
Leland. On another occasion, Evelyn told Beth that she wanted Gary’s oldest
son to receive money at her death, thus evidencing confusion about the
provisions of her will. Id. at 545. Beth also substantiated that Evelyn spoke
with Gary and Leland and their children on the telephone, and that Gary and
Leland’s children visited her.
Jessica Myer was a certified nurse’s aide who provided companionship
and hospice care for sixteen years, had helped about fifty patients, and
observed the physical and mental status of her charges. When she began
working for Evelyn in the summer of 2010, Evelyn was confused, forgetful,
needed help with meals and personal hygiene, and wanted company. Id. at
600. Jessica reported that Evelyn remained confused and forgetful the
entire time that Jessica worked for Evelyn, progressing in her confusion to
the extent that she required twenty-four hour care by fall 2011. Id. at 601.
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Jessica testified that Evelyn appeared physically or mentally weak
frequently. Id. at 603. Evelyn displayed deficits in memory, the ability to
remember words, and problem solving, and she “didn’t have good
judgement.” Id. at 605. As an example of the latter problem, Jessica
described an instance where Evelyn had shattered a glass plate by placing it
directly on an electric burner rather than using a frying pan. Evelyn also did
not have good personal hygiene and had to be directed to shower and keep
herself clean. One time, she became covered in chocolate after eating a box
of chocolate popsicles.
Jessica established that Evelyn was confused:
Q. Did Evelyn ever appear to you to be disoriented as to time?
A. Yes.
Q. Frequently?
A. Yes.
Q. Did Evelyn ever appear to you to be disoriented as to
location?
A. Yes.
Q. Frequently?
A. Yes.
Q. Did Evelyn ever appear to you to not be able to keep her
family members straight, one from the other?
A. Sometimes.
Id. at 616.
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Prudence Myers, Jessica’s sister, started to assume caregiver
responsibilities for Evelyn while Beth was on maternity leave, beginning in
November 2010, and she testified as follows. Marc was present whenever
Evelyn signed checks or documents, and, on numerous occasions, Prudence
heard Evelyn tell Marc that she did not understand what she was signing. Id.
at 583. Evelyn would continually re-read the same newspaper or magazine.
When Prudence would take Evelyn shopping, she would not be able to
remember either the PIN to her debit card or her zip code. Id. at 583-84.
Prudence reported that Marc monitored who visited Evelyn, and that, after
either Leland or Gary visited, Marc would call within five minutes after they
left. Prudence stated that Evelyn “was very confused on most occasions.”
Id. at 586.
Marc’s first allegation is that the orphans’ court erred in “giving
decisional weight to the testimony” from Beth, Prudence, and Jessica.
Appellant’s brief at 27. Secondly, he maintains “it was legal error for the
court to subordinate the credible testimony of the drafter of the will[.]” Id.
at 34. Third, Marc posits that Dr. Bernstein’s testimony, which the orphans’
court decided not to credit anyway, should not have been admitted, and,
concomitantly, was improperly used as grounds for “discounting” and
“setting aside” the testimony of his expert witness, Dr. Martone. Id. at 38,
48. Finally, even though Gary and Leland presented testimony that Evelyn’s
reasons for disinheriting them were untrue, Marc maintains that the finding
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of the orphans’ court that her outlined reasons were false amounted to
“capricious disregard of the evidence” and must be reversed. Id. at 51.
Gary and Leland note that all four of Marc’s allegations challenge
credibility determinations rendered by the orphans’ court and that this Court
is not permitted to disturb such decisions. In re Fiedler, supra at 1018
(“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.”). In his reply brief, Marc
suggests that none of his positions constitutes a challenge to the credibility
determinations of the orphans’ court. Appellant’s reply brief at 8 (“Appellant
does not challenge any of the lower court’s credibility determinations,” and
“the standard of review governing credibility is not material.”).
Marc’s position is disingenuous. Marc’s use of synonyms for
“credibility determinations” does not disguise the nature of his claims, and
we reject his attempt to avoid the well-established precept that we are not
permitted to overrule the credibility determinations of the orphans’ court.
The following complaints are challenges to credibility determinations of the
orphans’ court: it erroneously gave “decisional weight” to some witnesses’
testimony, improperly “subordinated the credible testimony” of one of his
witnesses, should not have “completely set aside” the testimony of his
expert witness, and evidenced “capricious disregard of evidence” that he
presented.
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Simply put, Marc is challenging the orphans’ court’s decision to: 1)
credit the caregivers’ testimony; 2) find that Mr. Rosenwasser’s testimony
was not helpful on the issue of weakened intellect; 3) accord no weight to
Dr. Martone’s opinion that Evelyn did not have a weakened intellect in June
2010; and 4) accept Gary and Leland’s proof that the stated reasons for
their disinheritance were false. Each and every one of Marc’s positions on
appeal constitutes a challenge to the credibility determinations of the
orphans’ court, and we reject his contention that they are not. While we
recognize that Marc wants to avoid the import of a principle of law that
effectively forecloses the grant of appellate relief herein, we reject this ploy.
In his first issue on appeal, Marc suggests that the caregivers’
testimony should have been discounted. Marc maintains, “In any case
where ‘weakened intellect’ is at issue, it is well settled the question is to be
determined by the decedent’s mental condition at the point in time when
he or she actually executed the Will.” Appellant’s brief at 27 (emphasis
added). With this legal proposition as the foundation of his argument, Marc
continues that the three caregivers did not establish weakened intellect
because 1) they “were indefinite regarding when the instances of
forgetfulness and confusion occurred relative to the actual signing of the
probated Will,” Appellant’s brief at 5 (emphasis added); 2) they failed to
establish that Evelyn’s forgetfulness and confusion occurred “at or before
the time of the execution of the probated Will,” Id. at 27 (emphasis in
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original); and their testimony failed to establish that Evelyn “suffered from
‘weakened intellect’ at the time she made the probated Will.” Id.
Marc’s legal premise is incorrect and his ensuing argument fails due to
its reliance on this faulty foundation. “[T]estamentary capacity is to be
ascertained as of the date of execution of the contested document,” not
undue influence. Smaling, supra at 494. In this case, the orphans’ court
credited testimony proffered by the scrivener of the will, Mr. Rosenwasser,
and concluded that Evelyn had testamentary capacity on June 7, 2010.
However, testamentary capacity is a very low mental threshold.
“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.” Id.
The law is clear that, “The weakened intellect necessary to establish
undue influence need not amount to testamentary incapacity.” Smaling,
supra at 498 (emphasis added). Instead, weakened intellect is present if
the testator consistently displayed confusion, forgetfulness, and
disorientation. Id. Notably, for purposes of weakened intellect, “the
particular mental condition of the testator on the date he executed the will is
not as significant when reflecting upon undue influence as it is when
reflecting upon testamentary capacity. More credence may be given to
remote mental history.” Id. (emphases added). Thus, a person with
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testamentary capacity can nevertheless have been subject to undue
influence sufficient to invalidate a will. Id. Simply put, Marc is incorrect in
his assertion that weakened intellect is determined solely by reference to the
date the will is signed and that the caregivers’ testimony was infirm because
it encompassed the time frame before and after the will’s execution.
In connection with the first issue in his brief, Marc heavily relies upon
our decision in In re Estate of Angle, 777 A.2d 114 (Pa.Super. 2001),
where we upheld a finding by the orphans’ court that the testator had
testamentary capacity and was not subject to undue influence when he
executed his will. Our ruling in Angle on the question of testamentary
capacity is not relevant herein since the orphans’ court specifically found
that Evelyn did have such capacity. Moreover, in Angle, the orphans’ court
rejected the undue-influence challenge to the will based upon the fact that
there was no confidential relationship. Specifically, the orphans’ court
determined that the testator was not “dominated or manipulated by
anyone[.]” Id. at 123. Thus, the Angle decision rested upon a finding that
there was no confidential relationship whereas Marc has not challenged the
finding by this orphans’ court that he was in a confidential relationship with
his mother. Thus, Marc’s reliance upon Angle is wholly misguided.
Our decision in Owens v. Mazzei, 847 A.2d 700 (Pa.Super. 2004),
dispels the validity of Marc’s first position on appeal. Therein, the orphans’
court held that two bank employees and their employer were jointly and
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severally liable to the decedent’s estate for assets contained in a bank
account. The estate averred that the employees had, while operating within
the scope and course of their duties for the bank, exercised undue influence
over the decedent and induced the decedent to name them as the sole
beneficiaries of a bank account that contained the bulk of the decedent’s
assets. Therein, the employees and the bank specifically challenged the
finding by the orphans’ court that the decedent had weakened intellect when
he created the bank account. In rejecting that argument, we specifically
considered behavior displayed by the decedent both before and after the
account in question was opened.
In the present case, the three caregivers’ testimony established that
Evelyn regularly displayed confusion, disorientation, forgetfulness, and poor
judgment both before and after June 7, 2010. Beth was clear that this
mental state existed when she first started working for Evelyn in 2009.
Jessica began to care for Evelyn during the summer of 2010, coextensive
temporally with when Evelyn executed the contested will. Jessica indicated
that Evelyn was persistently disoriented, confused, forgetful, and reliant on
her caregivers and Marc. Jessica also confirmed that Evelyn had memory,
language, and problem solving deficits. Evelyn’s mental condition
progressively deteriorated.
Indeed, Evelyn’s mental decline began in the early 2000s, years before
this will was executed. Her mental state prompted the purchase of long-
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term care insurance, which Marc himself agreed was prudent to obtain.
Coverage under the policy was triggered only if Evelyn suffered from
cognitive impairment, and coverage under that policy commenced in 2007,
three years before the will in question was signed. Thus, we reject Marc’s
position that the orphans’ court improperly accorded “decisional weight” to
the testimony of the three caregivers.
Marc’s second position is that the orphans’ court improperly afforded
limited or no evidentiary weight to the credible testimony of Mr.
Rosenwasser, who drafted the will. After careful review, we conclude that
Mr. Rosenwasser proffered no testimony at all as to the existence of
weakened intellect. Between June 2008 and June 2010, Mr. Rosenwasser
had four or five meetings with Evelyn lasting approximately one hour. He
had little specific recollection of what occurred during those meetings. N.T.
Hearing, 5/11/15, at 1083 (regarding the June 4, 2008 meeting, he did not
remember if Evelyn was alone and based his memory of the event on the
contents of a standard form that he completed); Id. at 1087 (regarding a
June 18, 2008 meeting, Mr. Rosenwasser had “no recollection other than I
know there was a meeting”); Id. at 1096 (unable to remember if file notes
were based upon information given to him by Evelyn); Id. at 1122-25 (failed
to remember details about a December 1, 2008 meeting involving Marc and
Evelyn that resulted in the letter to Gary and Leland); Id. at 1124, 1125
(responded he “can’t recall” when asked whether Marc or Evelyn was the
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source of his file notes about the events detailed in his December 5, 2008
letter); Id. at 1177 (Mr. Rosenwasser had “no specific recollection” about
having a conversation with Evelyn about why she altered disposition of her
residuary estate and decided to disinherit Gary and Leland in her final will.”).
Suffice it to say, Mr. Rosenwasser’s testimony was replete with instances
where he could not remember events concerning his interactions with
Evelyn.
Mr. Rosenwasser reported that Evelyn appeared lucid and did not
display short-term memory loss during their conferences, but qualified his
testimony by stating that their interactions totaled “four or five hours not in
a block, but over a period of time.” Id. at 1107. Mr. Rosenwasser did not
know Evelyn’s age, as he never asked that as part of his biographical
information when interviewing clients. Id. at 1069-70. Mr. Rosenwasser
specifically reported that he did not employ “any practices” to establish
whether or not a client had “weakened intellect,” and he admitted that he
was sure that one of his clients “could have some mental issues that aren’t
apparent [during] a short meeting.” Id. at 1073-74, 1107. Most
significantly, Mr. Rosenwasser acknowledged he “didn’t do anything” to
determine whether Evelyn was subject to undue influence at the time of the
June 2010 will, and he stated that, instead, his “sole concern was whether
Evelyn had mental capacity to execute a will.” Id. at 1189, 1183 (emphasis
added).
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Mr. Rosenwasser’s testimony did establish that Evelyn had
testamentary capacity, and the orphans’ court credited his testimony in that
respect. Mr. Rosenwasser, however, candidly admitted that he did not try to
ascertain whether she suffered from weakened intellect or whether she was
being unduly influenced. The question of testamentary capacity was his only
concern. After careful review, we cannot find that the orphans’ court abused
its discretion in concluding that Mr. Rosenwasser’s testimony was unhelpful
on the subject of whether Evelyn suffered from a weakened intellect on June
7, 2010.
Marc’s third position is that Dr. Bernstein’s testimony was improperly
considered, and, thus, should not have been used to set aside Dr. Martone’s
contrary opinion. Appellant’s brief at 48-50. Initially we note: “It is beyond
argument that the fact-finder is free to accept or reject the credibility of both
expert and lay witnesses, and to believe all, part or none of the evidence.”
Brown v. Trinidad, 111 A.3d 765, 771–72 (Pa.Super. 2015) (citation
omitted). In the present case, the orphans’ court found both expert
witnesses credible and, since they proffered opposing opinions, elected to
rely upon the testimony of the three caregivers. Marc’s specific contention is
that Dr. Bernstein’s opinion was infirm and, concomitantly, should not have
been used to nullify the testimony of Dr. Martone.
Marc maintains that Dr. Bernstein’s testimony should not have been
relied upon for two reasons: 1) Dr. Bernstein supposedly testified that he did
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not understand the legal concept of weakened intellect, Appellant’s brief at
398-41; and 2) Dr. Bernstein “never testified that he was of the opinion, to a
reasonable degree of medical certainty that [Evelyn] in fact suffered from
‘weakened intellect’ at the time she executed the probated Will[.]”
Appellant’s brief at 43 (emphasis in original).
Marc’s positions are a gross mischaracterization of the record. Dr.
Robert W. Bernstein, Chief of Medicine at UPMC Magee, was board-certified
in internal medicine, had practiced in that field for thirty-five years, and, for
those thirty-five years, fifty percent of his practice involved geriatric
patients. Dr. Bernstein reviewed Evelyn’s medical documentation to
“determine if there was any evidence in her medical records that would
suggest weakened intellect.” N.T. Hearing, 5/8/15, at 889. Dr. Bernstein
reviewed case law given to him by Leland so that he could understand “what
the term weakened intellect means under the laws of the Commonwealth of
Pennsylvania.” Id. Dr. Bernstein, after reviewing the cases, opined, “It was
my opinion, based upon the medical evidence, even before 2010, there was
evidence of significant weakened intellect.” Id. at 891 (emphasis
added). On cross-examination, Dr. Bernstein confirmed, “I understand
weakened intellect.” Id. at 904.
Dr. Bernstein based his opinion that Evelyn had weakened intellect
before 2010 on various medical records, but he found it significant that there
was a “mental status exam performed, I believe, in 2007 that showed more
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than just weakened intellect but suggesting that possibly dementia was
an issue as well.” Id. at 892 (emphasis added). Dr. Bernstein concluded
that this mental condition stemmed from “the effects of vascular disease,
which is a function of aging, diabetes mellitus, high blood pressure, all things
that were in evidence in her medical care.” Id. at 892. Also contributing to
Dr. Bernstein’s opinion that Evelyn suffered from weakened intellect before
2010 was her history of transient ischemic attacks (mini-strokes) and
“multiple falls leading to head trauma.” Id. at 895.8 At the end of his
testimony, Dr. Bernstein reported that all of “the opinions that [he had]
provided here today,” were based upon his review of the medical records
and were offered “to a reasonable degree of medical certainty.” Id. at 901.
Thus, the record categorically refutes Marc’s suggestion that Dr.
Bernstein stated that he did not understand the legal definition of weakened
intellect. Dr. Bernstein merely indicated that he did not understand portions
of the cases that he read and that he did not review those sections of the
cases that did not pertain to the issue before him. Id. at 920-21. Likewise,
Dr. Bernstein opined that Evelyn suffered from a weakened intellect prior to
2010 and rendered that opinion to a reasonable degree of medical certainty.
____________________________________________
8
While Marc suggests that Dr. Bernstein’s testimony rested on protocols that
pertained to obtaining a patient’s informed consent, Dr. Bernstein’s clearly
articulated that these opinions were based upon his review of her medical
records. He thereafter discussed the informed consent protocols. See N.T.
Hearing, 5/8/15, at 900, et seq.
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Thus, Marc misrepresents the record when arguing that Dr. Bernstein
articulated that he did not understand the legal definition of weakened
intellect and never opined that Evelyn suffered from that condition to a
reasonable degree of medical certainty. We reject the third issue raised on
appeal.
Marc’s fourth and final contention is that the orphans’ court
capriciously disregarded substantial and direct evidence that the reasons
that Evelyn disinherited Leland and Marc were true. Appellant’s brief at 51.
Marc claims that Evelyn “executed the probated Will in reaction to the
machinations of Gary and Leland Schermer and their children, trying to
force the Decedent to change an earlier will.” Id. (emphasis added). Gary
and Leland were adamant that they never tried to coerce Evelyn in any
manner. They knew that she was upset about the family dissension and told
her that she could resolve it by returning to her original estate plan. As the
testimony of Gary, Leland, and Gordon established the absence of an
attempt to force or coerce Evelyn into changing her will, the orphans’ court
was permitted to credit that proof, and reject Marc’s position in that respect.
We also note that Marc’s final contention is actually unrelated to the issue on
appeal, which is whether Evelyn suffered from a weakened intellect.
Gary and Leland offer an astute observation. The supposed events
that led to their disinheritance occurred in late 2008. Specifically, the June
7, 2010 document expressed that Gary and Leland were not beneficiaries
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because they sued Marc, alienated her from her grandchildren, used the
grandchildren to influence her to change her will, and did not respect her
desires as to disposition of her estate. This state of affairs was true as of
December 2008. Meanwhile, Evelyn executed a will in 2009 that still left her
residuary estate, in equal shares, to all three of her sons. The events that
supposedly motivated Evelyn to leave all of her estate to Marc were in
existence in 2009, when she did not disown Gary and Leland. These facts
constitute a further reason to discount the reasons outlined in the 2010 will
for the disinheritance of Gary and Leland.
During this final argument, Marc also observes that, in the 2001 will,
which was executed before Evelyn suffered from weakened intellect, she
forgave $140,000 in loans to him. He maintains that the 2001 testamentary
disposition constituted proof that “powerfully rebuts any inference the 2010
Will was the product of undue influence[.]” Id. at 52. Marc relies upon this
precept: “It is well settled in Pennsylvania that a prior will containing the
same testamentary disposition is strong evidence against undue influence.”
Burns v. Kabboul, 595 A.2d 1153, 1162 (Pa.Super. 1991).
The principle of law in question is inapplicable herein. The 2001 will
left Marc one-third rather than one hundred percent of Evelyn’s estate. The
2001 will also forgave Marc’s $140,000 debt. After 2001, there were gifts
that Evelyn made, including a post-2001 gift of her Feldman stock, to Marc
and his family. In the June 7, 2010 will, all these gifts, in addition to loans,
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were not treated as advancements. It is an utter fallacy to characterize the
2001 will as the same testamentary disposition as the 2010 will.
In accordance with the forgoing, this Court concludes that we cannot
overturn the credibility determinations of the orphans’ court, and that the
evidence credited by that court supports its conclusion that Evelyn suffered
from a weakened intellect on June 7, 2010.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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