In Re: Estate of Marko, G., Appeal of: Dornenburg ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF GEORGE MARKO, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: BARBARA DORENBURG
AND RONALD SOBOLEWSKI
No. 295 WDA 2017
Appeal from the Order Entered January 19, 2017
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): 3591 OF 2014
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 01, 2018
Barbara Dorenburg and Ronald Sobolewski (Contestants) appeal from
the order, entered on January 19, 2017, that dismissed their appeal from the
probate of George Marko’s (Decedent) will, determining that Contestants
failed to establish that Decedent lacked testamentary capacity and that his
will was procured through undue influence exerted by Eileen Carmody
(Proponent). We affirm.
Decedent died on May 29, 2014, at the age of 93. He was the last
surviving member of his immediate family. Contestants are Decedent’s niece
and nephew. Proponent is Decedent’s niece and the sister of Contestants.
Contestants assert that Decedent’s will executed on April 22, 2002, should
control, while Proponent contends that the will executed on May 21, 2014,
should control. The 2002 will leaves Decedent’s estate equally to Proponent,
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* Retired Senior Judge assigned to the Superior Court.
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Contestants, and to Decedent’s brother and his sister. The 2014 will assigned
Decedent’s estate in its entirety to Proponent.
On June 17, 2014, the 2014 will was admitted to probate and Proponent
was granted letters testamentary. On November 25, 2014, Contestants filed
a petition challenging the 2014 will’s admission to probate based upon their
assertion that the 2014 will was a product of undue influence and that
Decedent lacked testamentary capacity. The trial in this matter was held on
April 19-20, 2016, and resulted in the order presently on appeal.
In its opinion, the orphans’ court noted that “Decedent relied fully on []
Proponent for conducting his business affairs,” and that “there were many
witnesses on behalf of [] Proponent testifying to [] Decedent’s alertness and
cognitive function.” Orphans’ Court Opinion (OCO), 7/17/17, at 2. The court
also stated that
[t]here is evidence that at the time of the signing of the 2014 will,
[] Decedent was of sound mind. The two witnesses to the signing
of the [w]ill, Geraldine [Ryan] and Jacqueline Baird, both testified
to [] Decedent’s mental capacity, stating that the 2014 [w]ill was
read to [] Decedent, [] Decedent signed the will, and that []
Decedent stated that he wanted “my Eileen to have everything
because she has done so much for me.”
Id. (quoting Geraldine Ryan’s deposition testimony, 5/21/15, at 17). The
court further noted that
[a]lthough there is evidence that [] Decedent suffered from
delirium or dementia, Dr. Chow, the physician that saw []
Decedent on the day the 2014 [w]ill was signed, testified that the
states of delirium “waxes and wanes, comes and goes,” [(Trial
Transcript, 4/19/16, at 35)] and [] Decedent at the time of the
signing of the 2014 [w]ill was not administered any medication
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that could have impaired his cognitive function [(Trial Transcript
at 53)].
Id. at 3. Following the entry of the orphans’ court’s January 19, 2017 order
and the denial of Contestants’ motion for reconsideration, Contestants filed
their appeal to this Court.
On appeal, Contestants raise the following issues:
I. Whether the trial court abused its discretion by failing to find
sufficient evidence of undue influence and shift the burden
of proof to Proponent to disprove undue influence?
II. Whether Proponent failed to disprove undue influence by
clear and convincing evidence?
Contestants’ brief at 5.
Our scope and standard of review applied to an 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 the 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.
In re Estate of Tyler, 80 A.3d 797, 802 (Pa. Super. 2013) (en banc) (citing
Estate of Reichel, 400 A.2d 1268, 1269-70 (Pa. 1979)). An appellate court
will set aside the orphans’ court’s factual conclusions only if they are not
supported by adequate evidence. In re Bosley, 26 A.3d 1104, 1107 (Pa.
Super. 2011). This Court exercises plenary review over the orphans’ court’s
legal conclusions drawn from the facts. In re Mampe, 932 A.2d 954, 959
(Pa. Super. 2007).
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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 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). “As our Supreme Court has held, a
testator may be of sufficient testamentary capacity to make a will but still may
be subjected to the undue influence of another in the making of that will.”
Mampe, 932 A.2d at 959 (citing In re Estate of Fritts, 906 A.2d 601, 606-
07 (Pa. Super. 2006) (other citations omitted)).
This Court in Fritts sets forth the definition of undue influence as
follows:
[U]ndue influence is a subtle, intangible and illusive
thing, generally accomplished by a gradual,
progressive inculcation of a receptive mind.
Consequently, its manifestation may not appear until
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long after the weakened intellect has been played
upon.
Owens [v. Mazzei, 847 A.2d 700,] 706 [(Pa. Super. 2004)]
(quoting In re Estate of Clark, 461 Pa. 52, 334 A.2d 628, 634
(Pa. 1975)) (internal quotations and citation omitted). Our Court
has stated:
Conduct constituting influence must consist of
“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.”
[In re Estate of] Luongo, [823 A.2d 942,] 964 [(Pa. Super.
2003)] (quoting [In re Estate of] Angle, [777 A.2d 114,] 123
[(Pa. Super. 2001)] (emphasis in original).
Fritts, 906 A.2d at 607.
“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.” Smaling, 80 A.3d at 498 (quoting Fritts, 906 A.2d at 607).
Finally, a confidential relationship exists when the circumstances
make it certain that the parties did not deal on equal terms, but
on the one side there 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.
[S]uch a relationship is not confined to a particular association of
parties, but exists whenever one occupies toward another such a
position of advisor or counselor as reasonably to inspire
confidence that he will act in good faith for the other’s interest.
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Id. (omitting quotation marks and citations).
Contestants first argue that they established that Decedent suffered
from a weakened intellect, basing this on the expert testimony of Bruce
Wright, M.D., a board certified physician, who specializes in adult psychiatry.
Although Dr. Wright never met with Decedent, he reviewed medical records
dating back to 2007 that noted Decedent’s history of dementia, delirium,
depression and pulmonary problems. In the course of his deposition, Dr.
Wright stated:
A. Dementia is an impairment in cognitive functioning as
compared to a previous level of functioning.
Q. Okay. And how did it affect Mr. Marko in particular? How did
his dementia or cognitive impairment in your opinion affect his
cognitive abilities?
A. Well, as documented in the medical records, he had cognitive
impairment that affected his ability to take care of basic activities
of daily living, bathing, maintaining hygiene, affected his ability to
manage instrumental activities of daily living, including money
management. It affected his ability to provide historical
information. There are numerous references that he was a poor
historian because of his cognitive impairment. It affected his
opinion to make informed decisions.
. . .
Q. Were you able to form an opinion whether or not Mr. Marko
was capable or had the mental capacity to comprehend a [w]ill
signing of May 21 of 2014?
A. Based on the medical records description of his mental state
at the time that the [w]ill was signed and immediately prior to
that, it’s my opinion he did not have the capacity to make
informed decisions in that respect.
Dr. Wright’s Deposition, 1/4/16, at 29, 31.
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Contestants also identify various medical records that document
Decedent’s stays at UPMC Presbyterian-Shadyside Hospital, Rebecca at
Concordia Place, and Forbes Hospice during April and May of 2014, the two
months that preceded his death on May 29, 2014. These records describe
Decedent as lethargic, restless, delirious, anxious, and agitated. Forbes
Hospice Inpatient Unit Nursing Notes, 5/21/14 (R.R. 610a). Contestants also
cite the testimony of Elizabeth Chow, M.D., given at trial concerning her
examination of Decedent on May 21, 2014, the day he signed the 2014 will.
She indicated that she asked Decedent questions, but either received no
answer or an unintelligible response. N.T., 4/19/16, at 38.
Contrary to this evidence, which Contestants claim show Decedent’s
weakened intellect, the orphans’ court relied on the testimony of two nurses,
finding that “Decedent could in fact understand, converse, and make
appropriate responses to whomever he was speaking with.” OCO at 4.
Moreover, Contestants claim that the court “misconstrue[d] the appropriate
standard for weakened intellect.” Contestants’ brief at 27. With reliance on
Owens v. Mazzei, 847 A.2d 700, 707 (Pa. Super. 2004), they contend that
“[w]eakened intellect is not defined by an ability to converse or respond
appropriately. Rather, weakened intellect is defined by frequent confusion[,]
disorientation, and forgetfulness.” Id. Thus, Contestants claim that the
evidence they presented showed “a long history of cognitive impairment, with
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a rapid increase in confusion, disorientation, and forgetfulness in the month
prior to the signing of the 2014 [w]ill.” Id. at 28.
However, Contestants overlook the fact that the orphans’ court’s
“mandate in assessing such evidence is relatively broad.” Owens, 847 A.2d
at 707.
If the court’s decision rests upon legally competent and sufficient
evidence, we will not revisit its conclusions. Under no
circumstance will we substitute our judgment of credibility for that
of the Orphans’ Court.
Id. (citing In re Estate of Clark, 334 A.2d 628, 635 (Pa. 1975)). Thus, we
are compelled to accept the trial court’s conclusion, relating to the question of
Decedent’s weakened intellect, in that it is supported by sufficient, competent
evidence.
Next Contestants center their argument on their allegation that a
confidential relationship was present based upon Proponent’s conducting
Decedent’s business affairs and acting as his power of attorney. At trial,
Contestants called Proponent as on cross-examination, eliciting information
about her fulfilling her duties relating to both a financial power of attorney and
a healthcare power of attorney for Decedent. Proponent testified that she
arranged all of Decedent’s doctor appointments, accompanied him to all of
these appointments and, upon admission to a medical facility, she interacted
with staff, relating the information to Decedent. In managing Decedent’s
financial affairs, Proponent received all of Decedent’s mail at her home. After
discussion with Decedent, Proponent would write and sign checks to pay his
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bills, and arranged for her son to prepare and file Decedent’s tax returns.
Proponent also requested that her attorney, George P. Geyer, Jr., Esq., draft
the 2014 will during the weeks Decedent was hospitalized preceding his death.
Attorney Geyer never met with Decedent and was informed by Proponent that
she was to be the only beneficiary. Based upon this evidence, Contestants
claim that they established that a confidential relationship existed between
Proponent and Decedent and that the court erred in failing to consider
Proponent’s control over both Decedent’s medical treatment and his financial
affairs. Thus, Contestants argue that the court should have found that a
confidential relationship existed, which was enough to shift the burden to
Proponent.
With regard to Proponent’s burden, Contestants identify the various
witnesses Proponent called to testify, namely, several nurses and Proponent’s
husband, who they claim did not see Decedent in the month prior to his signing
of his will. As for the two witnesses to the signing of Decedent’s will,
Contestants assert that they spent no more than ten minutes with Decedent
at the signing. In other words, Contestants argue that Proponent’s witnesses
failed to rebut the presumption of undue influence.
Unfortunately for Contestants, we are compelled to affirm the orphans’
court’s decision. Although not so stated, the argument presented by
Contestants is solely based on credibility determinations rendered by the
court. Our review of the record reveals that the court’s findings are based
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upon sufficient, competent evidence and, as such, our scope and standard of
review does not permit us to set aside the orphans’ court decision. We
therefore affirm the decision dismissing their appeal from the probate of
Decedent’s will.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2018
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