J-A09021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE ESTATE OF                   IN THE SUPERIOR COURT OF
VIRGINIA SEAY, DECEASED                                PENNSYLVANIA




APPEAL OF: DAVID EDMONSTON AND
PETER EDMONSTON

                                                     No. 1871 MDA 2015


                     Appeal from the Order October 9, 2015
                In the Court of Common Pleas of Clinton County
                      Orphans' Court at No(s): 18-2015-50


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                             FILED JUNE 20, 2016

        Appellants David Edmonston and Peter Edmonston appeal from an

order entered in the Orphans’ Court of Clinton County granting the petition

for revocation of surviving spousal election filed by Robert Seay, the spouse

of decedent Virginia Seay. We affirm.

        Robert and Virginia Seay married on September 8, 1998, and

remained married at the time of Virginia’s death on February 21, 2015. On

June 13, 2014, Virginia executed a will, without informing Robert. David and

Peter Edmonston, Virginia’s sons, were beneficiaries under the will and were

to receive Virginia’s personal property and the residuary of the estate.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Following Virginia’s death, Robert signed a right of election against the will

and conveyances.    Shortly thereafter, Robert informed the Estate that he

wished to revoke the election. On June 26, 2015, Robert filed a petition for

revocation of surviving spouse’s election. On July 7, 2015, Appellants filed a

petition for injunction to freeze assets and to compel surrender of assets

forfeited by Robert’s right of election against the will and conveyances. The

trial court conducted a hearing to address the petitions and the parties

submitted supplemental briefs.

      The trial court made the following findings of fact:

         1. Robert [] resides at 411 Guardlock Drive, Lock Haven,
         Clinton County, Pennsylvania.

         2. Robert [] has resided at said address since April of
         1999.

         3. Robert [] married Virginia[] in September of 1998 and
         they were married continuously from the marriage date
         until Virginia[’]s death on February 21, 2015.

         4. From the marriage date through Virginia[]’s death on
         February 21, 2015, Robert [] and Virginia [] resided jointly
         at 411 Guardlock Drive, Lock Haven, Clinton County,
         Pennsylvania.

         5. The residence at 411 Guardlock Drive, Lock Haven,
         Clinton County, Pennsylvania was purchased jointly by
         Robert [] and Virginia [] on or about April 15, 1999.

         6. Robert [] continues to reside at 411 Guardlock Drive,
         Lock Haven, Clinton County, Pennsylvania.

         7. Robert [] is a retired Air Force Master Sergeant who
         made a career in the United States Air Force for
         approximately twenty (20) years.




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          8. Robert [] and Virginia [] began their relationship in June
          of 1996 and, as previously stated, were married on
          September 8, 1998.

          9. The jointly owned property situate at 411 Guardlock
          Drive, Lock Haven, Clinton County, Pennsylvania,
          contained various items of household contents that were
          accumulated over the period of twenty (20) years including
          household contents that were originally owned by Robert
          [] and household contents that were originally owned by
          Virginia [].

          10. During the course of the marriage, Robert [] and
          Virginia [] jointly owned bank accounts.

          11. Virginia [] retained property in her own name located
          in Clearfield County, Pennsylvania.1

          12. Virginia [] received dividends and royalties from the
          Clearfield County properties during the marriage.

          13. Robert [] did not know the extent of Virginia[]’s
          Clearfield County holdings at the time of her death.

          14. The jointly owned real estate, 411 Guardlock Drive,
          Lock Haven, Clinton County, Pennsylvania, had a fair
          market value between $186,000.00 and $200.000.00 at
          the time of Virginia[]’s death.

          15. At the time of Virginia[]’s death, Robert [] and Virginia
          [] possessed four (4) jointly owned bank accounts worth
          approximately $17,000.00 in total.

____________________________________________


1
  Margaret L. Ake, Virginia’s sister, testified that Virginia previously owned
properties in Clearfield County, but that Ms. Ake assisted in transferring the
properties in June of 2014. N.T., 9/1/2015, at 50-52. The assets were
valued at $42,811.96, were transferred to Appellants for no consideration
within one year of Virginia’s death, and were transferred without Robert’s
knowledge. Id.; see 20 Pa.C.S. §2203(a) (surviving spouse has right to
elective share of one-third of “[p]roperty conveyed by the decedent during
the marriage and within one year of his death to the extent that the
aggregate amount so conveyed to each donee exceeds $3,000, valued at the
time of conveyance”).



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       16. Robert [] understood that at the time of Virginia[]’s
       death, the jointly owned real estate would transfer in its
       entirety to the survivor.

       17. Robert [] believed that the household contents would
       transfer to the survivor.

       18. Near the end of her life, Virginia [] suffered from a
       brain tumor and was confined to a hospital bed at 411
       Guardlock    Drive, Lock     Haven,     Clinton   County,
       Pennsylvania.

       19. Until her death, Robert [] was Virginia[]’s primary
       caregiver.

       20. At the time of Virginia[]’s death, and for some time
       thereafter, Robert [] was in poor physical and mental
       condition.

       21. Robert [] was drinking excessively.

       22. Robert [] was in a depressed state and pondered
       whether he should just “lay down and die right there”.

       23. During the final months and weeks of Virginia[]’s life,
       and as Robert [] was caring for her, Robert [] lost thirty-
       five (35) pounds because he was not eating.

       24. Robert [] had a “worn” mental condition.

       25. Following Virginia[]’s death on February 21, 2015,
       Robert [] was invited to meet with the Executors of the
       Virginia L. Seay Estate.

       26. The meeting between Robert [] and the Executors
       occurred at the law office of Donald L. Faulkner, Esquire.

       27. The meeting between Robert[,] the Executors and
       Attorney Faulkner was scheduled approximately three (3)
       weeks following the death of Virginia [].

       28. The meeting was attended by Executors, William G.
       Ake and Margaret L. Ake, Donald L. Faulkner, Esquire, and
       his administrative assistant.

       29. Margaret L. Ake is the surviving sister of Virginia []
       and William G. Ake is the surviving brother-in-law of
       Virginia [] and is married to Co-Executor, Margaret L. Ake.

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       30. Robert [] was presented with various documents at the
       meeting.

       31. Virginia [] died testate with a Last Will and Testament
       dated June 13, 2014.

       32. A copy of the Last Will and Testament was presented
       to Robert [] at the initial meeting with the Executors and
       Attorney Faulkner.

       33. Robert [] was not aware of the existence of Virginia[]’s
       Last Will and Testament dated June 13, 2014 until the
       meeting with the Executors and Attorney Faulkner.

       34. At the time of the presentation of Virginia[]’s Last Will
       and Testament, Robert [] did not understand the meeting
       and sought the counsel of Robert H. Lugg, Esquire.

       35. Following the meeting with Attorney Lugg, Robert []
       believed that the real estate at 411 Guardlock Drive, Lock
       Haven, Clinton County, Pennsylvania, was his solely owned
       property.

       36. Attorney Lugg prepared a document referenced as
       Letter/Spousal Election form, which Robert [] signed on
       April 10, 2015.

       37. When Robert [] executed the Letter/Spousal Election
       form, he believed that the purpose of the document was to
       permit him to negotiate the return or retention of one
       hundred thirty-seven (137) items of personal property
       previously requested to be returned to the Estate by the
       Executors.

       38. Robert [] was also making a claim against the Estate
       for the expenses he had incurred in connection with his
       deceased wife’s illness, funeral and undertaker expenses
       and cremation expenses.

       39. Robert [] believed that the Letter/Spousal Election
       form he signed disputed ownership of the one hundred
       thirty-seven (137) items of personal property that were
       requested by the Executors.

       40. At the time Robert [] executed the Letter/Spousal
       Election form, he did not have an understanding of the



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       nature or value of his deceased wife’s assets located in
       Clearfield County, Pennsylvania.

       41. At the time Robert [] executed the Letter/Spousal
       Election form, he did not understand that the execution of
       the document could potentially be creating forfeitures of
       his interest in the real estate located at 411 Guardlock
       Drive, Lock Haven, Clinton County, Pennsylvania.

       42. At the time Robert [] executed the Letter/Spousal
       Election form, he “thought the real estate was in stone.”

       43. At the time Robert [] executed the Letter/Spousal
       Election form, he did not have any appreciation that
       signing it would potentially cause him to forfeit interest in
       the jointly owned bank accounts.

       44. At the time Robert [] executed the Letter/Spousal
       Election form, it was his understanding that he was only
       going to potentially have a claim to some of the one
       hundred thirty-seven (137) items of personal property that
       were being requested by the Executors.

       45. Subsequent to executing the Letter/Spousal Election
       form, Robert [] became aware that the Spousal Election
       had implications beyond what he understood at the time of
       execution.

       46. Subsequent to the execution of the Letter/Spousal
       Election form and between the dates of April 10, 2015 and
       April 16, 2015, Robert [] learned from his attorney, Robert
       H. Lugg, Esquire, that the Spousal Election had potential
       implications beyond Robert[]’s understanding as of April
       10, 2015.

       47. Upon learning that the Spousal Election could
       potentially cause forfeitures of portions of jointly owned
       property, Robert [] advised his attorney, Robert H. Lugg,
       Esquire, that he did not want to take any action that would
       potentially put the real estate located at 411 Guardlock
       Drive, Lock Haven, Clinton County, Pennsylvania, at risk.

       48. Because Robert [], “jumped” on Attorney Lugg,
       Attorney Lugg prepared a Request to Withdraw the
       Election dated April 10, 2015, and forwarded the same to
       counsel for the Estate on or about April 16, 2015.


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       49. Robert [] desires to withdraw his Notice of Spousal
       Election dated April 10, 2015 and maintain sole ownership
       of the real estate located at 411 Guardlock Drive, Lock
       Haven, Clinton County, Pennsylvania.

       50. Robert [] desires to withdraw his Notice of Spousal
       Election dated April 10, 2015 and maintain ownership of
       the jointly owned bank accounts.

       51. Robert [] is willing to surrender any household
       contents that were owned by his deceased wife, Virginia [],
       at the time of her death and permit them to be distributed
       in accordance with Virginia[]’s Last Will and Testament.

       52. Robert H. Lugg, Esquire, is a licensed attorney in the
       Commonwealth of Pennsylvania, with his practice located
       at 350 East Water Street, Lock Haven, Clinton County,
       Pennsylvania.

       53. Robert H. Lugg, Esquire, has been in practice in Lock
       Haven, Pennsylvania, for approximately thirty (30) years.

       54. At some point in the earlier part of 2015, Attorney
       Lugg provided legal representation to Robert[.]

       55. Attorney Lugg did not have an attorney/client
       relationship with Robert [] prior to this meeting.

       56. Robert [] made an appointment with Attorney Lugg to
       review a list of demands from the Executors of his
       deceased wife’s Estate.

       57. The Executors were requesting surrender of a
       considerable list of personal property that was located in
       the jointly owned residence at 411 Guardlock Drive, Lock
       Haven, Clinton County. Pennsylvania.

       58. Robert [] desired to preserve some of the items of
       personal property that were contained on the list.

       59. Attorney Lugg prepared a claim that listed three (3)
       different reasons why Robert [] should be permitted to
       retain at least some of the personal property that was
       included on the Executors’ list.

       60. In the same document, Attorney Lugg included a
       Spousal Election.


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       61. In addition to the Spousal Election, Attorney Lugg also
       claimed a Family Exemption and a Claim for Contribution
       of the Estate for payment of the funeral bill.

       62. The Notice exercised in the Spousal Election requesting
       the Family Exemption and reimbursement, was contained
       in a document prepared by Robert H. Lugg, Esquire, dated
       April 10, 2015.

       63. At the time of the Spousal Election on April 10, 2015,
       Attorney Lugg did not have any discussion with Robert []
       concerning potential forfeiture consequences as a result of
       the filing of the Spousal Election.

       64. Attorney Lugg was not personally aware of any
       potential claim against entireties property at the time he
       prepared the Spousal Election Notice for Robert[].

       65. Attorney Lugg became aware, for the first time, that
       jointly owned property could possibly be forfeited as a
       result of the Spousal Election when he received a letter
       from Attorney Englert in response to the April 10, 2015
       Spousal Election Notice.

       66. Attorney Lugg received Attorney Englert’s response on
       or about April 13, 2015.

       67. Upon receipt of Attorney Englert’s response. Attorney
       Lugg reviewed the applicable Statute and became aware
       that Robert[]’s Spousal Election had potentially placed
       jointly owned assets at risk of forfeiture.

       68. Attorney Lugg attempted to confront the issue head-on
       and immediately contacted Robert [] and had Robert []
       report to his office.

       69. At the office meeting between Attorney Lugg and
       Robert[], Attorney Lugg advised Robert [] that the
       entireties assets may be in play.

       70. Attorney Lugg provided Robert [] with a copy of the
       “law” to help him better understand what Attorney Lugg
       was explaining.

       71. At the same meeting, Attorney Lugg provided Robert
       [] with a copy of Attorney Englert’s letter.



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J-A09021-16


       72. This is the first time Attorney Lugg discussed with
       Robert [] the possibility of forfeiture as a result of the
       Spousal Election.

       73. As a result of meeting with Robert[], Attorney Lugg left
       a voice message with Attorney Englert advising that Robert
       [] desired to withdraw the election against the Will he had
       previously made.

       74. Attorney Lugg did not receive a response from
       Attorney Englert to the voice message.

       75. Attorney Lugg prepared correspondence dated April
       16, 2015, addressed to Attorney Englert, seeking
       permission on behalf of Robert [] to withdraw the Spousal
       Election.

       76. The April 16, 2015 written request was placed in the
       Courthouse mailbox of Attorney Englert on the same date
       of the letter, April 16, 2015.

       77. Attorney Lugg did not receive a response from
       Attorney Englert.

       78. Attorney Lugg referred Robert [] to C. Edward S.
       Mitchell, Esquire, for independent representation regarding
       the withdrawal of the Spousal Election.

       79. On June 26, 2015, Attorney Mitchell, on behalf of
       Robert[], surviving spouse of the decedent, Virginia[], filed
       a Petition for Revocation of Surviving Spouse’s Election
       pursuant to Pennsylvania Orphans’ Court Rule 12.3.

       80. At the time the Spousal Election was made by
       Robert[], the Executors had not filed any form of
       accounting.

       81. At the time the Spousal Election was made by
       Robert[], the Executors had not provided Robert [] with
       any informal type of accounting.

       82. At the time the Spousal Election was made by
       Robert[], he did not have a full understanding of the
       assets and liabilities of the Estate.

       83. Granting the petition of Robert [] will not result in any
       prejudice to the Estate.


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Opinion, 10/9/2015.

      On October 9, 2015, based on the above findings of fact, the trial court

granted Robert’s petition to revoke the spousal election and vacated his

election to take against the will.   On October 23, 2015, Appellants filed a

timely notice of appeal.     Appellants and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

      Appellants raise the following claims on appeal:

         1. Whether the trial court erred in allowing [Robert] to
         revoke his spousal election due to a claim of ignorance of
         the law concerning the disclaimer of beneficial interests
         flowing from a spousal election set forth at 20 Pa.C.S. §
         2204 where he hired independent counsel to represent him
         and file the election on his behalf and any ignorance or
         misapprehension of the law on his part was not due to any
         party interested in the estate?

         2. Whether the trial court erred in relying upon “Martin
         Estate, 3 Pa. Fiduc. 2d 356, 357 (1983)” in a case
         involving a spousal election disclaimer of beneficial interest
         for the legal premise that “the executor of an estate owes
         a duty to the surviving spouse to disclose to him the value
         of the assets of the estate and the value which he would
         receive under the alternatives available to him” where
         neither the [Probate, Estates, and Fiduciaries] Code nor
         common law imposes such a duty.

Appellant’s Brief at 4 (footnote removed).

      This Court applies the following standard of review to orphans’ court

decisions:

         When reviewing a decree entered by the Orphans’ Court,
         this Court must determine whether the record is free from
         legal error and the court’s factual findings are supported
         by the evidence. Because the Orphans’ Court sits as the
         fact-finder, it determines the credibility of the witnesses


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J-A09021-16


        and, on review, we will not reverse its credibility
        determinations absent an abuse of that discretion.
        However, we are not constrained to give the same
        deference to any resulting legal conclusions. Where the
        rules of law on which the court relied are palpably wrong
        or clearly inapplicable, we will reverse the court’s decree.

In re Estate of Fuller, 87 A.3d 330, 333 (Pa.Super.2014) (quoting In re

Estate of Hooper, 80 A.3d 815, 818 (Pa.Super.2013)).

     Pursuant to Pennsylvania law,

        (a) Property subject to election.--Except as provided in
        subsection (c), when a married person domiciled in this
        Commonwealth dies, his surviving spouse has a right to an
        elective share of one-third of the following property:

        (1) Property passing from the decedent by will or
        intestacy.

        (2) Income or use for the remaining life of the spouse of
        property conveyed by the decedent during the marriage to
        the extent that the decedent at the time of his death had
        the use of the property or an interest in or power to
        withdraw the income thereof.

        (3) Property conveyed by the decedent during his lifetime
        to the extent that the decedent at the time of his death
        had a power to revoke the conveyance or to consume,
        invade or dispose of the principal for his own benefit.

        (4) Property conveyed by the decedent during the
        marriage to himself and another or others with right of
        survivorship to the extent of any interest in the property
        that the decedent had the power at the time of his death
        unilaterally to convey absolutely or in fee.

        (5) Survivorship rights conveyed to a beneficiary of an
        annuity contract to the extent it was purchased by the
        decedent during the marriage and the decedent was
        receiving annuity payments therefrom at the time of his
        death.

        (6) Property conveyed by the decedent during the
        marriage and within one year of his death to the extent


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J-A09021-16


         that the aggregate amount so conveyed to each donee
         exceeds $3,000, valued at the time of conveyance.

         In construing this subsection, a power in the decedent to
         withdraw income or principal, or a power in any person
         whose interest is not adverse to the decedent to distribute
         to or use for the benefit of the decedent any income or
         principal, shall be deemed to be a power in the decedent
         to withdraw so much of the income or principal as is
         subject to such power, even though such income or
         principal may be distributed only for support or other
         particular purpose or only in limited periodic amounts.

20 Pa.C.S. § 2203(a).     A spouse invoking his or her right to the elective

share also disclaims interest in certain property.

         (a) Disclaimers.--Except as provided in subsections (b)
         and (c), an election by a spouse to take his elective share
         shall be deemed a disclaimer of any beneficial interest of
         the spouse in the following, to the extent that such interest
         would otherwise be payable to or enjoyed by the spouse
         after the decedent’s death:

         (1) Property subject to the spouse’s election not awarded
         to the spouse as part of his elective share.

         (2) Property appointed by the decedent’s exercise of a
         general or special power of appointment, and property
         passing in default of appointment to the extent that the
         decedent had power to exclude his spouse from any
         interest therein.

         (3) Property in any trust created by the decedent during
         his lifetime.

         (4) Proceeds of insurance, including accidental death
         benefits, on the life of the decedent attributable to
         premiums paid by him, his employer, partner or creditor.

         (5) Any annuity contract purchased by the decedent, his
         employer, partner or creditor.

         (6) Any pension, profit sharing, stock bonus, deferred
         compensation, disability, death benefit or other plan
         established by an employer for the benefit of its employees


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J-A09021-16


        and their beneficiaries, exclusive of the Federal social
        security system and railroad retirement system, by reason
        of services performed or disabilities incurred by the
        decedent.

        (7) Community property in the proportion that              it
        represents the decedent’s earnings or contributions.

        (8) All intangible or tangible personal property and all real
        property owned by the decedent and his spouse by the
        entireties or jointly with right of survivorship, in the
        proportion that such property represents contributions by
        the decedent.

        (9) All intangible or tangible personal property and all real
        property given to his spouse by the decedent during his
        lifetime which, or the proceeds of which, are still owned by
        his spouse at the time of the decedent’s death.

20 Pa.C.S. § 2204.

     The Supreme Court of Pennsylvania has stated:

        The general rule is that the party is not bound to make an
        election until all the circumstances are known, and the
        state, condition and value of the funds are clearly
        ascertained; for until that is known it is impossible to make
        a discriminating and deliberate choice, such as ought to be
        binding in reason and justice[.] To bind the widow she
        must have full knowledge of the facts[.] As a general rule
        a receipt for part of a legacy will not bar dower without a
        full knowledge of the situation of the estate[.] Our own
        books are to the same effect. The election must be
        evidenced by plain and unequivocal acts, with full
        knowledge of the situation of the estate[.]

Appeal of Kreiser, 69 Pa. 194, 200-01 (1871) (citations omitted).       The

Supreme Court has further stated:

        If an election is made with full knowledge of all essential
        facts, it cannot be withdrawn. But, no intervening rights
        appearing, the expression of intent once may be retracted
        upon discovery of the true situation. If action has been
        taken by the wife or husband in ignorance of the value of


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         the estate, or of the rights which would accrue under the
         provisions of the will as compared with the interests given
         by the intestate laws, then the first election may be set
         aside, and the distribution be made in the way provided by
         law.

McCutcheon’s Estate, 128 A. 843, 845 (Pa.1925) (citations omitted).

      In Bailey’s Estate, 132 A. 343 (Pa.1926), the Supreme Court of

Pennsylvania did not permit a spouse to revoke her election 10 months after

the election was filed. The spouse admitted that “at the time [she] made

her election, she was aware of the terms of her husband’s will that, if she

took against its provisions, she would receive one-third of the estate, knew

approximately the amount and value of the property, and that, if knowledge

of these facts was sufficient to bind her, she was bound by her election.” In

re Bailey’s Estate, 132 A. at 343. She claimed she should be permitted to

revoke the election because, at the time she made the election, she believed

that, by making the election, it would disrupt her husband’s will as to all

provisions, and it would be as though he died intestate.        Id.   The Court

noted that this misapprehension had to do with the interests of others, not

her interest.   Id. at 344.     The Court concluded “the intention of the

legislation was to promote certainty in settlement of estates, [and] we would

fail to carry out the spirit of the act by permitting a revocation of an election

a long time after it has been made, with full knowledge of all the facts, and

for reasons such as are given in the present case.” Id.

      The trial court did not err in permitting Robert to revoke his election.

Unlike the spouse in Bailey’s Estate, Robert did not know the value of the


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J-A09021-16



estate. At the time of the election, no accounting had been filed and Robert

did not know the value of the property owned by Virginia in Clearfield

County.   Further, Robert informed the estate that he would like to revoke

the election six days after making the election. Although he had counsel, he

also had a misapprehension of his rights, did not know the value of the

estate, and did not know the value of the property to which he would be

entitled if he elected against the will.

      Appellants next challenge the trial court’s statement that the executor

of an estate owes a duty to the surviving spouse to disclose the value of the

assets of the estate and the value which he would receive under the

alternatives available to him. Opinion and Order, 10/9/2015, at 12.

      Robert did not have full knowledge of his rights and of the value of the

estate property. Because we find the trial court did not err in allowing him

to revoke the election based on this lack of knowledge, we do not reach the

issue of whether the executor had a duty to inform Robert of the value his

share under each alternative available.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016


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