J. A29012/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF                         :     IN THE SUPERIOR COURT OF
PETER MIHOLOVICH A/K/A                   :           PENNSYLVANIA
PETER R. MIHOLOVICH A/K/A                :
PETE MICHOLOVICH                         :
                                         :
APPEAL OF: PATRICIA BALZER,              :         No. 1865 WDA 2014
                                         :
                       Appellant         :


              Appeal from the Order Entered October 29, 2014,
           in the Court of Common Pleas of Westmoreland County
                  Orphans’ Court Division at No. 65-10-0928


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 19, 2016

      Patricia Balzer appeals from the October 29, 2014 order which entered

a copy of her father’s, Peter Miholovich (hereinafter “testator”), Last Will and

Testament into probate. We affirm.

      The trial court provided the following relevant facts and procedural

history:

                  Peter Miholovich, a/k/a Peter R. Miholovich,
            a/k/a Pete Miholovich, the decedent (hereinafter
            “Decedent,”), died on February 17, 2010. He had
            four children:   Katherine Duriga, Patricia Balzer,
            Alex Miholovich and Edward Miholovich.            On
            October 8, 2013, letters of administration were
            granted to Katherine Duriga. Following Ms. Duriga’s
            appointment as Administratrix of the Estate, a copy
            of what Petitioner purports is the last notarized Will
            of Decedent was located. The Will, dated May 27,
            2003, names Ms. Duriga as Executrix of Decedent’s
            estate.    The purported last Will distributes all
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           household furnishings to Katherine Duriga and the
           rest, residue and remainder of the estate to
           Katherine      Duriga,     Alex      Miholovich and
           Edward Miholovich in equal shares. The alleged Will
           expressly disinherits Patricia Balzer.

                 Ms. Balzer has filed an Answer to the Petition
           of Ms. Duriga, wherein she alleges that Decedent
           destroyed his Will. A hearing occurred before the
           Court on April 9, 2014, relative to the Petition and
           Answer. Thereafter, Ms. Balzer filed a Memorandum
           of Law in which counsel on her behalf argued that
           when a decedent’s original Will cannot be found, a
           presumption arises that the testator himself
           destroyed the Will, and the burden of overcoming
           the presumption rests upon the proponent of the
           Will. Counsel for Ms. Duriga filed a Brief wherein
           Ms. Duriga countered that any presumption of
           destruction of the Will should not arise, because the
           Will was in the possession of Ms. Duriga, not the
           Decedent, at the time of Decedent’s death. In her
           Brief, Ms. Duriga suggests that the Will was
           destroyed by Patricia Balzer.

Trial court opinion and order, 10/29/14 at 1-2. Following the April 9, 2014

hearing, the trial court issued an order and opinion admitting the testator’s

will dated May 27, 2003, into probate on October 29, 2014.1 Appellant filed

a notice of appeal on November 12, 2014. On November 14, 2014, the trial

court ordered appellant to file a concise statement of matters complained of

on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied with the trial

court’s order on December 5, 2014. On December 10, 2014, the trial court




1
  An amended order, dated November 7, 2014, was issued by the trial court
in order to correct a typographical error in the original order.


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filed an opinion pursuant to Pa.R.A.P. 1925(a) in which it incorporated

language from the October 29, 2014 opinion and order.

      Appellant raises the following issues for our review:

            I.     Whether the trial court erred in failing to apply
                   the presumption of testator revocation by
                   concluding the testator did not have “ready
                   access” to the stored Will?

            II.    Whether the trial court erred by admitting the
                   copy of the Will without first finding the
                   proponent    had     explained    the    Will’s
                   nonproduction?

Appellant’s brief at 4.

      When addressing appellant’s issues, we are held to the following

standard of review:

                   “Our standard of review of an orphans’ court’s
            decision is deferential.”        In re Estate of
            Strahsmeier, 54 A.3d 359, 362 (Pa.Super.2012).
            When reviewing an orphans’ court decree, this Court
            must determine whether the record is free from legal
            error and whether the orphans’ court’s findings are
            supported by the record. Id. at 362-363. Because
            the orphans’ court sits as the finder of fact, it
            determines the credibility of the witnesses and, on
            review, this Court will not reverse its credibility
            determinations absent an abuse of discretion. Id. at
            363. However, this Court is not bound to give the
            same deference to the orphan’s court conclusions of
            law. Id. (quotation marks and citation omitted).
            Where the rules of law on which the orphans’ court
            relied are palpably wrong or clearly inapplicable, we
            will reverse the court’s decree. Id. (quotation marks
            and citation omitted). Moreover, we point out that
            an abuse of discretion is not merely an error of
            judgment. However, if in reaching a conclusion, the
            court overrides or misapplies the law, or the
            judgment exercised is shown by the record to be


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            manifestly unreasonable or the product of partiality,
            prejudice, bias, or ill will, discretion has been
            abused. Id. (citation omitted).

In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa.Super. 2013), appeal

denied, 94 A.3d 1010 (Pa. 2014).

      In her first issue for our review, appellant avers that the trial court

erred by failing to find that the testator revoked his will.      We must first

determine if the testator had “ready access” to the will prior to his death,

and by so doing, determine whether the presumption applies to this case.

“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.”           In re Estate of

Janosky, 827 A.2d 512, 519 (Pa.Super. 2013), citing In re Estate of

Murray, 171 A.2d 171, 176 (Pa. 1961) (citations omitted).             Our cases

indicate that if a testator has “ready access” to the will prior to his death, it

is tantamount to the testator having custody of the will. See In re Estate

of Mammana, 564 A.2d 978, 982 (Pa.Super. 1989), appeal denied, 578

A.2d 929 (Pa. 1990) (citations omitted).

      In the instant appeal, we agree with the trial court that while the will

was stored in Duriga’s desk in the testator’s house, he did not have ready

access to the will. The trial court noted the following facts:

            After the Will was signed, [the testator’s] attorney
            made a copy of the Will and sent the original to [the


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            testator], in a letter directed to him. Ms. Duriga
            testified that she was there when [the testator]
            received the letter enclosing the original Will.
            Specifically, Ms. Duriga recalled handing her father
            the letter, at which time he handed the letter and
            Will back to her and told her, “It’s yours to keep.
            You keep it.”

Trial court order and opinion, 10/29/14 at 3.     Duriga testified that at the

time she received the will from her father, she and her father were living in

the same residence. (Notes of testimony, 4/9/14 at 12, 21.) Duriga also

testified that, after initially taking the will to her bedroom, she ultimately

decided to store it in her desk, which was located in the television room.

(Id. at 14.) The desk was not locked, and was accessible to anyone in the

house. (Id. at 26.) The testator spent a sizable amount of his time in the

television room. (Id. at 14.)

      Despite these facts, the trial court also found the following as a matter

of fact:

            . . . [Duriga] had never seen her father access the
            desk, and she testified that with regard to accessing
            the desk, she believed her father was “kind of like
            afraid of it,” because he “just didn’t like to get
            around that stuff.”[2] There was no testimony that
            anyone had ever seen the [testator] access the desk.
            There was no testimony that anyone had ever seen
            [the testator] destroy the Will.      There was no
            testimony that [the testator] knew where the Will
            was kept.




2
  At oral argument, it was alleged that the testator was afraid of the
computer Duriga kept on her desk.


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Trial court opinion and order, 10/29/14 at 3.         The trial court expanded

further in its findings of fact regarding the testator and his access to Duriga’s

desk:

             Duriga’s testimony with regard to receiving the Will
             and handing it to her father, as well as her stowing it
             without his knowledge of its location, as noted, was
             credible and unrebutted. Her testimony, moreover,
             supports an inference that her father regarded the
             desk in which the Will was stowed as [] Duriga’s
             property, and regarded that area as one in which her
             privacy would be respected.           Other testimony
             produced corroborates the fact that the [testator], in
             the years between the time the Will was executed
             and the time of his death, preferred to have others
             handle his checkbook and other business papers.
             This attitude is consistent with [] Duriga’s description
             of her father’s actions with regard to the Will and its
             storage.

Id. at 4.    Based on the trial court’s factual findings, we agree that the

evidence does not establish that the testator had ready access to the will.

        We now turn to appellant’s second issue for our review, in which

appellant avers that Duriga was unable to meet her burden of proof, as will

proponent, in having a copy of the lost will admitted into probate. As noted

above, the testator did not have ready access to the will. In such cases,

             . . . if a will is lost while in the hands of one other
             than the decedent, it is presumed that the person
             who had possession of it lost the document. See
             Thompson v. Dobbs, 234 S.W.2d 939 (Tex. Civ.
             App. 1950). Thus, we have no dispute with the
             tenet in the law that the failure to find a will, after a
             careful and exhaustive search, raises a presumption
             that the decedent destroyed it with the intent to
             revoke it. Murray Will [at 175]. However, such a
             presumption is rebutted by proof that after the


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            execution of the will, it was deposited by the testator
            or testatrix with a custodian (in this case, an
            attorney) and that the decedent did not thereafter
            have it in his/her possession or have access to it.
            See In re Pinney's Will, 72 N.Y.S.2d 895 (1947).

Mammana, 564 A.2d at 981-982.

            In this Commonwealth, the proof necessary to
            permit the submission of a copy of a will destroyed
            by one other than the decedent has been articulated
            by Mr. Justice Benjamin R. Jones in Murray Will,
            404 Pa. 120, 129 & n. 12, 171 A.2d 171, 175 & n. 12
            (1961) as follows:

                  Certain proof is essential to establish a
                  destroyed           or         suppressed
                  will:[Footnote 12] (1) that [testator] duly
                  and properly executed the original will;
                  (2) that the contents of the executed will
                  were substantially as appears on the
                  copy of the will presented for probate;
                  (3) that, when [testator] died, the will
                  remained undestroyed or unrevoked by
                  [him]: Michelle v. Low, 213 Pa. 526, 63
                  A. 246.

                        [Footnote    12]  That    is,
                        “destroyed” or “suppressed”
                        by some one [sic] other than
                        the [testator].

Mammana, 564 A.2d at 980.

      As previously noted, we may only disturb the trial court’s order if we

find that the trial court abused its discretion. Absent such a finding, we are

bound by the trial court’s findings of fact and credibility determinations.

Here, we agree with the trial court, which found that the proponent of the

will, Duriga, is able to meet all three elements required to admit a copy of a



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lost will into probate.   The first two elements are not in dispute.        The

testator properly executed his original will and the contents of the executed

will are substantially the same as the copy presented for probate.3 The only

element in dispute is whether the testator had destroyed or revoked his will

prior to his death.

      The trial court, as noted above, found Duriga’s testimony regarding

her storage of the will and testator not accessing the will prior to his death

to be credible. The trial court also heard testimony from appellant, as well

as her husband, Joseph Balzer, which the trial court found to be incredible.

As noted above, the trial court determined that the evidence indicated that

the testator’s preference was to have others take care of his business and

financial affairs directly contradicts Mr. Balzer’s testimony that the testator

opened a letter addressed to Duriga and, upon discovering that it contained

a copy of his will, expressed his intent to, “get rid of this one, too.”4 (Notes

of testimony, 4/9/14 at 72.)




3
 The copy of the will presented for probate is a photocopy of the original will
bearing the signature of the testator and two witnesses, John M.
O’Connell, Jr., and Katherine Duriga. The photocopy also depicts that the
original will was notarized by Kathleen M. Herrle.
4
  Mr. Balzer also testified that, upon hearing complaints from the testator
that Duriga and Ed Miholovich, one of the testator’s sons, were failing to pay
the testator’s bills on time, he suggested that the testator should “take them
out of the will.” (Notes of testimony, 4/9/14 at 71.) Mr. Balzer testified that
the testator told him that he would not be able to do so because he already
destroyed his will. (Id.)


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      Duriga presented testimony that contradicted the Balzers’ claims. The

will that was executed in 2003 contained a clause stating that appellant was

not due to inherit any of her father’s estate after his death. The testator and

appellant were estranged from one another for several years until the

testator reached out to appellant at Duriga’s suggestion; however, Duriga

testified that the change in circumstances did not compel the testator to

revoke or revise his will.

            Q:     Can you tell the Court when it was that you
                   asked your father if he wanted to change his
                   will?

            A:     My dad didn’t talk to my sister for several
                   years, and he had surgery, and I convinced
                   him that he should start talking to her again.
                   And after he started talking to her, I asked him
                   three separate times if he wanted to change
                   his will, and he said no, she has enough. And
                   he meant money.

            Q:     When did your father have surgery?

            A:     He was 87 years old when he had surgery, he
                   had hernia surgery.

            Q:     How old was he when he passed away?

            A:     95.

            Q:     So it would have been seven or eight years
                   prior to his death that you asked him if he
                   wanted to change his will?

            A:     No. It would have probably been four or five
                   years before he died -- anywhere between four
                   years and two years, because I kept asking
                   him.



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            Q:    And did you say you asked him three separate
                  times?

            A:    At least three different times.

            Q:    And his answer was the same each time?

            A:    Yes.

            Q:    And what was that answer?

            A:    No.

Id. at 19-20. Furthermore, Duriga also testified that her father discussed all

of his business affairs with her. (Id. at 20.) The trial court found Duriga’s

testimony to be credible.    Therefore, we find that the trial court did not

abuse its discretion when it concluded that the testator did not have ready

access to his will, and we further find that the trial court did not abuse its

discretion by admitting a copy of the lost will to probate.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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