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HomeMy WebLinkAbout11-08-12J-A23002-12 ~~~ 0~~-~<~7I NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT O.P. 65:37 _ -L, ~~ DANNY B. EVANS, ~ cn ~ '-;;-> IN THE SUPERI(~~QURLOF ~? PENNSYL ~iIA ~ Appellant ~ _ ~ r r-, r` IRMA DAVENPORT, Appellee No. 26 MDA 2012 Appeal from the Order Entered December 6, 2011 In the Court of Common Pleas of Cumberlannd County Orphans' Court at No(s): 21-08-09;~9 BEFORE: STEVENS, P.J., BENDER, J., and GANTMAN, J!. MEMORANDUM BY STEVENS, P.J. FILED SEPTEMBER 28, 2012 This is an appeal from the order of the Court of Common Pleas of Cumberland County, Orphans' Court Division, which dismissed the exceptions of Appellant, Danny B. Evans, and affirmed the decree of the Register of Wills admitting to probate the April 14, 2006 will of William I. Evans (the decedent).1 We affirm. The relevant facts have been aptly set forth by the Orphans' Court as follows: [Appellant] is a fifty-six year old resident of Broadnax, Virginia. [Appellee] is Irma Davenport, a resident of DeWitt, Virginia. [Appellant] [is the decedent's son, and Appellee is the 1 We note that Pa.R.A.P. 311(a)(8) provides that "an order determining the validity of a will or trust" is an interlocutory order appealable as of right. Thus, this matter is properly before this Court. J-A23002-12 decedent's sister]....[The] decedent, [who was] a resident of South Middleton Township, Cumberland County, Pennsylvania...died on September 28, 2008. At the time of his death, [the] decedent was 73 years old, unmarried, lived alone in a home that he owned, managed his own real estate holdings, and maintained his own home. He was a strong-willed, loquacious individual, who did things "his way" and was not easily manipulated. Prior to his death, [the] decedent and [Appellant], his son, had a falling out, [which was] precipitated by [Appellant's] refusal to deed a certain property in Virginia too [the] decedent following a transaction in March of 2005 whereby [the] decedent placed [the property] in [Appellant's] name to avoid its subjection to equitable distribution in a divorce proceeding between [the] decedent and his spouse at the time. It had been [the] decedent's intent, upon regaining control of the property following the divorce, to move to Virginia, live on the property, and reopen a store on a building, [which] existed on the property. As a consequence of what he regarded as a betrayal on the part of [Appellant], [the] decedent directed hiss attorney, Jane Adams, Esquire, an experienced scrivener of wills and [a] sole practitioner in Cumberland County, Pennsylvania, to draft a new will for him and made [his] sister, [Appellee], [the] sole beneficiary of his estate. A previous will, [which was] executed on August 2, 2005, and initiated at the suggestion of [Appellant],...had provided for [the decedent's] estate to go to [Appellant, who was the decedent's sole surviving child]. [The] decedent's new will was executed on April 14, 2006, in the office of Attorney Adams. Attorney Adams had drafted [the] decedent's prior will, was well-acquainted with [the] decedent through her representation of him commencing with a three-year divorce proceeding, which concluded in May of 2005, and had no concern whatsoever regarding her client's testamentary capacity at the time of the execution of the second will. [The] decedent, according to Attorney Adams, was "clear and consistent. I mean he was clear. He had a big, loud voice, and he, you know, was-he was consistent the times he came in." "[I]t never occurred to me that he...wouldn't have the capacity to execute a will." According to Attorney Adams, her discussion with [the] decedent revealed that he was aware of the natural objects of his bounty and knew what property he had. At this time, [the] decedent was still driving, and in fact, there is ino indication in -2- J-A23002-12 the record that he was not still driving as of his death more than two years later. On the occasion of the execution of [the] decedent's new will in 2006, Attorney Adams secured the assistance of a neighboring attorney, Mark F. Bayley, Esquire, and his assistant, Jacqueline Ege, to witness the decedent's execution of the document. Although Attorney Bayley did not specifically remember [the] decedent at the time of the hearing, [which was held five years after execution of the will], his participation in such an event at the request of Attorney Adarns was a routine occurrence. [H]e recalled no instance of such a service where he suspected that the testator might have lacked testamentary capacity. [The] decedent's new will consisted of a first page, representing the substance of the document aind signed by the testator, a second page, consisting of a notarized acknowledgment of the testator, and a third page, entitled Affidavit, consisting of the signatures of the witnesses acknowledging that the testator had declared and signed the document as his last will and testament, that he appeared to be of lawful age and sound mind and memory, and that there was no evidence of undue influence. This page included a notarized affidavit by the witnesses to the effect that they had subscribed their names for the purposes therein contained. This will was admitted to probate by the Cumberland County Register of Wills on October 1, 2008, [following the decedent's death on September 28, 2008]. Orphans' Court's Opinion filed 3/9/12 at 3-6 (citations. to record, citations to notes of testimony, and footnotes omitted). Thereafter, Appellant filed an appeal and a petition sur appeal challenging the Register of Wills' decision to admit the April 14, 2006 will, which named Appellee as the sole beneficiary, to probate. The challenge presented in the petition sur appeal was based on a~ lack of testamentary capacity and undue influence. The Orphans' Court lissued a rule to show -3- J-A23002-12 cause directing Appellee to "show cause why the relief requested by [Appellee] should not be granted," and Appellee responded. On March 22, 2011, the matter proceeded to an evidentiary hearing, and prior to the commencement of testimony or the entry of any exhibits into evidence, Appellant indicated he believed the Apiril 14, 2006 will did not meet the formalities of execution requirements since the signatures of the subscribing witnesses were located in the self-proving affidavit section of the document, as opposed to on the will itself. N.T. 3/22/11 at 4-16. In order to rebut his assertion, Appellee presented the testimony of Attorney Adams, and at the conclusion of her testimony, without puttling on any evidence of his own, Appellant requested a "nonsuit." N.T. 3/22/11 at 15. The Orphans' Court denied the request for "nonsuit," N.T. 3/22/11 at 15-16, and following additional testimony, by order filed on September 30, 2011, the Orphans' Court dismissed Appellant's petition sur appeal. Specifically, the Orphans' Court concluded "with respect to the probated will in this case, dated April 14, 2006, the testator was not subjected to undue influence in connection with its creation and the testator did not lack testamentary capacity at the time of its creation[.]" Orphans' Court's Order filed 9/30/11 at 1. Appellant filed timely exceptions, and following oral argument, by order filed on December 6, 2011, the Orphans' Court dismissed Appellant's exceptions. Appellant filed a timely notice of appeal, and all Pa.R.A,.P. 1925 requirements have been met. -4- J-A23002-12 Appellant's sole issue on appeal is that the Orphans' Court erred in concluding Appellee met her burden of proving the ,April 14, 2006 will met the formalities of execution as required by 20 P~a.C.S.A. §§ 3132 and 3132.1. Specifically, he suggets the April 14, 2006 will was not admissible to probate since (1) the statute requires two witnesses to sign a will in order to affirm the testator's signature; however, in this case, the two witnesses signed only the self-proving affidavits, which were attached to the will, (2) in any event, the self-proving affidavits did not substantially comply with Subsection 3132.1, and (3) Appellee failed to prove the signature on the April 14, 2006 was that of the decedent. We find no merit to Appellant's assertions.Z Initially, we note our standard of review in this rnatter is well settled Our standard of review of the findings Hof an [O]rphans' [C]ourt is deferential. When reviewing an [order] entered by the' Orphans' Court, this Court must determine whether the record its free from legal error and the court's factual findings are supported by the evidence. Because the Orphans' Court sits .as fact-finder, it determines the credibility of the witnesses anti, on review, we will not reverse its credibility determinations absent an abuse of that discretion. z In addition to finding no merit to Appellant's clairn, the Orphans' Court suggested that Appellant should have presented his instant challenge to the will in his petition sur appeal instead of at the hearing as a request for nonsuit. As we may affirm the Orphans' Court on any ground, In re Benson, 615 A.2d 792 (Pa.Super. 1992), and finding Appellant's challenge to be meritless as discussed infra, we find it unneaassary to address this matter further. -5- J-A23002-12 However, we are not constrained to give the same deference to any resulting legal conclusions. [T]he Orphans' [C]ourt decision will not be reversed unless there has been an abuse of discretion or a fundamental error in applying the correct principles of law. Estate of Whit/ey, 2012 WL 3104682, *2 (Pa.Super. filed. 8/1/12) (quotation omitted). The requirements for executing and probating a will are set forth in the Decedent, Estates, and Fiduciaries Code. Specifically, 20 Pa.C.S.A. § 2502 provides the following regarding the execution of a willl: § 2502. Form and execution of a will Every will shall be in writing and shall be signed by the testator at the end thereof, subject to the following rules and exceptions: (1) Words following signature. The presence of any writing after the signature of a will, whether written before or after its execution, shall not invalidate that which precedes the signature. (2) Signature by mark. If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed before or after he: makes his mark shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence. (3) Signature by another. If the testator is unable to sign his name or to make his mark for any reason, a will to which his name is subscribed in his presence and by his express direction shall be as valid as though he had signed his name thereto: Provided, That he declares the instrument to be his will in the presence of two witnesses who sign their names to it in his presence. 20 Pa.C.S.A. § 2502 (bold in original). 20 Pa.C.S.A. § 3132 provides the following regarding the probating of a will: § 3132. Manner of probate -6- J-A23002-12 All wills shall be proved by oath or affirmations of two competent witnesses and (i) Will signed by testator. In the case of a will to which the testator signed his name, proof by subscribing witnesses,3 if there are such, shall be preferred to the extent that they are readily available, and proof of the signature of the testator shall be preferred to proof of the signature of a subscribing witness. *** 20 Pa.C.S.A. § 3132 (bold in original) (footnote and italics added). As is relevant to the case sub judice, Section 2!502 provides that a will has been properly executed where the testator planes his signature at the end thereof. See In re Estate of Keiser, 560 A.2d 148 (Pa.Super. 1989). Section 3132 sets forth how the requisite facts in Section 2502 must be proven. See In re Rhodes' Estate, 399 Pa. 476, 160 A.2d 532 (1960). Specifically, Section 3132 provides that "[a]II wills shall be proved by the oaths or affirmations of two competent witnesses...." This section sets forth in statutory form the law of wills known as the "two ~nritness rule," which has the intent of insuring the signature of the decedent ern the will is valid. See In re Rhodes' Estate, supra; In re Estate of Bri'skman, 808 A.2d 928 (Pa.Super. 2002); In re Estate of Conig/io, 472 A.2d 205 (Pa.Super. 1984). In explaining the "two witness rule," thf: Supreme Court has indicated that "[p]roof of execution must be made by two witnesses, each of whom must separately depose to all the facts necessary to complete the s Black's Law Dictionary defines "subscribing witnness" as "[o]ne who witnesses the signatures of an instrument and signs at the end of the instrument to that effect." Black's Law Dictionary 1634 (8th ed. 1999). -7- ]-A23002-12 chain of evidence, so that no link in it may depend on the credibility of but one." In re Rhodes' Estate, 399 Pa. at 480, 160 A.2d at 533 (quotation and quotation marks omitted). As Section 3132 indicates regarding the ~~two witness rule," proof of the testator's signature by subscribing witnesses, i,e., those who witnessed the testator sign the will and then signed at the end of the will to that effect, is preferred if there are such and only to the extent they are readily available. 20 Pa.C.S.A. !g 3132. Thus, as this Court acknowledged in In re Estate of Conig/io, proof of the authenticity of the decedent's signature on the will may be established by non-subscribing witnesses. As such, contrary to Appellant's assertion, neither case law nor the statutory provisions set forth above contain the requirement that, where the testator signs his name on the will, in order to be valid, the will must contain the signatures of two subscribing witnesse~s.4 Rather, the two- witness rule indicates that credible testimony frorn two non-subscribing witnesses may establish the validity of the decedent's signature, which is the ultimate goal of Section 3132 for probating purposes. See id. a Appellant urges this Court to adopt the reasoning of the Supreme Court of Texas in Wich v. F/erring, 652 S.W.2d 353 (Tex. 1983), in which the Texas Court held a will was invalid where it was not signed by two witnesses. However, Wich has been superseded by Texas statute as discussed in In re Livingston, 999 S.W.2d 874 (Tex. Ct. App. 1999). ]:n any event, based on the relevant Pennsylvania statutory language and case law, as further discussed, we conclude a will signed by the testator is not invalid on the basis two witnesses failed to sign it. -8- J-A23002-12 Additionally, the validity of a decedent's signature may be proven by affidavits as set forth in 20 Pa.C.S.A. § 3132.1, relating to self-proved wills. Section 3132.1 serves the purpose of ensuring thai:, upon the death of a testator, the will is accepted as validly signed by the testator without two witnesses needing to be found to offer testimony on the matter. In this regard, Section 3132.1 specifically provides, in relevant part, the following: § 3132.1. Self-proved wills (a) Proof.-Unless there is a contest with respect to the validity of the will, or unless the will is signed by mark or by another as provided in section 2502 (relating to form and execution of a will), an affidavit of witness m<~de in conformity with this section shall be accepted by the register as proof of the facts stated as if it had been made under oath before the register at the time of probate. (b) Acknowledgment and affidavits.- An attested wills may at the time of its execution or at any subsequent date be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this Commonwealth or under the laws of the state where execution occurs, or made before an attorney at law and certified to such officer as provided in subsection (c) and evicienced, in either case by the officer's certificate, under official seal, attached or annexed to the will. A separate affidavit may be used for each witness whose affidavit is not taken at the name time as the testator's acknowledgment. The acknowledgment and affidavits shall in form and content be substantially as set forth in the Uniform Probate Code or as follows: Acknowledgment *** I, _, the testator whose name is signed to the attached or foregoing instrument, having been duly qualified according to s Blacks' Law Dictionary defines "attested will" as "[a] will that has been signed by a witness." Black's Law Dictionary 1628 (8t" ed. 1999). -9- J-A23002-12 law, do hereby acknowledge that I signed and executed the instrument as my Last Will; and that I signed It willingly and as my free and voluntary act for the purpose therein expressed. Sworn to or affirmed and acknowledged before me by , the testator, this day of , [20]_ *** Affidavit *** We (or I), _ and _, the witness(es) whose, name(s) are (is) signed to the attached or foregoing instrument, being duly qualified according to law, do depose and say that we were (I was) present and saw the testator sign and execute the instrument as his Last Will; that the testator signed willingly and executed it as his free and voluntary act for the purposes therein expressed; that each subscribing witness in the hearing and sight of the testator signed the will as a witness; and that to the best of our (my) knowledge the testator was at that time 18 or more years of age, of sound mind and under no constraint or undue influence. *** (c) Acknowledgment and affidavit taken before an attorney at law.-The acknowledgment of they testator and the affidavit of a witness required by subsection (b) may be made before a member of the bar of the Supreme Court of Pennsylvania or of the highest court of the: state in which execution of the will occurs who certifies to an officer authorized to administer oaths that the acknowledgment and affidavit was made before him. In such case, in ,addition to the acknowledgment and affidavit required by subbsection (b), the attorney's certification shall be evidenced by i:he officer before whom it was made substantially as follows: *** On this, the _ day of _, [20]_, before me, the undersigned officer, personally appeared ,known to me or satisfactorily proven to be a member of the bar of the highest court of (Pennsylvania or the state in which execution took place), and certified that he was personally present when the foregoing acknowledgment and affidavit were signed by the testator and witnesses. *** -10- J-A23002-12 20 Pa.C.S.A. § 3132.1 (bold in original). Based on the plain language of Section 3132.1, where an attested will, i. e., one which has been signed by the subscribing witnesses, has the requisite acknowledgement and affidavits, such shall be self-proved and, without further contest, may be probated without: further proof of the authenticity of a testator's signature. However, as discussed supra, aself- proved will is not the only manner of proving the validity of a testator's signature on a will. Rather, as indicated supra, where subscribing witnesses to the will do not exist, proof of the validity of the signature of the testator may be proven by two non-subscribing witnesses. See 20 Pa.C.S.A. § 3132. To this end, Appellee presented the testimony of Jane Adams, Esquire, Mark F. Bayley, Esquire, and Irma Davenport. Attorney Adams testified she prepared the April 14, 2006 will for the decedent. N.T. 3/22/11 at 6. Attorney Adams specifically testified that the signature at the bottom of the April 14, 2006 will was that of the decedent, and Mark F. Bayley, Esquire and his secretary, Jacqueline Ege, who signed affidavits, were present when the decedent signed the will. N.T. 3/22/11 at 9-10. Attorney Bayley testified that he and Attorney Adams have separate law practices but share office space. N.T. 6/29/11 at 70, 72. It was customary that, when Attorney Adams had a client who was signing a will, Attorney Bayley would witness the testator's signature and then Attorney Bayley would sign an affidavit to that effect. N.T. 6/29/11 at 70. With -11- J-A23002-12 regard to the decedent's April 14, 2006 will, Attorney Bayley specifically identified his own signature on the affidavit, which was attached to the decedent's April 14, 2006 will, and indicated that the signature had been placed on the affidavit during the normal course of Attorney Bayley witnessing the testator's signature on the will. N.T. 6/29/11 at 70-71. Irma Davenport testified that, on April 24, 2006, the decedent, who was her brother, came to her house after a family reunion and showed her a copy of the April 14, 2006 will, which contained thE: decedent's signature. N.T. 6/29/11 at 78-80. She confirmed that the April ]l4, 2006 will, which the decedent showed her on April 24, 2006, was the same will as that previously introduced into evidence as Executrix Exhibit 1. N.T. 6/29/11 at 81, 83. Based on this evidence, we conclude the Orphans' (:ourt did not abuse its discretion in finding the decedent validly executed the April 14, 2006 will. Finally, Appellant suggests the affidavits signed by Attorney Bayley and Ms. Ege were defective, and thus, Appellee did riot meet her burden of proving the April 14, 2006 will was aself-proved will under Section 3132.1. However, as discussed supra, inasmuch as Appellee proved the authenticity of the decedent's signature in compliance with statutory and case law, we find it unnecessary to address this issue further. For all of the foregoing reasons, we affirm. Affirmed. -12-