J-S48002-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

IN THE ESTATE        OF:   RICHARD   C. : IN THE SUPERIOR COURT OF
SWENSON                                 :      PENNSYLVANIA
                                        :
                                        :
                                        :
APPEAL OF: LORA SWENSON AND             :
RENEE SWENSON-CAMPBELL                  : No. 2289 MDA 2013

              Appeal from the Order entered December 4, 2013,
                 Court of Common Pleas, Bradford County,
                                                -0171

BEFORE: DONOHUE, JENKINS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED AUGUST 01, 2014

      Lora Swenson and Renee Swenson-

from the order of court striking their appeal from the admission of Richard



      The trial court summarized the relevant factual and procedural history

of this case as follows:

                   Decedent, Richard Swenson, succumbed to
            illness on April 25, 2013.        His Last Will and
            Testament dated June 10, 2009 was admitted into
            probate by decree of the Bradford County Register of
            Wills on May 11, 2013. Appellants filed an appeal to
            the admittance of the Will claiming the Will was not a
            valid instrument, and [that] they were entitled to his
            estate through intestacy laws. Appellants are the

            believed and expected to be able to prove that
            Decedent was not of sound mind at the time of the
            execution of the Will, and that it was procured by
            undue influence, duress, constraint and fraud by the
            named Executor and residual beneficiary, Nancy
            Kitchin. The June 10, 2009 Will appoints Nancy
            Kitchin as executrix and the residual beneficiary.



*Retired Senior Judge assigned to the Superior Court.
J-S48002-14



                 On September 20, 2013, [Kitchin] filed a
           [m]otion to [s]trike the appeal arguing that
           Appellants lacked standing pursuant to Estate of
           Luongo, 823 A.2d 942 (2003 Pa.Super) [sic]. [It]
           further alleged that [Kitchin] had been a neighbor
           and a friend, as well as an employee to Mr. Swenson
           for over [21] years, and that she had been named as
           executrix in all three prior wills as well as a
           beneficiary. Attached to the [m]otion to [s]trike

           April 11, 2008, February 6, 2009, and June 2, 2009.
           Appellants were not mentioned in these wills.
           [Kitchin] was appointed executrix and a beneficiary
           in all three prior wills.

                 Argument was heard on October 28, 2013.
           [The trial court] entered an order on December 4,
           2013, gran
           [a]ppeal and decreed that the assets be turned over
           to her so she could distribute them as executrix
           accordingly.

Trial Court Opinion, 2/10/14, at 1-2 (footnote omitted).

     This timely appeal follows. Appellants present the sole issue on appeal




                                                                        the



     We begin by acknowledging the following principles:

           On appeal from the Register of Wills' decree
           admitting a will to probate, the Orphans' court must
                                                         iss the
           petition, grant an issue in case of a substantial
                                             Wagner's Estate,
           137 A. 616, 618 ([Pa.] 1927). With respect to this



                                    -2-
J-S48002-14


            Court's standard and scope of appellate review in will
            contests, the Orphans' court decision will not be
            reversed unless there has been an abuse of
            discretion or a fundamental error in applying the
            correct principles of law. In re Elias' Estate, 4 239
            A.2d 393 ([Pa.] 1968). See also In re Estate of
            Presutti, 783 A.2d 803 (Pa. Super. 2001). If the
            record supports the court's factual findings, we will
            defer to these findings and will not reverse absent an
            abuse of discretion. In re Estate of Blumenthal,
            812 A.2d 1279, 1286 (Pa. Super. 2002). We are not
            constrained, however, to give the same deference to
            the court's legal conclusions. Id.

In re Estate of Luongo, 823 A.2d 942, 951 (Pa. Super. 2003) (footnote

omitted).



decedent's will. In will contests, the right to an appeal is statutory as is the

designation of the parties on whom the right is conferred, and is defined at

                                                                      Id. at 953

(internal citation omitted). This statute provides that,

            [a]ny party in interest seeking to challenge the
            probate of a will or who is otherwise aggrieved
            by a decree of the register, or a fiduciary whose
            estate or trust is so aggrieved, may appeal
            therefrom to the court within one year of the decree:
            Provided, That the executor designated in an
            instrument shall not by virtue of such designation be
            deemed a party in interest who may appeal from a
            decree refusing probate of it. The court, upon
            petition of a party in interest, may limit the time for
            appeal to three months.




                                     -3-
J-S48002-14


20 Pa.C.S.A. §908 (em

validity of a will does not have standing to do so unless he can prove he

would be entitled to participate in the decedent's estate if the will before the

                           Luongo, 823 A.2d at 954. (citing In re Ash's

Estate

the contestant's share of the estate must be smaller because of probate or

                             Id.

from a decree of probate turns delicately on the specific facts and

                                        Id. at 955.



nieces, but were not named in his June 2009 will. We encountered a similar

situation in In re Estate of Briskman, 808 A.2d 928 (Pa. Super. 2002). In

that case, the decedent left the entirety of her estate to a male friend in a



will, arguing, inter alia, that it was the product of undue influence exerted by




few specific bequests (but none to the niece) and directed that the residue of

her estate be held in a charitable trust.    The 1984 will did not name the

niece as a beneficiary, but only as a successor trustee, should the named




                                     -4-
J-S48002-14


trustee, her attorney, be unable to serve.1       Eventually, the trial court

reversed the decision of the Register of Wills to admit the 1993 will to

probate and vacated the letters testamentary that had been granted to the

                                       . The executor appealed that decision

to this Court.   We did not reach the merits of the issues raised by the

executor, however, as we concluded that the niece had lacked standing to




named successor



            Id. at 931 (emphasis in the original).     We concluded that the

niece was not aggrieved by probate of the 1993 will because she did not

have an interest thereunder and that she would not have any interest under

                                                                        ve as

executor.   Relevant to the case presently before us, we noted that the



                                                     Id. at 932.     We then

considered whether the possibility of an interest, which would arise only

upon the invalidation of at least one prior will and the subsequent invocation




1
  Although not germane to our discussion, we note that upon discovering
this will, the niece filed a petition seeking to have it admitted to probate if
the later will were set aside.


                                     -5-
J-S48002-14


of the laws of intestacy, was sufficient to create standing to challenge the

probate of a will:

                  Although our research has not uncovered any
            appellate court decisions on this issue, we have
            found two Common Pleas Court cases which reach
            the opposite result; that is, in both cases, an heir at
            law, who was not named as a beneficiary in a prior
            will, was found to have standing to contest the
            v
            his coming into an intestate share may appear to be
                      Heffner Estate, 43 Pa.D. & C.2d 365, 369,
            1967 WL 5834 (1967). See also Holtz Estate, 30
            Pa.D. & C.2d 396, 1963 WL 6253 (1963). The trial
            court in Holtz Estate explained,

                            If appellant, as an heir at law, were
                     excluded as a party in interest, the court
                     in this proceeding would be deciding that
                     the prior testamentary document was
                     admissible      to    probate.     Such    a
                     determination        cannot     be     made
                     collaterally in this proceeding. It can only
                     be made when the will in question is
                     offered for probate. Only in the probate
                     proceedings could the possible existence
                     of later wills or the partial destruction or
                     revocation of the will be authoritatively
                     determined. Holtz Estate, supra at
                     400. See also Heffner Estate, supra at

                     of decedent in existence, this, of itself,
                     would not be a compelling reason for this
                     court to foreclose contestant's efforts to
                     prove that decedent died

                  However, if we were to follow this line of
            reasoning, then an heir at law would always be
            permitted to file an appeal from probate of a will in
            which the heir is not a named beneficiary. If the
            Legislature had intended that result, it could have

            permitted to appeal the decision of a Register in


                                        -6-
J-S48002-14


          [20 Pa.C.S.A.] § 908. It did not do so. Moreover, the
          statute was amended three times, in 1972, 1974,
          and 1976, since the Holtz and Heffner decisions.
          The clear and unambiguous language of the statute
          permits a party to appeal a Register's decision only if
          that party has an interest that has been aggrieved.

          as a successor trustee under the 1984 will, or as an
          intestate heir at law if both wills are deemed invalid,
          is too remote to confer upon her an interest in the
          probate of the 1993 will.

          Moreover, even if we were to assume Appellee has a
          legitimate interest in the outcome of the will contest,
          historically, that interest must be substantial, direct,
          and immediate to confer standing. In Re Francis
          Edward McGillick Foundation, 642 A.2d 467, 469
          ([Pa.] 1994).


                the outcome of the litigation which
                surpasses the common interest of all
                citizens in procuring obedience to the

                showing that the matter complained of
                caused harm to the party's interest. An

                of the causal connection between the
                action complained of and the injury to
                the party challenging it, and is shown
                where the interest the party seeks to
                protect is within the zone of interests
                sought to be protected by the statute or
                constitutional guarantee in question.

          South Whitehall Township Police Serv. v. South
          Whitehall Township, 555 A.2d 793, 795 ([Pa.]
          1989) (internal citations omitted). Here, although

          substantial,   that is, one that surpasses the common
          interest of     all citizens, it is neither direct nor
          immediate.     As we discussed supra, her interest
          arises only    if the named trustee is unavailable to



                                    -7-
J-S48002-14


            serve under the 1984 will, or if both the 1993 will
            and the 1984 will are invalidated

Id. at 932-33.

      Here, as in Briskman                                 f an interest in



                                                               Briskman, we

conclude that this possibility is too remote to bring Appellants within the

sphere of the people upon whom Section 908 confers standing. We further

conclude, as in Briskman, that any possible interest they might have is not

direct or immediate, as it would only come to fruition after successfully

challenging a total of four wills.

      Appellants argue that the trial court erred by not having an evidentiary




at 8. However, this request is based on essentially the same premise that

this Court rejected in Briskman: that an heir at law who is not a named

beneficiary would always have standing to file an appeal from probate of a

will on the theory that eventually, no matter how many prior wills there may

have been, he or she will have an interest because he or she is entitled to

take under the laws of intestacy.2 As stated above, in Briskman we noted



2
 This is distinguishable from a situation in which there is no prior will, as
                  -at-law has the right to be heard on the validity of a will,
where there is no prior will, and the estate would pass by the laws of


                                     -8-
J-S48002-14


that the Legislature has chosen not to include unnamed heirs at law among

those permitted to appeal from the decision of the Register of Wills in

Section 908; rather, the Legislature has chosen to define that category as



simply by virtue of their status as an heir at law.

       For t

determination and so we affirm its order.

       Order affirmed.

       Platt, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2014




                                                      Luongo, 823 A.2d at
954.


                                          -9-
