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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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(s): 04-14-1059

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

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                               FILED SEPTEMBER 29, 2017

      Because the orphans’ court erred by denying Appellant the opportunity

to conduct discovery, I respectfully dissent and offer the following analysis.

      The orphans’ court set forth accurately the requirements for Appellant

to establish the existence of a lost will. See Orphans’ Court Opinion,

11/14/2016, at 9.

      In order to establish the existence of a lost will which was in the
      custody of the testatrix prior to her death, the proponent of the
      will must overcome the presumption that the testatrix destroyed
      or revoked her will. As such, the proponent of the will must
      prove the following factors by utilizing evidence which is positive,
      clear, and satisfactory: (1) that the testatrix duly and properly

*Retired Senior Judge assigned to the Superior Court.
J-A07020-17

      executed the original will; (2) that the contents of the executed
      will were substantially the same as on the copy of the will
      presented for probate; and (3) that the testatrix had not
      destroyed or revoked her will prior to her death.

In re Estate of Keiser, 560 A.2d 148, 150 (Pa. Super. 1989) (internal

citation omitted).

      At issue in this case is the evidence presented by Appellant to

overcome the presumption that the Decedent destroyed her will.              The

orphans’ court concluded that, “based upon the weight and credibility of all

evidence and testimony presented, [Appellant] failed to overcome the

presumption[.]” Orphans’ Court Opinion, 11/14/2016, at 9.

      However, the orphans’ court had denied Appellant the opportunity to

discover and therefore present evidence that could have aided her in

overcoming that presumption. Decedent was 97 years old at the time of the

2014 will and trust. Appellant sought discovery of Decedent’s medical

records. It is certainly not inconceivable that Decedent’s intellect was

weakened to the extent that she would have been subject to undue influence

by the Trustees. Likewise, she may have lacked the intellect to destroy any

2011 will.

      The learned Majority relies on the testimony of Attorney Nalli to find

that Decedent was of sound mind, and that even if there had been evidence

to the contrary, the orphans’ court could still have believed Nalli. But we will

never know whom the orphans’ court would have believed because the court

never allowed Appellant to discover Decedent’s medical records.

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J-A07020-17

     If the orphans’ court had permitted this discovery, it would then have

been able to assess whether the 2014 will and trust were signed or whether

the 2011 will was destroyed or revoked as a result of the undue influence by

the Trustees, or whether Decedent even had the capacity to revoke or

destroy the earlier will. Accordingly, I would vacate both the July 6, 2016

order and the April 19, 2016 decree of the orphans’ court.    In addition, I

would deny Appellees’ motion for protective order and grant Appellant’s

motion to compel production of documents.




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