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COHEN WILL (12/20/71)

decided: December 20, 1971.

COHEN WILL


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Montgomery County, Dec. T., 1970, No. 71323, in re estate of Abraham Cohen, deceased; appeal of Richard William Cohen.

COUNSEL

Paul Maloney, with him Pepper, Hamilton & Scheetz, for appellant.

Ronald Ervais, with him Steven J. Hartz, and Becker, Fryman & Ervais, for appellee.

Jones, Eagen, O'Brien, Roberts and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Pomeroy took no part in the consideration or decision of this case.

Author: Roberts

[ 445 Pa. Page 550]

This appeal arises out of a contest over a will which was executed by Abraham Cohen, M.D., on December 31, 1968, while he was a patient in the Abington Memorial Hospital. This will was duly admitted to probate, and Letters Testamentary were granted thereon. On December 10, 1970, the Orphans' Court Division of the Court of Common Pleas of Montgomery County, after hearing, dismissed the appeal of Dr. Richard W. Cohen, the testator's only child, from the Register's decree. This appeal followed.

Appellant contends that his father's will should be denied probate. He alleges that the testator did not have testamentary capacity at the time he signed the will. In addition, he alleges that the testator did not intend to make the disposition of his estate which the will of December 31, 1968, would effect. After a careful review of the record, we reject both of appellant's contentions and affirm the decree of the orphans' court.

Preliminarily we should note that in reviewing the decision of the orphans' court, our task is to assure that the record is free from legal error and to determine if the chancellor's findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence. See, e.g., Holtz Will, 422 Pa. 540, 544, 222 A.2d 885, 888 (1966); Hunter Will, 416 Pa. 127, 136, 205 A.2d 97, 103 (1964).

[ 445 Pa. Page 551]

The record establishes that on June 11, 1968, testator, a physician, prepared for himself a will which in essence divided his estate equally between his wife and his son. On the evening of December 29, 1968, testator had his wife drive him to the Abington Memorial Hospital. There testator, a member of Abington Memorial's staff, was placed in the hospital's coronary care unit.

On the evening of December 31, 1968, I. Jerome Stern, Esq., brought to the hospital a new will which he had prepared at testator's request. This will contained a bequest to testator's wife in the amount of the maximum marital deduction, and created a residuary trust whose income was to be distributed to testator's wife. The will was signed that evening. Testator was released from the hospital on January 29, 1969, and died less than three months later on April 18, 1969.

Appellant urges that testator lacked testamentary capacity*fn1 at the time he executed the December 31, 1968, instrument. We have long held that once the execution of a will is proved by the required two witnesses, as it was here, a "presumption of testamentary capacity" arises which can only be overcome by "clear, strong, and compelling evidence." Brantlinger Will, 418 Pa. 236, 242, 210 A.2d 246, 250 (1965). We agree with the ...


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