J-A05024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ESTATE OF GERALDINE MANTELL,                     IN THE SUPERIOR COURT OF
DECEASED                                               PENNSYLVANIA


APPEAL OF: RICHARD HOWDEN                        No. 1653 EDA 2015


               Appeal from the Order entered January 21, 2015
             In the Court of Common Pleas of Montgomery County
                     Orphans’ Court at No(s): 2012-X3560

BEFORE: OLSON AND OTT, JJ. and STEVENS,* P.J.E.

MEMORANDUM BY OLSON, J.:                                 FILED MAY 04, 2016

        Appellant, Richard Howden,1 appeals pro se2 from the order entered on

January 21, 2015. We affirm.

        The trial court accurately summarized the factual background of this

case as follows:

        Geraldine Mantell, M.D. (hereinafter “Decedent” []), died on
        September 28, 2012, a resident of Montgomery County, leaving
        a will dated March 14, 2008 (the “2008 will”). Decedent’s 2008
        will was admitted to probate by the Register of Wills on October
        9, 2012 and letters testamentary were granted to Stanley B.
        Levinsky [(“Executor”)] as executor. Decedent never married
        and had no children. Her closest living relatives are a nephew
        and niece, the children of her sister who [] predeceased her.
        Decedent was a medical doctor and left a sizable estate.
        According to the inventory for this estate filed on January 6,

1
  At oral argument, Appellant contended that he also represents Kathleen
Howden in this appeal. Kathleen Howden, however, never filed a notice of
appeal and therefore is not a party to this appeal. Moreover, Appellant
cannot represent Kathleen Howden as he is not a licensed attorney. It is
well-settled that “a non-lawyer cannot represent another person in court.”
Commonwealth v. Carroll, 517 A.2d 980, 982 (Pa. Super. 1986).
2
    Appellant was represented by counsel before the trial court.


* Former Justice specially assigned to the Superior Court
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      2014, Decedent’s total personal and real property is valued at
      $5,385,936.89. Under the 2008 will, Decedent left specific
      bequests of $1,000.00 each to her niece[,] Kathleen Howden
      (“Kathleen”)[,] and to her nephew[, Appellant], (hereinafter
      collectively referred to as “Contestants”). Decedent left the
      residue of her estate in the following shares: [80%] to Temple
      University Children’s Medical Center and [20%] to Planned
      Parenthood of Southeastern Pennsylvania.

                                    ***

      Decedent [] signed several other testamentary documents with
      similar dispositive provisions. Decedent executed a codicil to her
      October 2005 will on January 20, 2006 and a new [w]ill on July
      25, 2007. In addition, Decedent re-executed her October 2005
      will on January 26, 2006. Both the January 20, 2006 codicil and
      the January 26, 2006 re-executed will revoked paragraph Sixth
      A of the 2005 will, effectively changing the executor under the
      will. All other provisions of the re-executed will remain the same
      as the October 2005 will. Significantly, each of the wills - the
      July 2007 will, the January 2006 re-executed will[,] and the
      October 2005 will, as amended by the codicil . . ., provide for the
      same bequests to [Appellant and Kathleen] of $1,000.00 each.

      Under earlier wills dated July 8, 2002 and February 13, 2003,
      Decedent left the sum of $1,000,000[.00] to [Kathleen], to be
      held in a trust, while leaving the residue of her estate to Temple
      University School of Medicine.       [Appellant] was left nothing
      under the 2002 or 2003 [w]ills.

Trial Court Opinion, 1/21/15, at 1-2.

      The procedural history of this case is as follows. On April 26, 2013,

Appellant filed a petition to set aside Decedent’s 2005 and 2008 wills.

Appellant alleged that Decedent lacked testamentary capacity at the time

those wills were executed. On October 9, 2013, Kathleen filed a petition to

join Appellant’s petition to set aside Decedent’s 2005 and 2008 wills.      On

May 8, 2014, Executor moved for summary judgment.             On January 21,


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2015, the trial court granted summary judgment, finding that Contestants

lacked standing to challenge the wills. This timely appeal followed.3

        Appellant presents four issues for our review:4

     1. Should the [trial court] have recused herself because she taught
        at Temple and represented NARAL[ Pro-Choice America, Inc.
        (“NARAL”)]?

     2. Did [C]ontestants have standing and were they aggrieved?

     3. Did [Executor] exert undue influence over [Decedent]?

     4. Is there sufficient evidence of incapacitation to [remand this
        case] to [the trial c]ourt [with] instruction[s to assign it to a new
        trial judge]?

Appellant’s Brief at 7-8.

        In his first issue, Appellant argues that the trial judge should have

recused herself because of her ties to Temple and NARAL.             This issue is

waived.     “Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”       Pa.R.A.P. 302(a).    This rule bars a

litigant from arguing on appeal that the trial judge should have recused

herself unless the litigant filed a motion for recusal before the trial court.

See Crawford v. Crawford, 633 A.2d 155, 159 (Pa. Super. 1993) (citation




3
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).
4
    We have re-numbered the issues for ease of disposition.


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omitted).    Appellant did not file a recusal motion in the trial court.

Accordingly, Appellant’s first issue is waived.5

      In his second issue, Appellant argues that he has standing to challenge

the Decedent’s 2005 and 2008 wills. “The question of standing is whether a

litigant is entitled to have the court decide the merits of the dispute or of

particular issues.”   In re C.R., 111 A.3d 179, 182 (Pa. Super. 2015)

(internal alteration and citation omitted). Whether a litigant has standing is

a pure question of law; therefore, our standard of review is de novo and our

scope of review is plenary. See In re Raymond G. Perelman Charitable

Remainder Unitrust, 113 A.3d 296, 305 n.12 (Pa. Super. 2015), appeal

denied, 131 A.3d 492 (Pa. 2016).

      The General Assembly has set forth who has standing to challenge a

will. “Any party in interest who is aggrieved by a decree of the register, or a

fiduciary whose estate or trust is so aggrieved, may appeal therefrom to the

court within one year of the decree[.]” 20 Pa.C.S.A. § 908(a). “A party is

aggrieved and therefore has standing when the party is directly and

adversely affected by a judgment, decree or order and has some pecuniary

interest which is thereby injuriously affected.” Estate of Seasongood, 467

A.2d 857, 859 (Pa. Super. 1983) (citation omitted).



5
  To the extent that Appellant argues that this issue was preserved, that
argument is waived for failure to specify where in the record the issue was
preserved. See Pa.R.A.P. 2101, 2117(c).


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      In this case, Decedent’s wills of July 8, 2002, October 3, 2005, January

26, 2006, July 25, 2007, and March 14, 2008, along with the January 20,

2006 codicil, bequeathed Appellant $1,000.00 or less.      Thus, in order for

Appellant to be entitled to more than $1,000.00, he needs to prove that

Decedent lacked the testamentary capacity to execute each of those

documents.6   If he proves that Decedent lacked testamentary capacity to

execute each of those documents, Appellant would be entitled to a greater

portion of Decedent’s estate.

      A remote possibility of proving that Decedent lacked the testamentary

capacity to execute each of those documents, however, is insufficient to

confer standing on Appellant.        Instead, in order for Appellant to have

standing, he needs to prove that there is a “realistic possibility” that

Decedent lacked testamentary capacity to execute each of those documents.

See In re Estate of Luongo, 823 A.2d 942, 958 (Pa. Super. 2003), appeal

denied, 847 A.2d 1287 (Pa. 2003).         Appellant did not establish such a

realistic possibility of invalidating Decedent’s testamentary documents.

      As this Court has explained:

      Testamentary capacity exists when the testator has intelligent
      knowledge of the natural objects of [her] bounty, the general
      composition of [her] estate, and what [] she wants done with it,

6
  On appeal, Appellant also argues that the wills are invalid because
Executor exerted undue influence on Decedent. Appellant, however, did not
make this claim in the trial court and therefore it is waived. See Pa.R.A.P.
302(a). To the extent that Appellant contends that this argument was
preserved, that argument is waived for failure to specify where in the record
the issue was preserved. See Pa.R.A.P. 2101, 2117(c).
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      even if [her] 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 [her] 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) (internal

quotation marks and citations omitted).    Although the proponent of a will

originally bears the burden of proving testamentary capacity, a presumption

of testamentary capacity arises “upon proof of execution by two subscribing

witnesses.”   In re Estate of Vanoni, 798 A.2d 203, 207 (Pa. Super. 2002)

(citation omitted). In this case, the wills were subscribed by two witnesses;

thus, there is a presumption Decedent possessed testamentary capacity.

Furthermore, as the wills were drafted by an attorney, in order to overcome

the legal presumption, Appellant was required to prove by clear and

convincing evidence that Decedent lacked testamentary capacity.            Id.

(citation omitted).

      The Court of Common Pleas of Montgomery County previously held

that, as of March 2008, Decedent was capable of controlling her own

finances and managing her own financial affairs. Specifically, in March 2007

Rosemary Ferrino petitioned the court to declare Decedent an incapacitated

person. In March 2008, the Court of Common Pleas appointed a guardian of

the person for Decedent but declined to appoint a guardian of the estate and


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instead held that Decedent had the requisite capacity to manage her own

financial affairs. See In re Mantell, 2007-X1073 (C.C.P. Montgomery Mar.

18, 2008). This finding by the Court of Common Pleas was supported by the

record. Decedent was examined by Dr. Todd Goldberg on August 6, 2007.

After that examination, Dr. Goldberg opined that Decedent was mentally

competent to manage her own affairs. Later in 2008, the Court of Common

Pleas again found that Decedent was capable of managing her own financial

affairs. It therefore denied a petition to appoint a guardian of the estate.

See In re Mantell, 2007-X1073 (C.C.P. Montgomery Aug. 7, 2008). Based

upon the well-supported findings of the Court of Common Pleas in March and

August 2008, Appellant does not have a realistic possibility of proving by

clear and convincing evidence that Decedent lacked the testamentary

capacity to execute her 2008 will.

     Furthermore, Appellant failed to present clear and convincing evidence

that Decedent lacked testamentary capacity when she executed her prior

testamentary documents.      We focus our attention on the lack of evidence

related to the 2002 will.7   The earliest evidence Appellant relies upon to

prove Decedent’s incapacity is from 2004 – over 18 months after Decedent

executed her 2002 will. With no evidence presented regarding Decedent’s


7
  As noted above, in order for Appellant to succeed he would need to show
that there is a realistic possibility that all of Decedent’s testamentary
documents from 2002-2008 were invalid. Only then would Appellant be
entitled to more than $1,000.00, and thus face injury by the probating of the
2008 will.
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J-A05024-16


mental faculties during 2002, Appellant fell short of proving by clear and

convincing evidence that Decedent lacked the testamentary capacity to

execute that will (not to mention the several testamentary documents

executed after that date).

      As the trial court noted, Decedent suffered from severe mental illness

during the latter portion of her life and was episodically incapable of

managing her financial affairs. See Trial Court Opinion, 1/21/15, at 10. The

Court of Common Pleas, however, twice held that Decedent possessed the

requisite capacity to manage her own financial affairs in 2008, which is a

higher standard than is required for testamentary capacity. Thus, Appellant

failed to show that there was a realistic possibility of invalidating the

necessary testamentary documents to confer standing upon Appellant.       As

Appellant lacked standing to challenge Decedent’s wills, we decline to

address his third and fourth issues on appeal which address the merits of his

claims.8

      In sum, Appellant has waived his claim that the trial judge should have

recused herself. The trial court properly held that Appellant lacked standing

to challenge the validity of the wills.   As Appellant lacked standing, we

decline to reach the merits of Appellant’s last two issues. Accordingly, we

affirm the trial court’s grant of summary judgment.

8
  We nonetheless note that, as noted above, Appellant has waived his third
issue on appeal. See note 6, supra. Furthermore, our disposition of
Appellant’s standing argument necessarily indicates that his fourth issue is
meritless.
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J-A05024-16


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2016




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