J-A31019-15


                                    2016 PA Super 17

IN RE: ESTATE OF SCHUMACHER, R.,                     IN THE SUPERIOR COURT OF
SR.                                                        PENNSYLVANIA

MARIANNE KREISHER

                            Appellee

                       v.

KATHLEEN AND RALPH SCHUMACHER

                            Appellants                     No. 235 MDA 2015


                 Appeal from the Order Entered January 8, 2015
                In the Court of Common Pleas of Columbia County
                       Civil Division at No(s): 165-OC-2014


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                                  FILED JANUARY 29, 2016

        Ralph   E.   Schumacher        (“Ralph”)   and   Kathleen   L.   Schumacher

(“Kathleen”) (collectively, “Schumachers”) appeal, pro se, from the order

entered in the Court of Common Pleas of Columbia County, denying their

petition for admission to probate of an after-discovered will. Upon review,

we affirm.

         Robert H. Schumacher, Sr. (“Testator”), died on June 21, 2014,

leaving a will dated November 18, 2010 (“2010 Will”).               His wife, Marie,

predeceased him in 2010.          Testator was survived by two sons, Ralph and

Robert Schumacher, Jr. (“Bobby”). Pursuant to the terms of the 2010 Will,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A31019-15



Testator’s entire estate was to pour over into a Special Needs Trust (“2010

Trust”), executed on the same date as the will, for the benefit of Bobby, who

suffers from cerebral palsy and a mild intellectual disability. Testator named

Marianne Kreisher, Esquire, as executrix of the 2010 Will and trustee of the

2010 Trust.      The 2010 Will was submitted for probate on September 2,

2014, and Letters Testamentary were issued to Attorney Kreisher.

       On October 27, 2014, the Schumachers filed a petition to probate an

after-discovered will dated February 23, 2013 (“2013 Will”). The 2013 Will

provided numerous specific bequests to multiple individuals and charities,

notably Ralph and Kathleen, and gave the residue, in trust, to Bobby.

Testator also executed a new Special Needs Trust for Bobby’s benefit. Ralph

and Kathleen were named co-executors and co-trustees. Both the 2013 Will

and Special Needs Trust were drafted by Ralph.

       On November 3, 2014, Attorney Kreisher filed an answer to the

Schumachers’ petition, in which she alleged that the 2013 Will was invalid

due to Testator’s lack of capacity, as well as undue influence exercised upon

Testator by Ralph.       The court held a hearing in the matter on January 5,

2015, after which it issued an order denying probate to the 2013 Will on the

basis of undue influence.1 The Schumachers filed a timely notice of appeal
____________________________________________


1
  Because it found that the 2013 Will was the product of undue influence,   the
trial court concluded that an analysis of testamentary capacity was         not
necessary. See Trial Court Opinion, 1/7/15, at 15 n.2. Nonetheless,         the
court noted its belief that, on the date the 2013 Will was executed,        the
(Footnote Continued Next Page)


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to this Court on February 6, 2015, followed by a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      The Schumachers raise the following issues for our review:

      1. Did the trial court err by finding Appellee Marianne E.
      Kreisher, Esquire, possessed legal standing to contest probate of
      the later will?

      2. Did the trial court err by failing to properly acknowledge and
      recognize the then-valid Power of Attorney of agent, Gregory
      Badger, in regards to principal, Robert H. Schumacher, Jr.?

      3. Did the trial court err by not enforcing the duly and properly
      acquired subpoena to Robert H. Schumacher, Jr., the only
      person mentioned in both the 2010 Will and Special Needs Trust
      and the 2013 Will and Special Needs Trust, . . . who was to
      attend and testify?

      4. Did the trial court err when it concluded that Testator “had no
      friends or family members with whom he had a close trusting
      relationship”?

      5. Did the trial court err when it concluded that “Testator had no
      church connections”?

      6. Did the trial court err when it concluded that Petitioner Ralph
      E. Schumacher’s primary residence was in Berwick, PA?

      7. Did the trial court capriciously ignore the testimony of Donna
      Homiak, a retired registered nurse who had worked with patients
      suffering from dementia and had personally met and known and
      spent extended time with Testator, especially in the time frame
      in question, and could provide insight into Testator’s
      testamentary capacity and whether he was subject to undue
      influence or not?

      8. Did the trial court err when it concluded that Testator
      suffered from a weakened intellect on February 23, 2013?
                       _______________________
(Footnote Continued)

Testator was unaware of the natural objects of his bounty and did not know
how he wished to dispose of his assets.



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      9. Did the trial court err when it concluded that Petitioner Ralph
      E. Schumacher was in a confidential relationship with Testator?

      10. Did the trial court err when it concluded that the 2013 Will
      and 2013 Special Needs Trust were the products of undue
      influence and therefore invalid?

      11. Did the trial court err when it concluded that Testator did
      not know the natural objects of his bounty on February 23,
      2013?

      12. Did the trial court err when it ignored the oral and written
      wishes of Marie A. Schumacher and the oral and written wishes
      of Testator, who both wanted their disabled son, Robert H.
      Schumacher, Jr., to live at the Schumacher Family Farm and
      Homestead located in Orange Township, Columbia County?

      Although this matter came before the trial court as a petition to

probate an after-discovered will, the court treated the case as a will contest

due to the issues raised by Attorney Kreisher in her response to the

Schumachers’ petition.    The appropriate scope and standard of review on

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 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. Only where it appears from a
      review of the record that there is no evidence to support the
      court’s findings or that there is a capricious disbelief of evidence
      may the court’s findings be set aside.

In re Bosley, 26 A.3d 1104, 1107 (Pa. Super. 2011) (internal citations

omitted).

      The Schumachers first challenge Attorney Kreisher’s standing to

contest the probate of the 2013 Will.        This claim is both waived and

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meritless.   First, it was the Schumachers themselves who named Attorney

Kreisher as the respondent in their petition to probate the 2013 Will.      As

such, they cannot now be heard to complain that Attorney Kreisher is not

properly a party to the action.    Second, challenges to a party’s standing

must be raised at the common pleas level or they are waived.         Burke v.

Independence Blue Cross, 103 A.3d 1267, 1271 (Pa. 2014).                    The

Schumachers failed to raise the issue of Attorney Kreisher’s standing in the

trial court and, therefore, have waived the claim. Finally, Attorney Kreisher

has the requisite standing in this matter.      Section 908 of the Probate,

Estates and Fiduciaries (“PEF”) Code provides as follows:

      § 908. Appeals.

      (a) When allowed. --

      Any party in interest seeking to challenge the probate of a will or
      who is otherwise 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: Provided,
      That the executor designated in an instrument shall not by virtue
      of such designation be deemed a party in interest who may
      appeal from a decree refusing probate of it.

20 Pa.C.S.A. § 908(a) (emphasis added).      Attorney Kreisher is the named

trustee of the 2010 Trust, which is the sole beneficiary named in the 2010

Will. Because Attorney Kreisher’s trust would have been aggrieved by the

probate of the 2013 Will, she possessed standing to challenge its validity.

Accordingly, the Schumachers are entitled to no relief.

      The Schumachers next assert that the trial court erred by failing to

properly acknowledge and recognize Gregory Badger as agent under a power


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of attorney granted by Bobby Schumacher. However, the Schumachers, in

their brief, do not explain how this issue is relevant to the trial court’s

determination as to the validity of the 2013 Will, or how they are aggrieved

by this alleged error.     Moreover, our review of the record does not

demonstrate that the Schumachers ever requested the trial court to

recognize Gregory Badger as Bobby’s agent.       Therefore, this claim is both

irrelevant and waived.

      Next, the Schumachers assert that the trial court erred by not

enforcing a subpoena issued to Bobby Schumacher.            The Schumachers

assert that Bobby’s testimony at trial was “crucial, important, and

necessary” and that “trial should not have gone on without the presence

(attendance) and testimony” of Bobby Schumacher. Brief of Appellants, at

22.   However, the record reveals that the Schumachers, through their

counsel, Gregory Stuck, Esquire, abandoned any claim with regard to

Bobby’s unavailability during the following exchange with the trial court:

      MR. STUCK: . . . I do have one serious problem which has been
      the inability to produce [Bobby] at these proceedings.        I
      understand that there’s a proceeding with Area Agency on Aging
      Office coming up on January 23rd and I’d ask the record be kept
      open for us to quiz [Bobby] at that point in time.

      MS. KREISHER: I have no objection to that.

      THE COURT: Yeah, I’m not sure –

      MR. STUCK: Unless you’ve heard enough already.

      MS. KREISHER: What is the offer of proof?

      THE COURT: I guess what’s the offer? I’m fine with that[.]

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                                     ...

      THE COURT: So what do you propose with Bobby?

      MR. STUCK: I want to know – I’m going to make the not so wild
      assumption that Bobby was fully aware of what was going on in
      these processes and he would be able to have meaningful input
      for the Court as to whether or not anybody was forcing his dad
      to do anything.

      THE COURT:     It’s up to you, if you want to keep it open until
      then.

      MS. KREISHER: Your Honor, I don’t have an objection with
      keeping it open, but you have met with Bobby, Ralph is certainly
      aware of Bobby’s capabilities and I really don’t see the benefit.

      MR. STUCK: I’ll withdraw my request, Your Honor. I have
      spoken with my client, he’s indicated he’s not sure what kind of
      medications the Area Agency on Aging might have his brother
      on.

      THE COURT: We could ask him.

      MS. KREISHER: Yep, I have no problem keeping it open.

      THE COURT: What do you want to do? I mean, I don’t care.

      MR. STUCK: No, we’ll be satisfied with the closing of the record.

N.T. Hearing, 1/5/15, at 315-17.

      As the foregoing excerpt clearly demonstrates, both the trial court and

opposing counsel, Attorney Kreisher, provided the Schumachers ample

opportunity to insist that the record be kept open to incorporate testimony

from Bobby Schumacher.       However, the Schumachers chose to withdraw

their request and allow the record to close without taking Bobby’s testimony.

Accordingly, this claim is waived.


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       The Schumachers’ next three claims involve disagreements with

factual findings made by the trial court.        In their brief, the Schumachers

dispute those findings by quoting from trial testimony that they believe

contradicts the court’s findings. However, they cite to no case law nor put

forth any argument explaining how the court’s alleged errors affected its

ultimate ruling as to the validity of the 2013 Will. This Court has repeatedly

held that failure to develop an argument with citation to, and analysis of,

relevant authority waives that issue on review.        Harris v. Toys "R" Us-

Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005); Pa.R.A.P. 2119.

Accordingly, these claims are waived.2

       The Schumachers next assert that the trial court “capriciously ignored”

the testimony of Donna Homiak, a retired registered nurse, whom they

assert provided insight into the Testator’s testamentary capacity and

whether he was subject to undue influence.              This claim garners the

Schumachers no relief.         First, as with the claims addressed above, the

Schumachers simply quote from the notes of testimony without developing

an argument as to how the cited testimony supports their claim. As a result,

they have waived appellate review. See id. Second, a review of Homiak’s


____________________________________________


2
  Even if the claims were not waived, they are meritless. The trial court’s
findings that: (1) Testator had no family or friends with whom he had a
close trusting relationship; (2) Testator had no church connections; and (3)
Ralph’s primary residence was in Berwick, PA are supported by the record –
notably, in two instances, by the testimony of Ralph himself.



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testimony reveals that she barely knew the Testator, having met him only

twice. On the first occasion, she testified that they spoke mostly of the past

and she was, therefore, unable to tell whether he was oriented.       On her

second meeting with the Testator, she testified that she observed him

operating a back hoe and spoke to him about his leg pain.           Homiak’s

testimony sheds no light on Testator’s testamentary capacity or whether

Ralph unduly influenced him to execute the 2013 Will. As such, the claim is

meritless.

       The Schumachers’ next three claims address the court’s determination

that Testator was the subject of undue influence practiced upon him by

Ralph. The Schumachers assert that the Appellee failed to establish either

the weakened intellect or confidential relationship prongs of the undue

influence test.3 We disagree.

       Our Supreme Court has defined undue influence as follows:

       The word “influence” does not refer to any and every line of
       conduct capable of disposing in one’s favor a fully and self-
       directing mind, but to control acquired over another that
       virtually destroys his free agency . . . . In order to constitute
       undue influence sufficient to void a will, there must be
       imprisonment of the body or mind, . . . 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.

____________________________________________


3
 The Schumachers do not contest the trial court’s finding that they receive a
substantial benefit under the 2013 Will.



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In re Estate of Ziel, 359 A.2d 728, 733 (Pa. 1976) (citations omitted). 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.    Id. at 734.

Once this prima facie case has been established, the burden shifts to the

proponent to refute the charge of undue influence. Id.

      The weakened intellect necessary to establish undue influence need

not amount to testamentary incapacity. In re Estate of Clark, 334 A.2d

628, 634 (Pa. 1975). “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.”   In re Estate of Fritts, 906 A.2d 601,

607 (Pa. Super. 2006).      Moreover, because undue influence is generally

accomplished by a gradual, progressive inculcation of a receptive mind, the

“fruits” of the undue influence may not appear until long after the weakened

intellect has been played upon. Clark, 334 A.2d at 634. Accordingly, 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. Id. More credence may be given to

remote mental history. Id.

      In concluding that the Testator suffered from a weakened intellect, the

trial court noted the following:

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      Testator had been a strong-willed man all of his life. [For many
      years, he owned and operated a private sewage treatment plant
      that served a residential area he had developed on his farm
      property.] However, by February 23, 2013, medical testimony
      established that [T]estator had been in the throes of progressive
      dementia for approximately three years, with the symptoms of
      cognitive impairment, loss of judgment, and loss of memory.
      When he saw his family doctor, [Paul Saloky, M.D.,] in January
      2013, his dementia had progressed to moderate dementia.
      Moreover, during that examination, [T]estator was malnourished
      and suffering from delirium as a result of an infection. He was
      hospitalized for a short period and signed the [2013 Will] within
      a month of the hospitalization. By April 2013 when [Dr. Saloky]
      examined him again, the [Testator] was physically stronger but
      [“his dementia was certainly no better.” N.T. Trial, 1/5/15, at
      25].

      [Dr. Saloky’s] diagnosis was verified by the testimony of the
      treatment plant operator[, John Bauer,] who had known and
      worked with [T]estator regularly for almost thirty (30) years.
      [Bauer] noticed, from at least 2011, [T]estator’s increasing
      inability to maintain the plant. He said that [T]estator’s mind
      seemed to be slipping. The change was dramatic, to the point
      where [Bauer] had to terminate their business relationship in the
      spring of 2013. The [Department of Environmental Protection]
      representative who dealt with the treatment plant for many
      years made similar observations, as did a township supervisor.
      Testator’s weakened intellect was further substantiated by the
      local police chief[,] who received numerous out of character
      bizarre calls from [T]estator throughout 2011 and 2012. The
      chief also noted that, uncharacteristically, [T]estator allowed a
      Megan’s Law registrant to live with him in 2012, resulting in the
      theft of [T]estator’s guns, jewelry, and coins. After a two month
      investigation, the thief was arrested February 26, 2013, three
      days after the date of the will. The thief and his two relatives
      were beneficiaries in the will.

Trial Court Opinion, 1/7/15, at 11-13.    In addition, Dr. Saloky testified as

follows on direct examination by Appellee’s counsel with respect to

Testator’s ability to comprehend the will and trust on the date of execution:


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J-A31019-15


     Q: Based on your diagnosis of [Testator’s] treatment in January
     of 2013 and in April of 2013, had his dementia progressed to the
     point where he would not have been able to have lucid moments
     and understand complicated matters?

     A: Yes.

     Q: Can you give an opinion within a reasonable degree of
     medical certainty whether [Testator] who presents with the
     advanced level of dementia suffered by him would have had the
     capacity to understand and execute a complicated estate plan on
     February 23rd, 2013?

                                    ...

     [A]: With his level of dementia at that point in time, moderate
     dementia with his disabilities with cognition, language skills and
     comprehension, I do not believe he would be able to understand
     that.

                                    ...

     Q: And looking at Exhibit 1, the [2013 Will], would he have
     been able to understand that document?

     A: No.

                                    ...

     A: I think he’d understand that it was a will but I think the
     contents would be very complicated for someone of this level of
     dementia to understand.

     Q: Take a moment to review Exhibit 2, and this is the special
     needs trust that was signed on February [23,] 2013. And,
     Doctor, how many pages does this document consist of?

     A: 12 pages.

     Q:   And turning back to page 11, how many sections or
     paragraphs does this document consist of?

     A: 16.


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      Q: Would [Testator] have been able to understand the contents
      of this document based on your exam and diagnosis of his
      dementia?

      A: No.

N.T. Trial, 1/5/15, at 29-31.

      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.” Clark, 334 A.2d at 633, quoting Leedom v.

Palmer, 117 A. 410 (Pa. 1922).        “A confidential 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.”   In re Estate of Thomas, 344 A.2d 834, 836 (Pa. 1975).

“[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.”   Estate of Keiper, 454 A.2d 31, 33 (Pa. Super.

1982), quoting Silver v. Silver, 219 A.2d 659, 662 (Pa. 1966).         While a

parent/child relationship does not automatically establish a confidential

relationship, it is a factor to be considered. Biddle v. Johnsonbaugh, 664

A.2d 159, 162 (Pa. Super. 1995).

      As to this prong of the undue influence test, the trial court found as

follows:


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       The confidential relationship here is striking.          Before the
       dementia struck, [T]estator and [Ralph] had a strained
       relationship.      After the dementia hit and particularly after
       [Ralph] found that he was not included in the [2010 Will], the
       petitioners became much more involved in [T]estator’s life.
       [Ralph] was at [T]estator’s house almost every day and slept
       there several times a week. [Ralph] became a co-owner of
       [T]estator’s bank account.           [Ralph] became [T]estator’s
       representative for the treatment plant with DEP and the
       township, writing letters and attending meetings and being the
       spokesman for [T]estator.          Most significantly, [Ralph] (with
       [Kathleen]) became [T]estator’s legal advisor, going so far as to
       write a new will and trust[4] and gather [Ralph and Kathleen’s]
       friends as witness[es] to the will’s signing. Petitioners went far
       beyond       son,     daughter-in-law,   and     helpers   to  legal
       representatives, business representatives, confidants, and
       advisors.      Petitioners knew that [T]estator had progressive
       dementia which resulted in increasingly impaired cognition, loss
       of judgment, and loss of memory. They also knew that over a
       year before February 23, 2013, [Testator] had refused to change
       his will, although pressed to do so by petitioners.[5]

Trial Court Opinion, 1/7/15, at 14-15.




____________________________________________


4
  “It will weigh heavily against the proponent on the issue of undue influence
when the proponent was either the scrivener of the will or present at the
dictation of the will.” Burns v. Kabboul, 595 A.2d 1153, 1163 (Pa. Super.
1991).
5
  Attorney Richard Shoch testified that he was present at two meetings in
2011 at which Ralph attempted to have a new will drafted for the Testator.
Attorney Shoch testified that Ralph expressed his displeasure with the
Testator’s 2010 Will (in which Ralph was not named) and sought certain
changes, particularly with respect to the disposition of Testator’s residence.
Attorney Shoch ultimately requested to meet privately with the Testator,
after which he concluded that the Testator did not want to make the changes
sought by Ralph and, as a result, discontinued his representation.




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       Our review of the trial transcript indicates that the findings of the trial

court are amply supported in the record.           Based on the foregoing, we

conclude that the trial court committed no error of law or abuse of discretion

in concluding that: (1) Testator suffered from a weakened intellect; (2) a

confidential relationship existed between Ralph and the Testator; and (3)

Appellee established a prima facie case of undue influence that was not

rebutted by the Schumachers.6

       Finally, the Schumachers claim that the trial court ignored the oral and

written wishes of Testator and his wife, Marie, that Bobby be guaranteed a

life estate in the Schumacher Family Farm.          This issue is moot, as the

Testator’s estate will be distributed pursuant to the terms of the 2010 Will,

under which his entire estate, including the Schumacher Family Farm, is

distributed in trust for Bobby’s benefit.




____________________________________________


6
  Because we conclude that the trial court did not err in invalidating the 2013
Will on the basis of undue influence, we need not address the Schumachers’
claim regarding the trial court’s finding as to testamentary capacity.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




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