J-A07015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JEAN F. RICHARDS,             IN THE SUPERIOR COURT OF
DECEASED                                             PENNSYLVANIA

APPEAL OF: BARBARA A. MOZICK AND
ANTHONY J. MOZICK
                                                    No. 1169 WDA 2014


                   Appeal from the Order June 25, 2014
            In the Court of Common Pleas of Allegheny County
                  Orphans' Court at No(s): 1507 of 2013


BEFORE: BENDER, P.J.E., LAZARUS, J. and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                    FILED SEPTEMBER 01, 2015

     Barbara A. Mozick (“Barbara”) and Anthony J. Mozick (collectively,

“Mozicks”), husband and wife, appeal from the order entered in the Court of

Common Pleas of Allegheny County, Orphans’ Court Division, finding that

Barbara had exercised undue influence over Jean F. Richards (“Decedent”)

and granting Barbara DeFrancesco’s (“Daughter”) appeal from probate.

Upon careful review, we reverse and remand for proceedings consistent with

the dictates of this memorandum.

     The Orphans’ Court set forth the facts of this case as follows:

     [Decedent] died on February 21, 2013, while admitted at St.
     Clair Hospital for ongoing health problems. Decedent’s Last Will
     and Testament dated February 19, 2013, was admitted to
     probate on June 27, 2013.           On July 17, 2013, Barbara
     DeFrancesco, the only daughter of the [D]ecedent, filed a
     Petition for Citation Sur Appeal from the Register [of Wills] with
     this [c]ourt, challenging the probate of [D]ecedent's will. In the
     petition[,] Ms. DeFrancesco alleged that at the time of execution
     of the Will the [D]ecedent lacked testamentary capacity, and
     that the Will was the result of undue influence exercised by
     Barbara Mozick, neighbor of the [D]ecedent. This Court held a
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      hearing on the issues from March 27 to March 28, 2014. On
      June 25, 2014, the Court issued an Order finding that Barbara
      Mozick exerted undue influence over [D]ecedent; the Court did
      not, however, find that [D]ecedent lacked testamentary capacity
      at the time she executed her will.

Orphans’ Court Opinion, 9/26/14, at 1 (unnumbered).

      The Mozicks filed a timely notice of appeal and Pa.R.A.P. 1925(b)

statement of errors complained of on appeal; they raise the following issues

for our review:

      1. Whether [Daughter] met her burden of proof of the exertion
      of undue influence upon the [D]ecedent[?]

      2. Whether the [Mozicks] met their burden of proving the
      absence of undue influence[?]

Brief of Appellants, at 6.

      Our scope and standard of review applied to an appeal from a decree

of the Orphans’ Court adjudicating an appeal from probate is as follows:

      In a will contest, the hearing judge determines the credibility of
      the witnesses. The record is to be reviewed in the light most
      favorable to the appellee, and review is to be limited to
      determining whether the trial court’s findings of fact were based
      upon legally competent and sufficient evidence and whether
      there is an error of law or abuse of discretion.

In re Estate of Tyler, 80 A.3d 797 (Pa. Super. 2013) (en banc) (citing

Estate of Reichel, 400 A.2d 1268, 1269-70 (Pa. 1979)). An appellate court

will set aside the Orphans’ Court’s factual conclusions only if they are not

supported by adequate evidence. In re Bosley, 26 A.3d 1104, 1107 (Pa.

Super. 2011).       This Court exercises plenary review over the legal




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conclusions drawn from the facts. In re Mampe, 932 A.2d 954, 959 (Pa.

Super. 2007).

      The applicable burden of proof in a case in which the contestant of a

will asserts the existence of undue influence is as follows:

      The resolution of a question as to the existence of undue
      influence is inextricably linked to the assignment of the burden
      of proof. In re Estate of Clark, 334 A.2d 628, 632 (Pa. 1975).
      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. Id. 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. Id. 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. Id.

In re Estate of Smaling, 80 A.3d 485, 493 (Pa. Super. 2013) (en banc)

(footnote omitted). “As our Supreme Court has held, a testator may be of

sufficient testamentary capacity to make a will but still may be subjected to

the undue influence of another in the making of that will.”       Mampe, 932

A.2d at 959, citing In re Estate of Fritts, 906 A.2d 601, 606-07 (Pa.

Super. 2006) (other citations omitted).

      This Court in Fritts set forth the definition of undue influence as

follows:




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           [U]ndue influence is a subtle, intangible and illusive
           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.

     Owens [v. Mazzei, 847 A.2d 700,] 706 [(Pa. Super. 2004)]
     (quoting In re Estate of Clark, 461 Pa. 52, 334 A.2d 628, 634
     (Pa. 1975)) (internal quotations and citation omitted). Our
     Court has stated:

           Conduct constituting influence must consist of
           “imprisonment of the body or mind, or fraud,
           or     threats,  or   misrepresentations,    or
           circumvention, or inordinate flattery, or
           physical or moral coercion, to such a degree as
           to prejudice the mind of the testator, to
           destroy his free agency and to operate as a
           present restraint upon him in the making of a
           will.”

     [In re Estate of] Luongo, 823 A.2d 942,] 964 [(Pa. Super.
     2003)] (quoting [In re Estate of] Angle, 777 A.2d 114,] 123
     [(Pa. Super. 2001)] (emphasis in original).

Fritts, 906 A.2d at 607.

     “Although our cases have not established a bright-line test by which

weakened intellect can be identified to a legal certainty, they have

recognized that    it   is   typically   accompanied   by   persistent confusion,

forgetfulness and disorientation.” Smaling, 80 A.3d at 498, quoting Fritts,

906 A.2d at 607.

     A confidential relationship exists

     when the circumstances make it certain that the parties did not
     deal on equal terms, but on the one side there is an
     overmastering influence, or, on the other, weakness,
     dependence or trust, justifiably reposed.       A confidential

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       relationship is created between two persons when it is
       established that one occupies a superior position over the other
       — intellectually, physically, governmentally, or morally — with
       the opportunity to use that superiority to the other’s
       disadvantage.      [S]uch a relationship is not confined to a
       particular association of parties, but exists whenever one
       occupies toward another such a position of advisor or counselor
       as reasonably to inspire confidence that he will act in good faith
       for the other's interest.

Id. at 498 (omitting quotation marks and citations).

       Each prong of the undue influence test must be established by clear

and convincing evidence, which requires:

       that the witnesses must be found to be credible; that the facts to
       which they testify are distinctly remembered and the details
       thereof narrated exactly and in due order; and that their
       testimony is so clear, direct, weighty, and convincing as to
       enable the trier of fact to come to a clear conviction, without
       hesitancy, of the truth of the precise facts in issue. It is not
       necessary that the evidence be uncontradicted provided it carries
       a clear conviction to the mind or carries a clear conviction of its
       truth.

In re Novosielski, 992 A.2d 89, 107 (Pa. 2010) (brackets omitted).

       Here, the Mozicks argue that Daughter did not prove a prima facie

case of undue influence.       In the alternative, they argue that, even if

Daughter did establish a prima facie case, they successfully proved the

absence of undue influence by clear and convincing evidence.           Upon our

review of the record, we conclude that the Orphans’ Court erred in finding

that   Daughter   presented    prima   facie   evidence   of   undue   influence.

Specifically, Daughter failed to establish that the “confidential relationship”




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prong of the tripartite Clark test was proven by the requisite quantum of

evidence.

      In the portion of its opinion addressing the confidential relationship

prong of the Clark test, the Orphans’ Court emphasizes the fact that the

Decedent named Barbara as her agent under a power of attorney. However,

while the granting of a power of attorney is one indicia of a confidential

relationship, that fact alone is not dispositive.   See In re Estate of Ziel,

359 A.2d 728, 733 (Pa. 1976) (power of attorney not dispositive where

agent became principal’s attorney-in-fact at principal’s instance and merely

for his convenience).    Similar to Ziel, the unrefuted testimony at trial

demonstrated that the Decedent requested that Barbara accompany her to

PNC Bank to execute a power of attorney with respect to her bank accounts.

Significantly, and as the Orphans’ Court acknowledged, Barbara never

exercised her authority under that power of attorney.

      The Orphans’ Court also emphasizes the frequency with which Barbara

visited Decedent while she was hospitalized, and the fact that “doctors

recognized her as the person to whom they should communicate regarding

[D]ecedent’s condition and care.”    Orphans’ Court Opinion, 9/26/14, at 4.

However, the contestant presented no proof whatsoever that Barbara ever

exercised an “overmastering influence” on her friend, see Smaling, supra,

or otherwise destroyed her free agency in an attempt to convince the

Decedent to make of a will in her favor.


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      Barbara and the Decedent had been friends for nearly fifty years. By

her own admission, Daughter lacked access to a consistent means of

transportation and would have been unable to visit and advocate for her

mother on a regular basis.        Accordingly, the widowed Decedent naturally

turned to Barbara, her close friend and neighbor, for necessary support. The

existence of a close friendship, in which one party provides care and

assistance to the other in a time of need, does not, without more, provide

the proof necessary to conclude that the assistance was given with nefarious

intent.

      Finally,   the   Orphans’   Court   buttressed   its   conclusion   with   the

statement that “[Barbara] procured the attorney who drafted [D]ecedent’s

February 19th will.” Orphans’ Court Opinion, 9/26/14, at 4. However, the

evidence adduced at trial does not support this finding. Leonard Weaver, a

friend and neighbor of the Decedent who met with her alone in her hospital

room, testified that the Decedent made two requests of him during his visit.

First, she asked that he file her income tax return and instructed him where

in her home to find the necessary materials. Second, Weaver testified that

the Decedent was aware that she did not have long to live and asked for his

assistance in obtaining a lawyer to draft a new will. Weaver testified that it

was he, and not Barbara, who contacted Leonard Costa, Esquire, who had

drafted Weaver’s own will.         Weaver further testified that, during his

conversation with Attorney Costa, Weaver himself suggested that the


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Mozicks should be the ones to coordinate Attorney Costa’s visit to the

Decedent, as they visited her every day. Attorney Costa also testified that

Weaver called him and advised him that the Mozicks would be contacting

him. There is nothing more in the record upon which the court could have

based a finding that Mozick “procured” Attorney Costa to draft the

Decedent’s will.1

       We also note that the Orphans’ Court cites to our Supreme Court’s

decision in Clark Estate, supra, for the proposition that “in a will contest,

the assessment of secrecy of the relationships, not unlike the evaluation of

credibility of the witnesses, must be a factor which is properly within the sole

discretion of the trier of fact.” Id. at 635. However, the facts of Clark are

readily distinguishable from the facts of the case at bar, such that the

language cited by the court – devoid of factual context – is inapt.

       In Clark, the testatrix was an elderly widow suffering from dementia

caused by arteriosclerosis who left the bulk of her estate to a cousin, John

Smith. Smith had befriended the testatrix during the last few years of her

life, and assumed many of her business duties. During the last months of

____________________________________________


1
  Moreover, the two disinterested witnesses who testified at trial – the
scrivener, Attorney Costa and Leonard Weaver – both testified that the
Decedent was alert during their visits and was specific and precise in
conveying her desires and instructions. Weaver and Attorney Costa both
testified that Decedent was emphatic that she did not want to include her
daughter as a beneficiary under her will.




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the testatrix’s life, Smith kept all of testatrix’s stock certificates, bonds, and

deeds in his home. Smith also

       wrote [testatrix’s] will by hand as it was dictated to him by
       [testatrix].  He then procured a typewriter and paper and
       delivered them with the handwriting to a Mrs. Curtis, whom
       [Smith] paid to type the will. John Smith picked up the finished
       product on November 13, 1971, took it to [testatrix] and
       watched her sign it. He then obtained the signatures of [two]
       witnesses. Neither saw [testatrix] sign the will, and neither knew
       that it was a will she was witnessing.           Both [witnesses],
       however, recognized the signature of [testatrix] and both spoke
       with [her] on November 13 and found her in good spirits and
       mentally normal. John Smith took the will and all copies to his
       home where they remained until after [testatrix’s] death.

Id. at 634-35.

       A nephew of the testatrix, her only other relative, challenged the will

on the basis that Smith had exerted undue influence upon the testatrix. In

affirming the Orphans’ Court’s finding of undue influence, the Court noted

that
       [t]he [testatrix] and John Smith were alone when the will was
       executed. The hearing judge had only John Smith's testimony
       as to what the decedent expressed as her testamentary intent
       and as to what her condition of mind was. These parties were
       alone again when the decedent transferred her securities to him
       and when she made a gift of $ 21,500 to him.

Id. at 635. Thus, it was in the context of these facts that the Court noted

the trial court’s discretion to “assess[] . . . the secrecy of relationships.” Id.

       Here, however, there was no secrecy surrounding the execution of

Decedent’s will.   Decedent expressed her testamentary wishes not only to

Attorney Costa, the scrivener, but also to Leonard Weaver.              Moreover,




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neither of the Mozicks were present when Attorney Costa met with the

Decedent to draft her will.

       In sum, the evidence presented by Daughter did not prove, by a clear

and convincing standard, that Barbara imprisoned the Decedent’s body or

mind, or engaged in fraud, threats, misrepresentations, circumvention,

inordinate flattery, or physical or moral coercion, such that Decedent’s mind

was prejudiced and her free will destroyed. See Fritts, supra.

       For the foregoing reasons, we conclude that the Orphans’ Court erred

in finding that Barbara and the Decedent shared a confidential relationship

and that a prima facie case of undue influence was proven.2


____________________________________________


2
  We also have strong doubts about the Orphans’ Court’s determination that
the Decedent suffered from a weakened intellect. Daughter presented the
deposition testimony of Dr. James Nicotero, who never met or examined the
decedent. Dr. Nicotero testified that Decedent would not have possessed
testamentary capacity and that she suffered from a weakened intellect.
However, the court completely disregarded Dr. Nicotero’s testimony
regarding Decedent’s lack of testamentary capacity, and found that the
Decedent was, in fact, competent to execute a valid will. Nevertheless, the
court accepted Dr. Nicotero’s opinion that Decedent suffered from a
weakened intellect. These conclusions, based on the identical medical
evidence, are difficult to reconcile, especially in light of the other testimony
elicited at trial. Indeed, no other witness testified that Decedent exhibited
persistent confusion, hallucinations or any of the other indicia that Dr.
Nicotero testified would have been present given her blood-oxygen levels.

Nevertheless, the Orphans’ Court’s finding of weakened intellect is supported
by evidence of record, in the form of Dr. Nicotero’s deposition testimony.
Accordingly, we are constrained to defer to the Orphans’ Court’s conclusion
that the “weakened intellect” prong of the Clark test was proven by
sufficient evidence.



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     Order reversed.      Case remanded for proceedings consistent with the

dictates of this memorandum. Jurisdiction relinquished.


     MUNDY, J., Joins the majority.

     BENDER, PJE., Files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2015




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