J-S30031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF EARL PHILLIP              :   IN THE SUPERIOR COURT OF
    MURRAY, DECEASED                           :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: TERESA E. WARNER                :
    AND JEAN LEONA UPDYKE                      :
                                               :
                                               :
                                               :   No. 2 WDA 2020

              Appeal from the Decree Entered November 15, 2019
      In the Court of Common Pleas of Somerset County Orphans' Court at
                         No(s): File No. 65 Estate 2013


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 30, 2020

        Teresa E. Warner (“Teresa”) and Jean Leona Updyke (“Jean”)

(collectively “Contestants”) appeal from the November 15, 2019, Decree

entered in the Court of Common Pleas of Somerset County, Orphans’ Court

Division, dismissing the appeal of Contestants from the Decree of the Register

of Wills admitting to probate the December 22, 2012, will of Earl Phillip Murray

(“the Testator”). After a careful review, we affirm.

        The relevant facts and procedural history are as follows: The Testator

and his wife, Anna Murray (“Anna”), (collectively “the Murrays”) lived in

Conemaugh Township, Somerset County, Pennsylvania. They had no children.

On February 9, 2012, the Testator executed a Last Will and Testament


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S30031-20


providing, inter alia, that, in the event Anna predeceased him, his niece, Jean,

was to receive a cash legacy of $10,000.00, while his niece, Teresa, was to

receive the remainder of his estate.

      On October 9, 2012, Anna died. On December 22, 2012, the Testator

executed a Last Will and Testament, which specifically revoked his February

9, 2012, will, and appointed his niece, Catherine A. Marshall (“Cathy”), the

executrix of his estate. The will made relatively small bequests to Jean and

Teresa, as well as another one of the Testator’s nieces, Linda Balon (“Linda”),

and left the remainder of the estate to Cathy. The Testator died on January

15, 2013.

      On February 5, 2013, Cathy filed with the Register of Wills the Testator’s

death certificate, his December 22, 2012, will, the Oath of Subscribing

Witnesses, and the Petition to Grant Letters Testamentary. That same day,

the Register of Wills admitted the will to probate and issued the Letters of

Testamentary to Cathy as the executrix.

      On February 28, 2013, Contestants filed an appeal from the Register of

Wills’ admitting the will to probate and issuing of Letters of Testamentary to

Cathy.   Specifically, they averred the December 22, 2012, will was invalid

since, at the time it was executed, the Testator lacked testamentary capacity

and/or he suffered from undue influence from Cathy.

      The matter proceeded to a non-jury trial at which the parties agreed to

a joint stipulation of facts, several joint exhibits, and the admittance of


                                       -2-
J-S30031-20


depositions by the Testator’s primary care physician, Dr. Jeanne Spencer, and

two subscribing witnesses to the December 22, 2012, will, Susan Holsopple,

LPN, and Lori Shank, LPN.1 Additionally, seven witnesses testified during the

trial.2 The Orphans’ Court has summarized the relevant evidence offered in

this matter as follows:

             During their marriage, [the Murrays] were inseparable and
       shared a passion for collecting and selling antiques. While the
       Murrays did not have children of their own, they raised several
       extended family members, including Anna’s nieces: Cathy
       Marshall, Teresa Warner, and Linda Balon, who are sisters. After
       Anna’s nieces reached adulthood and moved out of the Murray
       residence, they remained in the Murrays’ lives to differing degrees
       over time.
             Linda Balon moved out of the Murrays’ home when she was
       about 16 years old, and later she married and moved to Florida.
       However, in 1979, Linda divorced, moved back to Conemaugh
       Township, and regained contact with the Murrays, visiting their
       residence on a weekly basis. In the late 1990s, Linda began
       frequenting the Murray residence on a daily basis. Together,
       Linda and the Murrays would go antiquing and spend time with
       Linda’s children.
             In 2005, both [the Testator’s] and Anna’s physical health
       began to decline, and Linda transitioned into a caregiving role.
       Specifically, she would assist the Murrays with household
       maintenance and finances, in addition to taking the Murrays to

____________________________________________


1 As the Orphans’ Court noted, the parties stipulated that the court was to
review and consider the depositions as if the deposed had personally appeared
and testified before the court. Orphans’ Court Opinion, filed 1/29/20, at 9
n.2.

2 Specifically, Lieutenant James McKnight, Debra Heider (Jean’s daughter),
Randolph Updyke (Jean’s son), Linda Balon (the sister of Cathy and Teresa),
Gregory Dadura (the brother of Cathy and Teresa), and Sara Maines-Gilpatrick
(who provided the Murrays with care from September to October of 2012)
testified. See Orphans’ Court Opinion, filed 1/29/20, at 9-10. Additionally,
Teresa offered her own testimony. See id.

                                           -3-
J-S30031-20


     medical appointments. Over the next five years, [the Testator]
     frequented the hospital for physical ailments, but he was
     psychologically healthy. Linda played a critical role in assisting
     [the Testator] and Anna as the effects of old age set in. [The
     Testator] appreciated Linda’s assistance so much that he desired
     to leave Linda his entire estate.
           Linda continued assisting the Murrays on a daily basis until
     November of 2011. Around that time, Anna was diagnosed with
     cancer, causing [the Testator’s] demeanor to change. [The
     Testator] could not cope with the fact that his wife was not well
     and directed his frustrations at Linda. On two occasions, he
     became so frustrated with Linda that he struck her, knocking her
     to the ground. Consequently, Linda ceased her daily visitations to
     the Murray residence. However, because she still cared deeply for
     Anna’s well-being, Linda asked her sister, Teresa Warner, to begin
     helping the Murrays.
            Like Linda, Teresa lived in the Murray residence until she
     was about 16 year’s [sic] old and maintained contact with the
     Murrays after she moved out. However, Teresa’s contact with the
     Murrays was less extensive than Linda’s contact and did not
     involve caretaking. Nevertheless, when Linda asked Teresa to
     replace her as [the Testator’s] and Anna’s caretaker, Teresa
     agreed. Linda informed Anna that she would no longer be
     assisting the Murrays and that Teresa would take her place.
     Thereafter, Teresa [] began visiting the Murrays more frequently
     and assuming a caretaker role. Additionally, Teresa asked [the
     Testator’s] niece, Jean Updyke, to assist her in providing the
     Murrays with care. Teresa and Jean cleaned the Murrays’ home,
     brought them food, handled the Murrays’ finances, accompanied
     them to doctor’s appointments, and administered their
     medications.
            On February 9, 2012, [the Testator] executed a Last Will
     and Testament providing that his entire estate was to be
     distributed to his wife, Anna Murray, and if she predeceased him,
     then his niece, Jean Updyke, was to receive a $10,000 cash legacy
     and Anna’s niece, Teresa Warner, was to receive the rest, residue,
     and remainder of the estate. [The Testator] explained to Teresa
     that he no longer wished to bequeath Linda a portion of the estate
     because she ceased providing the Murrays’ care, and, because
     Teresa replaced Linda, he now wanted her to receive the bulk of
     his estate.



                                   -4-
J-S30031-20


              In the early summer of 2012, the Murrays’ health worsened.
        At this point, both [the Testator] and Anna had difficulty
        completing daily life activities.  By August of 2012, Anna’s
        stomach started to swell up, and Teresa took Anna to her doctor
        to have it examined. The doctor determined that Anna’s cancer
        caused fluid to accumulate in her stomach region and that Anna
        would need to undergo frequent paracentesis to remove the fluid.
        As Anna’s condition worsened, [the Testator] became increasingly
        cantankerous.
               On September 5, 2012, [the Testator], Anna, Jean, and
        Teresa were at the Murray [r]esidence when [the Testator]
        became paranoid that Teresa was stealing some of the antiques
        from his home. Because she knew of [the Testator’s] history of
        violent behavior, Teresa was afraid that [the Testator] might have
        tried to hurt her. Consequently, Teresa called [the Testator’s] and
        Anna’s primary-care physician, Dr. Jeanne Spencer, seeking aid.
        Dr. Spencer asked crisis management to evaluate [the Testator]
        at his residence. Upon Dr. Spencer’s request, Bedford-Somerset
        MH/MR went to the Murray [r]esidence to conduct an initial
        commitment evaluation and determine whether a physician
        needed to further evaluate [the Testator] at the Conemaugh
        Hospital. [The Testator] was then transported to Conemaugh
        Hospital for further evaluation, and because the evaluation doctor
        determined the situation did not warrant involuntary admission,
        [the Testator] returned home.
              Approximately two hours later, Lieutenant James McKnight
        of the Conemaugh Township Police Department was called to
        respond to another incident at the Murray [r]esidence. When he
        arrived, the Murrays, along with Rick and Teresa Warner,[3] were
        at the home. Lieutenant McKnight witnessed [the Testator] lying
        on the floor of his home with cuts on his hands. Lieutenant
        McKnight asked [the Testator] what had happened, and [the
        Testator] explained that he was trying to remove Rick and Teresa
        Warner from his home. [The Testator] was taken to Somerset
        Hospital, and his doctors then sent him to an eldercare facility,
        Atrium Manor.
              Teresa and Linda’s other sister, Cathy Marshall, discovered
        that [the Testator] was at Atrium Manor and went to visit him.
        During her visit, [the Testator] informed Cathy that he did not
        want to be there. [The Testator] was extremely upset that he was
____________________________________________


3   Rick is Teresa’s husband.

                                           -5-
J-S30031-20


     at Atrium [Manor] and blamed his situation on Teresa. Teresa
     believed that Atrium [Manor] was the best place for [the Testator]
     to be. However, [the Testator] knew that Anna was nearing
     death, and he wanted nothing more than to be with her during her
     final days. Consequently, [the Testator] viewed Teresa’s efforts
     to commit him as an attempt to keep him away from his beloved
     wife. Thus, [the Testator] sought Cathy’s assistance in returning
     him to his home.
           On September 15, 2012, Anna[,] along with sisters Linda
     Balon, Teresa Warner, and Cathy Marshall[,] conducted a meeting
     at the Murray residence regarding whether [the Testator] should
     return home. Consistently with [the Testator’s] most palpable
     wishes, Cathy advocated for [the Testator] returning home with
     Anna. Teresa advocated for [the Testator’s] commitment at
     Atrium Manor. Cathy became frustrated with Teresa during the
     meeting and left the Murrays’ home. Immediately after Cathy left,
     Teresa called a notary, Eleanor Zuccolotto, to secure a power of
     attorney over Anna in Teresa’s favor with Linda designated as the
     alternate.
           Around September 15, 2012, [the Testator] became
     confused and delirious while he was at Atrium Manor.
     Consequently, the staff at Atrium Manor decided to send [the
     Testator] to Conemaugh Hospital.          After he was sent to
     Conemaugh Hospital, Cathy called [the Testator’s] and Anna’s
     physician, Dr. Spencer, inquiring about the Murrays’ health, but
     Dr. Spencer denied the request because she was not familiar with
     Cathy and [the Testator] was not cognizant enough to instruct her
     how to proceed. [The Testator] regained his psychological well-
     being shortly after being admitted. Dr. Spencer found [the
     Testator’s] recovery remarkable. She concluded that he likely
     suffered a brief psychological break because he was separated
     from his dying wife. After [the Testator] regained full cognizance,
     Dr. Spencer and [the Testator] discussed his future treatment
     options and whether the doctor could share information with
     Cathy. [The Testator] told the doctor that he wanted Cathy to
     have access to his medical information because Cathy wanted to
     return [the Testator] to his home, and, consequently, [the
     Testator] felt Cathy would act in his best interest.
            On September 21, 2012, Cathy, Teresa, and Linda went to
     Conemaugh Hospital to discuss with [the Testator] whether he
     would return home and which sister would provide him care. The
     discussion occurred in [the Testator’s] room, and Dr. Spencer also
     participated in the conversation. Dr. Spencer explained that [the

                                    -6-
J-S30031-20


     Testator] was permitted to go home, but Teresa insisted that he
     return to Atrium Manor. Teresa eventually stormed out of the
     room because she was so upset that Dr. Spencer permitted [the
     Testator] to go home.      Ultimately, [the Testator’s] wishes
     controlled his commitment. [The Testator] decided that Cathy,
     Linda, and Teresa would act as his decision makers, in the event
     he could not, and that he would return home. Thereafter,
     Teresa[,] using her power of attorney[,] fired Dr. Spencer as
     Anna’s physician, although Dr. Spencer was still [the Testator’s]
     physician.
           Subsequently, Anna and [the Testator] discovered that
     several items were missing from their home. Cathy would accuse
     Teresa of stealing the Murrays’ antiques, and Teresa would accuse
     Cathy of the same. Teresa indeed removed several items from
     the home but claimed that she returned them. However, several
     items were never located. In agreement that Teresa was the
     alleged wrongdoer, the Murrays ([the Testator] and Anna)
     requested that Cathy exclude Teresa from the Murrays’ lives, and
     Cathy complied. Thus, Cathy and Linda became the Murrays’
     exclusive familial caretakers.
           On September 25, 2012, [the Testator] executed a General
     Durable Power of Attorney, which appointed Cathy as his
     attorney-in-fact. On October 4, 2012, Anna revoked the power of
     attorney that she had granted Teresa.
           Anna passed away on October 9, 2012. Unsurprisingly,
     Anna’s death devastated [the Testator], causing him to become
     depressed and even more confrontational. Dr. Spencer prescribed
     medications to [the Testator], which aimed at treating his
     depression and agitation. The medication was effective, reducing
     his hostility when under its influence. Although the medication
     tempered [the Testator’s] behavioral issues, it did not affect his
     cognitive abilities in any way. Shortly after Anna’s death, Cathy
     hired two professional caretakers—Susan Holsopple, [LPN], and
     Lori Shank, [LPN],—to aid her in providing [the Testator] with
     care.
            On November 9, 2012, [the Testator] was hospitalized to
     treat a urinary tract infection. The infection caused [the Testator]
     to become confused and delirious. While [the Testator] was being
     treated for the urinary tract infection, Teresa attempted to visit
     [the Testator], but the hospital staff explained that, at Cathy’s
     direction, they could not allow Teresa to visit [the Testator]. A
     letter dated November 18, 2012, which was signed by [the


                                    -7-
J-S30031-20


     Testator] and Cathy, confirmed [the Testator’s] decision to
     exclude Teresa.
           On November 23, 2012, Conemaugh Hospital discharged
     [the Testator] to the LaurelWood Care Center, an intermediate
     eldercare facility. Despite receiving notice that [the Testator] did
     not want her to visit, Teresa went to visit [the Testator] at
     LaurelWood. The staff informed her that she was not welcome,
     but Teresa persisted and went into [the Testator’s] room. This
     was Teresa’s last encounter with [the Testator]. Thereafter, [the
     Testator’s] infection ceased, and, consequently, his delirium and
     confusion concluded. Accordingly, [the Testator] was permitted
     to return home, which he did.
            After [the Testator] returned home from LaurelWood, his
     normal temperament resumed. He was still ornery, but his
     autonomy, volition, quick wit, sense of humor, and intellect were
     in full effect. [The Testator] frequently joked with one of his
     professional at-home nurses, Ms. Holsopple. Ms. Holsopple found
     that [the Testator] “always did what he wanted.” Additionally,
     [the Testator’s] other nurse, Ms. Shank, would often have
     conversations with [the Testator] regarding his antiques, and her
     interaction with [the Testator] demonstrated that he remained
     fully aware, self-determined, engaged, capable of giving direction,
     and expressive.
           One day in early December of 2012, [the Testator] told Ms.
     Shank that he wanted to change his will and get all of this
     testamentary affairs in order. Ms. Shank called Cathy and told
     her that [the Testator] wanted a new will. [The Testator]
     continued to remind Ms. Shank that he wanted a new will, and she
     would inform him that she had let Cathy know.
            On December 22, 2012, Cathy asked Ms. Shank and Ms.
     Holsopple to be witnesses to [the Testator’s] execution of his new
     Last Will and Testament. While Cathy did some chores around the
     home, Ms. Holsopple read the will to [the Testator] in the presence
     of Ms. Shank. Ms. Holsopple would read a portion of the will,
     confirm that [the Testator] understood it, and continue reading.
     After she finished, Ms. Holsopple asked [the Testator], once more,
     whether he understood everything, and he confirmed that he did.
     [The Testator] then signed the will, and Ms. Holsopple and Ms.
     Shank signed as witnesses.        [The Testator’s] Last Will and
     Testament named Cathy Marshall as the execut[rix] of his estate,
     made relatively small specific bequests to Teresa Warner, Linda
     Balon, Jean Updyke[,] and others, and left the remainder of his


                                    -8-
J-S30031-20


       estate to Cathy Marshall. [As indicated supra, the Testator died
       on January 15, 2013.]

Orphans’ Court Opinion, filed 1/29/20, at 1-8 (citations to record omitted)

(footnote added).

       After Contestants presented their witnesses, Cathy orally requested the

Orphans’ Court dismiss Contestants’ appeal from the Register of Wills on the

basis they failed to adduce clear and convincing evidence that the Testator

lacked testamentary capacity or that the December 22, 2012, will was the

product of undue influence. Id. at 10. The Orphans’ Court agreed, and, on

November 15, 2019, the Orphans’ Court entered a final Decree dismissing the

appeal from the Register of Wills. Contestants filed a timely notice of appeal

to this Court.4 All Pa.R.A.P. 1925 requirements have been met.

       On appeal, Contestants set forth the following issues in their “Statement

of Questions Presented” (verbatim):

       1. Was the evidence clear and convincing to sustain a requisite
          finding of weakened intellect of the Testator, Earl Phillip
          Murray, when the Last Will and Testament was executed on
          December 22, 2012, as set forth in Estate of Nalaschi, 90
          A.3d 8, 14, 2014 Pa.Super. 73 (Pa.Super. 2014) (“[weakened
          intellect] is typically accompanied by persistent confusion,


____________________________________________


4 We note that Pennsylvania Orphans’ Court Rule 8.1 relevantly provides “no
exceptions or post-trial motions may be filed to any order or decree of the
[orphans’] court.” Pa.O.C.R. 8.1. See In re Estate of Smaling, 80 A.3d
485 (Pa.Super. 2013) (en banc) (holding that neither exceptions nor post-trial
motions are required to preserve issues for appellate review in appeals from
the Orphans’ Court’s decrees).


                                           -9-
J-S30031-20


          forgetfulness     and     disorientation.”),   to   establish   undue
          influence?
       2. Was the evidence clear and convincing to sustain a requisite
          finding that a confidential relationship existed between the
          Testator, Earl Phillip Murray, and Catherine Marshall, when the
          Last Will and Testament was executed on December 22, 2012,
          as set forth in Estate of Ziel, 467 Pa. at 542, 359 A.2d at 734
          (Pa. 1976) (A confidential relationship exists whenever
          “circumstances make it certain the parties do 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 [for] in both [situations] an unfair advantage is
          possible.”), to establish undue influence?

Contestants’ Brief at 2 (suggested answers omitted).5

       Contestants’ appellate issues are intertwined. Specifically, they contend

the Orphans’ Court erred in concluding Contestants did not establish by clear

and convincing evidence that the Testator’s December 22, 2012, will was the

produce of undue influence in that, when the will was executed, the Testator

suffered from a weakened intellect, was in a confidential relationship with

Cathy, and Cathy received a substantial benefit from the will.

       Initially, we note 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

____________________________________________


5 Contestants have abandoned on appeal their argument that the Testator
lacked testamentary capacity. Accordingly, we shall not address the issue
further. See Pa.R.A.P. 2119 (setting forth briefing requirements pertaining to
an appellant’s argument).

                                          - 10 -
J-S30031-20


      determining whether the [Orphans’] [C]ourt’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 Estate of Schumacher, 133 A.3d 45, 49-50 (Pa.Super. 2016) (citation

omitted).

             “The resolution of a question as to the existence of undue
      influence is inextricably linked to the assignment of the burden of
      proof.” In re Estate of Clark, 461 Pa. 52, 334 A.2d 628, 632
      (1975). Once the proponent of the will in question establishes the
      proper execution of the will, a presumption of lack of undue
      influence arises; thereafter, the risk of non-persuasion and the
      burden of coming forward with evidence of undue influence shift
      to the contestant. Id. The contestant must then establish, by
      clear and convincing evidence, a prima facie showing of undue
      influence by demonstrating that: (1) the testator suffered from a
      weakened intellect; (2) the testator was in a confidential
      relationship with the proponent of the will; and (3) the proponent
      receives a substantial benefit from the will in question. Id. Once
      the contestant has established each prong of this tripartite test,
      the burden shifts again to the proponent to produce clear and
      convincing evidence which affirmatively demonstrates the
      absence of undue influence. Id.

In re Estate of Smaling, 80 A.3d 485, 493 (Pa.Super. 2013) (en banc)

(footnote omitted).

      In the case sub judice, Contestants do not dispute on appeal that the

December 22, 2012, will was properly executed. As such, the Contestants

had the burden of coming forward with evidence to establish undue influence.

See id. In its opinion, the Orphans’ Court reviewed the testimony presented

during the trial, as well as the joint stipulations, deposition testimony, and

joint exhibits entered into evidence. Based thereon, the Orphans’ Court made

                                     - 11 -
J-S30031-20


relevant credibility determinations and concluded that, while Contestants

demonstrated Cathy received a substantial benefit from the will in question,6

they failed to establish, by clear and convincing evidence, a prima facie case

that the Testator “suffered from a weakened intellect during the relevant

period [or] that there was a confidential relationship between Cathy and [the

Testator].” Orphans’ Court Opinion, filed 1/29/20, at 12 (citation to record

omitted).    We find no error in this regard.

       With regard to the Contestants’ claim of “weakened intellect,” as

Contestants aver, this Court has previously stated:

              [W]eakened intellect in the context of a claim of undue
       influence need not amount to testamentary incapacity and will
       generally be proven through evidence more remote in time from
       the actual date of the will’s execution. While Pennsylvania courts
       “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) (citations omitted).
       Importantly, in an undue influence case, “[the Orphans’ Court]
       has greater latitude to consider medical testimony describing a
       [testator’s] condition at a time remote from the date that the
       contested will was executed.” Id. (citation omitted). We will not
       revisit the [Orphans’ Court’s] conclusions when they rest on
       legally competent and sufficient evidence. Id.




____________________________________________


6  We note that a finding of substantial benefit “must depend upon the
circumstances of each particular case.” In re Estate of Smaling, 80 A.3d at
498 (quotation marks and quotation omitted). In the case sub judice, the
Testator’s December 22, 2012, will left the bulk of his estate to Cathy.
Therefore, we agree with the Orphans’ Court’s conclusion that Contestants
demonstrated Cathy received a substantial benefit from the will.

                                          - 12 -
J-S30031-20


In re Estate of Nalaschi, 90 A.3d 8, 14 (Pa.Super. 2014) (quotation marks

and quotation omitted).     See Estate of Fabian, 222 A.3d 1143, 1150

(Pa.Super. 2019) (setting forth standard for          determining “weakened

intellect”).

      In the case sub judice, in concluding Contestants failed to carry their

burden of demonstrating the Testator suffered from a weakened intellect, the

Orphans’ Court relevantly indicated the following:

            [T]he weakened intellect inquiry centers around whether the
      testator’s mental state was conducive to exploitation.
             [C]ontestants predominantly relied upon two facts in
      support of their claim that [the Testator] suffered from a
      weakened intellect. First, [Contestants] point to the fact that [the
      Testator] was prescribed medication for his agitation and
      depression, which they asserted diminished [the Testator’s]
      intellect. Second, [Contestants] pointed to the fact that [the
      Testator] was admitted to the hospital on several occasions to
      address his behavior issues, which they asserted demonstrated a
      progressive weakening of [the Testator’s] mind.
                                   ***
            [Contestants] failed to demonstrate, by clear and convincing
      evidence, that [the Testator] suffered from a weakened intellect
      during the relevant period.
             [The Testator] was prescribed medication to treat his
      depression and agitation. However, that medication did not affect
      [the Testator’s] cognitive abilities; it merely alleviated his
      depression and agitation. During the time that Cathy served as
      [the Testator’s] caretaker, Dr. Spencer prescribed [the Testator]
      Trazodone and Lexapro for his depression, and she prescribed him
      Ativan for his agitation. Joint Ex. 2 at 60-61. During her
      deposition, Dr. Spencer explained that those medication should
      not affect his cognitive abilities. Consequently, we [do] not
      conclude that the medication weakened his intellect. While Dr.
      Spencer explained that it was possible the medication could affect
      [the Testator’s] cognitive abilities considering his age, she never
      testified that it actually did. Further, no evidence adduced at [the]


                                     - 13 -
J-S30031-20


     trial indicated that the medications did anything beyond reducing
     [the Testator’s] agitation. Thus, we [do] not conclude that the
     medications caused [the Testator] to suffer persistent confusion,
     forgetfulness, or disorientation.
            Further, [the Testator’s] intermittent episodes of confusion,
     forgetfulness, and disorientation did not establish by clear and
     convincing evidence that he suffered a weakened intellect. [The
     Testator’s] first episode of confusion occurred on September 15,
     2012.      Joint Ex. 2 at 37.      However, he recovered almost
     immediately upon his hospitalization, which Dr. Spencer found
     remarkable. She explained that his confusion seemed to occur
     because “he was having a great deal of difficulty coping with his
     wife’s illness.” Because of [the Testator’s] rapid recovery and the
     doctor’s explanation, we found that he suffered confusion because
     he was separated from his wife in her final days. [The Testator’s]
     second episode of confusion and delirium occurred in November.
     However, this episode exclusively resulted from his urinary tract
     infection. As soon as the infection ceased, so did [the Testator’s]
     confusion and delirium. Both of these episodes occurred in
     response to specific causes. After the relevant causes ceased, so
     did any confusion, forgetfulness, or disorientation. The requisite
     confusion, disorientation, and forgetfulness must be persistent.
     Estate of Fabian, [supra].          However, [the Testator] only
     suffered two temporary periods of confusion and delirium.
     Further, [the Testator’s] nurses, who were with [the Testator]
     from November until his death, described [the Testator] as
     normally being humorous, capable of giving direction, ornery,
     self-determined, and expressive. Joint Ex. 3 at 24; Joint Ex. 4 at
     16-17, 36-38. Further, [the Testator’s] independent decision to
     make a new will and the predicating beliefs were formed while
     [the Testator] was psychologically healthy. Thus, the evidence
     adduced at [the] trial failed to establish that [the Testator]
     suffered from a prolonged weakened intellect such that he was
     susceptible to undue influence by Cathy[.]

Orphans’ Court Opinion, filed 1/29/20, at 18-20.

     We conclude the Orphans’ Court’s decision rests upon legally competent

and sufficient evidence, and therefore, we do not revisit its conclusions. In

re Estate of Smaling, supra. Based upon the foregoing, we conclude that



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the Orphans’ Court did not abuse its discretion when it concluded the Testator

was not suffering from a weakened intellect in the months and years leading

up to the execution of the December 22, 2012, will. Id.

      With regard to Contestants’ claim that a confidential relationship existed

between the Testator and Cathy, this Court has held:

            [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. 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. [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.

In re Estate of Smaling, 80 A.3d at 498 (citations, quotation marks, and

quotations omitted). See In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728,

734 (1976) (“A confidential relationship in this sense exists whenever ‘the

circumstances make it certain the parties do 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 (for) in both (situations) an unfair

advantage is possible.’”) (quotation omitted)); In re Estate of Fritts, 906

A.2d at 608 (“[A confidential relationship] is marked by such a disparity in

position that the inferior party places complete trust in the superior party’s




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J-S30031-20


advice and seeks no other counsel, so as to give rise to a potential abuse of

power.”) (citations omitted)).

      In the case sub judice, in concluding Contestants failed to carry their

burden of demonstrating Cathy enjoyed a confidential relationship with the

Testator, the Orphans’ Court relevantly indicated the following:

            Essentially, a confidential relationship exists where clear
      and convincing evidence demonstrates that the relationship is
      conducive to exploitation. In their effort to prove [the Testator]
      and Cathy’s relationship was conducive to exploitation,
      [Contestants] relied upon their assertion that [the Testator’s]
      frustration with Teresa, which caused [the Testator] to remove
      her from his home and will, resulted from Cathy feeding [the
      Testator] information that he trusted because of the aid she
      provided him. Additionally, they relied upon the fact that Cathy
      possessed a power of attorney over [the Testator].
             [Contestants] failed to establish, by clear and convincing
      evidence, that a confidential relationship existed between Cathy
      and [the Testator] for several reasons. First, the testimony that
      indicated Cathy[’s] caretaking role allowed her to influence [the
      Testator’s] beliefs was either not credible or contradicted by more
      credible evidence. Further, [the Testator] based his testamentary
      decisions upon reasoning that predated Cathy[’s] presence in [the
      Testator’s] life, and [the Testator] alone directed that he wanted
      a new will. Last, the evidence established that [the Testator] was
      an incredibly self-determined individual, and the other evidence
      failed to establish that Cathy[’s] relationship with him gave her
      the power to overcome [the Testator’s] obdurate manner….
             In her testimony, Teresa speculated that Cathy was coaxing
      [the Testator] to make certain decisions, including his decision to
      exclude Teresa from the Murrays’ lives. We did not find this
      testimony credible for three reasons.           First, Teresa had a
      significant interest in the outcome of this litigation because under
      [the Testator’s] December will Cathy received the bulk of the
      estate, but under [the Testator’s] earlier will Teresa received the
      bulk of the estate. Second, significant animosity existed between
      Teresa and Cathy, which partially resulted from their
      disagreement about whether [the Testator] should remain in his
      home as his wife[’s] [health] declined. Teresa’s animosity toward

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     Cathy rendered her testimony about the nature of [the Testator]
     and Cathy’s relationship less credible. Third, the credible evidence
     adduced at [the] trial contradicted any testimony that indicated
     Cathy had the ability to unduly influence [the Testator’s] decisions
     and beliefs. [The Testator’s] frustration with Teresa predated the
     period when Cathy regained her presence in the Murrays’ lives.
     To wit, [the Testator] attempted to forcefully remove Teresa and
     Rick Warner from his home on September 5, 2012, which was
     before Cathy first visited [the Testator] at Atrium Manor.
     Additionally, [the Testator] blamed Teresa for his separation from
     his dying wife, Anna. Cathy did not create that belief. During
     their marriage, [the Testator] and Anna were inseparable, but
     Teresa advocated for [the Testator’s] exclusion from the home
     during Anna’s last days, which infuriated [the Testator].
     Moreover, [the Testator’s] and Anna’s belief that Teresa was
     stealing from the home resulted from their own observations.
     [The Testator] and Anna were both aware that Teresa had
     removed several items from the home.              Despite Teresa’s
     assertions that she returned those items, many items were never
     located. Accordingly, we did not determine that Cathy had
     convinced [the Testator] which family members to exclude from
     his life. [The Testator] made those decisions based upon his
     independently formed beliefs, and Cathy assisted him in carrying
     them out.
           Additionally, [the Testator’s] decision to execute a new will
     in December of 2012 was predicated upon the same reasoning as
     his decision to execute the February of 2012 will. When a
     caretaker ceased providing care for [the Testator] or disagreed
     with his wishes, he became upset with them and decided to
     prohibit them from taking under his will. After Linda Balon
     stopped providing the Murrays care in 2011 and Teresa assumed
     Linda’s role, [the Testator] retracted his desire to give Linda his
     estate and, instead, gave the bulk of his estate to Teresa.
     Similarly, after Teresa’s caretaking role ceased and Cathy’s role
     began, [the Testator] retracted his desire to give Teresa the bulk
     of his estate. Because [the Testator] premised his decision to
     remove Teresa from his will upon the same reasoning as his
     decision to exclude Linda, we fail to identify how Cathy Marshall
     influenced [the Testator’s] testamentary decisions. Thus,
     [Contestants] did not convince us that Cathy advised [the
     Testator] to make certain testamentary decisions or that [the
     Testator] would have relied upon any alleged advice.



                                    - 17 -
J-S30031-20


            Further, Cathy never suggested to [the Testator] that he
     needed a new will. Rather, on his own accord, [the Testator] told
     his nurse, Ms. Shank, that he wanted to change his will and get
     all of his testamentary affairs in order. Ms. Shank then informed
     Cathy that [the Testator] wanted a new will. [The Testator]
     continued to remind Ms. Shank that he wanted a new will. After
     Cathy complied with [the Testator’s] wishes and secured a will,
     [the Testator’s] other nurse, Ms. Holsopple, read the will to [the
     Testator] and confirmed that he understood it. Cathy was not in
     the room while [the Testator] executed the will. The fact that [the
     Testator] independently determined that he wanted a new will and
     that Cathy was not immediately present during its execution
     further demonstrated that the December of 2012 Last Will and
     Testament did not result from any power that Cathy may have
     had over [the Testator]. [The Testator’s] desire to execute a will
     was his own decision.
            Moreover, [the Testator’s] actions and statements during
     the relevant period consistently demonstrated [the Testator’s]
     undying, autonomous nature.         [The Testator’s] volition was
     exclusively subject to his independently formed beliefs and
     desires. While [the Testator’s] self-sufficiency diminished in 2012,
     his self-determination did not. [Contestants] failed to present
     evidence that established the relationship allowed Cathy Marshall
     to overcome [the Testator’s] powerful self-determination.
     Indeed, the evidence adduced at [the] trial contravened a power
     disparity between [the Testator] and Cathy. [The Testator’s]
     autonomy was so obvious that Ms. Holsopple noted that [the
     Testator] “always did what he wanted.” Indeed, when a family
     member acted against [the Testator’s] wishes, he attempted to
     exclude them from his life.       Further, [Contestants] did not
     demonstrate that [the Testator] made a decision inconsistent with
     his prior decisions while Cathy was his caretaker. Rather, the
     relationship between the two predominantly consisted of Cathy
     implementing [the Testator’s] self-determined wishes. The only
     witnesses who testified that Cathy had the ability to influence [the
     Testator] were those who [the Testator] excluded from his life,
     but we did not find those testimonies credible. Those witnesses
     were interested in the outcome of this case, spiteful, and
     contradicted the testimonies from disinterested witnesses. Thus,
     we [do] not conclude that [the Testator] and Cathy’s relationship
     allowed Cathy Marshall to inculcate a belief or desire in [the
     Testator] that he did not already possess. While [the Testator]
     certainly trusted Cathy and granted her a power of attorney, those
     facts did not establish that he completely trusted her to the point

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J-S30031-20


      that Cathy could have potentially abused any power she
      possessed over [the Testator]. [The Testator] was autonomous—
      his beliefs and desired originated from within—and Cathy’s
      relationship with him could not overcome that.
             In sum, [Contestants] failed to establish, through clear and
      convincing evidence, that the relationship between Cathy and [the
      Testator] allowed Cathy to influence [the Testator’s] decision-
      making. To the contrary, the evidence convinced us that [the
      Testator] made his own decisions for his own reasons and that
      Cathy Marshall was merely [the Testator’s] advocate. [The
      Testator’s] decision to return home rather than remain at Atrium
      Manor, his anger with Teresa, his decision to exclude Teresa and
      other family members from his home, and his desire to reduce
      Teresa’s interest in his estate existed independently of the
      relationship between Cathy and [the Testator]. Cathy merely
      assisted [the Testator] in effectuating his volitions and providing
      him with care. Cathy’s advocacy for [the Testator’s] desires
      caused [the Testator] to favor her, but that favor was not strong
      enough to overcome [the Testator’s] obduracy. Thus, Cathy
      Marshall neither possessed an overmastering influence over [the
      Testator] nor maintained a position of trust that created a
      potential for an abuse of any power she had. Consequently,
      [Contestants] failed to demonstrate, by clear and convincing
      evidence[,] that a confidential relationship existed.

Orphans’ Court Opinion, filed 1/29/20, at 13-17 (citations to record omitted).

      Based on the foregoing, we conclude that the Orphans’ Court did not

abuse its discretion in concluding that Cathy did not enjoy a confidential

relationship with the Testator. The record supports the court’s conclusion that

Cathy and the Testator dealt on equal terms. Cathy did not have an

overmastering influence over the Testator, and the Testator did not

demonstrate weakness, dependence, or trust such that Cathy had an unfair

advantage. See In re Estate of Smaling, supra.




                                    - 19 -
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      In light of the aforementioned, we conclude the Orphans’ court’s findings

of fact are based upon legally competent evidence.      See In re Estate of

Schumacher, supra. Resolution of this case hinged largely on the Orphans’

Court’s credibility determinations and its assessment of the testimonial and

documentary evidence.

      Simply put, Contestants have not convinced us that the Orphans’ Court

erred or abused its discretion in concluding Contestants failed to demonstrate

the Testator’s December 22, 2012, will should be voided due to undue

influence.   Id. Thus, we affirm the Orphans’ Court’s November 15, 2019,

Decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2020




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