J-A07020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHLEEN S. LUCCI, A MARRIED                     IN THE SUPERIOR COURT OF
WOMAN                                                  PENNSYLVANIA

                            Appellant

                       v.

THE LILLIAN J. ROEHL REVOCABLE
TRUST DATED MARCH 21, 2014, ALICE
E. ROBERTS, AND PAUL S. ROBERTS,
INDIVIDUALLY AND IN THEIR CAPACITY
AS TRUSTEES OF THE LILLIAN J. ROEHL
REVOCABLE TRUST

                            Appellees                No. 1027 WDA 2016


                  Appeal from the Order Entered July 6, 2016
                In the Court of Common Pleas of Beaver County
                       Orphans' Court at No: 04-14-1059


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

MEMORANDUM BY STABILE, J.:                     FILED: SEPTEMBER 29, 2017

        Appellant, Kathleen S. Lucci, appeals from the July 6, 2016 order

granting the motion for nonsuit of Appellees, The Lillian J. Roehl Revocable

Trust dated March 21, 2014, Alice E. Roberts, and Paul S. Roberts,

individually and in their capacity as Trustees of the Lillian J. Roehl Revocable

Trust.1 We affirm.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 Appellant challenges the validity of a will and trust executed on March 21,
2014. The order is therefore appealable pursuant to Pa.R.A.P. 342(a)(2),
(Footnote Continued Next Page)
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      The orphans’ court’s opinion sets forth the following facts and

procedural history:

             Lillian J. Roehl, the Decedent, died testate on September
      10, 2014. Pursuant to the terms of Decedent’s Last Will and
      Testament dated March 21, 2014, the residue and remainder of
      Decedent’s Estate was to be distributed to the Lillian J. Roehl
      Revocable Trust, (the “Trust”), also dated March 21, 2014.
      [Appellees], Alice E. Roberts and Paul S. Roberts, are the named
      Trustees, as well as the Co-Executors under the Decedent’s Will.
      [Appellant] initially filed a letter with the Register of Wills on
      November 17, 2014, requesting that the March 21, 2014 Will
      and Trust not be admitted to probate until she had an
      opportunity to be heard. [Appellant] then filed a formal Caveat
      and Request for Certification the following day, requesting that a
      copy of a Will dated October 19, 2011 be admitted to probate
      instead of the March 21, 2014 Will. Under the October 19, 2011
      Will, the Decedent bequeathed the remainder of her Estate, in
      equal shares, to [Appellant] and [Appellee], Alice E. Roberts.
      [Appellant] next filed a Complaint in Equity with the
      Prothonotary, challenging the validity of the Trust. Several
      months later, the file was properly transferred to the Register of
      Wills Office, after [Appellees] filed Preliminary Objections on
      March 19, 2015 challenging the jurisdiction of the Prothonotary,
      among other issues. Then, on July 24, 2015, [Appellant] filed a
      ‘First Amended Complaint/Petition in Equity to Challenge the
      Validity of the Trust and Will of Lillian J. Roehl.’ [Appellees] then
      filed new Preliminary Objections on September 3, 2015
      challenging [Appellant’s] standing and the sufficiency of the
      pleadings.        Following, [Appellant] filed a Response to
      [Appellees’] Preliminary Objections on September 10, 2015.
      Both sides filed Briefs on the issues, and Oral Argument was held
      on October 29, 2015. The Court then issued an Order on
      October 30, 2015 overruling the Preliminary Objections.

            [Appellees] then filed an Answer and New Matter on
      November 10, 2015, again raising the issue of [Appellant’s]
      standing. [Appellees] next filed a Motion for Protective Order
(Footnote Continued) _______________________

which provides that an appeal may be taken from an orphans’ court order
determining the validity of a will or trust.



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       and Stay of Proceedings on January 14, 2016, and then
       [Appellant] filed a Motion to Compel Production of Documents on
       January 25, 2016. In response, this Court issued a Decree on
       April 19, 2016 Ordering as follows: (1) granting [Appellees’]
       Motion for Protective Order; (2) denying [Appellant’s] Motion to
       Compel Production of Documents, and (3) issuing a Citation
       upon [Appellant] to show cause why, if any she has, this cause
       of action should not be dismissed for lack of standing. Hearing
       on the Rule to Show Cause was held on July 6, 2016. After the
       hearing, based upon the weight and credibility of all evidence
       and testimony presented, this Court issued an Order granting
       [Appellees’] Oral Motion for Compulsory Nonsuit, finding
       [Appellant] does not have standing to pursue the cause of
       action.

Orphans’ Court Opinion, 11/14/16, at 1-3 (capitalization in original).2

       Appellant filed a premature appeal while several post-hearing motions

remained pending. This Court quashed the appeal by order of August 16,

2016. The orphans’ court denied Appellant’s motions on August 23, 2016.

This timely appeal followed.

       Appellant raises seven assertions of error.   Appellant’s Brief at 3-4.

The heart of the matter is Appellant’s assertion that her challenge to the

validity of the March 21, 2014 will and trust (the “2014 Will”), based on the

alleged undue influence of Appellees Alice E. Roberts and Paul S. Roberts,

remains viable despite the absence of an original copy of the October 19,

2011 Will (the “2011 Will”). Appellant’s Brief at 4. After careful review, we

____________________________________________


2  The procedural history of this case, as set forth in the orphans’ court’s
opinion, is somewhat confusing. Because we do not believe any of the
potential procedural irregularities implicate our jurisdiction, we will not
address the issue sua sponte.



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conclude the orphans’ court correctly found that Appellant cannot overcome

the presumption that the 2011 Will has been destroyed.

      Our standard of review is as follows:

            With respect to this Court’s standard and scope of
      appellate review in will contests, 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. If
      the record supports the court’s factual findings, we will defer to
      these findings and will not reverse absent an abuse of discretion.
      We are not constrained, however, to give the same deference to
      the court's legal conclusions.

In re Estate of Luongo, 823 A.2d 942, 951 (Pa. Super. 2003) (citations

omitted), appeal denied, 847 A.2d 1287 (Pa. 2003).

      As is evident from the foregoing, Appellant has an interest in the

Decedent’s estate if and only if the 2011 Will remains valid and enforceable.

Appellant has two problems.     First, the Decedent executed a 2014 will in

which she expressly revoked all prior wills.     Second, Appellant has been

unable to produce an original copy of the 2011 Will.        Rather, she is in

possession of a photocopy. Appellant is not the Decedent’s legal heir, and

she would inherit nothing under the intestacy statute. Therefore, Appellant

has nothing to gain in this action unless she can establish that her

photocopy of the 2011 Will would be admissible to probate. The law on this

issue is well-settled:

             Our Supreme Court has repeatedly held that where a
      [testator] retains the custody and possession of [his] will and,
      after [his] death, the will cannot be found, a presumption arises,
      in the absence of proof to the contrary, that the will was revoked
      or destroyed by the [testator]. To overcome that presumption,

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J-A07020-17


       the evidence must be positive, clear and satisfactory.[3]
       Moreover, to prevail over the presumption and establish the
       existence of a lost will, the proponent of the copy of the will
       must prove that: 1) the testator duly and properly executed the
       original will; 2) the contents of the will were substantially as
       appears on the copy of the will presented for probate; and 3)
       when the testator died, the will remained undestroyed or
       revoked by him.

In re Estate of Janosky, 827 A.2d 512, 519–20 (Pa. Super. 2003)

(internal citations and quotation marks omitted).4

       The existence of the 2011 Will implicates Appellant’s standing 5 to

challenge the 2014 Will and trust.

____________________________________________


3  Appellant complains that the orphans’ court misstated the applicable
standard as clear and convincing evidence.    In light of the evidence
produced at the hearing and the applicable standard as set forth in
Jankosky, we conclude that any error in the court’s misstatement of the
standard was harmless.

4    The Dissent argues the orphans’ court erred in refusing to permit
Appellant discovery of Decedent’s medical records, as this evidence would
have been relevant to whether the 2014 Will and trust were signed or
whether the 2011 Will was destroyed or revoked as a result of undue
influence. Since Appellant first had to establish the validity of the 2011 Will
under Janosky before being able to challenge the validity of the 2013 Will,
we do not find the orphans’ court preclusion of discovery of Decedent’s
medical records to be error. As discussed, infra, Appellant failed entirely to
satisfy the first two prongs under Janosky that were not dependent upon
examination of any of the Decedent’s medical records.

5  Appellant complains that, previously, another judge overruled Appellees’
preliminary objections to her complaint, and one of those preliminary
objections was to Appellant’s standing. Appellant therefore believes the
prior judge found that Appellant had standing, and that the coordinate
jurisdiction rule precludes a different finding at this juncture. We disagree.
The previous judge’s ruling overruled preliminary objections based on the
allegations in Appellant’s complaint, including her allegation that the
(Footnote Continued Next Page)


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J-A07020-17


             A contestant to the validity of a will does not have standing
      to do so unless he can prove he would be entitled to participate
      in the decedent's estate if the will before the court is ruled
      invalid.   To be aggrieved by the probate of a will, the
      contestant’s share of the estate must be smaller because of
      probate or larger if probate is denied. Thus, it has been held
      that a non-relative beneficiary under an earlier will that the
      testator physically destroyed when he was fully competent to do
      so, leaves the legatee without any interest in the estate to
      challenge the testator’s later will.

Luongo, 823 A.2d at 954 (emphasis in original).

      The orphans’ court directed Appellant to produce evidence to support

her claim under the 2011 Will.         The court conducted a hearing on July 6,

2016, which produced the following evidence.         Michael Nalli, the attorney

who prepared the 2014 Will, testified that the Decedent, despite her

advanced age of 97 years, was clear about her wishes for the 2014 will.
(Footnote Continued) _______________________

Decedent left Appellant a portion of her estate in the 2011 Will. The order
on appeal entered a nonsuit based on evidence introduced at the July 6,
2016 hearing, upon which the orphans’ court found that Appellant cannot
substantiate her allegation that the 2011 Will remains in effect.        The
coordinate jurisdiction rule posed no bar to the orphans’ court’s order. To
hold otherwise would be to relieve Appellant of the burden of overcoming
the presumption that the prior will has been destroyed. Therefore, the order
on appeal, entered at a later stage of the proceedings and based upon
evidence that was not available at the earlier stage, does not implicate the
coordinate jurisdiction rule. Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa.
2003).

Appellant also complains that the orphans’ court erred in raising the issue of
standing sua sponte. We observe that Appellees’ defense continued to
depend on the validity of the 2014 Will and the invalidity of the 2011 Will,
despite their unsuccessful preliminary objections. Furthermore, as we just
explained, the ruling on the preliminary objections did not relieve Appellant
of the burden of overcoming the presumption that the 2011 Will had been
destroyed.



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N.T. Hearing, 7/6/16, at 15, 25.     Appellees brought the Decedent to her

meetings with Nalli, and were present in his office during the meeting,

though they offered to step outside. Id. at 25-26, 67. According to Nalli,

the Decedent spoke for herself and explained what she wanted. Id. at 16.

Appellees did not speak for her.    Id.    Nalli was not concerned about the

Decedent’s testamentary capacity.         Id. at 17.   The Decedent’s only

observable impairment was that she was in a wheel chair. Id. at 18. Her

knowledge of “her assets, the people affected, her comprehension of the

documents was all good.”    Id.    The Decedent wanted to create a trust in

order to avoid the probate process. Id. at 27-28. Nalli said the Decedent

brought him a copy of the 2011 Will (not the original) and told him she

wanted to make changes to it. Id. at 19. Nalli testified that he advised the

Decedent to destroy her old estate planning documents after having new

documents prepared. Id. at 20.

     Appellee Alice Roberts, the Decedent’s niece and legal heir, testified

that she lived in Sammamish, Washington, for approximately twenty years

prior to 2013.   Id. at 50, 59.   Mrs. Roberts spoke by telephone with the

Decedent several times per week during her time in Washington, but never

visited. Id. at 50. She hired a cleaning service for Decedent in 2011, when

she got word from Appellant that the Decedent was not taking care of her

house.   Id. at 60.   When Mrs. Roberts moved to Beaver County to reside

with the Decedent, the Decedent’s house was cluttered and mouse infested.


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J-A07020-17


Id. at 59-60.    The Beaver County Department of Aging first visited the

Decedent in 2011, but determined she was not in need of guardianship. Id.

at 60-61. According to Mrs. Roberts, the Decedent stayed at a skilled care

center for portions of 2014 due to breathing difficulties. Id. at 63-65.

      Mrs. Roberts was aware of the 2011 Will, under which she was to

receive half of the Decedent’s estate, but she had no copy. Id. at 54, 63.

Mrs. Roberts stated she did not destroy the original of the 2011 will at the

direction of the Decedent.

      Appellant testified that she lived across the street from the Decedent

for 34 years. Id. at 107. The Decedent’s sister and husband predeceased

her by nearly two decades. Id. at 108-09. The Decedent’s sister, while she

was suffering from terminal cancer, asked Appellant to look after the

Decedent after she died.     Id. at 109.   Appellant commonly went to the

grocery store for the Decedent and transported her to various appointments.

Id. at 110.    Appellant testified that the Decedent’s mental condition was

deteriorating in 2014.   Id. at 122-23.    Rosemary Zagorski, is Appellant’s

sister-in-law and a long-time neighbor of both Appellant and the Decedent.

Id. at 88.    Zagorski confirmed that Appellant provided assistance to the

Decedent, especially after the Decedent would no longer leave her house.

Id. at 90.    Zagorski testified that the Decedent’s memory was foggy in

2014, and that she repeated the same questions every few minutes. Id. at

93.   Zagorski also testified that, in April of 2014, the Decedent told her


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Appellant was like the daughter the Decedent never had, and that Appellant

would get half of the Decedent’s estate. Id. at 93-94, 98-99.

     In essence, Appellant claims that the 2014 Will is the product of undue

influence by Appellees, and that the Decedent lacked the capacity to execute

the 2014 Will. Appellant can benefit from invalidating the 2014 Will if and

only if she can establish that the 2011 Will was not destroyed.       At the

conclusion of the July 6, 2016 hearing, Appellant’s counsel argued that the

Decedent, in her statement to Zagorski, orally republished the 2011 Will:

          [APPELLANT’S COUNSEL]: But I would say that more
     importantly the burden that you have set for us to establish we
     have met by the testimony of Ms. Zagorski. She testified that –

           THE COURT: How’s that?

           [APPELLANT’S COUNSEL]: An oral republication of her
     2011 will. [Zagorski] indicated that [the Decedent] told her that
     [Appellant] would receive half of the bounty of her estate after
     the execution of the March will. I would submit, Your Honor,
     that’s at least overcoming the hurdle to get us to the full-blown
     hearing.

            THE COURT:       [Appellant’s counsel], you have not
     presented one witness to even tell me that they saw a signed
     will signed by [the Decedent] in 2011, not one witness.

           [APPELLANT’S COUNSEL]: We think that the document
     attached to the complaint speaks for itself.

          THE COURT: The document attached to the complaint is a
     photocopy.

           [APPELLANT’S COUNSEL]:         That’s correct.   We cannot
     locate the original.

          THE COURT: And you haven’t had one witness who has
     even been able to testify that that original existed any day after
     October 19, 2011; is that correct?

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             [APPELLANT’S COUNSEL]: We don’t know, yes.

             THE COURT: Where is the clear and convincing evidence?

              [APPELLANT’S COUNSEL]: Again my argument would be
        an oral republication. That’s all I can tell you.

Id. at 165-66.

        As set forth above, Appellant was required to prove that the 2011 Will

was duly executed, that Appellant’s copy fairly represents the contents of

the original, and that the original has not been destroyed.             Appellant

produced no evidence in support of the first two prongs, and the orphans’

court credited Nalli’s testimony that the Decedent duly executed the 2014

Will. Nalli testified that the Decedent spoke for herself during her meetings

with Nalli, and that she was clear about her intentions. Nalli testified that he

advised the Decedent to destroy any prior estate planning documents, and

the 2014 Will expressly revoked all prior wills.        In summary, the record

clearly supports a finding that the Decedent revoked and destroyed the 2011

Will.

        Appellant   protests   that   the   orphans’   court   improperly   denied

Appellant’s request for discovery of the Decedent’s medical records.

Appellant hopes that the medical records would support Appellant’s belief

that the Decedent was suffering from memory loss, and thereby bolster

Appellant’s evidence of the Decedent’s compromised mental state and




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J-A07020-17


undercut Nalli’s account of the Decedent’s coherence. This rationale seems

to be inconsistent with Appellant’s oral republication argument.6            If the

Decedent had sufficient capacity to republish a prior will, then she also had

sufficient capacity to change it.              Furthermore, evidence of age-related

memory loss would not require the orphans’ court to dismiss Nalli’s

testimony as a total fabrication. The orphans’ court could have believed that

the Decedent suffered from some age-related short-term memory loss—as

per the testimony of Appellant and Zagorski—and still credited Nalli’s

testimony that the Decedent was sufficiently clear about her wishes for her

estate.7

       In light of all of the foregoing, we discern no error in the orphans’

court’s order.

       Order affirmed.
____________________________________________


6   We observe that Pennsylvania statutory law prohibits oral republication:

       If, after the making of any will, the testator shall execute a later
       will which expressly or by necessary implication revokes the
       earlier will, the revocation of the later will shall not revive the
       earlier will, unless the revocation is in writing and declares the
       intention of the testator to revive the earlier will, or unless, after
       such revocation, the earlier will shall be reexecuted.           Oral
       republication of itself shall be ineffective to revive a will.

20 Pa.C.S.A. § 2506 (emphasis added).

7  Appellant complains that the orphans’ court erred in deeming Zagorski a
biased witness. As noted above, we will not interfere with the orphans’
court’s factual findings so long as the record supports them. Luongo, 823
A.2d at 951.



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     Judge Olson joins this memorandum.

     Judge Strassburger files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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