J-S26043-16

                                  2016 PA Super 158

IN RE: ALBERT STAICO, JR.                      :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
APPEAL OF: DOROTHY STAICO                      :   No. 2627 EDA 2015

                      Appeal from the Decree July 15, 2015
              in the Court of Common Pleas of Philadelphia County
                  Orphans’ Court at No(s): Control No. 125387
                                No. 798AP of 2012

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                              FILED JULY 20, 2016

       Dorothy Staico (Dorothy) appeals from the decree entered by the

orphans’ court with respect to the estate of her son, Albert Staico, Jr. 1 Upon

review, we affirm.

       The orphans’ court summarized the facts underlying this case.

              Albert Staico, Jr., ([Decedent]) died on June 12, 2011, a
       resident of Philadelphia. He was unmarried and survived by his
       Mother, [Dorothy], and his sister, Janice Martin. A document
       dated June 7, 2011, was admitted to probate by the Register of
       Wills on July 7, 2011, as [Decedent’s] last will and testament.

             In April of 2008, [Decedent] moved from [Dorothy’s]
       house to that of his long-time girlfriend[, Emma Martin,] and her
       brother[, Lawrence.] [Decedent] lived with [Emma] and her
       brother until his death three years later.        Also in 2008,
       [Decedent] designated [Emma] as the beneficiary of his Fidelity
       IRA, and in 2011 he designated her [as] the beneficiary of his
       pension.

              [Emma] testified at trial that [Decedent] asked [Emma] to
       contact an attorney to draft his will in May of 2011[.] [Emma]
       testified that she contacted attorney Frank Pasquini, and visited
____________________________________________
1
 Dorothy is 87 years old. Her daughter, also Decedent’s sister, Janice
Martin, has power of attorney for Dorothy.



* Retired Senior Judge assigned to the Superior Court
J-S26043-16


     his office to discuss [Decedent’s] situation and convey his
     wishes. At this meeting, [Emma] informed [A]ttorney Pasquini
     that [Decedent] wished to leave his entire estate to her, and that
     [Decedent] could not attend the meeting because he was
     hospitalized.    Attorney Pasquini prepared [Decedent’s] will
     accordingly, and visited [Decedent] at Thomas Jefferson
     University Hospital on June 7, 2011, for its review and
     execution. It was [A]ttorney Pasquini’s testimony that, after
     [Decedent] recognized him upon his entry, he discussed the will
     with [Decedent] and satisfied himself that [Decedent] was aware
     of the nature of the document and purpose for the meeting, and
     could clearly express his wish that [Emma] be left his entire
     estate. [Emma] was present and assisted [Decedent] in signing
     the will, but did not take part in the discussion between
     [Decedent] and [A]ttorney Pasquini. Attorney Pasquini signed
     the will as the first witness. He then returned to his office and
     located a second witness, James Quinn, who also signed the will
     and stated by way of affidavit that [Decedent] had signed the
     will the same day in [A]ttorney Pasquini’s presence. Alexandra
     Torrie, [A]ttorney Pasquini’s secretary, then notarized the will.

           [Decedent] died the following week, and the Register of
     Wills admitted his will to probate on July 7, 2011, and granted
     [Emma] letters testamentary.

           On June 1, 2012, [Dorothy] filed an appeal of the decision
     of the Register of Wills to admit the document dated June 7,
     2011 to probate. Following discovery, witness and document
     exchanges, Dorothy filed a motion for summary judgment on
     November 14, 2014, which [the orphans’ court] dismissed by
     decree of November 18, 2014, because it lacked any indication
     of service and because it was filed on the eve of trial. [The
     orphans’ court] held an evidentiary hearing on November 25,
     2014, at which [Dorothy] proceeded pro se, and at the request
     of Dorothy and with consent of opposing counsel, Dorothy’s
     son[-]in[-]law, Paul Martin, who is not an attorney, participated
     on her behalf. At the hearing, [Emma], the will’s proponent
     offered the Register of Wills file as evidence, and it was admitted
     without objection as proof of the will.

           Subsequent to this hearing,   and after careful consideration
     of the credibility of witnesses      and the post-trial proposed
     findings of fact and conclusions     of law, [the orphans’ court]
     issued a decree on July 15, 2015,   finding that [Dorothy] failed to


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      meet her burden of proving that [Decedent] lacked testamentary
      capacity, and failed to meet her burden proving that [Emma]
      exercised undue influence of [Decedent] when the will was
      executed, and so affirmed the decision of the Register of Wills.
      [Dorothy] filed a motion for reconsideration on August 11, 2015,
      and the following day, filed a notice of appeal of [the orphans’
      court’s decree] of July 15, 2015. [The orphans’ court] issued a
      decree declining to consider the motion for reconsideration for
      lack of jurisdiction due to the pendency of the appeal, and did
      not issue an order requesting a statement of errors complained
      of on appeal under Pa.R.A.P. 1925(b). [The orphans’ court
      issued an opinion on October 30, 2015.]

Orphans’ Court Opinion, 10/30/2015, at 1-4 (footnotes and unnecessary

capitalization omitted).

      On appeal, Dorothy sets forth two issues for our review.

      A.    Whether the [orphans’] court abused its discretion in
      confirming the Decedent’s last will and testament since the
      document lacked the necessary criteria under the statute?

      B. Whether the [orphans’] court abused its discretion in finding
      that [Dorothy] failed to meet her burden of proof by clear and
      convincing evidence that the Decedent lacked testamentary
      capacity in executing the will and was subject to undue
      influence.

Dorothy’s Brief at 6 (suggested answers omitted).

      We set forth our well settled standard of review.

            When an appellant challenges a decree entered by the
      [o]rphans’ [c]ourt, our standard of review “requires that we be
      deferential to the findings of the [o]rphans’ [c]ourt.” In re
      Estate of Miller, 18 A.3d 1163, 1169 (Pa. Super. 2011) (en
      banc).

                   [We] must determine whether the record is
            free from legal error and the court’s factual findings
            are supported by the evidence. Because the
            [o]rphans’ [c]ourt sits as the fact-finder, it
            determines the credibility of the witnesses and, on


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            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.

            Id. (alterations and citation omitted).

In re Estate of Wilner, 92 A.3d 1201, 1206 (Pa. Super. 2014) quoting (In

re Estate of Brown, 30 A.3d 1200, 1206 (Pa. Super. 2011)).

      Dorothy’s first   issue   relates to   the   validity of   the   will   itself.

Specifically, she argues that the will was defective pursuant to 20 Pa.C.S.

§ 2502, which governs the execution of a will, and provides the following in

relevant part.

            Every will shall be in writing and shall be signed by the
      testator at the end thereof, subject to the following rules and
      exceptions:

                                        ***

            (2) Signature by mark.--If the testator is unable to sign his
      name for any reason, a will to which he makes his mark and to
      which his name is subscribed before or after he makes his mark
      shall be as valid as though he had signed his name thereto:
      Provided, That he makes his mark in the presence of two
      witnesses who sign their names to the will in his presence.

            (3) Signature by another. If the testator is unable to sign
      his name or to make his mark for any reason, a will to which his
      name is subscribed in his presence and by his express direction
      shall be as valid as though he had signed his name thereto:
      Provided, That he declares the instrument to be his will in the
      presence of two witnesses who sign their names to it in his
      presence.

20 Pa.C.S. § 2502.


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J-S26043-16


       Specifically, Dorothy argues that the will is not valid because it was

not signed by Decedent without assistance. Thus, Dorothy suggests that the

sections governing signature by mark or signature by another should apply.

She goes on to argue that if either of these two sections applies in this case,

the will is invalid because the only witness who signed the will in Decedent’s

presence was Attorney Pasquini. Dorothy’s Brief at 14-22.

            In Vandruff v. Rinehart, 29 Pa. 232, [234 (1857),] the
       Supreme Court held…:

                     ‘If one having testamentary capacity, is unable
              from palsy or other cause to steady his hand so as to
              make to his will the signature required by law,
              another person may hold his hand and aid him in so
              doing; and it is not necessary to prove any express
              request from the testator for such assistance. The
              act is his own with the assistance of another, and not
              the act of another under authority from him. This
              principle is the only one questioned here. It was
              rightly decided.[’]

In re Milleman’s Estate, 203 A.2d 202, 209 (Pa. 1964).

       Based upon the foregoing law, the orphans’ court concluded that

Decedent himself signed the will; therefore, it was valid pursuant to section

2502, and neither subsection (2) nor (3) applies in this case. Orphans’ Court

Opinion, 10/30/2015, at 5 n.16.2




____________________________________________
2
   Because neither subsection (2) nor (3) applies in this case, Dorothy’s
argument that the will was “not executed before two subscribing witnesses”
is irrelevant as the witnesses are necessary only when a will is not signed by
the testator. See Dorothy’s Brief at 18. See Milleman’s Estate, supra.



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J-S26043-16


      This conclusion is supported by the record.           At trial, Emma

acknowledged that she assisted the Decedent with his signature.

            [Emma:] And then it was time to sign. And he had a hard
      time signing and I helped him.

            [Counsel:] And when you say you helped, would you
      describe for us specifically what you did?

             [Emma:] Well, he had the pen in his hand, but it wasn’t
      really pressing down, it was like going, so I guided his hand.

N.T., 11/25/2014, at 59.

      Moreover, Attorney Pasquini corroborated this testimony.       Attorney

Pasquini testified that

      when [he] gave [Decedent his] pen for signature, [Decedent]
      initially could hold the pen, but when he started to try to press
      down and move to sign his name he was having difficulty making
      any imprint. So at [his] behest [he] asked [Emma] to come
      over and help him hold the pen and guide his hand, which she
      did and that is how the signature was accomplished.

Id. at 44.

      The trial court credited the testimony of both Emma and Attorney

Pasquini, and we will not disturb that credibility determination.   Thus, we

agree with the orphans’ court that Decedent signed the will; and therefore,

subsections (2) and (3) do not apply. Accordingly, so long as the Decedent

did not lack testamentary capacity at the time he signed the will, the will

was signed in a valid manner and is not subject to challenge in that regard.

      Dorothy goes on to argue that Decedent did indeed lack testamentary

capacity at the time he signed the will. Specifically, she points to the fact



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J-S26043-16


that “the brief time between the execution [of the will] and the date of

death” caused there to be “no witnesses present who could testify that the

Decedent was of sound mind and coherent at that time.” Dorothy’s Brief at

25.

             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.

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

and quotation marks omitted).

      With respect to the first element of the tripartite test, the orphans’

court concluded that Emma was a natural object of Decedent’s bounty.

Decedent lived with Emma from 2008 until he was hospitalized in 2011.

Once Decedent was hospitalized, Emma visited Decedent at the hospital “all

day every day.” N.T., 11/25/2014, at 56.        Thus, the record supports the

conclusion that Emma was a natural object of Decedent’s bounty.

      As to the second and third prongs of this test, Decedent’s ability to

comprehend the composition of his estate and its distribution at the time he




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J-S26043-16


signed the will, the orphans’ court credited the testimony of Attorney

Pasquini.

          [Emma] offered the scrivner’s credible testimony as to
     [Decedent’s] intelligent understanding, as follows:

                   I said, well, [Decedent], how is your mind?
            How is your head feeling today? Is it clear? Do you
            think you can converse with me and understand
            what I’m saying? And he said, yes, I can. So my
            next question or protocol was I asked him,
            [Decedent], what is your understanding of what a
            will is? And he indicated it’s a piece of paper that
            someone signs that will leave their stuff to someone
            that they want to, that they designate.

     [Emma] also testified that she was with [the Decedent] all day
     on the day he executed his will and stated credibly that he had
     no difficulty interacting with people and that “[h]e was aware of
     his surroundings,” and “knew exactly what was going on.” This
     testimony shows that [the Decedent] knew the significance of
     the occasion and import of the document that he would sign, and
     casts subsequent actions and words in that light.

Orphans’ Court Opinion, 10/30/2015, at 7-8.

      Moreover, Attorney Pasquini testified specifically that he “was satisfied

that [Decedent] evidenced the clear intent that he had testamentary intent

and had clear intention to sign this document as his Last Will & Testament.”

N.T., 11/25/2014, at 44.    Thus, the record supports the orphans’ court’s

conclusions that the Decedent “was clearheaded and possessed of a settled

intent to dispose of his estate by leaving it in its entirety to [Emma].”

Orphans’ Court Opinion, 10/30/2015, at 10.       Based on the foregoing, we

agree with the orphans’ court that Dorothy did not present testimony




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sufficient to prove that Decedent lacked testamentary capacity at the time

he signed his will. Accordingly, this claim fails.

      Finally, Dorothy argues that the will should be invalidated because

Decedent was subject to undue influence. Dorothy’s Brief at 23-41.

            [U]ndue influence is a subtle, intangible and illusive [sic]
      thing, generally accomplished by a gradual, progressive
      inculcation of a receptive mind. Consequently, its manifestation
      may not appear until long after the weakened intellect has been
      played upon. Because the occurrence of undue influence is so
      often obscured by both circumstance and design, our Courts
      have recognized that its existence is best measured by its
      ultimate effect.

Owens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004).

             The resolution of a question as to the existence of undue
      influence is inextricably linked to the assignment of the burden
      of proof. Once the proponent of the will in question establishes
      the proper execution of the will, a presumption of lack of undue
      influence arises; thereafter, the risk of non-persuasion and the
      burden of coming forward with evidence of undue influence shift
      to the contestant. The contestant must then establish, by clear
      and convincing evidence, a prima facie showing of undue
      influence by demonstrating that: (1) the testator suffered from a
      weakened intellect; (2) the testator was in a confidential
      relationship with the proponent of the will; and (3) the
      proponent receives a substantial benefit from the will in
      question. Once the contestant has established each prong of
      this tripartite test, the burden shifts again to the proponent to
      produce clear and convincing evidence which affirmatively
      demonstrates the absence of undue influence.

Smaling, 80 A.3d at 493 (citations and footnotes omitted).

      Because we have already held that that the orphans’ court did not err

in concluding that the will was executed in a valid fashion by Decedent, the

burden shifts to Dorothy to establish the prima facie case. At the hearing,



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Dorothy did not have an expert to testify about Decedent’s intellect.3 She

also did not produce any testimony from nurses or doctors who cared for

Decedent during the last month of his life. Thus, we agree with the orphans’

court that Dorothy did not come forward with any evidence showing that

Decedent suffered from a weakened intellect. See Orphans’ Court Opinion,

10/30/2015, at 16 (“[Dorothy] introduced no admissible evidence of

persistent confusion, forgetfulness, or disorientation.”).

       Furthermore, even if Dorothy had offered evidence of Decedent’s

weakened intellect, Dorothy’s undue influence claim would still fail. Dorothy

argues that she produced evidence of confidential relationship sufficient to

shift the burden to Emma to disprove her undue influence.4

       For purposes of voiding a will on the ground of undue influence,
       a confidential relationship exists whenever circumstances make
       it certain that the parties did not deal on equal terms but that on
       the one side there was an overmastering influence, and on the
       other, dependence or trust, justifiably reposed. There is no
       precise formula for finding a confidential relationship, but
       generally it will be found when one justifiably reposes his trust in
       the hands of another who possesses some overmastering
       influence. This trust is given with confidence that it will be used
       in the testator’s best interests.




____________________________________________
3
  Dorothy offered portions of Decedent’s medical records at the hearing.
Decedent’s sister also tried to testify about Dorothy’s impressions of
Decedent the day after the will was executed; however, the orphans’ court
did not permit this testimony because it was hearsay. N.T., 11/25/2014, at
24-29. Dorothy did not testify at the hearing.
4
  There is no question as to the third prong of the prima facie case, as Emma
did receive the Decedent’s entire estate in the will.



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J-S26043-16


Burns v. Kabboul, 595 A.2d 1153, 1163 (Pa. Super. 1991) (internal

quotation marks and citations omitted).

      The orphans’ court concluded that the relationship between Emma and

Decedent “was most akin to the spousal relationship.” Orphans’ Court

Opinion, 10/30/2015, at 15. We observe that “[a] spousal relationship does

not automatically translate into a confidential relationship for purposes of

determining the presence of undue influence. [I]n any given case it is a

question of fact whether the marital relationship is such as to give [one

spouse] dominance over [the other] or to put [that spouse] in a position

where words of persuasion have undue weight.” Smaling, 80 A.3d at 498-

99 (internal quotation marks and citation omitted).

      Instantly, the orphans’ court concluded that “[Dorothy] failed to prove

by clear and convincing evidence that a confidential relationship existed

between [Emma] and [Decedent].” Orphans’ Court Opinion, 10/30/2015, at

13.

            [I]t was never proved that [Emma] had a power of
      attorney over [Decedent].       Nor was there any evidence
      presented that [Emma] and [Decedent] were not on equal
      terms. Thus, as a relationship of affection, and without evidence
      of “an overmastering influence” on [Decedent,] the relationship
      between [Decedent] and [Emma] fell below the level of
      “confidential.”

Id. at 15.

      There was no evidence presented that the parties did not deal on equal

terms during the three years they lived together.       In fact, the record



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establishes that Decedent designated Emma as the beneficiary of his IRA in

2008, well before the events at issue here. N.T., 11/25/2014, at 60.

Accordingly, we discern no abuse of discretion in the conclusion that the

relationship    between      Emma      and     Decedent   was   not   a   confidential

relationship.

       Because Dorothy did not establish by clear and convincing evidence all

three elements of a prima facie case, the burden did not shift back to Emma

to produce clear and convincing evidence of the absence of undue influence.

Thus, Dorothy’s claim fails.

       Having concluded that the trial court did not err in concluding that the

will was signed properly by Decedent who did not lack testamentary

capacity, and that the will was not the product of undue influence, we affirm

the decree of the orphans’ court.5

       Decree affirmed.

       Judge Stabile joins.

       Judge Olson files a dissenting opinion.




____________________________________________
5
  I agree with the law set forth in the learned dissenting opinion authored by
Judge Olson. However, because this case has proceeded in this manner
since 2012 with full knowledge of the court and by consent of the parties,
judicial economy is best served by affirming the decree at this juncture.



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J-S26043-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




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