J-A09004-17


                                2017 PA Super 246

RE: ESTATE OF CHARLES F. MADDI,                       IN THE SUPERIOR COURT OF
DECEASED                                                    PENNSYLVANIA




APPEAL OF: MARY SUE GORESCHAK AND
CHARLETTE MADDI

                                                          No. 1121 MDA 2016


                    Appeal from the Decree June 14, 2016
            In the Court of Common Pleas of Lackawanna County
                    Orphans' Court at No(s): 2015-01429


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

OPINION BY OTT, J.:                                         FILED JULY 25, 2017

      Mary Sue Goreschak and Charlette Maddi (“Appellants”) appeal the

decree entered June 14, 2016, in the Court of Common Pleas of Lackawanna

County, that denied Appellants’ petition for appeal from the Register of Wills’

decision to admit to probate a duplicate original of the Last Will and

Testament of Charles F. Maddi (Decedent), their father.            Appellants claim

the orphans’ court erred (1) in failing to hold Decedent’s sister, Lillian

Saracino   (“Sister”),   to   the   correct   legal   standard   for   rebutting   the

presumption of revocation of a lost will, and (2) in allowing inadmissible

hearsay testimony and relying upon circumstantial evidence to conclude

Sister defeated the presumption.        See Appellants’ Brief at 3. Based upon

the following, we affirm.
J-A09004-17



     The   orphans’   court   judge,    the   Honorable   Thomas   J.   Munley,

summarized the procedural background and facts of this case, as follows:

     Before this Court is the Petition of Mary Sue Goreschak and
     Charlette Maddi (“Petitioners”) seeking a reversal of the Register
     of Wills’ decision to admit a copy of the Last Will and Testament
     of Charles F. Maddi to probate. The Petitioners are the adult
     daughters of the Decedent and they request that the Letters
     Testamentary issued to Respondent Lillian Saracino be reversed,
     and that this Estate consequently be administered through the
     Commonwealth’s laws of intestacy. …

     The testimony at the [April 13, 2016] hearing revealed the
     following facts. In the spring of 2013, Charles Maddi contacted
     Sandra Boyle, an attorney practicing in Northeastern
     Pennsylvania, and advised her that he wanted to hire her to
     prepare a new will, an advanced health care directive, and a
     power of attorney; Atty. Boyle’s recollection was that Mr. Maddi
     had a prior, existing will and wished to change it. When Mr.
     Maddi met with Atty. Boyle, he brought his sister, Lillian
     Saracino, with him. He explained to Atty. Boyle that he wanted
     his sister to be named Executrix in the Will he wanted her to
     draft, that he had a list of named charities that he would like to
     leave certain amounts of money to, that he had other specific
     bequests for relatives, and finally, that he intended to leave any
     residuary estate to his sister. Mr. Maddi mentioned to Atty. Boyle
     that he had two adult daughters, and that he was not going to
     include them in any bequest in his will because he felt his
     daughters were well taken care of by him during his lifetime.

     Weeks after the initial meeting with counsel, [on May 6, 2013,]
     Mr. Maddi returned to Atty. Boyle’s office to review and sign the
     documents that she had prepared for him. Atty. Boyle testified
     that she, along with her secretary, who was also a notary,
     witnessed his signature, as did an adult individual named Curtis
     Stevens. As far as duplicate copies of the will, Atty. Boyle
     explained her usual process to be that she would produce
     several duplicates at her office, all of which are computer
     generated duplicates of the original, all to be individually and
     authentically signed. She emphasized that they are not
     photocopies of an original will, but duplicates, identical to the
     first computer-generated will, and they were all signed


                                       -2-
J-A09004-17


     individually by Mr. Maddi. Generally, this attorney’s clients, Mr.
     Maddi included, were asked to sign or initial the margin of every
     page of each duplicate will until he or she got to the last page,
     which would then be signed and dated by the client, and that
     signature would be witnessed and notarized.

     At the end of her meeting with Mr. Maddi, where he signed the
     duplicate wills and other documents Atty. Boyle had prepared for
     him, she gave him the “original” with one duplicate copy, and
     she kept a duplicate copy; again, each was originally signed,
     witnessed, and notarized, as were the financial power of
     attorney documents. After this appointment, Mr. Maddi left with
     two of the three “originals”, leaving one for safekeeping with
     Atty. Boyle, and never again contacted Atty. Boyle with respect
     to changing or revoking his will.

     Charles Maddi departed this earth on October 31, 2015, and at
     death, he was unmarried and was survived by two adult
     children, Mary Sue Goreschak and Charlette Maddi. He was also
     survived by his sister Lillian Saracino. On December 9, 2015, Ms.
     Saracino filed a Petition seeking to admit to probate a duplicate
     copy of her brother’s will, and this duplicate copy contained
     original signatures of Mr. Maddi and other witnesses. No
     “original” will was found among the Decedent’s possessions in
     his home, nor was any will found in the safe deposit box the
     [Decedent] maintained at his bank. According to Lillian Saracino,
     neither she nor anyone else was able to find the will among his
     possessions, most likely because Charles Maddi had an unusual
     way of filing and storing papers, bills, and other documents
     which was essentially known only to him. Also, within hours after
     the passing of Charles Maddi, she as well as other relatives of
     the Decedent began removing many items of personal property
     from his home in an attempt to begin cleaning out the home;
     Mary Sue Goreschak described what was initially being cleared
     from the home as “bags of paperwork, folders”. The will
     eventually presented by Respondent Saracino to the Register of
     Wills was the signed duplicate from Atty. Boyle’s files. After a
     hearing, the Register admitted it to probate.

     Other significant facts revealed at the hearing include Lillian
     Saracino’s statements that she had an extremely close
     relationship with her brother, spoke with him every evening, and
     that he never expressed to her any desire to revoke or destroy
     the will prepared for him by Atty. Boyle. She also stated that it

                                   -3-
J-A09004-17


       was Charles Maddi’s acknowledged intention, memorialized in his
       will, to not make any bequest for his daughters because he
       believed that he had fully provided for his children while he was
       alive, in fact transferring several income-generating properties to
       his daughter Mary Sue Goreschak just prior to making the will in
       question. Ms. Goreschak testified that she lived near to her
       father and was a regular visitor at his home. She herself, along
       with her son, had keys to Mr. Maddi’s residence, as did her one
       of her uncles and the Decedent’s sister. She also stated her
       belief that prior to his death, her father could have been looking
       for another lawyer to make a new will for him, although to her
       knowledge her father never spoke with another attorney and
       never had another will created. While she had given her father
       the business card of an attorney she herself was familiar with,
       said attorney testified at the Court hearing and definitively
       stated that Charles Maddi had never contacted him for any
       reason.

Orphans’ Court Opinion, 6/14/2016, at 1–4.              Based on the evidence

presented at the hearing, the orphans’ court concluded:

       Having    heard     the   testimony,      considered     the   factual
       circumstances and legal considerations of this matter, and
       evaluated the witnesses’ credibility, it is this Court’s decision that
       the Register of Wills was correct in admitting the duplicate
       original will of Charles Maddi to probate.

Id. at 9. This appeal followed.1

       Our scope and standard of review on appeal from a decree of the

Orphans’ Court adjudicating an appeal from probate is as follows:

       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
____________________________________________


1
  The orphans’ court did not order Appellants to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).



                                           -4-
J-A09004-17


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

Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014) (citation omitted).

See also Burns v. Kabboul, 595 A.2d 1153, 1161 (Pa. Super. 1991).

      Appellants first argue that the orphans’ court failed to hold Sister to

the correct legal standard in rebutting the presumption that Decedent

destroyed and revoked his will prior to this death.

      The legal principles regarding a lost will are well settled:

      Our Supreme Court has repeatedly held that “where a [testator]
      retains the custody and possession of [his] will and, after [his]
      death, the will cannot be found, a presumption arises, in the
      absence of proof to the contrary, that the will was revoked or
      destroyed by the [testator].” In re Estate of Murray, 404 Pa.
      120, 129, 171 A.2d 171, 176 (1961). See also In re Estate of
      McCaffrey, 453 Pa. 416, 418 n.3, 309 A.2d 539, 540 n.3 (1973)
      (same). “To overcome that presumption, the evidence must be
      positive, clear and satisfactory.” In re Estate of Murray, 404
      Pa. at 129, 171 A.2d at 176. Moreover, to prevail over the
      presumption and establish the existence of a lost will, “the
      proponent of the copy of the will must prove that: 1) the testator
      duly and properly executed the original will; 2) the contents of
      the will were substantially as appears on the copy of the will
      presented for probate; and 3) when the testator died, the will
      remained undestroyed or revoked by him.” Burns v. Kabboul,
      407 Pa. Super. 289, 595 A.2d 1153, 1167-68 (Pa. Super. 1991).

                                      ****

       … “Declarations of intent, condition, and circumstances of family
      are insufficient to establish [whether a will remains undestroyed
      or unrevoked by a decedent] and thus rebut the existent legal
      presumption.” In re Estate of Keiser, 385 Pa. Super. 24, 560
      A.2d 148, 150 (Pa. Super. 1989) (citing Gardner v. Gardner,
      et al., 177 Pa. 218, 35 A. 558 (1896). “Accordingly, a court will
      not weigh the probability of the decedent’s wishes or otherwise

                                      -5-
J-A09004-17


      speculate as to the motives which may or may not have
      influenced the [testator] in the direction of intestacy.” Id. (citing
      O'Neill’s Estate, 58 Pa.D.&C. 351 (1946)).

In re Estate of Janosky, 827 A.2d 512, 519-20, 521 (Pa. Super. 2003)

(finding evidence of the decedent’s close relationship with appellant and lack

of any relationship with appellees was “in and of itself [] insufficient to rebut

the presumption of destruction”).

      Appellants concede that Sister has proved the first two factors

necessary to overcome the presumption that the Decedent revoked or

destroyed the original will, i.e., that (1) the testator duly and properly

executed the original will; (2) the contents of the will were substantially as

appears on the copy of the will presented for probate.          Appellants only

dispute that Sister proved the third factor, i.e., that “when the testator died,

the will remained undestroyed or revoked.” Janosky, supra, 827 A.2d at

520, citing Burns v. Kabboul, supra. See Appellants’ Brief at 10.

      The orphans’ court, in finding that Sister had established the third

factor, opined:

      … In looking at the known facts in light of the third element,
      which concerns whether the testator revoked or destroyed the
      will during his lifetime, the Decedent’s daughters point to the
      significant fact that their father’s will was not found in his home
      after his passing, a circumstance that, they believe, shows that
      he must have destroyed the will which Atty. Boyle prepared for
      him. Also, Ms. Goreschak recalled her father mentioning on at
      least one occasion that he might be interested in creating a new
      will, although no new will was contained among his possessions,
      and the attorney Ms. Goreschak referred to her father was never
      contacted by him. The only person who testified about the
      possibility of the Decedent wanting to change his testamentary

                                      -6-
J-A09004-17


     plans was Ms. Goreschak, who was not included in the will
     drafted by Atty. Boyle, and whose interests would be greatly
     enhanced should this estate be administered as one that is
     intestate.

     In regard to the third component of the test set forth in Burns
     v. Kabboul, supra, there are several facts and circumstances
     relied on by Ms. Saracino reflecting her proposal that her
     brother’s will was not destroyed or revoked by him, and simply
     not found in any of the places his relatives thought they might
     find it, such as Mr. Maddi’s safe deposit box and the boxes in his
     house where he would normally keep items such as bills and
     bank statements. She was close with her brother, and he not
     only brought her with him to Atty. Boyle’s office on the occasions
     he met with the attorney to discuss and execute his will, but she
     stated that, when Atty. Boyle asked her brother if he wanted to
     meet with counsel privately, without Ms. Saracino being present,
     Mr. Maddi insisted that he have his sister with him while he
     discussed his plans with Atty. Boyle. Ms. Saracino interprets the
     circumstance of her being included in this confidential meeting
     by her brother as a detail which supports the idea that, if Mr.
     Maddi decided to revoke his 2013 Will and rework his
     testamentary plans, he surely would have told his sister, as she
     was the residuary beneficiary of that will, the person who was
     intimately familiar with his estate planning, and a relative with
     whom he had a caring and very long-standing relationship. Ms.
     Saracino also asks the court to take notice of the fact that her
     brother transferred numerous properties to one of his daughters
     before the execution of his will, which seems reflective of his
     written wishes to leave his legacy to persons other than this
     daughter, since, as the will stated, he believed he had
     generously provided for her prior to his death. Moreover, the
     Decedent’s sister points to his convoluted filing system as
     suggestive of the circumstance that the will was still in existence
     at the time of Mr. Maddi’s passing and not located because either
     no one knew where in the Decedent’s home to look for it, or it
     was inadvertently misplaced while the Decedent’s home was
     being cleaned and emptied.

     The Decedents’ daughters point to what they term a lack of
     positive evidence shown by [Sister] to rebut the legal
     presumption of the Decedent having destroyed his will. The
     daughters maintain that, while [Sister] might have offered
     interesting suppositions as to what could have happened with

                                    -7-
J-A09004-17


     the will in question, she hasn’t presented sufficient, direct
     evidence which would demonstrate to the Court that the
     presumption was defeated. We disagree. Having heard all the
     evidence presented and considering the credibility of the
     witnesses’ testimony and the fact pattern which emerged from
     their remarks, we find that the most logical conclusion is the one
     put forth by [Sister].

     The Decedent hired Atty. Boyle to prepare a will to his
     specifications, which she did, and which he then executed. Mr.
     Maddi stated in his will that he had financially provided for his
     daughters in his lifetime, and consistent with this, he had
     transferred approximately twelve different properties to his
     daughter in exchange for one dollar prior to executing his will.
     No one who testified was aware of Mr. Maddi contacting any
     other attorney to prepare a new will, and it was only Ms.
     Goreschak, who was to receive no bequest under the will drawn
     for her father by Atty. Boyle, who recalled her father expressing
     dissatisfaction with that will. Despite this alleged discontent with
     his Estate planning, the Decedent never, to anyone’s knowledge,
     changed his will. Mr. Maddi had a document filing system known
     only to him, and though the will was not seen among his
     possessions after his passing, all of the evidence, other than the
     testimony of Ms. Goreschak, points to the Decedent’s will
     prepared by Atty. Boyle being the embodiment of his wishes for
     his testamentary estate, and being overlooked or unseen in the
     process of Mr. Maddi’s relatives cleaning out his home after his
     death.

     … Having heard the testimony, considered the factual
     circumstances and legal considerations of this matter, and
     evaluated the witnesses’ credibility, it is this Court’s decision that
     the Register of Wills was correct in admitting the duplicate
     original will of Charles Maddi to probate. No fact in this case
     points to Mr. Maddi second-guessing his careful estate planning,
     let alone destroying his written wishes; every fact, including the
     deeding of many properties to his daughter just prior to creating
     his will, suggests that he and Atty. Boyle created a thorough and
     considered scheme of intended distribution, by way of his will,
     which we believe was unfound by relatives, as opposed to
     revoked or destroyed by the testator. Lillian Saracino has
     overcome the presumption that Charles Maddi destroyed or
     revoked his May 6, 2013 will through proof by positive, clear,
     and satisfactory evidence and therefore, the request that the

                                     -8-
J-A09004-17


        duplicate original of the May 6, 2013 will provided by Atty. Boyle
        should be admitted to probate.

Orphans’ Court Opinion, 6/14/2016, at 5–8, 9.

        Appellants cite the orphans’ court’s finding that “Mr. Maddi mentioned

to Atty. Boyle that he had two adult daughters, and that he was not going to

include them in any bequest in his will because he felt his daughters were

well taken care of by him during his lifetime,”2 and question “how these facts

help at all in concluding that when the testator died, his Will remained

undestroyed or revoked by him.”            Appellants’ Brief at 11.   Appellants also

claim that the orphans’ court’s statement that “[t]he only person who

testified about the possibility of the Decedent wanting to change his

testamentary plans was Ms. Goreschak,”3 suggests the orphans’ court

misplaced the burden of proof on Appellants, when the law requires Sister to

produce “positive, clear and satisfactory” evidence to overcome the

presumption.      Appellants’ Brief, id.       Appellants further assert the orphans’

court’s conclusion that because Sister and Decedent were close, “if Mr.

Maddi decided to revoke his 2013 will … he surely would have told his

sister,”4 is “not based on direct evidence, but it is simply speculation.”

____________________________________________


2
    Orphans’ Court Opinion, 6/14/2016, at 2.
3
    Orphans’ Court Opinion, supra, at 6.
4
    Id. at 7.




                                           -9-
J-A09004-17


Appellants’ Brief at 12. Appellants contend the orphans’ court’s conclusion

that the Decedent’s Will was not found because Decedent had a “convoluted

filing system”5 is also speculation.           Appellants’ Brief, id.   In this regard,

Appellants maintain the evidence that the Will was not found after a search

of Decedent’s house and the bank safety deposit box establishes — not

overcomes — the presumption of revocation of the Will.

        Appellants stress that proof to overcome the presumption must be

“positive, clear and satisfactory evidence.” Id. at 14. Appellants point out

“declarations of intent, condition and circumstances of family are insufficient

to establish the[] factors [the proponent of a contested will must prove to

establish the existence of a lost will] and thus rebut the existent legal

presumption.” Id. at 14, citing Gardner v. Gardner, et al., 35 A. 558 (Pa.

1896).     Appellants, in support of their position, claim the orphans’ court

“relied heavily upon declarations of intent, condition, and circumstances of

family in rebutting the presumption in the instant matter.” Appellants’ Brief,

id.

        Based on our review, we conclude the arguments presented by

Appellants fail to warrant relief.        The orphans’ court correctly recognized

Sister bore the burden of proof to overcome the presumption of revocation

and that “the contrary evidence presented must be positive, clear and

____________________________________________


5
    Id. at 7.



                                          - 10 -
J-A09004-17


satisfactory.” Orphans’ Court Opinion, 6/14/2016, at 5, citing Murray Will,

171 A.2d 171 (Pa. 1961). Furthermore, we find the orphans’ court correctly

applied Gardner, supra, wherein the Pennsylvania Supreme Court indicated

that “all presumptions of this kind may be rebutted by proof of the actual

facts.” Id., 35 A. at 561.

        Regarding the above arguments presented by Appellants, it is

important to note that the court’s consideration of Decedent’s statement to

Attorney Boyle that he had two adult daughters, and that he was not going

to include them in any bequest in his will because he felt his daughters were

well taken care of by him during his lifetime was a proper consideration.

See Gardner, supra 35 A. at 561                (“[N]ot only the testator’s character,

condition, acts, and declarations, but the conduct and interest of those who

were around him from and after the date of the making of his will [are]

legitimate subjects of inquiry. Each of these lines of proof is important in

strengthening the other and both together seem necessary to constitute full

proof.”).

        Further, the orphans’ court’s statement that “[t]he only person who

testified about the possibility of the Decedent wanting to change his

testamentary plans was Ms. Goreschak,”6 evidenced proper consideration of

“all of the evidence, not only that offered on part of the plaintiffs but that

____________________________________________


6
    Id. at 6.



                                          - 11 -
J-A09004-17


offered on part of the defendants, bearing upon the same subject-matter.”

Gardner, supra, 35 A. at 561.

      Finally, the court’s statements to the effect that Decedent “surely

would have told his sister” if he decided to revoke his 2013 Will, and that the

Will was not found because Decedent had a “convoluted filing system” are

the court’s reiteration of Sister’s testimony, not findings in support of its

decision. See Orphans’ Court Opinion, 6/14/2016, at 7.

      Here, the orphans’ court considered the facts (1) that Decedent told

Attorney Boyle, and stated in his Will, that he believed he had adequately

provided for Appellants during his lifetime, (2) that, consistent with his

statement to Attorney Boyle, Decedent transferred numerous properties to

Appellant Goreschak prior to the execution of his May 6, 2013 Will, (3) that

the attorney referred to Decedent by Appellant Goreschak testified he was

never contacted by Decedent for a new will, and (4) that no one else who

testified was aware that Decedent contacted any other attorney to prepare a

new will.

      Based on this evidence, the orphans’ court could properly infer that

Decedent’s testamentary plan was finalized with the Will and transfer of

property to Appellant Goreschak, that he was not dissatisfied with his

current will, and that the decedent’s Will was overlooked by family members

when Decedent’s home was cleaned out after his death. See Gardner, 35

A. at 561 (“[C]ircumstantial evidence … may be sufficient for [the fact-


                                    - 12 -
J-A09004-17


finder] to infer that the testator did not destroy this will.”). Accordingly,

Appellants’ first claim fails.

      In the second claim raised in this appeal, Appellants argue that the

orphans’ court erred in allowing inadmissible hearsay evidence and relying

on circumstantial evidence.          In this regard, Appellants complain “the

[orphans’ court] relied heavily on the statement that ‘Mr. Maddi mentioned

to Atty. Boyle that he had two adult daughters, and that he was not going to

include them in any bequest in his will because he felt his daughters were

well taken care of by him during his lifetime.’” Appellants’ Brief at 15.

      “[I]t is well settled that the admissibility of evidence is a determination

left to the sound discretion of the trial court, and it will not be overturned

absent an abuse of discretion or misapplication of law.” In re Fiedler, 132

A.3d 1010, 1025 (Pa. Super. 2016) (quotations and citations omitted).

      At the hearing, the following exchange occurred during the direct

examination of Sandra Boyle, Decedent’s attorney:

      Q. Did he tell you what his intention would be as far as his daughters
      in the will?

      [APPELLANTS’ ATTORNEY]: Just note my objection, your Honor.

             THE COURT:          Do you want to answer that before I make a
             ruling?

      [SISTER’S ATTORNEY]: Your Honor, I don’t think – the dead man’s
      rule would apply. She’s testifying to her conversation. There’s no
      privacy or privilege issues. There was a third party present.

             THE COURT: I’ll allow it.


                                       - 13 -
J-A09004-17


     A. He indicated to me that his daughters were well provided for and
        that he did not wish to include them in the will.

             THE COURT: For the record, attorney, that’s the issue here. If I
             exclude that kind of evidence we’ll never be able to find out
             what’s going on here.

     [APPELLANTS’ ATTORNEY]: I understand your Honor, I just don’t
     know of any exception to the hearsay rule for that.

N.T., 4/13/2016, at 13-14.

     Pennsylvania Rule of Evidence 801(c) defines hearsay as “a statement

that (1) the declarant does not make while testifying at the current trial or

hearing; and (2) a party offers in evidence to prove the truth of the matter

asserted in the statement.”     Pa.R.E. 801(c).   However, our Courts have

explained:

     Evidence of a decedent’s declaration of intention is admissible in
     Pennsylvania as an exception to the hearsay rule where such intent is
     itself a material fact. Ickes v. Ickes, 237 Pa. 582, 85 A. 885 (1912).
     In addition, a decedent’s declaration of intention to do a relevant act
     may be admissible as some evidence that he later performed that act,
     e.g., the declarations of the victim of a homicide that she intended to
     go to the accused’s office on the night of her death (Commonwealth
     v. Marshall, 287 Pa. 512, 135 A. 301 (1926)), or the declaration of
     the alleged victim that she intended to take her own life
     (Commonwealth v. Santos, 275 Pa. 515, 119 A. 596 (1923)). See
     also McCormick, Evidence, §§ 269-270.

Hughes v. Bailey, 195 A.2d 281, 284 (Pa. Super. 1963).

     Pennsylvania Rule of Evidence 803 provides:

     The following are not excluded by the rule against hearsay,
     regardless of whether the declarant is available as a witness: …

          (3) Then-existing Mental, Emotional, or Physical
     Condition. A statement of the declarant’s then existing state
     of mind (such as motive, intent or plan) or emotional, sensory,

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J-A09004-17


        or physical condition (such as mental feeling, pain, or bodily
        health), but not including a statement of memory or belief to
        prove the fact remembered or believed unless it relates to the
        validity or terms of the declarant’s will.

Pa.R.E. 803(3).      With regard to Rule 803(3), this Court, in Schmalz v.

Mfrs. and Trade Trust Co., 67 A.3d 800 (Pa. Super. 2013), stated:

        Traditionally, statements of the declarant’s then existing state of
        mind are considered reliable based on their spontaneity.
        Commonwealth v. Hess, 378 Pa. Super. 221, 548 A.2d 582,
        585 (Pa. Super. 1988) (citing Packel & Poulin, Pennsylvania
        Evidence, § 803(3)). There are ordinarily three instances in
        which the state of mind exception is applicable. First, the
        exception may apply to prove the declarant’s state of mind when
        that state of mind is an issue directly related to a claim or
        defense in the case. See [Commonwealth v.] Laich, [566 Pa.
        19, 777 A.2d 1057, 1060-1061 (Pa. 2001)]. Second, the
        exception can apply to demonstrate that a declarant did a
        particular act that was in conformity with his or her statement
        after having made the statement. See Commonwealth v.
        Riggins, 478 Pa. 222, 386 A.2d 520, 526 (1978); Ickes v.
        Ickes, 237 Pa. 582, 85 A. 885, 887-888 (Pa. 1912). Finally, an
        out of court statement related to the person’s memory or belief
        is admissible in the limited instance where it relates to the
        “execution, revocation, identification or terms of the declarant’s
        will.” Pa.R.E. 803(3).[7]
____________________________________________


7
    Prior to March 18, 2013, Pa.R.E. 803(3) read:

        (3) Then existing mental, emotional or physical condition. A
        statement of the declarant’s then existing state of mind,
        emotion, sensation, or physical condition, such as intent, plan,
        motive, design, mental feeling, pain, and bodily health.       A
        statement of memory or belief offered to prove the fact
        remembered or believed is included in this exception only as it
        relates to the execution revocation identification, or terms of
        declarant’s will.

Pa.R.E. 803(3). As noted in Schmalz,

(Footnote Continued Next Page)


                                          - 15 -
J-A09004-17



Id. at 804-805.

      Based on our           review,    we    conclude     Decedent’s statement was

admissible under Rule 803(3). Furthermore, as discussed above, Gardner

indicates that circumstantial evidence is properly considered by the fact

finder in deciding whether the evidence is sufficient to rebut the presumption

of revocation.    Gardner, 35 A. at 561.              Accordingly, we find the orphans’

court properly allowed the challenged statement of Decedent into evidence.

      In sum, we conclude that Judge Munley correctly recognized the

burden of proof was upon Sister to overcome the presumption, properly

found Sister presented positive, clear and satisfactory evidence that

defeated the presumption, and correctly admitted Decedent’s statement as

an exception to the hearsay rule.

      Decree affirmed.




                       _______________________
(Footnote Continued)

      The Pennsylvania Supreme Court has promulgated new rules of
      evidence, which take effect on March 18, 2013. The rule changes
      result in no substantive change and are intended to conform the
      Pennsylvania rules, which reference the federal rules of
      evidence, with the stylistic changes made to the federal rules
      that became effective on December 1, 2011.

Id., 67 A.3d at 804 n.4.



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J-A09004-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




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