J-A17042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF PEARL ROSE                :   IN THE SUPERIOR COURT OF
    ANNA GROSS CAVANAUGH,                      :         PENNSYLVANIA
    DECEASED                                   :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: LEE CAVANAUGH                   :      No. 1872 WDA 2017


                    Appeal from the Order November 15, 2017
                in the Court of Common Pleas of Cambria County,
                   Orphans' Court at No(s): File No. 11-14-519

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 05, 2018

       Lee Cavanaugh (“Lee”) appeals from the Order declaring invalid the April

25, 2010 Last Will and Testament (“the 2010 Will”) of Pearl Rose Anna Gross

Cavanaugh, Deceased (“Decedent”), and directing that Decedent’s Estate

(“the Estate”) be administered pursuant to Pennsylvania’s intestacy laws. We

affirm in part, reverse in part, and remand with instructions.

       Decedent died testate on July 10, 2013, at the age of 93. Decedent was

survived by three children, Linda Cavanaugh (“Linda”), Lois Cavanaugh

Fischer (“Lois”), and Lee.1 At issue in this case are two wills that Decedent

executed prior to her death.

       The first will, executed on January 31, 2006 (“the 2006 Will”), appointed

all three of Decedent’s children as Executors of the Estate. The 2006 Will

____________________________________________


1Decedent also had a fourth child, Robert Cavanaugh, Jr., who predeceased
her.
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devised Decedent’s property located at 728 Lake Shore Drive, Friedens,

Pennsylvania (“the lake house”), and the residue of the Estate, to her children

in equal shares.2 Additionally, the 2006 Will devised Decedent’s residence at

122 Elknud Lane, Johnstown, Pennsylvania (“the residence”), to Linda, if she

chose to live there; otherwise, the residence would be divided among her

three children in equal shares.

        On March 13, 2010, Lee sent an email to various family members,

including Linda and Lois,3 informing them that Decedent would be moving into

his home in Mechanicsburg, Pennsylvania,4 and noting that he had taken over



____________________________________________


2 As the Orphans’ Court pointed out in its Opinion and Order, Lee had sent a
letter to Decedent on July 7, 2005, prior to her execution of the 2006 Will,
detailing changes he believed should be made to her will, as well as his
personal complaints against Linda and her husband. Relevantly, Lee asked to
be appointed as the sole executor, and stated that it is not acceptable for
Linda to be in charge of managing the lake house. See Opinion and Order,
11/15/17, at 2; see also Contestants’ Exhibit D.

3 The Orphans’ Court stated in its Opinion, and Lee testified during the non-
jury trial, that Lee also sent the email to David J. Schiller, Esquire (“Attorney
Schiller”). See Opinion and Order, 11/15/17, at 2-3; see also N.T., 9/25/17,
at 29-30. Lee had recommended Attorney Schiller to Decedent for the
purpose of preparing her will. Lee additionally sent a letter to Attorney
Schiller, wherein he stated that Decedent wished to establish a trust for each
of the three children; outlined the terms of the proposed trust; and proposed
that Lee manage all three trusts as the trustee, or alternatively, that he serve
as trustee for his sisters’ trusts, and that Lee’s daughter serve as trustee for
his trust.

4   Decedent moved into Lee’s home in early April of 2010.




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the management of most of Decedent’s investment accounts.5 Lee also stated

in the email that Decedent had indicated to him that she was considering

making changes to her will. Specifically, Lee stated that Decedent “is seriously

considering gifting [the lake house] to a Family Trust,” and detailed the

proposed terms of the trust. Linda replied to Lee’s email, indicating that she

had spoken with Decedent, and Decedent “didn’t seem to be aware of this

trust business.”

       Decedent executed the 2010 Will on April 25, 2010.6 The 2010 Will

made significant changes to the 2006 Will.         Relevantly, the 2010 Will

appointed Lee as the sole Executor and Trustee, and named Lee’s daughters,

Elizabeth and Lauren Rose Cavanaugh June (“Lauren”), as the first and second

alternate Executors and Trustees, respectively. Under the 2010 Will, each of

Decedent’s three children would receive an equal share of the residue of the

Estate (not including the lake house), together with any life insurance

proceeds, to be held in a trust, and to be administered as follows:

       A. My Trustees shall pay all of the realized income from the
       separate trusts to my respective children in convenient
       installments, not less frequent than quarterly.



____________________________________________


5 Lee is a certified public accountant, and owns a company named PSI
Investments.

6 Decedent executed a Power of Attorney, and a Durable Health Care Power
of Attorney, in Lee’s favor on the same date. Lee’s daughter, Elizabeth Lynn
Cavanaugh Sweigart (“Elizabeth”), was named the alternate on both
documents.

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      B. My children can individually elect at any time to receive
      additional monies based upon an annual amortization of the
      principal and all realized income based on each child’s individual
      life expectancy with the assumption that death will occur at age
      100, disregarding actual life expectancy. The Trustee shall
      amortize the principal sum each January 1st and make periodic
      payments with adjustments made annually based upon any
      growth or losses in the principal and the remaining life
      expectancy, as described above. Any child can elect to receive
      the amount determined as described in this paragraph; the
      amount described in the prior paragraph or any amount in
      between and shall notify the Trustee of their decision. However,
      to the extent that any child receives less than the maximum
      permitted amount, there shall be no permitted “make up” of
      amounts that could have been taken but were not. …

      C. In addition to the provisions of subparagraph (B) for
      distribution of principal, my Trustees may pay, from time to time,
      as determined in my Trustee’s sole discretion, from the
      principal of the separate trusts such amounts to, or for the benefit
      of, my respective children, as my Trustees in their absolute
      discretion may deem appropriate to provide for the support,
      education, medical care, other need, or a comfort of my respective
      children. There is no requirement that my Trustees treat my
      beneficiaries equally, so distributions under this [s]ubsection
      may be made unequally and without any standard or criteria,
      other than as described above.

      D. In the event any child of mine should die before the entire
      principal of his or her separate trust has been distributed or
      expended, the remaining principal of such trust shall be
      distributed to the child’s issue outright. In the case of the Trust
      held for [Linda], her separate trust shall be distributed to the
      trusts of her siblings. If either sibling is not living, the assets shall
      pass to the children of the deceased sibling.

The 2010 Will, 4/25/10, at 2-3 (emphasis added). Additionally, the 2010 Will

directed that the lake house be contributed to a trust, and appointed Lee as

Trustee. The 2010 Will set forth the following provisions for the administration

of the lake house trust:



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           All descendents [sic] of Lee Gross and Dorris Gross[,] except
     Carol Gross and Jon Gross[,] shall benefit under the Trust (herein
     “beneficiaries”).  All beneficiaries must be at least age 18.
     Stepchildren and adopted children of beneficiaries are only
     included as beneficiaries if elected in writing by at least 40% of
     the then-existing beneficiaries.

           During the thirty (30) day period following establishment of
     the Trust and during each succeeding December, all descendents
     [sic] can elect to actively participate in the Trust as an active
     member for the succeeding year. Any descendent [sic] choosing
     to be active shall pay an equal portion of the expenses of
     maintaining the real estate and improvements including real
     estate taxes, maintenance, utilities, insurance and any and all
     other expenses as well. The Trustees shall establish an escrow
     fund to require the accumulation of funds for major repairs and
     capital improvements to the property. All active members shall
     be entitled to an equal vote on any capital improvements (but not
     routine maintenance) desired on the property. The Trustee shall
     calculate all contributions made by active members over the
     years.

           Upon any sale of the property, sale proceeds shall first
     reimburse any descendents [sic] who were active at any time if
     they are then-living and such reimbursement shall be an amount
     equal to their prior contributions, with interest calculated from
     each contribution at the rate of five percent (5%) per annum. All
     contributions beginning January 1, 2010[,] shall count for all
     purposes hereunder. If sale proceeds are not adequate to
     reimburse all prior contributions, they shall be reimbursed on a
     pro[]rata basis so that all people reimbursed receive the same
     percentage of the monies they contributed.

           All descendents [sic] shall be entitled to have use of the
     property based upon a schedule created by the Trustee. All
     use is conditioned upon maintaining and leaving the property in
     excellent condition. The Trustee may preclude use of the
     property by any beneficiary who is not meeting the
     aforementioned requirements.

          If the active members do not adequately support the
     property, the Trustee shall immediately sell the property. If any
     one beneficiary is willing to pay the costs of maintaining the
     property, the property shall not be sold. After reimbursing all prior

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        contributions … any sale proceeds shall be divided equally among
        the beneficiaries who are at least age 18 and meet the “use
        requirement.” The use requirement is that the beneficiary must
        have spent a minimum of four nights at [the lake house] with
        utilization of the property on at least part of the previous and
        succeeding day for enjoyment or work on the property in every
        two successive calendar years. Furthermore, if the Trustee does
        not meet the use requirement, the beneficiaries may elect to
        change Trustees. The Trustee shall keep a log of use by the
        beneficiaries and such log records shall be determinative.

Id. at 3-5 (emphasis added). Notably, in the section titled “Administrative

Powers,” the 2010 Will also allows the Executor and Trustee to “retain as an

investment any asset” of the Estate and to make investments, and specifically

authorizes the Executor and Trustee “to use and pay for the services of PSI

Investments[, i.e., Lee’s company,] for these purposes.” Id. at 7.

        The following day, Lee sent an email to inform the family that Decedent

had signed the 2010 Will, and asked them to “weigh in” if they had any issues.

Linda replied to the email, including comments on the 2010 Will, and

expressing concerns that the 2010 Will was “one-sided and unfair.” Following

additional email exchanges, Lois also expressed her concerns with the 2010

Will.

        On May 28, 2014, nearly a year after Decedent’s death, Linda and Lois

(collectively, “Contestants”) filed a Caveat with the Register of Wills, asking

the Register of Wills to refuse to probate the 2010 Will.          Specifically,

Contestants alleged that (1) Decedent “was not of sound mind, memory or

understanding” prior to and on the date of execution of the 2010 Will, and (2)

execution of the 2010 Will was the result of undue influence by Lee. On the



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same date, Contestants filed a Petition for Citation to Show Cause in the

Orphans’ Court, asserting that Lee was in possession of the 2010 Will, but had

not deposited the 2010 Will with the Register of Wills or requested letters

testamentary for the Estate. Contestants therefore asked the Orphans’ Court

to issue a citation directing Lee to show cause why the 2010 Will should not

be deposited. The Orphans’ Court subsequently issued a Decree, directing

Lee to show cause why the 2010 Will should not be deposited with the Register

of Wills, and scheduling a hearing on the matter.

      On October 24, 2014, the parties entered into a Stipulated Order, which

provided, inter alia, that (1) Lee, Elizabeth and Lauren were to renounce their

respective rights to serve as Executor and Trustee under the 2010 Will in favor

of Gerald P. Neugebauer, Jr., Esquire (“Attorney Neugebauer”); (2) Attorney

Neugebauer was to file a Petition for Letters of Administration for the Estate

with the Cambria County Register of Wills; and (3) a $500 deduction from

Lee’s distribution from the Estate was to be made payable to Linda for

attorneys’ fees. Attorney Neugebauer subsequently filed a Petition for Letters

of Administration C.T.A. for the Estate. On May 12, 2015, the 2010 Will was

admitted to probate, and the Register of Wills issued Letters of Administration

C.T.A. for the Estate to Attorney Neugebauer.

      On May 15, 2015, Contestants filed an Appeal to the Orphans’ Court,

alleging that Decedent lacked testamentary capacity to execute the 2010 Will,

and that Decedent had executed the 2010 Will as a result of undue influence

by Lee. Contestants also raised concerns that Lee had taken actions on behalf

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of the Estate without being granted letters testamentary, and had expended

Estate assets. Lee filed a Response to the Appeal on June 5, 2015.

      Following a pre-trial conference, the Orphans’ Court entered a Case

Management Order on November 3, 2015, directing Lee to transfer any Estate

assets in his possession to Attorney Neugebauer. The Orphans’ Court also

ordered Lee to provide to Attorney Neugebauer any documents related to the

value of the Estate assets, an accounting of all bills and invoices he had paid

for the benefit of the Estate, and an accounting of all bills and invoices he had

paid related to the lake house.

      Both parties engaged in discovery.      The Orphans’ Court scheduled a

non-jury trial for June 12-13, 2017, at which Lee and his counsel failed to

appear. The Orphans’ Court thereafter rescheduled the non-jury trial, and

directed Lee’s counsel to reimburse Contestants and their counsel for travel

expenses.

      Following the non-jury trial on September 25, 2017, the Orphans’ Court

ordered each party to file a “detailed memorandum,” including proposed

findings of fact, argument, and a proposed order. Both parties complied. The

Orphans’ Court issued an Opinion and Order on November 15, 2017,

concluding that Decedent was subject to the undue influence of Lee, and

declaring the 2010 Will invalid.   The Orphans’ Court also ordered that the

Estate be administered pursuant to the intestacy laws of Pennsylvania.




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       Lee filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.7

       On appeal, Lee raises the following issues for our review:

       1. Was the evidence insufficient to sustain a requisite finding of
       diminished capacity or undue influence[,] and contrary to
       sufficiency standards set forth in In re Ziel’s Estate, 467 Pa. 531,
       540, 359 A.2d 728, 733 (Pa. 1976) (“contradicted testimony of
       occasional confusion or lapses of memory… is insufficient to
       demonstrate clearly and convincingly” either weakened intellect
       or testamentary incapacity.[])[?]

       2. Was the [Orphans’] Court’s decision inconsistent with the
       allocation of burdens of proof set forth in In re Estate of
       Hastings, 479 Pa. 122, 127, 387 A.2d 856, 867 (1978); [In re
       Estate of Cohen], 445 Pa. 549, 551 n.1, 284 A.2d 754, 755 n.1
       (1971), cited with approval [in] In re Estate of Kuzma, 487 Pa.
       91, 408 A.2d 1369 (1979)?

Brief for Appellant at 2.

       We observe the following standard of review:

       In a will contest, the hearing judge determines the credibility of
       the witnesses. The record is to be reviewed in the light most
       favorable to appellee, and review is to be limited to determining
       whether the trial court’s findings of fact were based upon legally
       competent and sufficient evidence and whether there is an error
       of law or abuse of discretion. Only where it appears from a review
       of the record that there is no evidence to support the court’s

____________________________________________


7 Because the Orphans’ Court referred to the hearing in this matter as a non-
jury trial, this Court issued a Rule to Show Cause on January 16, 2018, stating
that Lee had failed to file post-trial motions within 10 days of the entry of the
decision pursuant to Pa.R.A.P. 302(a), and questioning whether any issues
had been preserved for appellate review. Lee filed a Response, stating that,
pursuant to Pa.O.C. Rule 8.1, no post-trial motions may be filed. This Court
subsequently entered an Order discharging the Rule to Show Cause.



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       findings or that there is a capricious disbelief of evidence may the
       court’s findings be set aside.

In re Estate of Schumacher, 133 A.3d 45, 49-50 (Pa. Super. 2016) (citation

omitted).

       We will address Lee’s claims together.8 Lee argues that the evidence

did not support the Orphans’ Court’s determination that Decedent was subject

to undue influence by Lee at the time she executed the 2010 Will, and that

the Orphans’ Court did not correctly apply the burdens of proof to the

respective parties.      See Brief for Appellant at 5-28.9   Lee first points to

Attorney Schiller’s deposition testimony10 that he believed Decedent to be of

sound mind at the time she executed the 2010 Will. Id. at 9. Lee also points

to the testimony of his wife and son, who witnessed Decedent’s signature,

that Decedent was of sound mind, and was able to speak her mind at the time

the 2010 will was signed. Id. at 10. Additionally, Lee directs us to his own

testimony that Decedent was “adamantly independent” before she moved into

____________________________________________


8 We observe that Lee failed to divide his argument “into as many parts as
there are questions to be argued,” as required by Pa.R.A.P. 2119(a).

9 We also note that Lee does not clearly and specifically address each of the
requirements of a prima facie showing of undue influence, and instead
summarizes the testimony of each witness presented at the non-jury trial.
Further, although Lee cites to relevant case law to define a challenge based
on undue influence and the required findings, he fails to apply such case law
to his own argument, or to explain why those cases support a finding that his
actions in this matter did not constitute undue influence. See generally
Pa.R.A.P. 2119(a).

10The parties stipulated to the admission of Attorney Schiller’s March 1, 2016
deposition testimony at trial, and the transcript and video recording were
admitted into evidence. See N.T., 9/25/17, at 87; see also Joint Exhibit 5.

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his home, and that she was able to take care of herself and manage her own

expenses. Id. at 12; see also id. at 13-14, 15, 16 (wherein Lee argues that

even after Decedent moved into his home, she remained self-sufficient and

could express her own opinions); id. at 17 (wherein Lee states that

“[Decedent’s] capacity did not decline until 2013[,] when it declined

precipitously before her death.”). Lee refers to his testimony that he believed

that Decedent was competent to execute the 2010 Will. Id. at 13. Lee also

states that Elizabeth’s testimony confirms that Decedent’s mental state did

not deteriorate until 2013. Id. at 25. Further, Lee asserts that Contestants

were not present when the 2010 Will was executed, and that neither of them

presented evidence that Decedent exhibited confusion, forgetfulness or

disorientation at any time prior to the execution of the 2010 Will. Id. at 7;

see also id. at 18, 20, 25.

      According to Lee, the evidence presented at trial confirmed that

Decedent wanted to keep the lake house for use by future generations. Id.

at 26.   Lee argues that Contestants never sought to confirm Decedent’s

reduced capacity while she was alive, and states that they provided merely

anecdotal evidence of her short-term memory problems. Id. Lee also points

out that there was no medical evidence presented at trial concerning

Decedent’s mental capacity. Id. In sum, Lee contends that Contestants did

not satisfy their burden of proof. Id. at 28.

      “Any person 18 or more years of age who is of sound mind may make a

will.” 20 Pa.C.S.A. § 2501. “In making a will an individual may leave his or

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her property to any person or charity, or for any lawful purpose he or she

wishes, unless he or she lacked mental capacity, or the will was obtained by

forgery or fraud or undue influence, or was the product of a so-called insane

delusion.”   In re Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014)

(citation and quotation marks omitted).

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

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

citations, quotation marks, and footnote omitted); see also id. at 497 (stating

that “[i]n order to constitute undue influence sufficient to void a will, there

must be imprisonment of the body or mind[, or] fraud, or threats, or

misrepresentations, or circumvention, or inordinate flattery or physical or

moral coercion, to such a degree as to prejudice the mind of the testator, to

destroy his free agency and to operate as a present restraint upon him in the

making of a will.” (citation and ellipses omitted)).




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      With respect to “weakened intellect,” this Court has observed the

following:

      The weakened intellect necessary to establish undue influence
      need not amount to testamentary incapacity. Although our cases
      have not established a bright-line test by which weakened intellect
      can be identified to a legal certainty, they have recognized that it
      is typically accompanied by persistent confusion, forgetfulness
      and disorientation.      Moreover, because undue influence is
      generally accomplished by a gradual, progressive inculcation of a
      receptive mind, the fruits of the undue influence may not appear
      until long after the weakened intellect has been played upon.
      Accordingly, the particular mental condition of the testator on the
      date he executed the will is not as significant when reflecting upon
      undue influence as it is when reflecting upon testamentary
      capacity. More credence may be given to remote mental history.

Id. at 498 (internal citations and quotation marks omitted).

      During   the   non-jury   trial,   Linda   testified    that,   beginning   in

approximately 2009, when Decedent was still living at the residence, Decedent

no longer cleaned up after her dog consistently, and on one occasion left the

dog outside overnight.   See N.T., 9/25/17, at 111.          Linda testified that in

approximately 2010, but before Decedent had moved in with Lee, she noticed

that Decedent “seemed to be getting forgetful.” Id. at 112. Linda also stated

that Decedent started to repeat herself during that time. See id. at 113.

      Lois testified that, during a visit by Decedent in approximately October

of 2010, she noticed that Decedent “was starting to lose it.” N.T., 9/25/17,

at 94. Lois explained that Decedent displayed short-term memory loss and

confusion. See id. at 94-95. Lois also referred to an email from Lee dated

May 22, 2010 (approximately one month following the execution of the 2010



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Will), and her response thereto. See id. at 99; see also Contestants’ Exhibit

R (March 22, 2010 email). In her response to Lee’s email, Lois stated that

“[Decedent] is not herself and getting worse every time I talk to her. She

tells me something and a minute later tells me the same thing again.”

Contestants’ Exhibit R (May 22, 2010 email).

      Lee testified that he began making investments on behalf of Decedent

in approximately 2006. See N.T., 9/25/17, at 16. Lee also confirmed that

the letter he sent to Decedent on July 7, 2005 accurately reflects how he felt

about Decedent’s will, and provisions that should be included, both at the time

he drafted the letter and at the time of trial. Id. at 18-20. According to Lee,

Decedent’s residence was “unfit for human habitation” by approximately 2008

or 2009. Id. at 35; see also id. at 25-26 (wherein Lee explained that the

residence was “very smelly;” “the dust bunnies were like dust lions they were

so big;” and the residence was generally unclean). Lee testified that Decedent

had not showed signs of forgetfulness, and that he did not observe any

inability by Decedent to remember things at the time she executed the 2010

Will. See id. at 39-40, 57. Lee also testified that Decedent’s mental state

did not deteriorate until 2013. See id. at 42, 44, 83.

      Additionally, the Orphans’ Court set forth the following Findings of Fact

regarding Lee’s testimony about Decedent’s mental state:




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       13. In a prior deposition,[11] [Lee] testified that he took financial
       matters over for [Decedent] as soon as she moved in with him in
       2010[;] he also indicated that she was not capable of doing so on
       her own.

       14. When asked about Decedent’s mental state at trial, [Lee]
       indicated she was sharp as ever when she moved in with him[,]
       and when challenged about the inconsistency with the prior
       deposition referenced above, he qualified his response to say that
       he had meant she was not capable of managing her finances in
       2013[,] not in 2010.

       15. Despite [Lee’s] qualification[,] we found his testimony to be
       not credible in regards to [Decedent’s] mental state when she
       moved in with him.

Opinion and Order, 11/15/17, at 3-4 (footnote added; citations to record

omitted); see also Joint Exhibit 1.

       Here, the Orphans’ Court determined that Contestants had presented

sufficient evidence to establish that Decedent had a weakened intellect at the

time she executed the 2010 Will. See Opinion and Order, 11/15/17, at 6;

see also id. at 5 (wherein the Orphans’ Court specifically credited Lois’s

response to Lee’s May 22, 2010 email, as it was sent prior to the

commencement of litigation). Upon review, we conclude that the Orphans’

Court’s findings are supported by competent evidence. See In re Estate of

Smaling, 80 A.3d at 498; see also Owens v. Mazzei, 847 A.2d 700, 707


____________________________________________


11 Upon agreement by the parties, the transcript of Lee’s March 22, 2013
deposition testimony was admitted into evidence at trial. See N.T., 9/25/17,
at 87; see also Joint Exhibit 1 (Lee’s March 22, 2013 deposition) (wherein
Lee testified that “[Decedent] is never the same in any given two moments,
let alone two days. She might come out … and say where am I and why am
I here? … And then the next time she comes out, she might be totally
coherent. … But she gets a little more that way with every passing month.”).

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(Pa. Super. 2004) (stating that “[i]f the court’s decision rests upon legally

competent and sufficient evidence, we will not revisit its conclusions.”).

Further, to the extent that Lee asks us to reassess the credibility of the

testimony presented during the non-jury trial, we decline to do so. Owens,

847 A.2d at 707 (stating that “[u]nder no circumstance will we substitute our

judgment of credibility for that of the Orphans’ Court.”).

      With regard to a confidential relationship, our Court has stated the

following:

      [A] confidential relationship exists when the circumstances make
      it certain that the parties did not deal on equal terms, but on the
      one side is an overmastering influence, or, on the other,
      weakness, dependence or trust, justifiably reposed. A confidential
      relationship is created between two persons when it is established
      that one occupies a superior position over the other—
      intellectually, physically, governmentally, or morally—with the
      opportunity to use that superiority to the other’s disadvantage.
      Such a relationship is not confined to a particular association of
      parties, but exists whenever one occupies toward another such a
      position of advisor as reasonably to inspire confidence that he will
      act in good faith for the other’s interest.

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

and brackets omitted). Additionally,

      [w]here a testator, although possessed of testamentary
      capacity[,] is aged, infirm bodily, with mental faculties impaired,
      as against a confidential adviser who is a beneficiary under the
      will, there is a presumption of fact that undue influence was
      brought to bear on the mind of the testator, and the burden is on
      the beneficiary to rebut the presumption.

In re Estate of Stout, 746 A.2d 645, 648 (Pa. Super. 2000) (citation and

brackets omitted; emphasis in original).       “The clearest indication of a



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confidential relationship is that an individual has given power of attorney over

her savings and finances to another party.” In re Estate of Fritts, 906 A.2d

601, 608 (Pa. Super. 2006). However, the existence of a power of attorney

in the proponent’s favor does not, without more, establish the existence of a

confidential relationship. See In re Estate of Luongo, 823 A.2d 942, 964

(Pa. Super. 2003).      Similarly, a parent-child relationship between the

decedent and the proponent is not sufficient per se to establish the existence

of a confidential relationship. See id.; see also Estate of Gilbert, 492 A.2d

401, 404 (Pa. Super. 1985) (stating that “[a]lthough a parent-child

relationship does not conclusively suggest a confidential relationship, it is a

fact to be considered.”).

        During the non-jury trial, Lois stated that before Decedent moved in

with Lee and his family, she spoke to her mother on the phone about once a

week.     See N.T., 9/25/17, at 90.     Lois also testified that after Decedent

moved, her ability to communicate with Decedent decreased, and they spoke

“[p]robably only once every couple weeks.”        Id. at 97; id. (wherein Lois

explained that sometimes when she called Lee’s house no one answered, and

that Decedent no longer initiated phone calls).     Lois testified that she and

Decedent did not have any discussions regarding Decedent’s desire to change

her will in the month prior to moving to Lee’s home. See id. at 96. Further,

Lois stated in her response to Lee’s May 22, 2010 email that Decedent had

told Lois that she did not read the will. Contestants’ Exhibit R (May 22, 2010

email); see also N.T., 9/25/17, at 99-100 (wherein Lois explained that

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Decedent had indicated during a telephone conversation with Lois that she did

not read the 2010 Will, and that Decedent had always told Lois that

“everything was left equally”).

       Linda testified that she saw or spoke to Decedent almost every day

before Decedent moved to Lee’s house, and that after the move, she and

Decedent spoke on the phone about once a week. See N.T., 9/25/17, at 108,

112.   Additionally, Linda spoke with Decedent shortly after receiving Lee’s

March 13, 2010 email, and according to Linda, Decedent did not seem to be

aware of any discussion with Lee regarding the trust. See id. at 117; see

also id. (wherein Linda testified that Decedent told her that she “wanted to

dump the cottage”); see also Contestants’ Exhibit F (March 13, 2010 email)

(wherein Linda, responding to Lee’s email, stated that she had spoken to

Decedent; Decedent stated that she wanted to “dump” the lake house; and

Decedent “didn’t seem to be aware of this trust business.”).         Linda also

testified that Lee did not contact her prior to Decedent’s execution of the 2010

Will, and that Lee never sent her a final, signed copy of the 2010 Will. See

N.T., 9/25/17, at 119.

       Lee testified that he and Decedent had discussed Decedent’s will “from

time to time” before she moved into his house. Id. at 20-21, 27. Lee testified

that he had “constantly” had discussions with Decedent during which he asked

her to move in with him and his family, and that he usually initiated those

conversations. Id. at 24-25. Lee also stated that he began paying Decedent’s

bills directly from her account after she moved in with him. See id. at 39.

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According to Lee, he read the 2010 Will to Decedent, and reviewed it with her

“word for word” prior to the day of signing, because her ability to read the

document herself was impeded by cataracts. See id. at 57-58; see also id.

at 63.   Lee testified that Attorney Schiller reviewed the 2010 Will with

Decedent before she signed it. See id. at 58. However, Lee also stated that

he “specifically did not want to be” present when Attorney Schiller and

Decedent reviewed the 2010 Will, so he left the room at that time. See id.

     The Orphans’ Court set forth the following Findings of Fact:

     9. The changes to be made to the will outlined in this [March 13,
     2010] email by [Lee] and his testimony that they were the wishes
     of the Decedent are not credible when viewed in light of his letter
     of July 7, 2005, the [2006] Will …, the letter he sent to Attorney
     Schiller and his status as a financial planner.

     10. The [c]ourt finds from the testimony and evidence submitted
     that [Lee] wanted the Decedent’s will to be changed and that he
     took affirmative steps to do so beginning in March of 2010 when
     he contacted Attorney Schiller.

     11. Attorney Schiller indicated that it was Lee who initiated the
     call to him regarding changes to the Decedent’s will in 2010.

     12. Attorney Schiller stated that he never had any conversations
     or meetings with the Decedent, that he could recall, at his office
     or on the phone PRIOR to the execution of the [2010 W]ill on
     April 25, 2010.

     …

     16. Based on the depositions of [Attorney] Schiller and [Lee] we
     find that the Decedent never met or spoke to Attorney Schiller in
     private or without the direction of [Lee] prior to her execution of
     the [2010 W]ill on April 25, 2010.

     17. Based on the email correspondence sent out by [Lee]
     indicating drafting changes suggested by [Contestants] and

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      responded to by [Lee] AFTER the [2010 W]ill had already been
      executed by the Decedent on April 25, 2010, we do not credit
      [Lee’s] testimony regarding the events surrounding the drafting
      and execution of the [2010 W]ill.

      18. On the whole, [Lee’s] testimony was self-serving and
      inconsistent; at times when it seemed to bolster his case he
      remembered things clearly and unequivocally[,] and at times
      when it seemed to weaken his case he could not recall details
      surrounding the drafts and review of the April 25, 2010 [W]ill with
      [Decedent].

Opinion and Order, 11/15/17, at 3, 4-5 (emphasis in original; citations to

record omitted).

      A review of the record confirms that Decedent moved into Lee’s home,

at his suggestion, less than a month before the 2010 Will was executed. On

the date Decedent executed the 2010 Will, she was 90 years old, had

decreased contact with her other children, and—as discussed above—had a

weakened intellect. See, e.g., Opinion and Order, 11/15/17, at 5 (wherein

the Orphans’ Court specifically credited Lois’s response to Lee’s May 22, 2010

email, and Linda response to Lee’s March 13, 2010 email, as both were sent

prior to the commencement of litigation in this matter). Additionally, Lee, a

beneficiary under the 2010 Will, was Decedent’s primary caregiver and

managed her finances at that time. See Fritts, 906 A.2d at 608; see also

Stout, supra; Burns v. Kabboul, 595 A.2d 1153, 1163-64 (Pa. Super. 1991)

(concluding that there was sufficient evidence to establish a confidential

relationship where the proponent of the will was the decedent’s primary

caretaker, was entrusted with a power of attorney to carry out banking

transactions on the decedent’s behalf, and was the scrivener of the will that


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left her the bulk of the estate). Lee also chose Attorney Schiller to draft the

2010 Will, and he alone communicated with Attorney Schiller regarding the

proposed changes. See generally Burns, 595 A.2d at 1163 (stating that

“[i]t will weigh heavily against the proponent on the issue of undue influence

when the proponent was either the scrivener of the will or was present at the

dictation of the will.”). Thus, upon review, we agree with the Orphans’ Court’s

determination that Contestants presented sufficient evidence to establish that

a confidential relationship existed between Lee and Decedent. See Opinion

and Order, 11/15/17, at 6.

      With regard to the third prong of the undue influence test, “‘[s]ubstantial

benefit’ has not been precisely defined in our case law.”      In re Estate of

Smaling, 80 A.3d at 497. Instead, the Orphans’ Court must consider the

circumstances of each particular case. Id.

      Here, the 2010 Will generally divides any life insurance proceeds and

the residue of the Estate, notwithstanding the lake house, equally among

Decedent’s three children. However, Lee’s status as the sole Executor and

Trustee under the 2010 Will “gives [him] control and mastery over Decedent’s

Estate to the exclusion of the [Contestants]. This fact is acknowledged by

[Lee] in his email of May 4, 2010.” Opinion and Order, 11/15/17, at 5; see

also Contestants’ Exhibit Q (May 4, 2010 email) (wherein Lee stated that “the

fact that I have control could certainly be seen as ‘one-sided.’”); id. (wherein

Lee stated that “[Linda’s] comment is absolutely correct that the control is

‘one-sided.’”). Specifically, as the Trustee, Lee has the sole discretion to make

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additional payments from each beneficiary’s trust for “support, education,

medical care, other need, or a comfort,” with no requirement that the three

children are treated equally, and without any standards or criteria for making

those determinations. The 2010 Will, 4/25/10, at 4. With respect to the lake

house, the 2010 Will, on its face, gives each of the children and other adult

descendants an equal opportunity to become active participants in the trust.

However, as the sole Trustee, Lee creates the schedule for use of the property,

and maintains the record of use, which “shall be determinative.” Id. at 4, 5.

Additionally, use of the lake house is “conditioned upon maintaining and

leaving the property in excellent condition[,]” and Lee may preclude use of

the lake house by any beneficiary who does not meet those undefined

requirements. Id. at 4. Thus, considering the circumstances of this case, Lee

received a substantial benefit under the 2010 Will.

      Based upon the foregoing, the Orphans’ Court concluded that

Contestants had satisfied their initial burden of producing evidence to support

a prima facie showing of undue influence. Id. at 6. The Orphans’ Court also

concluded that Lee had failed to meet his burden of producing clear and

convincing evidence that the 2010 Will “was not the product of his undue

influence.”   Id.   We agree with the Orphans’ Court’s determinations, and

discern no error in the Orphans’ Court’s allocations of the burdens of proof.

We further observe that although Lee argues that Contestants failed to meet

their burden of proof, he failed to establish that he satisfied his burden by




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producing clear and convincing evidence to affirmatively demonstrate the

absence of undue influence. See In re Estate of Smaling, 80 A.3d at 498.

      As a final matter, we must address the portion of the Orphans’ Court’s

Opinion and Order directing that the Estate be administered pursuant to the

intestacy laws of Pennsylvania.      “If it is possible to do so, a will must be

construed to avoid an intestacy.” Burns, 595 A.2d at 1167.

      In compliance with this policy favoring testamentary distribution
      of a decedent’s assets, where a later will contains a clause of
      revocation of an earlier will, the clause of revocation fails if the
      testator is induced to make the later will by the exertion of undue
      influence. The very incapacity which destroyed the necessary
      intent to make the will also destroyed the intent to revoke the old
      one.    Thus, the earlier will is reinstated when the unduly
      influenced will is declared invalid.

Id.; see also In re Estate of Luongo, 823 A.2d at 957 (stating that “once

a will is proved to be intrinsically invalid, it no longer has the effect of revoking

prior wills because the entire instrument is inoperative, including the

revocation provision.”); id. at 958 (indicating that a challenge to a will based

on undue influence raises an intrinsic defect in the instrument).         Based on

these principles, we observe that the invalidation of the 2010 Will also

invalidated the revocation provision contained therein.             Thus, because

Decedent had executed a prior will, an intestacy does not automatically result

from the invalidation of the 2010 Will. However, it is unclear from the record

before us whether the Orphans’ Court considered the existence of the 2006

Will before entering its Order in this matter. We therefore reverse the portion

of the Orphans’ Court Order directing that the Estate be administered pursuant


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to intestacy laws, and remand to the Orphans’ Court to issue an order

addressing the 2006 Will, and if appropriate, directing that the 2006 Will be

deposited with the Register of Wills.

      Order affirmed in part and reversed in part.     Case remanded with

instructions. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2018




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