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HomeMy WebLinkAbout10-20-11Ronald L. Finck, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisbwg, PA 17110-0950 (717) 232-5000 -Phone (71?) 236-1816 -Fax rlfinck@mette.com IN RE: WILLIAM I. EVANS WILL DANNY B. EVANS, Petitioner v. IRMA DAVENPORT, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION ORPHANS' COURT NO. 21-08-0979 JURY TRIAL DEMANDED PETITIONER'S EXCEPTIONS TO COURT ORDER DATED SEPTEMBER 30, 2011 The Petitioner, Danny B. Evans ("Petitioner"), by and through his attorneys, Mette, Evans & Woodside, files these Exceptions pursuant to Rule 7.1 of the Pennsylvania Orphans' Court Rules of Procedure, as follows: 1. The Decedent, William I. Evans ("Decedent") died a resident of Cumberland County on September 26, 2008; approximately three weeks shy of his 74"' birthday. 2. The Decedent died leaving an alleged will dated April 14, 2006 (the "2006 Will"). 3. The Decedent's prior will was dated August 2, 2005. The 2006 Will revoked the August 2, 2005 Will. 4. The Decedent's 2006 Will leaves the entirety of his estate to his sister, Irma Davenport ("Respondent" or "Proponent"). 5. By Decree dated October 1, 2008, the Cumberland County Register of Wills admitted the 2006 Will to probate as the Last Will and Testament of the Decedent. 6. This action was commenced by the Petitioner as an Appeal from Decree of Probate. 7. A hearing on the Petitioner's Appeal began on March 22, 2011 and concluded on September 29, 2011. 8. On September 30, 2011, this Honorable Court entered an Order in the above- captioned matter dismissing the Petitioner's Appeal in its entirety. 9. These Exceptions are submitted pursuant to Rule 7.1 of the Pennsylvania Orphans' Court Rules of Procedure. FIRST EXCEPTION THE COURT ERRED IN DENYING PETITIONER'S MOTION FOR NONSUIT AT THE CLOSE OF THE PROPONENT'S CASE-IN-CHIEF BECAUSE THE PROPONENT FAILED TO ESTABLISH THAT THE FORMALITIES OF EXECUTION WERE FOLLOWED 10. The averments of all paragraphs set forth above are incorporated herein by reference as if fully set forth. 11. On all appeals from a decree of probate, the burden of proof as to testamentary capacity initially rests with the proponent of a will. In re: Estate of Hastings, 387 A.2d 865, 867 (Pa. 1978). 12. Initially, the proponent of the will must establish "that the formalities of execution have been followed." Estate of Reichel, 400 A.2d 1268, 1270 (Pa. 1979); In re: McGurk Will, 29 Fiduc. Reptr. 2d 123, 130 (Bucks Cty. 2008). 13. In Pennsylvania, all wills must be proved by the oaths or affirmations of two competent witnesses. 20 Pa. C.S. §3132. 14. The Register of Wills is required to accept as self-proving, a will that conforms with the requirements of 20 Pa. C.S. §3132.1 as if it had been made under oath before the register at the time of probate. 20 Pa. C.S. §3132.1. 2 15. The form affidavit for a witness to a will requires that the witness sign the will itself. See 20 Pa. C.S. §3132.1. 16. The proponent of the will may meet his burden of proof in the first instance by offering the register's record of probate, including the will. In re: Ash Estate, 41 A.2d 620, 622 (Pa. 1945). 17. The register's decree of probate has no evidential value. In re: Geho's Estate, 17 A.2d 342. 344 (Pa. 1941). Instead it raises a presumption of the will's validity and this presumption becomes a challenge for proof addressed to the challenger of the will. Id. 18. Presumptions, however, are not evidence and do not supply facts, but only act as guideposts indicating from where proof must come. Id. The purpose of allowing the probate of the will to be placed in evidence is merely to establish prima facie status, and affects only the order of proof. In re: Ash Estate, 41 A.2d 620, 622 (Pa. 1945). 19. It follows, however, that where the Register erred in admitting a will to probate and the error is apparent on the face of the Register's record, then the Register's decree of probate alone fails to establish the proponent's prima facie case of capacity. 20. Only after proof of execution by two witnesses is a testator's testamentary capacity presumed. See In re: Abrams' Estate, 213 A.2d 638, 641-42 (Pa. 1965). 21. In the present case, the 2006 Will was not executed by two-witnesses and therefore should never have been probated as aself-proving will. 22. Because the 2006 Will was not executed by two witnesses, the formalities of execution were not followed and the Proponent/Respondent failed to meet her initial burden of proof by simply submitting the Register's record. 3 23. Because the Proponent/Respondent failed to meet her initial burden of proof, the Court erred in denying the Petitioner's Motion for Nonsuit at the close of the Respondent's case in chief and further erred in dismissing the Petitioner's Appeal. WHEREFORE, Petitioner respectfully requests that this Court strike its Order dated September 30, 2011 and grant the Petitioner's Appeal from Decree of Probate together with such other relief as the Court deems just and appropriate under the circumstances. SECOND EXCEPTION THE COURT ERRED IN DISMISSING THE PETITIONER'S APPEAL BECAUSE THE PETITIONER PROVED THAT THE DECEDENT DID NOT KNOW THE NATURAL OBJECTS OF HIS BOUNTY, DID NOT KNOW OF WHAT HIS ESTATE CONSISTED, AND THE 2006 WILL DID NOT DISPOSE OF THE DECEDENT'S ESTATE IN THE MANNER HE DESIRED 24. The averments of all paragraphs set forth above are incorporated herein by reference as if fully set forth. 25. Once a will is shown to have been properly executed, by the proponent, the burden shifts to the contestant to prove that the will is the result of undue influence or that the testator lacked testamentary capacity. Only if the Court first finds that decedent executed the writing admitted to probate by the register as the decedent's last will and testament, can the court reach the issue of whether the testator had testamentary capacity. McClure v. Redman, 107 A. 25, 26 (Pa. 1919). 26. A testator possesses testamentary capacity if he knows: (1) those who are the natural objects of her bounty; (2) of what his estate consists; and (3) what he desires done with it. In re: Estate of Hastings, 387 A.2d 865, 867 (Pa. 1978). 27. While testamentary capacity is determined by the condition of the testator at the time the will is executed, evidence of incapacity for a reasonable time before and after the 4 making of a will is admissible as an indication of lack of capacity on the day the will is executed. Id. 28. "The concern of the law is the protection of the testator and the legal objects of his bounty, to see that he has testamentary capacity, and is not overreached by designing persons." In re: Cressman's Estate, 31 A.2d 109, 111 (Pa. 1943). 29. In the present case, according to the Petitioner's expert witness, the Decedent suffered severe neural loss in the years preceding the Decedent's death. This opinion was consistent with the observations of all of the Decedent's family members (except for the Respondent/Proponent who claimed she never observed any strange behavior). 30. Further, the evidence presented established that the Decedent allegedly wrote a note and brought it with him to assist in determining how "he" wanted his estate to pass. In listing his siblings in the note, the Decedent failed to list a brother and a sister. One of the sisters that was listed in the Note was not named in the 2006 Will at all. Another sister was named in the 2006 Will as an alternate executrix only, if the Respondent refused or was unable to serve. 31. The evidence further established that the Decedent held an irrational belief that he owned real estate in Virginia that he never, in fact, had legal title to, and of which he previously transferred any equitable interest he purported to have to his only son, the Petitioner. 32. According to the Proponent's own testimony, the Decedent believed that the 2006 Will provided that if the Proponent/Respondent did not survive the Decedent, the Decedent's estate would go to one of the Decedent's other sisters, Marie Johnstin. 33. In fact, as the 2006 Will was drafted, the entirety of the Decedent's estate would have gone to the Respondent's estate. 34. Accordingly, the 2006 Will did not reflect the expressed desires of the Petitioner. 35. Though the Petitioner needed only to establish that one of the three prongs set forth in Hastings, supra, was not met, the Petitioner satisfied all three. The Decedent did not know the natural objects of his bounty, did not understand the contents of his estate, and the 2006 Will not properly express what he wanted done with it. WHEREFORE, Petitioner respectfully requests that this Court strike its Order dated September 30, 2011 and grant the Petitioner's Appeal from Decree of Probate together with such other relief as the Court deems just and appropriate under the circumstances. THIRD EXCEPTION THE COURT ERRED IN DISMISSING THE PETITIONER'S APPEAL BECAUSE THE PETITIONER PROVED THAT THE DECEDENT HAD WEAKENED INTELLECT, WAS IN A CONFIDENTIAL RELATIONSHIP WITH THE PROPONENT, AND THE PROPONENT'S SHARE OF THE ESTATE INCREASED AS A RESULT OF THE CHALLENGED WILL 36. The averments of all paragraphs set forth above are incorporated herein by reference as if fully set forth. 37. A will contest alleging lack of testamentary capacity is different from an assertion that the decedent's will was the product of undue influence. Even where a testator has the requisite testamentary capacity, his will may be invalidated on the grounds of undue influence. In re Estate of Ziel, 359 A.2d 728, 733 (Pa. 1976). 38. Undue influence may be proven in one of two ways: (1) undue influence maybe proven directly by evidence of acts which prejudice a testator's mind and destroy his free agency; or (2) indirectly, through the shifting of the burden of proof as estate set forth in the Pennsylvania Supreme Court's decision in In re: Estate of Clark 334 A.2d 628 (Pa. 1975). In re: Cavanaugh Estate, 29 Fiduc. Reptr. 2d 351, 353 (Phila. Cty. 2009). 6 39. Because undue influence is a subtle, intangible and illusive thing, it must frequently be proven by indirect evidence. In re Estate of Clark, 334 A.2d 682, 635 (Pa. 1975); In re Estate of Luongo, 823 A.2d 942, 964 (Pa. Super. 2003). 40. In the present case, the Petitioner's Appeal challenged the 2006 Will indirectly through the shifting of the burden of proof as set forth in the Clark Estate decision. 41. A contestant proceeding under the indirect evidence method identified in Clark must show, by clear and convincing evidence, that: (1) a person who is in a confidential relationship with the testator; (2) receives a substantial benefit under the will in question; (3) from a testator who had weakened intellect at or around the time of the will's execution. In re: Estate of Clark, 334 A.2d 628 (Pa. 1975); see also In re Ziel's Estate, 359 A.2d 728, 732 (Pa. 1976); In re Mampe Estate, 932 A.2d 954 (Pa. Super. 2007); In re Estate of Luongo, 823 A.2d 942, 963 (Pa. Super. 2003). 42. Once these three factors are established, a presumption of undue influence is raised and the burden of proof shifts to the proponent of the will to establish, by clear and convincing evidence, the absence of undue influence. In re: Clark's Estate, 334 A.2d 628 (Pa. 1975). 43. Weakened intellect has been characterized as "a mind which, in all the circumstances of a particular situation, is inferior to normal minds in reasoning power, factual knowledge, freedom of thought and decision, and other characteristics of a fully competent mentality." In re Heffner Will, 19 Fiduc. Reptr. 542, 546-47 (Mont. Cty. 1969). The "weakened intellect" that must be shown to establish undue influence "need not amount to testamentary incapacity" Burns v. Kabboul, 595 A.2d 1153, 1163 (Pa. Super. 1991); See also In re Estate of 7 Luongo, 823 A.2d 942 (Pa. Super. 2003). Weakened intellect does not require dementia, but is instead a lower standard. In re Auman Will, 28 Fiduc. Reptr. 2d 271, 276 (Centre 2008). 44. In the present case, all of the Decedent's other, living siblings and the Decedent's only son testified that prior to the alleged execution of the Apri12006 Will the Decedent spoke irrationally and became easily confused. 45. Additionally, the Petitioner's expert witness opined that the Decedent suffered from severe neural loss at the time of his death. According to the expert, the loss more likely than not occurred over a period of many years. 46. Taken together, the evidence established that the Decedent suffered from weakened intellect at the time of the purported execution of the 2006 Will. 47. The essence of a confidential relationship is trust and reliance on one side and a corresponding opportunity to abuse that trust for personal gain on the other. In Re Scott's Estate, 316 A.2d 883, 885 (Pa. 1974). 48. The Respondent was the power of attorney for the Decedent. 49. The Respondent admitted that the Decedent trusted her. This testimony was confirmed by the scrivener of the 2006 Will. 50. Additionally, the Decedent's brother testified that the Decedent called him irate and irrational about the land transaction involving the Petitioner until the brother was able to calm the Decedent down and remind him that he, himself, purchased the Property and put it in the Petitioner's name. 51. During this conversation with his brother, the Decedent acknowledged that the Respondent was feeding the Decedent incorrect information about the Virginia land transaction. 8 52. The Respondent was provoking the Decedent in order to curry favor with the Decedent and inflame the Decedent. 53. In doing so, the Respondent was able to turn the Decedent against the Petitioner and thereby insert herself into the Decedent's estate plan as the sole beneficiary of the Decedent's estate. 54. Based on the foregoing, the Petitioner met each prong of the Clark method of proving undue influence thereby giving rise to the presumption that the 2006 Will was the product of undue influence exercised by the Respondent. 55. The Respondent failed to produce clear and convincing evidence to overcome the presumption of undue influence. WHEREFORE, Petitioner respectfully requests that this Court strike its Order dated September 30, 2011 and grant the Petitioner's Appeal from Decree of Probate together with such other relief as the Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 -Phone Attorneys for Petitioner Date: September 19, 2011 Danny B. Evans 9 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Mark Mateya, Esquire Mateya Law Firm 55 West Church Avenue Carlisle, PA 17013 Attorney for Respondent Irma Davenport Respectfully submitted, METTE, EVANS & WOODSIDE Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 -Phone Attorneys for Petitioner Date: September 19, 2011 Danny B. Evans