Estate of: Fabian, Stella, Appeal of: Krepicz, M. ( 2021 )

J-A19024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF STELLA FABIAN, : IN THE SUPERIOR COURT OF
DECEASED : PENNSYLVANIA
:
:
APPEAL OF: MARIE T. KREPICZ, AS :
INDIVIDUAL AND CO-EXECUTOR, :
CHARLES R. TRESKOT, AS :
INDIVIDUAL AND CO-EXECUTOR, :
CAROLYN J. KUTTA, AND ROBERT A. : No. 302 EDA 2021
TRESKOT :
Appeal from the Decree Entered December 31, 2020
In the Court of Common Pleas of Carbon County
Orphans’ Court at No. 16-9051
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 24, 2021
Marie T. Krepicz and Charles R. Reskot, individually and as co-executors,
and Carolyn J. Kutta and Robert A. Treskot (collectively, Appellants), appeal
from the decree entered following remand from this Court, in which the
orphans’ court granted the appeal from probate of the Last Will and Testament
of Stella Fabian, Deceased (Testatrix), and ordered Testatrix’s will dated June
20, 2014 “stricken as invalid,” and Testatrix’s will dated December 29, 1988
“be probated.” After careful review, we affirm.
In our prior decision, we summarized the case history as follows:
Testatrix died on January 31, 2016. Her husband predeceased
her, as did her daughter, Barbara Fabian, with whom she was very
close and had resided for several decades. Testatrix left a will
dated June 20, 2014, in which she left the entirety of her estate
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A19024-21
to her nieces, Carolyn J. Kutta and Marie T. Krepicz, and her
nephews, Robert A. Treskot and Charles R. Treskot (collectively,
“Proponents”), in equal shares. Testatrix appointed Marie and
Charles as co-executors. The 2014 will superseded a prior will,
dated December 29, 1988, in which Testatrix left her entire estate
to Barbara and, in the event Barbara predeceased her, to the
following individuals: Robert Treskot, 10%; Carolyn Treskot
Kutta, 5%; Marie Krepics [sic], 10%; Susan [sic] Fabian (now
Sullivan) (great-niece), 10%; Michelle Fabian (now Kratzer)
(great-niece), 5%; Jennifer Fabian (now Slade) (great-niece),
10%; Louise Fabian (now Benson) (niece-in-law), 10%; Gregory
Fabian (nephew), 5%; the children of Katherine Kralik, 25%; Mary
Redline (niece), 5%; and Sacred Heart Church, 5%. See Will of
Stella Fabian, 12/29/88, at Item Third.
The 2014 will was admitted to probate on February 16, 2016, and
letters testamentary were granted to Marie and Charles. On May
27, 2017, Contestants filed a “Petition for Citation to Show Cause
Why Appeal from Probate Should Not Be Granted and Certain
Writing Offered as Will Vacated.” In their petition, Contestants
alleged that: Testatrix’s 2014 will was the product of undue
influence exercised upon Testatrix by Marie and Charles; Testatrix
lacked capacity to execute a valid will; the will was the product of
fraud exercised upon Testatrix by Marie; and the will was the
product of a mistake on the part of Testatrix and did not represent
her true testamentary intent.
Proponents filed a response to the petition on July 7, 2016.
Hearings were held on January 18, 2017, April 20, 2017, and July
21, 2017. By decision and decree issued on June 28, 2017, the
court denied Contestants’ appeal from probate.
Estate of Fabian, 222 A.3d 1146 (Pa. Super. 2019) (citation to record
omitted).
In our prior opinion, we vacated the orphans’ court’s decision and
remanded with instructions. We first held, although we found it to be
harmless, that the orphans’ court erred in failing to qualify Georgia Young,
RN, the Director of Nursing at the personal care home where Testatrix resided,
-2-
J-A19024-21
as an expert on mental capacity. Id. at 1147-49. Further, we determined
the court erred in finding Testatrix did not suffer from a weakened intellect
and Contestants had not made a prima facie showing of undue influence. Id.
at 1149-52. We reasoned:
In the conclusions of law contained in its Decision issued on June
28, 2018, the Orphans’ Court discounted the testimony of Dr.
[John] Bosi [Testatrix’s physician] and Nurse Young regarding
Testatrix’s history of Alzheimer’s and dementia. Instead, the
court relied on the testimony of the scrivener of the will, Michael
Greek, Esquire, and his two employees who were present with him
at the time Testatrix executed her will. In doing so, the court
concluded that Testatrix did not suffer from a weakened intellect
because she was “quite lucid at the time she executed the
contested will.” Orphans’ Court Decision, 6/28/18, at 15. This was
clearly a misapplication of the law. [In re Clark’s Estate], [334
A.2d 628, 632 (Pa. 1975)] (mental condition of testator on date
of execution not as significant when reflecting upon undue
influence as when reflecting upon testamentary capacity).
***
Nevertheless, in the body of its opinion, the court continued to
place almost exclusive emphasis on the testimony of Attorney
Greek, who met Testatrix twice: on June 13, 2014, and on the
date of execution, June 20, 2014. The court focused on the
Testatrix’s ability to identify family members and express herself
and her testamentary wishes. The court stated that “[i]f Attorney
Greek had suspected [Testatrix] was subject to undue influence,
he would have stopped the will consultation process.” [Orphans’
Court Decision] at 7. However, the court misses the point. As
noted above, 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. Clark, 334 A.2d at
634. Thus, Attorney Greek—a stranger to the Testatrix—could
have had no way of knowing whether, in the weeks and months
prior to his two meetings with Testatrix, her mental state could
have rendered her susceptible to the undue influence of third
parties. Once again, evidence of Testatrix’s mental state at the
time of execution is of substantially less probative value to an
-3-
J-A19024-21
undue influence inquiry than it is to a determination of
testamentary capacity. As both Dr. Bosi and Nurse Young
testified, patients with Alzheimer’s dementia can have “good
days” and “bad days.”
***
“[T]he scrivener of a will, especially if a lawyer, is always an
important and usually the most important witness in a contested
will case, and, where the lawyer knew the testator prior to the
execution of her will, his testimony showing voluntary and
intelligent action by the testator makes out a prima facie case that
requires very strong evidence to offset it.” In re Mampe, 932
A.2d 954, 961 (Pa. Super. 2007) (emphasis added). Here,
however, where Attorney Greek had never met Testatrix until
seven days before she executed her will, this principle is
inapplicable. See id. (testimony regarding testatrix’s voluntary
and intelligent actions by scrivener unfamiliar with testatrix not
dispositive of question of testatrix’s weakened intellect).
In light of the Orphans’ Court’s clear failure to apply the correct
standard to its weakened intellect analysis, we review the
evidence presented in light of the correct standard. Our review of
the evidentiary record constrains us to conclude that the court
erred in failing to find that Testatrix suffered from a weakened
intellect in the period leading up to the execution of her will. The
disinterested testimony regarding Testatrix’s cognitive state
during the relevant time period demonstrates, by clear and
convincing evidence, that Testatrix suffered from a weakened
intellect in the period leading up to the execution of the June 20,
2014 will.
Estate of Fabian, 222 A.3d at 1150-52 (emphasis in original).
We explained that because the orphans’ court found Contestants had
met the remaining prongs1 to establish a presumption of undue influence, “the
____________________________________________
1 The orphans’ court found “the testator was in a confidential relationship with
Proponents, who [] receive[d] a substantial benefit under the will. Neither
party challenged those determinations on appeal.” Fabian, 222 A.3d at 1152.
-4-
J-A19024-21
burden shift[ed] [to] Proponents to demonstrate the absence of undue
influence by clear and convincing evidence.” Id. at 1152 (citation omitted).
We vacated and remanded “for determination by the Orphans’ Court as to
whether Proponents established by clear and convincing evidence, the
absence of undue influence.” Id.
On remand, all parties submitted supplemental proposed findings of fact
and conclusions of law. On December 31, 2020, the orphans’ court issued its
decree and decision stating:
In light of the Superior Court’s reversal and remand, we recognize
that the burden has shifted to [Appellants] to demonstrate by
clear and convincing evidence, the absence of undue influence.
***
[Appellants] did not present any further disinterested witnesses
[other than Attorney Greek and his employees] to testify to the
mental condition of [Testatrix] in the weeks leading up to the
Execution of her Will.
***
[Appellants] have not presented sufficient evidence to rebut the
testimony of Dr. Bosi and Nurse Young that [Testatrix’s] condition
was consistent with a diagnosis of moderate to severe Alzheimer’s
Disease and advanced dementia.
***
[Appellants] have failed to establish, by clear and convincing
evidence, the absence of undue influence.
Decision and Decree, 12/31/20, at 20-23.
The orphans’ court granted Contestants’ petition and appeal, and
ordered the June 20, 2014 will stricken, and the December 29, 1988 will
-5-
J-A19024-21
probated. Appellants timely appealed. The orphans’ court ordered Appellants
to file a concise statement of errors complained of on appeal,2 after which the
court issued an opinion.
Appellants present a single question for review:
Did the Orphans’ Court Judge Commit an Error of Law and/or
Abuse His Discretion When He Concluded that the Appellants Had
Not Proven the Absence of Undue Influence by Clear and
Convincing Evidence?
Appellants’ Brief at 5.
Appellants challenge the weight of the evidence. We have stated:
[W]e accord the findings of the Orphans’ Court, sitting without a
jury, the same weight and effect as the verdict of a jury; we will
not disturb those findings absent manifest error; as an appellate
court we can modify an Orphans’ Court’s decree only if the findings
upon which the decree rests are not supported by competent or
adequate evidence or if there has been an error of law, an abuse
of discretion, or a capricious disbelief of competent evidence.
Moreover, we will not reverse the Orphans’ Court’s credibility
determinations absent an abuse of the court’s discretion as
factfinder. On the other hand, we are not required to give the
same deference to the Orphans’ Court’s legal conclusions. Where
the rules of law on which the Orphans’ Court relied are palpably
wrong or clearly inapplicable, we will reverse the court’s decree.
Estate of Edward Winslow Taylor Inter Vivos Trust, 169 A.3d 658, 663
(Pa. Super. 2017) (citation omitted).
____________________________________________
2 Appellants’ 6-page, 10-issue statement is not concise or compliant with
Pa.R.A.P. 1925(b)(4). See Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super.
2004) (finding waiver where prolix Rule 1925(b) statement contained an
“outrageous number of issues,” “circumvented the meaning and purpose of
Rule 1925(b),” and “effectively precluded appellate review”). Instantly, we
decline to find waiver.
-6-
J-A19024-21
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) (citations
omitted). The standard of clear and convincing evidence “is defined as
testimony that is so ‘clear, direct, weighty and convincing as to enable the
trier of fact to come to a clear conviction, without hesitance, of the truth of
the precise facts in issue.’” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
(citation omitted).
Also, the Pennsylvania Rules of Appellate Procedure provide:
(a) General rule. On remand of the record the court or other
government unit below shall proceed in accordance with the
judgment or other order of the appellate court and, except as
otherwise provided in such order, Rule 1701(a) (effect of appeals
generally) shall no longer be applicable to the matter.
Pa.R.A.P. 2591(a). The Supreme Court has stated, “it has long been the law
in Pennsylvania that following remand, a lower court is permitted to proceed
only in accordance with the remand order.” Commonwealth v. Sepulveda,
144 A.3d 1270, 1280 n. 19 (Pa. 2014).
-7-
J-A19024-21
After careful review of the record and prevailing authority, we conclude
that no relief is due. Appellants assert the orphans’ court misapplied this
Court’s decision in Mampe, supra, by failing to give proper weight to the
testimony of Attorney Greek. Appellants argue:
[The orphans’ court’s] findings and misapplication of the Mampe
case constitute an abuse of discretion and/or error of law. Michael
Greek, an experienced estate planning lawyer, who regularly deals
with elderly clients, knew [Testatrix]. Michael Greek had
previously met with [Testatrix] when he prepared her Power of
Attorney in May 2014.
Appellants’ Brief at 27.
Appellants disregard that in the prior appeal, this Court addressed
Mampe and found it inapplicable. We described Attorney Greek as “a stranger
to the Testatrix,” and held Attorney Greek’s testimony was “less probative,”
where “Attorney Greek had never met Testatrix until seven days before she
executed her will[.]” Fabian, 222 A.3d at 1151. The court was bound by our
holding. See Commonwealth v. Williams, 877 A.2d 471, 474-75 (Pa.
Super. 2005) (“It is well-settled that a trial court must strictly comply with the
mandate of the appellate court[.]”); see also Commonwealth v Starr, 664
A.2d 1326, 1331 (Pa. 1995) (under the law of the case doctrine, “a court
involved in the later phases of a litigated matter should not reopen questions
decided by another judge of that same court or by a higher court in the earlier
phases of the matter.”). Thus, the orphans’ court did not err in its
consideration of Mampe.
-8-
J-A19024-21
Appellants devote the remainder of their argument to claiming that
Testatrix did not have a weakened intellect and Appellants did not exert undue
influence. Appellants assert the evidence did not demonstrate Testatrix
“showed signs of persistent confusion[.]” Appellants’ Brief at 30. Again, the
issue of whether Testatrix had a weakened intellect was decided in this Court’s
prior decision and may not be relitigated. Fabian, 222 A.3d at 1151-52; see
also Starr, 664 A.2d at 1331. Appellants also emphasize they “did not isolate
[Testatrix]; they drove [her] to visit her daughter and permitted [her] to
remain at [sic] Assisted Living Facility when they could have removed her and
placed her in one of their homes.” Appellants’ Brief at 30.
In sum, Appellants disregard our scope of review. They do not address
their failure to offer medical testimony to refute the testimony of Dr. Bosi and
Nurse Young. They do not explain their failure to offer the testimony of any
independent witness to attest to Testatrix’s state of mind in the weeks leading
to the will change. Rather, Appellants cite evidence favorable to their claim
that Testatrix did not have a weakened intellect and Appellants did not exert
undue influence, but it is not our role to reweigh the evidence. Estate of
Edward Winslow Taylor Inter Vivos Trust, 169 A.3d at 663. Accordingly,
no relief is due.
Decree affirmed.
-9-
J-A19024-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2021
- 10 -