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HomeMy WebLinkAbout03-16-15 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: Orphans Court Division ESTATE OF E. JEANNE (HOGUE) RECHT, DECEASED No. 21-13-0154 PETITIONER'S EXCEPTIONS TO COURT ORDER ENTERED FEBRUARY 23, 2015 AND NOW, this 16th day of March, 2015, comes Jan Recht Stogsdill, Petitioner herein, by and through her counsel, Kathleen Misturak-Gingrich, Esquire, and the Law Offices of Peter J. Russo, P.C., pursuant to Orphans' Court Rule 7.1 and C.C.O.C.R 7.1-1 and files the following Exceptions to this Honorable Court's Order Entered February 23, 2015, ("February 23rd Order"), which dismissed the Citation previously issued to Petitioner. I. ORPHANS' COURT RULE 7.2 TRANSCRIPT DESIGNATION Orphans' Court Rule 7.2 requires exceptions contain a request designating those portions of the record to be transcribed. However, no such designation in necessary in this case as btji days- of hearings have already been fully transcribed. .2 II. EXCEPTIONS' �1-3 (1) The Court's February 23rd Order dismissing the Citation previously issued to Petitioner,,-qn sole basis that Decedent, E. Jeanne Recht, did not lack testamentary capacity is contrary to law and against the weight of the evidence. (2) The February 23rd Order is against the weight of the evidence and contrary to law because the Court failed to consider the Petitioner's evidence that the Instrument dated August 3, 2011 ("Instrument"), which was admitted to probate on February 7, 2013, by the Cumberland County 1 Register of Wills, was not a self- proving will pursuant to 20 Pa C.S.A§ 3132.1. (3) The February 23rd Order is contrary to law and against the weight of the evidence because the Court erred by failing to consider the Petitioner's evidence that the notary on the Instrument failed to comply with applicable notary requirements and was invalid. (4) The February 23rd Order is contrary to law and against the weight of the evidence because the Court erred by failing to consider the Petitioner's evidence that the Instrument should not have been admitted to Probate because it was not a self-proving will pursuant to 20 Pa. C.S.A. § 3132.1 and because Respondent failed to otherwise produce two (2)witnesses to authenticate Decedent's signature pursuant as required by 20 Pa. C.S.A. § 3132. (5) The February 23rd Order is contrary to law and against the weight of the evidence because the Court erred by failing to consider the Petitioner's evidence that the Instrument should not have been admitted to Probate, despite that the Decedent may have had testamentary capacity at the time of execution, because the Instrument was executed as a consequence of undue influence, when Decedent suffered from a weakened intellect and was in a confidential relationship with Respondent and her Father. (6) The February 23rd Order is contrary to Law and against the weight of the evidence because the Court erred by failing to require Respondent to demonstrate the lack of undue influence by clear and convincing evidence, once Petitioner demonstrated that the requisite formalities for the Instrument has not been met. (7) The February 23rd Order is contrary to Law and against the weight of the evidence because the Court erred by failing to consider the Petitioner's evidence that the totality of the circumstances were such that either the signature on the Instrument was not that of Decedent or that it was otherwise forced. (8) The February 23rd Order is contrary to Law and against the weight of the evidence because the 2 S Court erred by failing to consider the Petitioner's evidence that she would be entitled to inherit under the prior will in the event that the Instrument were declared invalid. III. FACTUAL AND LEGAL SUPPORT FOR PETITIONER'S EXCEPTIONS A. Decedent's Instrument Fails to Comply with 20 Pa. C.S.A. � 3132.1 and Should Not Have Been Accepted for Probate as a Self-Proving Will and Respondent Further Failed to Meet her Burden to Otherwise Prove Decedent's Signature on the Instrument Pursuant to 20 Pa C.S.A. & 3132 Under Pennsylvania law, "Unless there is a contest with respect to the validity of the will... an affidavit of witness made 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." (Emphasis added). 20 Pa. C.S. § 3132.1 (a). § (b), "Acknowledgment and affidavits", states in pertinent part, "An attested will 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....The acknowledgment and affidavits shall in form and content be substantially as set forth in the Uniform Probate Code or as follows...:" 20 Pa. C.S. § 3132.1 (b). (Emphasis added). In this case, the Decedent's acknowledgment is inherently unreliable because it was not contemporaneously recorded by the notary public, Pauline Gima, in her notary log, in direct violation of§ 15 (a) of the Notary Public Law, which states in pertinent part, "Every notary shall keep and maintain control of an accurate chronological register of all official acts by that notary 3 done by virtue of that notary's office...Each register shall contain the date of the act, the character of the act, and the date and parties to the instrument...". 57 P.S. § 161 (a). In fact, examination of Pauline Gima's notary log shows NO entry that Decedent executed the Instrument on August 3, 2011 or that Pauline Gima notarized any document on behalf of Decedent on that date. [Petitioner's Exhibit P#-2]. As such, Decedent's acknowledgment is inherently unreliable because there is no corroboration in Gima's notary log that Decedent executed the Instrument or that Notary Gima even notarized the Instrument. Reference to Notary Spisak's notary log, does not cure that defect. Instead, it makes it worse. Notary Spisak admitted that she was not present when Decedent purportedly signed the Instrument and when Decedent purportedly signed Spisak's Notary log. [Petitioner's Exhibit P#-3]. Moreover, the entry respecting Decedent's Instrument was not made by Notary Spisak, but rather, by a non-notary, Richard Reilly, in direct violation of Section 15 of the Notary Public Law, 57 P.S. § 161 (a) and(c),which provides in pertinent part, "A notary public register is the exclusive property of the notary public and may not be used by any other person...". As Notary Spisak had nothing to do with Decedent's execution of the Instrument and was not even present when the execution allegedly occurred, the entry in the Spisak notary log cannot be used to corroborate that Decedent executed the Instrument on August 3, 2011. Neither notary entry respecting the Instrument confirms that Decedent executed the Instrument on August 3, 2011 or even that Notary Gima notarized the Instrument on that date. Pennsylvania recently enacted changes to Pennsylvania's Notary Public Law, effective October 31, 2014. While the substantive changes to the law are not applicable to this case, the comments respecting the purposes of the Notary Public Law are instructive. The comments state with respect to a notary log, "Creating and maintaining a journal of the notarial acts that a notary public performs provides a number of assurances that will protect the integrity of the 4 . f notarial system. Among other benefits, it helps to assure, or at least determine whether, a notarial act that is performed in the name of particular notary was indeed performed by that notary. As an ordinary business record the journal may provide evidence that the act was performed by the notary or, by the absence of an entry in the journal, it may provide evidence that the act was not performed by the notary. In that regard it provides protection to both the notary and the public whom the notary serves" citing to Vancura v Kartis, 907 N.E.2d 814,391111.App.3d 350 (2008). (Emphasis added). In Vancura, the Illinois Superior Court, traced the purposes of the office of notary public back to the common law, citing Black's Law Dictionary for the proposition that a notary public "serves as a public witness of facts transacted by private parties". Black's Law Dictionary, (91h ed. 2009). In this case, rather than providing the intended requisite "reliability" for a notarized document, the multiple violations of the Notary Public Law by both notaries (not to mention Attorney Reilly-a non-notary) only serve to heighten suspicion whether the Decedent executed the Instrument on August 3, 2011, as alleged by Respondent. Moreover, the importance of public confidence in the notary public process, noticeably lacking in this matter, is further illustrated by the Commonwealth's publication of, "Notaries Public in Pennsylvania, a Position of Public Trust", wherein then Secretary of the Commonwealth Pedro Cortes, stated, "...notaries public are held to the highest standards of integrity, honesty and trust. Notaries public are also playing an ever more vital role in commerce and are on the front lines of deterring document fraud.... Id. at page 1. (Emphasis added). Not only were these notary public protections glaringly absent in this case,but the notary irregularities themselves only serve to heighten suspicion about Decedent's purported execution of the Instrument and its validity. Application of the comment in the new notary legislation to the lack of any entry in Notary Gima's log to show that Decedent purportedly executed the Instrument is further indication that said 5 - T execution did not happen. Decedent's acknowledgement on the Instrument lacks reliability as it cannot be substantiated as having occurred by reference to Notary Gima's log. Therefore, the Instrument should not have been admitted to probate as a self-proving will pursuant to 20 Pa. C.S.A. § 3132.1. Moreover, since there is unquestionably a will contest, for purposes of probate, Respondent, therefore, had the burden to otherwise authenticate Decedent's signature on the Instrument by the testimony of two witnesses. 20 Pa. C.S.A. § 3132. In Estate of Wilner, 2014 Pa. Super 94, 2014 Pa. Super. LEXIS 242 (Pa. Superior Court 2014), cert. granted, 2014 Pa.LEXIS 3130 for a limited question, 1 the Superior Court recently affirmed that Pennsylvania statutes still require the oath or affirmation of two witnesses to prove a will before it may be probated, stating, "[The witnesses'] testimony was effective for one purpose, and a very important purpose. It proved a will had been duly exec[u]ted..."Id. at p. 1206. The Superior Court further opined that despite 20 Pa. C.S.A. § 2502," ...our statutes still require the oath or affirmation of two witnesses to prove a will before it may be probated'', citing to 20 Pa. C.S.A§ 3132 (emphasis in original). Therefore, at a minimum, since Decedent's acknowledgment cannot be authenticated, the Respondent had the burden to authenticate Decedent's signature by other than the witnesses' affirmations on the Instrument. She failed to do so. Moreover, during the course of two days of Hearings,Respondent's witnesses to the Instrument could not identify Decedent as the person who signed the Instrument on August 3, 2011. Both Pauline Gima(the notary) and Tara Cheuvron(one The question to be determined is whether the Court should overrule rigid application of the irrebuttable `two witness rule',based upon the specific facts of Wilner,which created an injustice in the opinion of the Superior Court.However,application of the irrebuttable two witness rule in this case would support the purposes for which the Legislature required two witnesses. 6 of the two subscribing witnesses)testified that they did not specifically recall Decedent, could"not recall the day" that Decedent purportedly signed the Instrument and cannot testify with certainty that either of them checked the identification provided (driver's license) against the person sitting in Attorney Reilly's office on August 3, 2011 to sign the Instrument.[Transcript of October 2,2014 Hearing at pages 198-203, 207-212, 215-218.] Attorney Reilly was the only other person present the day that Decedent purportedly signed the Instrument. His testimony is unreliable at best because he participated in the unlawful notarization of Decedent's signature. Further, for purposes of probate, Decedent's signature on the Instrument must be authenticated by two witnesses, (See, 20 Pa. C.S.A § 3132 and Estate of Wilner, supra), so Attorney Reilly's testimony, standing alone, is insufficient as a matter of law to meet that burden. 20 Pa. C.S.A§ 3132. Thus,Respondent failed to meet her burden of otherwise authenticating Decedent's signature and the Instrument should be invalidated as a result. B. The Totality of the Circumstances Suggest that the Signature on the Instrument is not that of Decedent or that the Signature was Otherwise Forced, such that the Instrument Should be Invalidated In Re Young Estate, 347 Pa. 457, 32 A.2d 901 (1943), the Pennsylvania Supreme Court expressly recognized,in cases of alleged forgery of a will,that testimony of those familiar with the Decedent's signature, "plus circumstances of probative value" may be sufficient to overcome the testimony of those claiming to be subscribing witnesses to a questioned document, opining, "The testimony of the attesting witnesses is of course not conclusive in favor of execution even when all agree and no personal impeachment is attempted and ...there is no presumption that the persons purporting to be subscribing witnesses told the truth in testifying that they saw the will executed, though not directly impeached or directly 7 contradicted". Id. at p. 460. See also, In re Estate of Marjorie Cruciani, 2009 Pa. Super 228, 986 A.2d 853 (Pa. Super 2009) and In Re Kirkander, 326 Pa. Super 380, 474 A.2d 290, 293 (1984). In the instant case, however, two of the three people allegedly present when Decedent supposedly executed the Instrument are unable to identify Decedent as the person present in Attorney Reilly's Office to sign the Instrument. Tara Cheuvron, one of the subscribing witnesses has absolutely no recollection of Decedent executing the Instrument, emphatically stating several times during her testimony that she "does not recall the day". See, October 2, 2014 Transcript at pp. 201, 202, and 203. Tellingly, Ms. Cheuvron does not even recall Notary Gima being present when Decedent purportedly executed the Instrument. See, October 2, 2014 Transcript at p. 203. Likewise, Pauline Gima, who allegedly notarized Decedent's signature,but whose credibility is suspect in any event because of the irregularities with her notary log and the absence therein of any reference to notarization of Decedent's Instrument, stated that she "could not recall" if she [herself] were physically present when Decedent placed her signatures on the Instrument. See October 2, 2014 Transcript at p. 211. The final subscribing witness is Attorney Reilly, whose credibility is also suspect because he participated in the unlawful notary of the Instrument, and also because his estate planning document drafting and execution procedures are rife with irregularities, causing them to be generally suspect. In Young Estate, the court discounted the testimony of those subscribing witnesses, who like Attorney Reilly, are not"wholly disinterested". Further, In re Estate of Marjorie Cruciani, supra, the Superior Court upheld the Orphans' Court's invalidation of testator's will as a forgery, partly on the basis that the Judge took issue 8 t with the credibility of the notary and also because the notary "failed to produce her ledger, which by Pennsylvania law a notary is required to maintain to chronicle each act".Id. at p. 856. Likewise, Decedent's Instrument should be invalidated for similar violations of the Notary Public Law, coupled with Respondent's failure to otherwise authenticate Decedent's signature on the Instrument, when it failed to meet the requirements of 20 Pa. C.S.A. § 3132.1 for a self- proving Will. Additionally, the "testimony" (to the extent any remains) of the subscribing witnesses to Decedent's purported execution of the Instrument are susceptible to further challenge by the same types of probative evidence examined by the Supreme Court in Young Estate. In that case, the Supreme Court found compelling that the will was in a name other than the name customarily used by the testator. Therein, the Court looked at forty exhibits, bearing the signatures of testator, which all identified her as "Mrs. Maud Young"; however, the will was in the name, "Maud Young". The Court found that to be a distinction with a difference. Likewise, the many exhibits admitted into evidence in this case reflect, once Decedent legally changed her name upon her marriage (see,Application of Lawrence, 133 N.J. Super 408, 337 A.2d 49(1975),holding under New Jersey law,where Decedent was married,"...if the woman on marriage does not retain her maiden name, she legally adopts her husband's surname by repute, consistent with the common law right to adopt any name as her legal name without a court proceeding"), all documents, except those procured by Respondent or her Father for Decedent, identified Decedent as either Jeanne Recht or Jeanne H. Recht. Not only did Decedent.never thereafter use the name Elda or E. Jeanne (Hogue) Recht on any document, she made it perfectly clear that she did not want to be called by that name and multiple witnesses testified that she identified herself after her marriage only as Jeanne Recht or Jeanne 9 H. Recht. [Transcript of October 2, 2014 Hearing at pages 17-22, 227-228, 251-253.] The difference in Decedent's name is equally compelling in this case. Secondly, striking similar to the testimony in Young Estate, those most familiar with Decedent's signature, because they witnessed her practice it regularly, noted inconsistencies between her customary signature and the signature appearing on the Instrument. See, October 2, Transcript at pp.65-67. Further, the Superior Court in In Re Kirkander, supra, expressly recognized the admission of"suspicious or unusual conduct of an interested party or otherwise surrounding a will" as that "may, when viewed in conjunction with other evidence, raise a question as to the validity of the will." Id. at 3 86. In addition to the items noted above,there was plenty of suspicious and/or . unusual conduct in this case to add to the reasons why the Instrument should be invalidated as a either a forgery or otherwise forced. First, one is compelled to wonder, why anyone who genuinely cared about Decedent's physical and emotional health, would encourage her to live in the unhealthy and unsanitary conditions in which she lived as a result of her hoarding. With respect to Respondent and Ken Hogue, the answer appears to be that by doing so, they intentionally bonded themselves to Decedent for their own financial benefit,by ratifying her life style. Nothing drives home the point that Respondent and her Father intended to take NO action to alienate Decedent, even if it meant allowing Decedent to live in filth and squalor, more than Ken Hogue's testimony at the January 22, 2015 Hearing that if you touched Jeanne's things, "you're done". [See January 22, 2015 Hearing Transcript at p. 158, wherein Mr. Hogue added, "And Jeanne and I had a very good relationship that I wasn't going to risk".] Mr. Hogue further testified that if Green Ridge Village contacted him as the first point of contact to clean up Decedent's apartment,he would have refused 10 to do it. [See January 22, 2015 Hearing Transcript at p. 160]. When asked about the potential consequences to Decedent from a refusal to respond to a request from Green Ridge Village to clean up Decedent's apartment, Mr. Hogue replied that he, "hadn't thought that far". [See January 22, 2015 Hearing Transcript at p. 1541. When further pressed, he testified that he "would call Jan" to clean up Decedent's apartment [See January 22, 2015 Hearing Transcript at pages 157-161], making clear that he would not place at risk his relationship with Decedent, even to preserve her health or her ability to continue to reside at Green Ridge Village. "Evidence of the relationship between a testator or testatrix and a named beneficiary has been admitted where the will is claimed to be a forgery". See,Kirkander, citing Young's Estate. Clearly,Petitioner's evidence demonstrated that Respondent's Father made certain, through his self-serving relationship with Decedent, that Respondent's financial interests respecting Decedent were protected-even to the detriment of his own sister. Moreover, simply the timing of events reflects that Respondent and her Father acted on the window of opportunity afforded to them by Petitioner cleaning up her Mother's apartment at Green Ridge Village's request and they struck while the iron was undoubtedly hot. Petitioner and her husband cleaned up Decedent's apartment on July 1 and 2, 2011. A mere two or so weeks later, Petitioner called Decedent for a pre-arranged dinner meeting and was told by Ken Hogue that Decedent did not wish to speak with her. By July 11, 2011, Ken Hogue, his wife, Respondent and Respondent's two sisters were at Green Ridge Village changing the Points of Contact for Green Ridge Village from Petitioner to themselves (in hierarchy of Ken Hogue first, then Respondent, and then the other Ken Hogue family members). By July 13, 2011, a mere five days before Decedent's pacemaker surgery, Ken Hogue had taken Decedent to his attorney's office to execute a new Power of Attorney("POA"),which was drafted and executed in a single day,naming himself 11 and Respondent as first and second agents, respectively. On August 3, 2011, Ken Hogue again had Decedent at his attorney's office to draft and sign the Instrument, naming his Daughter sole beneficiary and executrix-- all to the exclusion of Petitioner, from whom Decedent was estranged at the moment.Decedent was purportedly interviewed by Attorney Reilly,and the Instrument was allegedly drafted and executed in a matter of hours. See, Estate of Stafford, 2005 Phila. Ct. Com. Pl. LEXIS 171, wherein the Court considered as part of the totality of the circumstances requiring invalidation of the will, similar to the instant case, that the Decedent was taken to the attorney of the beneficiary of the new will (or in this case, the daughter was the beneficiary). Further, the POA, drafted by Attorney Reilly, stated: "My agent may NOT (1) change my Will; or (2) any of my beneficiary designations." (Emphasis in Original). Despite the express prohibition in the POA, Respondent's Father had Decedent at his attorneys' office a mere 20 days later to change her will. Moreover, the number of differing "versions" of the POA that emerged during the Hearing, containing differing numbers of pages and differing signatures by Ken Hogue as Agent, coupled with the inability of Attorney Reilly (or any of his staff) to provide any information about one of the purported witnesses to the POA, add further suspicion to the reliability of any documents, including the Instrument, prepared by Attorney Reilly for Decedent. [See Transcript of January 22, 2015 Hearing at pages 163-1651. Equally suspicious was Attorney Reilly's testimony, AFTER the POA and the Instrument had both been purportedly executed by Decedent, that he commenced to try to locate, for no explicable reason, by calling Attorney Thomas Flower, (Decedent's prior counsel), a safe deposit box containing the "valuable jewelry" that Decedent had described to Attorney Reilly when she had met previously with him on one of the two occasions he purportedly previously had met with 12 her. However,Attorney Reilly's own notes, produced in response to a subpoena from Petitioner's counsel, confirm that Ken Hogue had called Attorney Reilly's Office asking if Attorney Reilly had gathered any information from Attorney Flower about the safe deposit box. See Petitioner's Exhibit # 52, pp. 10 and 11. Further, in testimony, Attorney Reilly provided no plausible explanation why,if Decedent was competent and aware,neither he nor Ken Hogue asked Decedent herself about the location of the safe deposit box. One is compelled to wonder if that omission was intentional because they did not want Decedent to know that they were trying to locate her assets. Additionally, when asked during his testimony whether during the "45 minute chitchat'he had with Decedent on September 3, 2011, Decedent had discussed changing her will, Attorney Reilly conveniently replied that he "did not recall". [See Transcript of January 22, 2015 Hearing at pages 120-122]. Other "suspicious or unusual conduct" involving Respondent and her Father include: Respondent's testimony that Decedent, a hoarder, who historically parted with NONE of her worldly goods, purportedly GAVE Respondent the "valuable"jewelry from her husband's family and the cut leaded-glass lamp that she and her husband had bought at the New York Museum of Art, both of which were prized possessions of Decedent. Moreover, equally suspicious is that this out-of-character "gifting" purportedly happened, according to Respondent, when the Decedent "was in Swaim", which was the skilled nursing unit of Green Ridge Village, and during which time both Decedent's physical and emotional health were unstable and deteriorating. See October 2, 2014 Transcript at p. 111 and Petitioner's Exhibit#44, pages 4,5,6and 28-31. Further, the handwritten directive, dated July 31, 2012, which allegedly set forth Decedent's desires for her final arrangements, but which was admittedly written by Ken Hogue, 13 but purportedly signed by Decedent, was contrary to the types of services and final arrangements that Petitioner understood her Mother would have wanted and which were usual and customary for Decedent's family. Moreover, it was wholly out of character for Decedent, who was fiercely independent, to have allowed another to write that directive for her, IF she were physically and emotionally capable of writing it herself. Not surprisingly, however,that"directive" significantly limits Decedent's final expenses and preserves the estate for the benefit of Respondent. Respondent's preservation of the estate for her own benefit is further evidenced by her failure to declare on the Revenue 1500, Pennsylvania Inheritance Tax Form, ANY personal property of Decedent, "but for" her car. Thereon, Respondent failed to list cash, and/or any other personal property, of which Decedent as a hoarder had "lots", including the "valuable jewelry" owned by Decedent at the time of her death and/or to pay from Decedent's estate the inheritance tax due on the TIAA-CREF, which Respondent did not inherit, despite the directive in the Instrument that such taxes be paid from the estate. [See Transcript of January 22, 2015 Hearing at pages 113-114 and Petitioner's Exhibit#I]. The record is clear that everything done by Respondent and her Father were planned and intentioned to make certain that Respondent inherited form Decedent and that Respondent inherited as much as possible. Finally, Respondent and Ken Hogue never told Petitioner, any of her siblings or even other family members, who would be customary recipients of such information, that Decedent was hospitalized on January 2,2013 for confusion and high blood pressure and discharged to the skilled care unit of Green Ridge Village ("Swaim") on January 4, 2013. They also failed to notify any of these same family members that Decedent had suffered a stroke as of January 18, 2013 and that she lay upon her death bed for eight days before passing away. However, during that same eight- day period, Respondent, Ken Hogue and other members of the Ken Hogue family cleaned out, in 14 their entirety,both Decedent's apartment at Green Ridge Village, as well as her room in the skilled nursing unit ("Swaim") at Green Ridge Village. See, Petitioner's Exhibit 4 44 at p.4 and 445 at GRV0050. These circumstances, standing alone are suspect and unusual, but collectively they demonstrate that the "totality of the circumstances" support invalidating the Instrument on the basis that Decedent's signature on the Instrument was either a forgery or arose from "fabrication of a dispositive scheme over the testator's genuine signature."Estate of Luongo, 823 A.2d 942(Pa. Super. 2003), citing,In re Rosenthal's Estate, 339 Pa. 488, 15A.2d 370 (1940);In re Kane's Estate, 312 Pa. 531, 168 A. 681 (1933). C. The Instrument was Executed as a Consequence of Undue Influence, When Decedent Suffered from a Weakened Intellect and was in a Confidential Relationship with Respondent and her Father As early as December 2010,Thomas Flower,Esquire,who had represented Decedent since at least 2004, by drafting for Decedent, among other documents, a Will, (See, Petitioner's Exhibit 4 32), recognized in his professional opinion that Decedent suffered from a"weakened intellect" and that he was not eager", indeed, "reluctant" to prepare a new will for Decedent in December 2010. If he had done so, he would have prepared a Memorandum to the file "because of the circumstances". Transcript of October 2, 2014 Hearing at p. 140-145. Yet, Attorney Reilly, who testified that he represented Ken Hogue, met with Decedent on August 3, 2011 having met her only once before on July 13, 2011, when he drafted the POA, interviewed her, determined her competent (with no notes of his interview to show on what basis he made determination), drafted the Instrument and purportedly had her execute it, all within a matter of hours (her appointment 15 was not until 2:OOpm in the afternoon of August 3, 2011 and one can presume that since Pauline Gima came from another law firm to purportedly notarize the Instrument, that she did so during normal business hours). See Petitioner's Exhibit# 53, page 7. The Superior Court in Estate of Lakatosh, 441 Pa Super 133, 656 A.2d 1378 (1994), set forth the burden of proof in an undue influence case and made clear that the "weakened intellect" which must be shown in a case of undue influence upon the testator need not amount to testamentary incapacity. Citing to Estate of Reichel,484 Pa. 610,614,400 A.2d 1268, 1270(1979), the Superior Court stated, "When the proponent of a will proves that the formalities of execution have been followed, a contestant who claims that there has been undue influence has the burden of proof. The burden may be shifted so as to require the proponent to disprove undue influence. To do so, the contestant must prove by clear and convincing evidence that there was a confidential relationship, that the person enjoying such relationship received the bulk of the estate and that the decedent's intellect was weakened". Accord, In re: Estate of Pedrick, 505 Pa. 530, 538-39,482 A.2d 215,219(1984);Estate of Shelly,484 Pa 322,332, 399 A.2d 98, 103 (1979). Herein, Respondent failed to prove the formalities of execution were met with respect to the Instrument. To the contrary, Petitioner has clearly proven that they were NOT met. Under that circumstance,the burden to show the absence of undue influence by clear and convincing evidence should have shifted to Respondent. It did not and that constituted error by the Court. Irrespective, however, Petitioner unquestionably met her burden of demonstrating the required elements for undue influence. In Lakatosh, much like Decedent,the testatrix lived in"squalor and filth". Id. at 141. The 16 beneficiary of Ms. Lakatosh's estate was someone who had "befriended" the Testatrix at a time when she had no contact with any family members, except for an occasional visit from her sister. Id. at p. 139. Therein,the Superior Court clearly defined a confidential relationship, and citing to several Pennsylvania Supreme Court cases,expressly held,"...the existence of a power of attorney given by one person to another is a clear indication that a confidential relationship exists between the parties...In fact, no clearer indication of a confidential relationship [can] exist than giving another person the power of attorney over one's life savings...This is particularly true []when the alleged donee is shown to have spent a great deal of time with decedent or assisted in decedent's care."Id. at 142. As Decedent granted both Respondent and her Father the power of attorney over her assets, at a time when she was in their care, in poor and deteriorating health, and tellingly estranged from her daughter(a natural recipient of her bounty), Decedent was unquestionably in a confidential relationship with Respondent and her Father. Moreover, the testimony was clear that the POA was granted by Decedent and the Instrument purportedly executed at a time when the Decedent was estranged from Petitioner because Petitioner and her husband had cleaned up Decedent's apartment at the request of Green Ridge Village on July 1 and 2, 2011, and when Decedent was ill,having found out on July 1, 2011 that her atrial fibrillation required cardioversion and possible insertion of a pacemaker. It was during the time that Decedent was"recuperating"at the Ken Hogue household from the pacemaker surgery, performed on July 18, 2011, that Ken Hogue refused to permit Petitioner to speak with her Mother and only a matter of days thereafter when the Instrument was purportedly executed. The sequence of events from July 2, 2011 until the Instrument was purportedly executed is further compelling evidence of the confidential relationship that was forged by Respondent and her Father, once the Decedent temporarily disengaged from her daughter for "interfering" with her hoarding 17 lifestyle for Decedent's own benefit. By July 11, 2011, Ken Hogue, his wife, Respondent and Respondent's two sisters arrived at Green Ridge Village to change the Points of Contact for Green Ridge Village from Petitioner to themselves (in hierarchy of Ken Hogue first, then Respondent, and then the other Ken Hogue family members). By July 13, 2011, five days prior to Decedent's pacemaker surgery, Ken Hogue had Decedent at his attorney's office to execute a new Power of Attorney ("POA"), drafted and executed in a matter of hours, naming himself and Respondent as first and second agents, respectively. Finally, on August 3, 2011, a mere 30+ days after Petitioner and her Husband had cleaned up (but did not clean out)her Mother's apartment to avoid potential adverse action by Green Ridge Village, Ken Hogue again had Decedent at his attorney's office to sign the Instrument, naming his Daughter sole beneficiary and executrix. While the burden should have been Respondent's to show the lack of undue influence, Petitioner has demonstrated the existence of a confidential relationship by clear and convincing evidence. Equally clear is that Petitioner demonstrated that Respondent received the "bulk" of Decedent's estate as she was the sole beneficiary of the estate by way of the Instrument. See, Petitioner's Exhibit#1. Finally, Petitioner clearly demonstrated that Decedent suffered from a weakened intellect. The testimony of Thomas Flower, Esquire, a well-recognized and respected estate planning attorney,with more than 15 years of experience,is compelling in that regard. Despite that Attorney Flower had represented the Decedent since 2004, in December 2010 he was relieved that she did not execute the will that he had prepared for her because he opined in his professional judgment that Decedent suffered from a"weakened intellect". Transcript of October 2, 2014 Hearing at p. 140-145. From December 2010 until August 2011, Decedent's physical and mental health only 18 continued to decline. See Petitioner's Exhibits P944, P#45, P#54-57. Even assuming that the Court finds credible Attorney Reilly's testimony that Decedent had "testamentary capacity"on the day she purportedly executed the Instrument,does not alter that her "weakened intellect" made her susceptible to undue influence by Respondent and her Father. "It matters not that Attorney Jacobs determined that Rose had testamentary capacity to dispose of her estate on the day she executed the will,as a weakened intellect is distinguishable from testamentary incapacity." Lakatosh at p. 144. "Undue influence is generally accomplished by a gradual, progressive inculpation of a receptive mind. The 'fruits' of the undue influence may not appear until long after the weakened intellect has been played upon." Lakatosh at p. 144. Respondent and her Father leveraged Decedent's weakened intellect,resulting from her hoarding and her atrial fibrillation, in conjunction with her estrangement from her daughter (the perfect storm), to the financial benefit of Respondent. In addition to the compelling testimony of Attorney Flower respecting Decedent's weakened intellect, the Court in Lakatosh, also found that the testatrix's weakened intellect could "be seen in the state in which she was living",which was described as"living in squalor and filth". Lakatosh at P. 140. Likewise, the testimony is equally compelling that Decedent lived in similar conditions as a result of her hoarding, further evidencing her "weakened intellect", and while others tried to help Decedent for her own welfare and protection, Respondent and her Father condoned Decedent's lifestyle to maintain their relationship with Decedent,even when her lifestyle was detrimental to her. ("So, you weren't concerned that she [Decedent] lived in an unhealthy situation?" to which Ken Hogue replied, "Not in the least". See January 22, 2015 Transcript at p. 1540]. Once Petitioner established that Decedent suffered from a weakened intellect, the burden 19 shifted to Respondent to demonstrate by "clear and convincing evidence the absence of undue influence."Lakatosh at p. 146. Petitioner submits that Respondent failed to meet that burden and, as a result, the Instrument should be invalidated, as was the will in Lakatosh. D. If the Instrument is Declared Invalid.Petitioner is Entitled to Inherit Under the Prior Will The Instrument should be invalidated for all or any of the reasons set forth at length above. However, in the event that the Instrument is invalidated for ANY reason, Petitioner is entitled to inherit as the sole beneficiary under the prior will, drafted by Attorney Flower and executed by Decedent on December 8, 2004 ("Prior Will"). Attorney Flower testified that when the Prior Will was executed, Decedent had full mental faculties and was of a clear, testamentary frame of mind, knowing the nature and extent of her worldly possessions_and how she wanted them disposed after her death. Moreover, Decedent never destroyed the Prior Will as is it was found and produced by Respondent, after this Will Contest was filed. The Prior Will was admitted into evidence. See Petitioner's Exhibit# 32. Decedent purportedly revoked the Prior Will by way of execution of the Instrument. But, once the Instrument is declared invalid, the Prior Will is "revived"because "absent a specific revocation [such as by destruction],the doctrine of relative revocation revives an earlier will which has been impliedly revoked by a subsequent will which is later declared invalid". Estate of Luongo, 823 A.2d 942 (Pa. Super. 2003). In essence, "once a will is proved to be intrinsically invalid, it no longer has the effect of revoking prior wills because the entire instrument is inoperative, including the revocation provision". Id. at p. 957. Therefore, should the Instrument be declared invalid for any reason, Petitioner is entitled to inherit under the Prior Will, as she was Decedent's sole named beneficiary therein. Petitioner 20 should also be named Executrix under the Prior Will, upon the removal of Respondent. V. CONCLUSION Petitioner's Exceptions should be granted and the Instrument declared invalid. Respondent should be removed as Executrix and Petitioner declared the sole beneficiary and executrix under the prior Will, dated December 8, 2004 and drafted by Attorney Flower. Upon granting any of Petitioner's Exceptions, the Court should also grant such other relief, including an award of attorneys' fees and costs, as it deems just and reasonable under the circumstances. Respectfully submitted, THE LAW OFFICES OF PETER J.RUSSO,P.C. Date: B t,4,L By: Kathleen Misturak-Gingrich, Esquire Attorney I.D.No. 41682 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 (717) 591-1755 Attorneys for the Petitioner 21 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: Orphans Court Division ESTATE OF E. JEANNE (HOGUE) RECHT, DECEASED No. 21-13-0154 CERTIFICATE OF SERVICE I, Melissa Mehaffey, Paralegal to Kathleen Misturak-Gingrich, Esquire, hereby certify that on this day of March, 2015, a true and correct copy of the foregoing Exceptions To Order Dated February 20, 2015, was hand delivered to the Clerk of Orphan's Court with a request that it be forwarded to the Honorable Thomas A. Placey. These Exceptions were also sent via First Class U.S. Mail, Postage Prepaid to the other intended recipients at the address listed below: Marc Roberts, Esquire LAW OFFICES OF MARC ROBERTS Joan R.Wolf 149 East Market Street 411 Limestone Road York,Pennsylvania 17070 Carlisle,Pennsylvania 17015 (also sent via email) John M. Recht,Jr. James Recht 5520 Dansby Place 45 Province Street Tallahassee,Florida 3 23 11 Apt. 2703 Boston,MA 02108 Richard R.Reilly, Esq. 54 N. Duke Street Jane Recht York,PA 17401 (also sent via email) 37 RandalAvenue West Hartford, Connecticut 06110 LAW OFFICES OF PETER J. RUSSO,P.C. DATE: Melissa Mehaffey, Pa 22