J-A07015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JEAN F. RICHARDS,               IN THE SUPERIOR COURT OF
DECEASED                                               PENNSYLVANIA

APPEAL OF: BARBARA A. MOZICK AND
ANTHONY J. MOZICK
                                                     No. 1169 WDA 2014


                      Appeal from the Order June 25, 2014
               In the Court of Common Pleas of Allegheny County
                     Orphans' Court at No(s): 1507 of 2013


BEFORE: BENDER, P.J.E., LAZARUS, J. and MUNDY, J.

DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED September 1, 2015

       I respectfully dissent because I disagree with the Majority that the

orphans’ court erred in finding that Daughter presented prima facie evidence

of undue influence.        The Majority’s decision here centers on the second

prong of the three-pronged test set forth in In re Estate of Clark, 334 A.2d

628 (Pa. 1975),1 concluding that Daughter failed to establish that Decedent

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1
  The applicable burden of proof in a case in which the contestant of a will
asserts the existence of undue influence is as follows:

       “The resolution of a question as to the existence of undue
       influence is inextricably linked to the assignment of the burden
       of proof.” In re Estate of Clark, 334 A.2d 628, 632 (Pa.
       1975). Once the proponent of the will in question establishes
       the proper execution of the will, a presumption of lack of undue
       influence arises; thereafter, the risk of non-persuasion and the
       burden of coming forward with evidence of undue influence shift
       to the contestant. Id. The contestant must then establish, by
       clear and convincing evidence, a prima facie showing of undue
       influence by demonstrating that: (1) the testator suffered from
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was in a confidential relationship with Mrs. Mozick, the proponent of the will.

Mrs. Mozick acknowledges that as the proponent of the will she will receive a

substantial benefit from the will (prong 3), and the Majority concludes that

the “weakened intellect” prong (prong 1) was proven by sufficient evidence,

namely, by way of Dr. Nicotero’s deposition testimony. See Majority, at 10

n.2.2

        With regard to prong 2, the orphans’ court discussed the following

pertinent facts derived from the testimony, and upon which it concluded that

a confidential relationship existed between Decedent and Mrs. Mozick. The
                       _______________________
(Footnote Continued)

        a weakened intellect; (2) the testator was in a confidential
        relationship with the proponent of the will; and (3) the
        proponent receives a substantial benefit from the will in
        question. Id. Once the contestant has established each prong
        of this tripartite test, the burden shifts again to the proponent to
        produce clear and convincing evidence which affirmatively
        demonstrates the absence of undue influence. Id.

In re Estate of Smaling, 80 A.3d 485, 493 (Pa. Super. 2013) (en banc)
footnote omitted) (emphasis added).
2
  Specifically relating to the “weakened intellect” prong, the orphans’ court
explained:

        [T]he medical records reveal, as does the deposition testimony
        of Dr. Nicotero, that [D]ecedent had bouts of confusion and
        forgetfulness, coupled with hallucinations. Indeed, Dr. Nicotero
        testified, and [D]ecedent’s medical records indicate, that
        [D]ecedent suffered from an inferior mind [(prong 1)]. Thus,
        the requirement of weakened intellect has been satisfied, and
        [Daughter] has provided sufficient evidence of all three
        necessary elements to a claim of undue influence.

Orphans’ Court Opinion (OCO), 9/26/14, at 6 (unnumbered).



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court found that Mrs. Mozick was given a power of attorney over the

Decedent’s finances, but it recognized that she never exercised that

authority.   However, the court found “unpersuasive the notion that simply

because [Mrs.] Mozick did not exercise her authority under the power of

attorney, no confidential relationship ensued.” OCO, at 4 (citation to notes

of testimony (N.T.) omitted). The court also found that Mrs. Mozick spent “a

copious amount of time by [D]ecedent’s side in the weeks leading up to her

death.”   Id. (citation to N.T. omitted).   The court further found that Mrs.

Mozick

      was at the hospital so often, and was so involved in [D]ecedent’s
      care, that the doctors recognized her as the person to whom
      they should communicate regarding [D]ecedent’s condition and
      care. [She] effectively oversaw who [D]ecedent visited with and
      spoke to while hospitalized.       Furthermore, [Mrs.] Mozick
      procured the attorney who drafted [D]ecedent’s February 19th
      will.

Id. (citation to N.T. omitted).

     As for the procurement of Attorney Costa, the testimony revealed that

Mr. Weaver told Decedent about Attorney Costa and that he called Attorney

Costa, indicating that Decedent would be calling to set up a meeting.

However, Decedent did not call Attorney Costa; rather, Mrs. Mozick was the

one who called Attorney Costa, asking him to come to the hospital to see

Decedent in connection with her writing a new will, which in fact occurred at




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the visit on February 19, 2013.3                 Based upon the totality of the

circumstances and its recognition that “in a will contest, the assessment of

secrecy of the relationships, not unlike the evaluation of credibility of the

witnesses, must be a factor which is properly within the sole discretion of the

trier of fact[,]” the court found that a confidential relationship existed. See

OCO, at 4 (citing In re Estate of Clark, 334 A.2d at 635).

       My disagreement with the Majority’s position rests on its reversal of

the orphans’ court’s decision due to its own fact finding rather than relying

on the orphans’ court’s determinations regarding credibility. “[O]n review,

we will not reverse [the lower court’s] credibility determinations absent an

abuse of discretion.” In re Estate of Fritts, 906 A.2d 601, 606 (Pa. Super.

2006) (citation omitted).        Moreover, ‘[i]f the court’s findings are properly

supported, we may reverse its decision only if the rules of law on which it

relied are palpably wrong or clearly inapplicable.”        Id. (citation omitted).

The Fritts decision further states:


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3
   Specifically, Attorney Costa testified that Decedent told him that she did
not want to leave anything to Daughter because Daughter had an alcohol
abuse problem, and that Daughter was not in her life and only visited when
she needed money. Attorney Costa also testified that he suggested a
“special needs trust where she could put some of her estate in the trust for
the benefit of her daughter but her daughter would not have any access to
it.” N.T., at 58. Attorney Costa further indicated that Decedent seemed
open to the idea and that she would consider it. However, the next morning
he received a call that Decedent “was in a coma and a little later she had
passed.” Id.



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      In a case of undue influence, a trial court has greater latitude to
      consider medical testimony describing a decedent’s condition at
      a time remote from the date that the contested will was
      executed. Clark, supra at 634. However, “[i]f the court's
      decision rests upon legally competent and sufficient evidence, we
      will not revisit its conclusions.” Owens [v. Mazzei, 847 A.2d
      700,] 707 [(Pa. Super. 2004)] (citing Clark, supra at 635).
      “[O]ur review of the court's factual findings is limited to
      considering whether those findings have support in the record
      ….” In re Estate of Geniviva, 450 Pa. Super. 54, 675 A.2d
      306, 310 (Pa. Super. 1996), appeal denied, 546 Pa. 666, 685
      A.2d 545 (Pa. 1996).

Id. at 607.

      The     Mozicks’   arguments   all   center   on   the   court’s   credibility

determinations and in reversing the orphans’ court’s decision here, it is

evident that the Majority substituted its credibility determination for that of

the orphans’ court. For that reason, I am compelled to dissent.




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