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decided: March 18, 1975.



Clifford A. Weisel, Byron D. Xides, Weisel, Xides & Conn, Pittsburgh, for appellant.

Martin W. Sheerer, Dillman, Sheerer & Schuchert, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurred in the result. Roberts, J., filed a concurring opinion in which Pomeroy, Nix and Manderino, JJ., join.

Author: Jones

[ 461 Pa. Page 57]


At issue on this appeal is whether the primary beneficiary under the Last Will and Testament of Alice G. Clark exerted undue influence upon the mind and person of the testatrix. The Orphans' Court Division tried the issue devisavit vel non and found that John H. Smith had procured the benefits of the residuary clause, which was the bulk of testatrix's estate, by undue influence, and thereby set aside the residuary clause of the will. We affirm.

Testatrix died on April 22, 1972, at the age of seventy-seven. She had been a widow since 1951 and was childless at the time of her death. Her last will and testament, dated November 12, 1971, made fourteen specific legacies totaling $56,000, among which were a $5,000 bequest to Harry Leech and his wife, Ruth Leech, and a $10,000 bequest to Lyda M. Smith the wife of the proponent, John Smith.

[ 461 Pa. Page 58]

The balance of the estate was devised and bequeathed to John H. Smith as follows:

"My property at 1535 Fox Chapel Road shall go to John H. Smith, my beloved cousin and my executor of my estate. He is also to have the remains of my personal effects for his help and taking care of my well being in the past years. Also to my beloved cousin shall go my Trust Fund, which was set up by my late husband for me, as well as all other assets of my estate after all my bequests, and expenses are met. He shall serve as executor without bond. I do hereby make, constitute and appoint, John H. Smith, 622 Saxonburg Road, Pittsburgh, Penna. 15238 to be my executor of this my Last Will and Testament."

The will was admitted to probate on April 26, 1972. An appeal from the Register of Wills' order was filed by Harry S. Leech. He alleged that the decedent lacked testamentary capacity and/or that the contested writing was procured by undue influence, duress and constraint practiced upon the decedent by John H. Smith. Mr. Smith is a first cousin of decedent. Mr. Leech, the only other relative of the decedent, is a nephew. Under the Pennsylvania law then in effect, Intestate Act of April 24, 1947, P.L. 80, § 3 (20 P.S. § 1.3), John Smith would not share in the intestate estate of the decedent since Harry Leech would take any intestate portion of the estate to the exclusion of all others.

A hearing before the Orphans' Court resulted in a finding that the testatrix possessed testamentary capacity on the date she executed the will. However, the hearing judge found that John H. Smith asserted undue influence on the testatrix, ordered that the residuary clause and the appointment of the executor be set aside, and directed the revocation of the letters testamentary which had previously been granted to John H. Smith. The fourteen specific legacies of the will, including the $10,000 bequest to John Smith's wife, Lyda, were sustained.

[ 461 Pa. Page 59]

Both sides filed exceptions which were dismissed by the court en banc, and a final decree was entered on April 15, 1974. Only John H. Smith has appealed.

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 presents evidence of the formality of probate, a presumption of lack of undue influence arises; the effect is that the risk of non-persuasion and the burden of coming forward with evidence of undue influence shift to the contestant. Abrams Will, 419 Pa. 92, 98, 213 A.2d 638, 641 (1965); Kerr v. O'Donovan, 389 Pa. 614, 623, 134 A.2d 213, 217 (1957).*fn1 Once the contestant proceeds with his proof, there are two viable rules of law in this Commonwealth which allow the contestant to shift the onus of going forward with evidence back to the proponent. The older rule is that where the evidence shows (1) bodily infirmity and (2) greatly weakened mental capacity of the testator, and (3) a stranger to the blood of testator, (4) standing in a confidential relation, (5) who is benefited by a will (6) which he has been instrumental in having written, a ...

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