J-A16014-17

                                   2018 PA Super 84

    IN RE: PETITION OF SANDRA NAVARRA                 IN THE SUPERIOR COURT
    BY THE LIMITED GUARDIAN OF HER                              OF
    ESTATE                                                 PENNSYLVANIA



    APPEAL OF: CHRIS NAVARRA, LINDA
    D'AUGOSTINE, JOANNE M. NAVARRA,
    RICHARD E. NAVARRA AND
    CHARLENE A. SHELLEDY

                                                        No. 1307 WDA 2016


                Appeal from the Order entered August 25, 2016
               In the Court of Common Pleas of Lawrence County
                    Orphans' Court at No: 109 of 2014 O.C.

BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*

OPINION BY STABILE, J.:                                 FILED APRIL 11, 2018

        This is an appeal from the August 25, 2016 order in the Court of

Common Pleas of Lawrence County, Orphans’ Court Division, granting the

petition of Chrystie Clarke, limited guardian of Sandra Navarra, to substitute

the judgment of the Orphans’ Court for Navarra pursuant to 20 Pa.C.S.A.

§ 5536(b) and disinherit five residuary legatees to Navarra’s will.         The

Orphans’ Court lacked jurisdiction to decide the rights of one of the five

legatees, Charlene Shelledy, because Shelledy died during Orphans’ Court

proceedings, and the personal representative of Shelledy’s estate has not

been substituted in her place. Accordingly, we vacate the Orphans’ Court’s


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A16014-17


order as to Shelledy.       At the same time, however, we have jurisdiction to

decide the appeal of the four remaining legatees, and we affirm the Orphans’

Court’s decision to substitute its judgment and disinherit these legatees.

                                      Background

       The Orphans’ Court’s August 25, 2016 opinion accurately recounts the

evidence of record as follows. Fred Navarra (“Husband”) and Sandra Navarra

(“Wife”) married in 1983. Both spouses had children from previous marriages.

For the next 26 years, Husband and Wife lived together at their residence in

New Wilmington, Pennsylvania.            On January 23, 2007, Husband suffered

serious injuries in an automobile accident that required hospitalization for two

months and round-the-clock assistance when he returned home.

       On May 14, 2007, Husband and Wife executed mutually reciprocal wills.

The residuary clause in each will provided that (1) seventy percent of the

residuary estate would pass to Husband’s legatees,1 and (2) thirty percent of

the residuary estate would pass to Wife’s children, Clarke and Brent Young.

       Husband and Wife continued to reside together, but at some point after

execution of the reciprocal wills, Wife began to show signs of dementia due to

age and alcohol abuse. Friction began to develop between Wife’s children and

Husband’s legatees. Linda D’Augostine ordered Husband’s caregivers to keep


____________________________________________


1 For purposes of this opinion, Husband’s legatees include his four children,
Richard E. Navarra, Linda D'Augostine, Charlene A. Shelledy, Joanne M.
Navarra, and Richard’s ex-wife, Chris Navarra.


                                           -2-
J-A16014-17


Husband and Wife separated from one another and attempted to remove Wife

from the residence.         Husband’s children repeatedly cancelled caregiver

appointments for Wife at the home and left her at home alone despite her

need for continuous care.

       On November 9, 2009, Clarke moved Wife from the marital residence to

a nursing home2 because Clarke suspected that Husband’s daughter,

D’Augostine, was treating Wife abusively. One day later, Husband’s legatees

changed the locks to the marital residence and denied Clarke access to assets

that Wife shared jointly with Husband.           Subsequently, the Orphans’ Court

appointed Clarke as plenary guardian of Wife’s person.

       On December 31, 2009, Husband executed a revised will disinheriting

Wife and Wife’s children and leaving his entire residuary estate to his children.

Further, in September 2010, certificates of deposit jointly owned by Husband

and Wife were cashed, and the proceeds were used to purchase annuities for

which Husband’s children were the only beneficiaries, excluding Wife and her

children. Husband’s children also removed Wife as a recipient of Husband’s

IRA account at brokerage firm Janney Montgomery Scott, LLC,            and listed

themselves as recipients.          One of Husband’s children, Richard Navarra,

depleted a bank account that was in Husband’s and Wife’s joint names.




____________________________________________


2Wife never returned to the marital residence. She continues to live in the
nursing home, suffering from dementia.

                                           -3-
J-A16014-17


      On July 24, 2012, Husband died.      Following his death, Clarke filed a

declaratory judgment action requesting that the court name Wife as the sole

owner of the proceeds of a stock purchase agreement entered into between

Husband’s and Wife’s agents in 2007.       Richard Navarra opposed Clarke’s

petition in his capacity as personal representative of Husband’s estate.   The

Orphans’ Court held that Wife was the sole owner of the proceeds, and this

Court subsequently affirmed in a published opinion.        In Re Estate of

Navarra, 113 A.3d 829 (Pa. Super. 2015).

                             The Present Case

      Wife lacked the capacity to amend her will due to her dementia.

Consequently, on October 14, 2014, Clarke filed a petition requesting the

Orphans’ Court to substitute its judgment for Wife under Section 5536(b) and

amend Wife’s will to disinherit Husband’s legatees. Husband’s legatees filed

an answer opposing the petition.

      On several dates in 2015 and 2016, the Orphans’ Court held evidentiary

hearings relating to Clarke’s petition.    In mid-2015, however, Shelledy

suffered a stroke, and she died prior to the hearing on February 1, 2016. N.T.,

2/1/16, at 3 (testimony that Shelledy had died); see also N.T., 2/2/16, at

113-14 (same); Orphans’ Court Opinion, 8/25/16, at 1 n.1 (“Shelledy is now

deceased”). The record reflects that Shelledy’s personal representative has

never been substituted as a party in this case.




                                     -4-
J-A16014-17


      At the conclusion of the hearings, the Orphans’ Court decided to address

Clarke’s petition in two steps.   First, the Orphans’ Court would determine

whether Section 5536(b) permitted it to grant the relief sought by Clarke:

disinheritance of legatees of an incapacitated person. Second, if the statute

permitted such relief, the Orphans’ Court would determine whether such relief

was warranted under the circumstances of this case. On April 29, 2016, the

Orphans’ Court entered an opinion and order holding that Section 5536(b)

permitted courts to disinherit legatees of incapacitated persons. On August

25, 2016, the Orphans’ Court entered an opinion and order granting Clarke’s

petition under Section 5536(b) to substitute the Orphans’ Court’s judgment in

place of Wife. The order directed the amendment of Wife’s will to disinherit

all of Husband’s legatees (including Shelledy) as beneficiaries and bequeath

the entire residue of Wife’s estate to Clarke and Young in equal shares.

      On September 6, 2016, Husband’s legatees appealed to this Court. The

notice of appeal included Shelledy as an appellant despite her death. Both

Appellants and the Orphans’ Court complied with Pa.R.A.P. 1925.

      In this Court, Husband’s legatees argue that (1) the Orphans’ Court

lacked authority under Section 5536(b) to amend Wife’s will to disinherit

them; (2) even if Section 5536(b) provided such authority, the Orphans’ Court

erred by failing to apply the clear and convincing evidence test to Clarke’s

petition; and (3) Clarke failed to furnish sufficient evidence in support of her

petition.


                                     -5-
J-A16014-17


                                  Jurisdiction

      Prior to addressing these issues, we must analyze several jurisdictional

issues that arise as a result of Shelledy’s death. First, we examine whether

Shelledy’s death divested the Orphans’ Court of subject matter jurisdiction to

decide Clarke’s action against Shelledy.

      Subject matter jurisdiction “relates to the competency of the individual

court . . . to determine controversies of the general class to which a particular

case belongs.” Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d

1261, 1268 (Pa. Super. 2015) (citation omitted). “[I]t is never too late to

attack a judgment or decree for want of jurisdiction. That question is always

open.” In re Simpson's Estate, 98 A. 35, 38 (Pa. 1916). “The want of

jurisdiction over the subject matter may be questioned at any time. It may

be questioned either in the trial court, before or after judgment, or for the first

time in an appellate court, and it is fatal at any stage of the proceedings, even

when collaterally involved . . . .” In re Patterson's Estate, 19 A.2d 165,

166 (Pa. 1941).     Moreover, it is “well settled that a judgment or decree

rendered by a court which lacks jurisdiction of the subject matter or of the

person is null and void . . . .” Com. ex rel. Howard v. Howard, 10 A.2d

779, 781 (Pa. Super. 1939). The question of subject matter jurisdiction may

be raised at any time, by any party, or by the court sua sponte. Grimm v.

Grimm, 149 A.3d 77, 82 (Pa. Super. 2016) (citation omitted).              Because




                                       -6-
J-A16014-17


jurisdiction is a pure question of law, our standard of review is de novo, and

our scope of review is plenary. Id. (citation omitted).

      Grimm plays an important role in resolving this issue. The plaintiff in

Grimm     (“Grandson”)    filed   a   civil   action   against   his   grandfather

(“Grandfather”) for striking his head with a shovel handle and against two

other defendants for facilitating Grandfather’s misconduct. Grandfather died

during trial court proceedings, and the personal representative of his estate

was not substituted in his place as a defendant.         In 2011, the trial court

sustained the other defendants’ preliminary objections and dismissed

Grandson’s action against them for failure to state a cause of action. In 2013,

after Grandfather’s death, the trial court entered judgment of non pros in favor

of Grandfather due to docket inactivity. Grandson thereupon appealed to this

Court.

      A panel of this Court held that the trial court lacked jurisdiction to enter

judgment in favor of Grandfather, because “the death of a party deprives the

trial court of subject matter jurisdiction over litigation by or against the

deceased until such time as the deceased's personal representative is

substituted in his or her place.” Grimm, 149 A.3d at 80. The panel observed

that upon the death of a party, the Rules of Civil Procedure require the filing

of a notice of death and the substitution of a personal representative. Id. at

84 (citing Pa.R.Civ.P. 2352 and 2355). Moreover, at common law, “a dead

man cannot be a party to an action, and any such attempted proceeding is


                                      -7-
J-A16014-17


completely void and of no effect.” Id. at 84-85 (citing, inter alia, Lange v.

Burd, 800 A.2d 336, 341 (Pa. Super. 2002)). “The language that the courts

of this Commonwealth have used,” the panel reasoned,

      leads us to conclude that the death of a party divests a court of
      subject matter jurisdiction over claims brought by or against the
      deceased party. Specifically, this Court and our Supreme Court
      have repeatedly used the terms “null” and “void” when discussing
      the effect of a filing after a party dies. Eg., Lange, 800 A.2d at
      341; Thompson [v. Peck], 181 A. [597,] 598 [(Pa. 1935)], citing
      Brooks v. Boston & N. St. R. Co., 211 Mass. 277, 97 N.E. 760
      (Mass.1912). An action is only null and void for purposes of
      appellate review if a court lacks subject matter jurisdiction. If a
      party lacks standing, or the court lacks personal jurisdiction or
      power, the issue can be waived and thus ipso facto is not null and
      void if not properly preserved.         Thus, although these past
      decisions have not explicitly used the term “subject matter
      jurisdiction” when discussing why an action by or against a
      deceased party is null and void, it is evident by the use of the
      terms “null” and “void” that the issue goes to subject matter
      jurisdiction and not to standing, personal jurisdiction, or a court’s
      power.

Id. at 85. The panel held:

      As the trial court lacked subject matter jurisdiction over
      Grandson’s claims against Grandfather at the time it entered the
      judgment of non pros, we vacate the judgment of non pros and
      remand this matter to the trial court to either dismiss the cause
      of action for want of jurisdiction or to permit substitution of a
      personal representative [for Grandfather] in accordance with the
      Pennsylvania Rules of Civil Procedure.

Id. at 86.

      In this case, Clarke filed a petition requesting the Orphans’ Court to

substitute its judgment for Wife and amend Wife’s will to disinherit Husband’s

legatees. Shelledy, one of Husband’s legatees, and one of the respondents to

Clarke’s petition, died during the course of litigation, and her personal

                                      -8-
J-A16014-17


representative was not substituted in her place.       Pursuant to Grimm, the

Orphans’ Court lost subject matter jurisdiction over the claim against Shelledy

at the time of her death, and we lack jurisdiction to rule on this appeal to the

extent it relates to Shelledy. Id., 149 A.3d at 85-86. Accordingly, we vacate

the Orphans’ Court’s order as to Shelledy and remand this matter to the

Orphans’ Court to either dismiss the cause of action for want of jurisdiction or

permit substitution of a personal representative for Shelledy.

      Next, we examine whether the loss of jurisdiction over the claim against

Shelledy deprived the Orphans’ Court of jurisdiction over Husband’s remaining

legatees. Because Shelledy is not an indispensable party, we conclude that

the Orphans’ Court continued to possess jurisdiction over the remaining

legatees.

      In general,

      an indispensable party is one whose rights are so connected with
      the claims of the litigants that no decree can be made without
      impairing its rights. Appellate courts have consistently held that
      property owners are indispensable parties in lawsuits concerning
      the owners’ property rights.

      The absence of an indispensable party goes absolutely to the
      court’s jurisdiction. If an indispensable party is not joined, a court
      is without jurisdiction to decide the matter. The absence of an
      indispensable party renders any order or decree of the court null
      and void. The issue of “the failure to join an indispensable party”
      cannot be waived.

Sabella v. Appalachian Development Corp., 103 A.3d 83, 90 (Pa. Super.

2014) (citation omitted). Here, Clarke asked the Orphans’ Court to eliminate

Husband’s legatees’ rights to be residuary beneficiaries under Wife’s will. Each

                                      -9-
J-A16014-17


residuary beneficiary holds a separate share of the residuary estate. Thus,

Shelledy’s property right in her share is not “so connected” with the rights of

the other legatees in their shares that “no decree can be made without

impairing [her] rights.” Id.

      Neither did the loss of jurisdiction over the claim against Shelledy

prevent Husband’s remaining legatees from appealing the Section 5536(b)

order to this Court.   Pa.R.A.P. 342, which governs appeals from Orphans’

Court, permits an appeal “as of right” of an order “determining the status of

. . . beneficiaries . . . in an estate . . .” Pa.R.A.P. 342(a)(5). In contrast to

Rule 341(b)(1), which permits an appeal only from a final order that disposes

of all claims and all parties, an order is appealable under Rule 342(a)(5) if it

determines the status of some, but not all, beneficiaries. See Pa. R.A.P. 342,

Cmt.; G. Ronald Darlington et al., PENNSYLVANIA APPELLATE PRACTICE

§342:1, Volume 20 (2016-2017 ed.). Thus, we exercise jurisdiction over the

appeal by Husband’s remaining legatees.

                               Substantive issues

      Husband’s legatees first argue that 20 Pa.C.S.A. § 5536(b) did not

authorize the Orphans’ Court to substitute its judgment for Wife and disinherit

residuary legatees in her will. This issue of statutory construction presents a

question of law for which our standard of review is de novo.         See In re

Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016).




                                     - 10 -
J-A16014-17


      We hold that the Orphans’ Court construed Section 5536(b) correctly.

Although Section 5536(b) does not expressly provide the Orphans’ Court with

this authority, the legislature intended for courts to construe Section 5536(b)

expansively.   Viewed in this manner, Section 5536(b) empowers courts to

substitute their judgment for incapacitated persons and disinherit their

legatees.

      Section 5536, entitled “Distributions of Income and Principal During

Incapacity,” was enacted in 1972 and amended several times thereafter.

Section 5536 is part of Chapter 55 of the Probate, Estates and Fiduciaries

Code (“PEF Code”), whose purpose is to “protect[] the[] rights” of

“incapacitated persons” through “the use of the least restrictive alternative.”

20 Pa.C.S.A. § 5502. Chapter 55 defines an “incapacitated person” as “an

adult whose ability to receive and evaluate information effectively and

communicate decisions in any way is impaired to such a significant extent that

he is partially or totally unable to manage his financial resources or to meet

essential requirements for his physical health and safety.”      20 Pa.C.S.A.

§ 5501.

      Section 5536(b) provides:

      (b) Estate plan.--The court, upon petition and with notice to all
      parties in interest and for good cause shown, shall have the
      power to substitute its judgment for that of the
      incapacitated person with respect to the estate and affairs
      of the incapacitated person for the benefit of the
      incapacitated person, his family, members of his
      household, his friends and charities in which he was


                                    - 11 -
J-A16014-17


     interested. This power shall include, but is not limited to,
     the power to:

          (1) Make gifts, outright or in trust.

          (2) Convey, release or disclaim his contingent and
          expectant interests in property, including marital
          property rights and any right of survivorship incident to
          joint tenancy or tenancy by the entirety.

          (3) Release or disclaim his powers as trustee, personal
          representative, custodian for minors, or guardian.

          (4) Exercise, release or disclaim his powers as donee of
          a power of appointment.

          (5) Enter into contracts.

          (6) Create for the benefit of the incapacitated person or
          others, revocable or irrevocable trusts of his property
          which may extend beyond his disability or life.

          (7) Exercise options of the incapacitated person to
          purchase or exchange securities or other property.

          (8) Exercise all rights and privileges under life insurance
          policies, annuity contracts or other plans or contractual
          arrangements       providing   for   payments       to  the
          incapacitated person or to others after his death.

          (9) Exercise his right to claim or disclaim an elective
          share in the estate of his deceased spouse and renounce
          any interest by testate or intestate succession or by inter
          vivos transfer.

          (10) Change the incapacitated person's residence or
          domicile.

          (11) Modify by means of codicil or trust amendment, as
          the case may be, the terms of the incapacitated person's
          will or of any revocable trust created by the incapacitated
          person, as the court may deem advisable in light of
          changes in applicable tax laws.


                                   - 12 -
J-A16014-17


      In the exercise of its judgment for that of the incapacitated
      person, the court, first being satisfied that assets exist which are
      not required for the maintenance, support and well-being of the
      incapacitated person, may adopt a plan of gifts which results in
      minimizing current or prospective taxes, or which carries out a
      lifetime giving pattern. The court in exercising its judgment
      shall consider the testamentary and inter vivos intentions
      of the incapacitated person insofar as they can be
      ascertained.

Id. (emphasis added). The Official Comment to Section 5536(b) states that

this section “is consistent with existing case law . . .” Jt. St. Govt. Comm.

Comment—1976.

      Husband’s legatees argue that none of the eleven powers listed in

Section 5536(b) expressly authorizes the Orphans’ Court to revoke an

individual’s right of inheritance under a will and, therefore, the Orphans’ Court

does not have the power under Section 5536(b) to disinherit Husband’s

legatees.

      We reach a different conclusion. Section 5536(b) must be read broadly,

and the Orphans’ Court’s authority is not confined to the enumerated powers

in subsection (b)(1)-(11). The first and last sentences of this provision give

the Orphans’ Court broad power to “substitute its judgment for the

incapacitated person” with respect to the “estate and affairs” of the

incapacitated person for “the incapacitated person’s benefit and members of

his household, his friends and charities in which he was interested,” taking

into account the incapacitated person’s “testamentary and inter vivos

intentions . . . insofar as they can be ascertained.” Id. To emphasize the


                                     - 13 -
J-A16014-17


breadth of this power, Section 5536(b) states that “[t]his power shall include,

but is not limited to,” a wide variety of eleven powers. “Includes, but is not

limited to” is a well-known term of enlargement.         Our Supreme Court has

explained:

       [T]he term ‘include’ is ‘to be dealt with as a word of enlargement
       and not limitation’ . . . this [is] ‘especially true’ when followed by
       the phrase ‘but not limited to.’ . . . [T]he introductory verbiage
       ‘including, but not limited to,’ generally reflects the intent of the
       legislature to broaden the reach of a statute, rather than a
       purpose to limit the scope of the law to those matters enumerated
       therein.

Dechert, LLP v. Commonwealth, 998 A.2d 575, 580–81 (Pa. 2010).3 “Any

additional matters purportedly falling within the [scope of ‘including but not

____________________________________________


       The Dechert opinion collects several decisions illustrating the manner
       3

in which courts interpret statutes that have “include, but is not limited to”
language:

       In Pa. Human Relations Comm'n v. Alto–Reste Park
       Cemetery Ass'n, [] 306 A.2d 881 ([Pa.] 1973), the appellee
       cemetery argued that, because nonsectarian cemeteries were not
       specifically mentioned in the definition of “place of public
       accommodation,” as set forth in the version of the Pennsylvania
       Human Relations Act in effect at that time, the legislature did not
       intend for nonsectarian cemeteries to be considered places of
       public accommodation subject to the jurisdiction of the
       Pennsylvania Human Relations Commission. In rejecting the
       cemetery’s argument, this Court held that the language of the
       statute, which defined “place of public accommodation” as “any
       place which is open to, accepts or solicits the patronage of the
       general public, including but not limited to [approximately 50
       enumerated places of accommodation] but shall not include any
       accommodations which are in their nature distinctly private,” was
       “broad and all inclusive.” [] 306 A.2d at 886 . . . see also
       Commonwealth v. Conklin, [] 897 A.2d 1168, 1176 n. 16 ([Pa.



                                          - 14 -
J-A16014-17


limted to’], but that are not express, must be similar to those listed by the

legislature and of the same general class or nature.”            Department of

Environmental Protection v. Cumberland Coal Resources, LP, 102 A.3d

962, 976 (Pa. 2014).

       Additional support for liberal construction of Section 5536(b) comes

from the 1976 Official Comment, which observes that this statute “is

consistent with existing case law.”4 At common law, multiple courts invoked

the doctrine of substitution of judgment to make estate planning decisions for

persons whose incapacity prevented them from acting. In the leading case

on this subject, Appeal of Hambleton, 102 Pa. 50 (1883), a wealthy widower



____________________________________________


       Super.] 2006) (noting that, in the psychology practice act,
       exceptions set forth following the language “including but not
       limited to” are illustrative and not exhaustive). Similarly, in
       Aldine Apartments, Inc. v. Commonwealth, [] 395 A.2d 299
       ([Pa. Cmwlth.] 1978), the Commonwealth Court rejected the
       petitioner’s argument that language contained in Section 7201(m)
       of the 1971 version of the [Tax Reform] Code, which explicitly
       included gas and electricity for non-residential use in the definition
       of tangible personal property, implicitly excluded all gas and
       electricity for residential use from the definition.              The
       Commonwealth Court concluded that the language “including, but
       not limited to” was “a clear indication that the Legislature intended
       to exclude nothing, implicitly or otherwise, by the language which
       follows those words.” Id. at 302.

Id. at 581.

4 Although official comments are not law, we may give them weight in
construing statutes because they provide evidence of legislative intent. See
Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott’s
Development Co., 90 A.3d 682, 692 n.11 (Pa. 2014) (citation omitted).

                                          - 15 -
J-A16014-17


arranged for his nephew and his nephew’s family to live with him and manage

his affairs, in return for which the widower provided the nephew a salary. The

widower was later declared a “lunatic,” and a bank was appointed committee

of his estate. The nephew, who continued to live in the widower’s household,

was appointed committee of his person, and the bank continued to pay the

nephew his salary. Upon the audit of the bank account, certain next of kin of

the widower persuaded the court to surcharge the nephew for the full amount

of the salary paid to him. On appeal, the Supreme Court reversed the lower

court and approved the payments, reasoning that the court was duty-bound

“to maintain and carry forward the affairs of [the widower] as they were when

his mind failed him; to do that which it might reasonably suppose he would

have continued to do had he retained his sanity.” Id., 102 Pa. at 53.

      Following Hambleton, courts invoked the substitution of judgment

doctrine in other situations where it was necessary to protect the interests of

incapacitated persons.    See Brindle’s Estate, 60 A.2d 1, 3 (Pa. 1948)

(approving appointment of guardian ad litem to contest will disinheriting

incapacitated person following determination that guardian exercised undue

influence over testator and would not contest the will); Anderson’s Estate,

40 D. & C. 2d 559, 563 (Chester Co. 1966) (authorizing guardian to exercise

incompetent’s right to claim principal of life insurance trust of incapacitated

person’s husband); Groff’s Estate, 38 D. & C. 2d 556, 566, 569 (Montgomery

Co. 1965) (cited in Official Comment to Section 5536(b)) (authorizing


                                    - 16 -
J-A16014-17


guardian to make inter vivos gifts of surplus property to save on death tax);

Moorehead v. Northumberland County Retirement Board, 86 D. & C.

283, 287-88 (Northumberland Co. 1953) (permitting guardian to file intention

to retire on incompetent’s behalf, apply for retirement allowance, and elect

manner in which allowance would be paid).

      Both the text of Section 5536(b) and the decisions preceding its

enactment establish that the legislature intended the statute’s list of

enumerated powers to be illustrative, not exhaustive. So long as the power

in question relates to the incapacitated person’s “estate and affairs,” id., and

good cause exists to conclude that the exercise of this power will “benefit . . .

the incapacitated person, his family, members of his household, his friends

[or] charities in which he was interested,” id., the Orphans’ Court may

exercise it even though it is not explicitly mentioned in subsection (b)(1-11).

The power in question here—modification of Wife’s will to disinherit several

residuary legatees—fits easily within Section 5536(b)’s broad scope, for it

concerns an incapacitated person’s estate, and its exercise will benefit family

members of the incapacitated person by augmenting their residuary shares.

Moreover, this power to modify Wife’s will is “similar to,” and of the “same

general class or nature” as, the power in subsection (b)(11) to modify an

incapacitated person’s will to keep pace with changes in applicable tax laws.

Cumberland Coal Resources, LP, 102 A.3d at 976. Accordingly, Husband’s

legatees’ first argument fails.


                                     - 17 -
J-A16014-17


       Husband’s legatees’ second argument urges us to find that the trial court

erred in not requiring that Clarke establish good cause under Section 5536(b)

by “clear and convincing evidence” before the trial court could substitute its

judgment for Wife, an incapacitated person. The Orphans’ Court held that

“good cause” required Clarke to demonstrate her right to relief only by a

preponderance of the evidence.           We review this question of law de novo,

Fiedler, 132 A.3d at 1018, and conclude that the preponderance of the

evidence standard is the proper test.5

____________________________________________


5 Although the terms “burden of proof” and “standard of proof” are oftentimes
used interchangeably, see Elk Mountain Ski Resort v. WCAB, 114 A.3d 27
(Pa. Cmwlth. 2015) (the function of a burden of proof or standard of proof is
to instruct the factfinder as the level of confidence society believes he should
have in the correctness of his conclusion); In Re Fiori, 673 A.2d 905, n.9
(Pa. 1996) (the term “clear and convincing evidence” is used more commonly
as a burden of proof). In fact, these terms have different meanings.

The “burden of proof” consists of two parts: the burden of production and the
burden of persuasion. Hurley v. Hurley, 754 A.2d 1283 (Pa. Super. 2000).
The “burden of production” tells the court which party must come forward with
evidence to support a proposition. Id. The “burden of persuasion” determines
which party must produce sufficient evidence to convince a judge that a fact
has been established. Id. A “standard of proof” on the other hand refers to
the degree or level of proof demanded in a specific case. Black’s Law
Dictionary (Seventh Edition 1999). A standard of proof instructs a factfinder
as to the level of confidence society believes a litigant should have in the
correctness of a conclusion, such as proof “beyond a reasonable doubt,” by a
“preponderance of the evidence,” or by “clear and convincing evidence.” See
Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003). Different
standards of proof reflect differences in how society believes the risk of error
should be distributed as between the litigants. Id. In the present case, while
the parties often refer to this second issue as respecting the proper “burden”
of proof, in reality, the issue more accurately concerns the proper standard of
proof, or that quantum of proof necessary to establish by a preponderance of



                                          - 18 -
J-A16014-17


        A preponderance of the evidence is “the greater weight of the evidence,

i.e., to tip a scale slightly is the criteria or requirement for preponderance of

the evidence.” Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004). The

preponderance test is the normal burden of proof in most civil proceedings.

See Tincher v. Omega Flex, Inc., 104 A.3d 328, 408 (Pa. 2014) (citations

omitted).     Indeed, the term “burden of proof,” standing alone, implicitly

means “by the preponderance of the evidence.”                  Se-Ling Hosiery v.

Margulies, 70 A.2d 854, 856-57 (Pa. 1950).6

____________________________________________


the evidence that good cause was established for the Orphans’ Court to
substitute its judgment for Wife.

6   The Se-Ling Court stated:

        In the quotation from Lord Justice Bowen in our opinion in the
        case of Arco Metalscraft Company v. Shaw et al., 70 A.2d 850
        this day filed, in which Baron Bowen lays down a rule about the
        shifting of the burden of proof in the course of a trial, it is pertinent
        to observe that this experienced English judge, like Wigmore and
        Thayer, used the phrase: ‘onus of proof’, or ‘burden’ without
        adding, ‘by the fair preponderance of the evidence’. These legal
        scholars recognized the fact that in civil cases the phrase ‘burden
        of proof’ when unqualified by any additional phrase implies ‘by the
        fair preponderance of the evidence’. If a trial judge in a civil case
        instructs the jury that plaintiff ‘has the burden of proof’ the
        defendant has no cause for complaint, because of what is implicit
        in that phrase when it stands alone. However, a plaintiff would
        have grounds for complaint because if the jury was not instructed
        that ‘burden of proof’ in a civil case meant only ‘by the fair
        preponderance of the evidence’ the members of the jury might
        have the idea that the phrase ‘burden of proof’ meant some higher
        degree of proof than mere preponderating evidence. Therefore,
        the omission of the phrase ‘by the fair preponderance of the
        evidence’ in the judge’s charge in the instant case was something



                                          - 19 -
J-A16014-17


       The clear and convincing evidence standard is stricter than the

preponderance standard. It is the “highest standard of proof utilized in civil

proceedings, requiring evidence that is so clear, direct, weighty, and

convincing as to enable the [trier of fact] to come to a clear conviction, without

hesitancy, of the truth of the precise facts [in] issue.” In Re Vencil, 152 A.3d

235, 237 n.1 (Pa. 2017).

       In our view, the legislature in enacting 5536(b) intended “good cause”

to require a preponderance of the evidence instead of clear and convincing

evidence.      Generally, when the legislature determines that clear and

convincing evidence should be the standard of proof, it has said so, as

evidenced in multiple PEF Code statutes. See, 20 Pa.C.S.A. § 5501(a) (“the


____________________________________________


       of which the plaintiff could have justly complained, but of which
       the defendant could not justly complain. Plaintiff having secured
       the verdict makes no complaint.

       In the instant case the court below said: ‘We are convinced that
       the verdict for the plaintiff was not: 1-against the law; 2-against
       the evidence, and 3-against the weight of the evidence.’ The
       record sustains the view that the plaintiff successfully carried its
       burden of proof. That the jury believed plaintiff had done so is
       indicated by the verdict. We think it would be unfair to take away
       the verdict plaintiff secured merely because the trial judge in his
       charge as to plaintiff’s burden of proof omitted the phrase ‘by the
       fair preponderance of the evidence’. This slight departure from
       the formula customarily used in charging a jury in a civil case does
       not amount to reversible error, though the safest course for a
       judge in charging the jury in such cases would be to adhere to the
       long established formula and say that the plaintiff has the burden
       of proving his claim by the fair preponderance of the evidence.

Id., 70 A.2d at 856-57.

                                          - 20 -
J-A16014-17


court, upon petition and hearing and upon the presentation of clear and

convincing evidence, may find a person domiciled in the Commonwealth to be

incapacitated and appoint a guardian or guardians of his person or estate”);

20 Pa.C.S.A. § 305(b) (“[a]bsent an allegation of enduring estrangement,

incompetence, contrary intent or waiver and agreement which is proven by

clear and convincing evidence, a surviving spouse shall have the sole authority

in all matters pertaining to the disposition of the remains of the decedent”);

20 Pa.C.S.A. § 6303(a) (“[a] joint account belongs, during the lifetime of all

parties, to the parties in proportion to the net contributions by each to the

sum on deposit, unless there is clear and convincing evidence of a different

intent”); 20 Pa.C.S.A. § 6304(a) (“[a]ny sum remaining on deposit at the

death of a party to a joint account belongs to the surviving party or parties as

against the estate of the decedent unless there is clear and convincing

evidence of a different intent at the time the account is created”); 20 Pa.C.S.A.

§ 7740.5 (“[t]he court may reform a trust instrument, even if unambiguous,

to conform to the settlor’s probable intention if it is proved by clear and

convincing evidence that the settlor’s intent as expressed in the trust

instrument was affected by a mistake of fact or law, whether in expression or

inducement”). Thus, the absence of “clear and convincing” language from

Section 5536(b) provides strong evidence that the legislature did not intend

to vary the presumed standard of proof of a preponderance of the evidence

for a civil case, when it directed that petitioners must demonstrate “good


                                     - 21 -
J-A16014-17


cause” for a court to substitute its judgment for that of an incapacitated person

under Section 5536(b).

      We further are guided by the principle of statutory construction that the

objective of all interpretation and construction of statutes is to ascertain and

effectuate the intention of the General Assembly. 1 Pa. C.S.A. §1921. Our

review of the PEF Code reveals that the legislature has reserved the clear and

convincing standard for exceptional circumstances—for example, when

petitioners attempt to take away rights held by incapacitated persons, see,

e.g., 20 Pa.C.S.A. § 5511 (clear and convincing evidence required to declare

person incapacitated), or when the petitioner moves to reform a trust

instrument on the ground that it was affected by a mistake of fact or law

(discussed in n.7, infra).    But when the statute’s purpose is to benefit

incapacitated individuals, the more liberal preponderance standard controls,

consistent with Chapter 55’s goal of “protecting [the] rights” of “incapacitated

persons” through “the use of the least restrictive alternative.” 20 Pa.C.S.A.

§ 5502. Since Section 5536(b)’s express purpose is to benefit incapacitated

persons (as well as his family, members of his household, his friends and

charities), we conclude that the standard of proof by a preponderance of the

evidence applies to this provision.

      To illustrate, we contrast the standards governing petitions to declare a

person incapacitated (a procedure to take away an incapacitated person’s

rights) with the standards governing petitions to declare that a person has


                                      - 22 -
J-A16014-17


regained competency (a procedure that benefits incapacitated persons). At

common law, courts required clear and convincing evidence to declare a

person incapacitated. Matter of Caine, 415 A.2d 13, 15 & n.4 (Pa. 1980).

The standard remains the same under the PEF Code.          See 20 Pa.C.S.A

§ 5511(a). On the other hand, under two different statutory schemes, when

a petitioner who previously was held incapacitated seeks a declaration of

regained competency, courts have required her to prove her case only by a

preponderance of the evidence. The first statutory scheme, 50 P.S. § 3323,

which was in effect until 1992, required the petitioner to show “good cause”—

the same element in Section 5536(b)—that she regained her capacity. The

petitioner could satisfy the “good cause” element by a preponderance of the

evidence. In Re Nagle’s Estate, 210 A.2d 262, 264 (Pa. 1965). In 1974,

the legislature re-enacted Section 3323 as 20 Pa.C.S.A. § 5517. In 1975, our

Supreme Court held that “good cause” under Section 5517 continued to

require a preponderance of the evidence. See In Re Porter's Estate, 345

A.2d 171, 174 (Pa. 1975) (citing Nagle). The second statutory scheme was

created in 1992.   The legislature removed the “good cause” element from

Section 5517 and required a hearing under a new statute, 20 Pa.C.S.A.

§ 5512.2, when the incapacitated person sought a declaration of regained

capacity. The only evidentiary standard mentioned in Section 5512.2 was in

subsection (b): “Except when the hearing is held to appoint a successor

guardian, the burden of proof, by clear and convincing evidence, shall be on


                                   - 23 -
J-A16014-17


the party advocating continuation of guardianship or expansion of areas of

incapacity.”    20 Pa.C.S.A. § 5512.2(b).          Thirteen years after this second

statutory scheme came into existence, we held that the burden of proof in

incapacity proceedings remained the same as under the first scheme:

“[W]hile the initial burden of proving incapacity is a clear and convincing

standard . . . the incapacitated person has the burden of establishing that he

has regained capacity only by a fair preponderance of the evidence.”7 In Re

Estate of Rosengarten, 871 A.2d 1249, 1255 (Pa. Super. 2005) (citing

Porter).




____________________________________________


7 Before leaving this subject, we address another exceptional circumstance in
which the legislature has required clear and convincing evidence: when a
petitioner moves to reform a trust instrument to conform to the settlor’s intent
when the trust instrument “was affected by a mistake of fact or law . . .” 20
Pa.C.S.A. § 7740.5. The clear and convincing standard applies here not only
“to guard against the possibility of unreliable or contrived evidence,” Uniform
Law Comment, 20 Pa.C.S. § 7740.5, but also because Pennsylvania
traditionally has required clear and convincing evidence to reform instruments
on the basis of mistake. See Thrasher v. Rothrock, 105 A.2d 600, 604 (Pa.
1954) (citing In re Ridgway’s Account 56 A. 25 (Pa. 1903)).

The circumstances addressed in Section 7740.5 do not exist here. Clarke does
not contend that Wife’s will was the product of mistake at the time of
execution. Instead, Clarke contends that the will was consistent with Wife’s
intent at the time of execution, but that (1) Wife and Husband had reciprocal
wills, (2) Husband later amended his will to disinherit Wife’s children, so (3)
as a matter of reciprocity, Wife would have responded to Husband’s
amendment by amending her own will to disinherit Husband’s legatees. Thus,
Section 7740.5 would not persuade us that the clear and convincing test
applies to the present case.

                                          - 24 -
J-A16014-17


      Two lessons emerge from this history. The fact that the preponderance

standard governed both statutory schemes when a declaration was sought to

regain competency demonstrates the legislature’s intent for a more liberal

standard to apply when the statute’s purpose is to benefit incapacitated

persons. In addition, the fact that the “good cause” element under the pre-

1992 statutory scheme was satisfied by a preponderance of the evidence, see

Nagle and Porter, supra, indicates that the “good cause” element in Section

5536(b) is satisfied by the preponderance of the evidence as well.

      For these reasons, Husband’s legatees’ second argument must fail.

      In their third and final argument, Husband’s legatees contend that the

evidence did not support the Orphans’ Court’s decision to substitute its

judgment for Wife and disinherit Husband’s legatees.       Husband’s legatees

contend that Husband disinherited Wife and her children not because of any

animus towards them, but to protect his estate from the high costs of Wife’s

long-term care facility and to ensure that his legatees received their residuary

shares of his estate.    A reasonable person in Wife’s position, Husband’s

legatees claimed, would have “appreciated and understood the need for

[Husband] to delete her as beneficiary of his probate assets and owner by

right of survivorship of jointly held assets passing on his death.” Brief For

Appellants at 26.

      When reviewing an Orphans' Court’s decree, we must determine

whether the record is free from legal error and the evidence supports the


                                     - 25 -
J-A16014-17


Orphans’ Court's factual findings. In Re Estate of Fuller, 87 A.3d 330, 333

(Pa. Super. 2014) (citation omitted).

     Here, the Orphans’ Court reasoned as follows:

     [I]t is significant to the Court that the testamentary act of
     disinheriting an institutionalized spouse is a recognized estate
     planning tool. In this case, it was reasonable for [Husband] to
     disinherit [Wife] for purposes of estate planning because she was
     a resident of a long term care facility. As such, the Court finds no
     fault in the revision of [Husband]’s Will on December 31, 2009
     disinheriting [Wife]. However, not only did [Husband] disinherit
     [Wife] as his spouse in this Will, he also removed her two natural
     children as heirs.

     It could be safely concluded that the reason [Clarke] was removed
     by [Husband] is because [Husband] simply did not like her based
     largely on his perception that she had [Wife] taken from the home
     [Husband] and [Wife] shared without consultation with [Husband]
     or his approval. Moreover, the record reflects that [Husband] was
     very upset at [Clarke] interfering with his personal affairs.
     However, while [Husband] may greatly resent [Clarke]’s conduct,
     there is insufficient evidence of record to determine the reason
     Brent Young was removed as a residuary heir. As such, the Court
     concludes [Wife]’s natural children were removed by [Husband]
     from his Will at least in part for the purposes of benefiting
     [Husband]’s children in that they were left the entirety of his
     estate.

     Should [Husband] simply have disinherited [Wife], but left the
     residuary beneficiaries the same as those listed in the initial Will,
     the ultimate distribution of [Husband’s] and [Wife]’s assets would
     have been in accordance with the alleged agreement they had
     with each other consistent with the 2007 Wills.          However,
     [Husband] disinherited [Wife] and both of [Wife]’s natural children
     while [Wife] was still living. It must be considered that after
     [Husband] passed, [Husband’s legatees] should have received a
     certain inheritance, comprised of probate and/or non-probate
     assets pursuant to [Husband]’s 2009 Will. It is logical that since
     [Husband’s legatees] have already received an inheritance to the
     exclusion of [Wife]’s natural children, [Wife] could logically
     disinherit [Husband’s legatees] from her will as a response,


                                    - 26 -
J-A16014-17


      thereby leaving the entirety of her estate to her two biological
      children.

Orphans’ Ct. Op. at 13-14. Substitution of judgment and disinheritance of

Husband’s legatees, the Orphans’ Court said, was permissible because a

reasonable person would conclude that Wife would have disinherited

Husband’s legatees.

      We agree with this reasoning.        The evidence supports the Orphans’

Court’s factual finding that Husband disinherited Wife’s children at least in part

due to anger at Clarke for removing Wife from the marital residence. Under

these circumstances, a reasonable person would conclude that Wife would

have reacted to her children’s disinheritance by removing Husband’s legatees

from her own will. Additional support for this conclusion comes from record

evidence that (1) during Husband’s lifetime, his children caused the transfer

of assets jointly owned by Husband and Wife to themselves, and (2) Husband’s

children mistreated Wife while she lived at the marital residence by denying

caregiver visits and isolating her from Husband. We hold that the Orphans’

Court correctly ruled that good cause existed to substitute its judgment and

remove Husband’s legatees as legatees under Wife’s will.

      Order vacated as to Charlene Shelledy and remanded for further

proceedings in accordance with this opinion.        Order affirmed in all other

respects. Jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins this opinion.

      Judge Strassburger files a dissenting opinion.

                                       - 27 -
J-A16014-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2018




                          - 28 -
