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decided: May 1, 1979.


No. 33 January Term, 1977, Appeal from Decree of the Court of Common Pleas of Montgomery County, Orphans' Court Division, No. 76453


Cuthbert H. Latta, Philadelphia, for appellant.

Calvin S. Drayer, Jr., Norristown, for appellee, Marian Honsaker.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former J., took no part in the decision of this case. Manderino, Justice, dissenting.

Author: O'brien

[ 484 Pa. Page 612]


This case arises out of a contest of the will of Mary F. Reichel, who died on January 11, 1975. The estate's assets consisted of a $128,000 marital trust over which decedent had a general power of appointment under the will of her husband, John Reichel, who died in 1957; stock in the American Telephone and Telegraph Company, worth $64,800; and a residuary estate of $48,400. The contested will provides that all of the trust assets, the stock and one-half of the residuary estate are to go to proponent-appellee,

[ 484 Pa. Page 613]

Marian Honsaker, decedent's daughter, and that the other one-half of the residuary estate is to be received by decedent's son, contestant-appellant, John Reichel, Jr. The will was executed on March 8, 1974. By giving the greater part of the estate to appellee, this will differed from three earlier wills executed by decedent. Her first will, executed in 1957, would have placed one-half of her estate in trust for appellee and given one-half to appellant outright. A 1966 will provided that each would receive one-half of the estate outright. A 1973 will provided that appellee would receive personal and household items and otherwise left the disposition of the estate as provided in the 1966 will.

The disputed 1974 will was offered to the Register of Wills of Montgomery County for probate. Appellant filed a caveat in which he alleged that the will was the result of undue influence exercised upon the decedent by appellee. The register of wills certified the matter to the Court of Common Pleas, Orphans' Court Division, for decision, pursuant to the Probate, Estates, and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, § 2, effective July 1, 1972, 20 Pa.C.P.S.A. § 907. The court held a hearing at which appellee offered evidence to establish that it was decedent's signature on the will, and appellant produced evidence by which he attempted to show that decedent lacked testamentary capacity, or was at least of weakened intellect; that appellee had a confidential relationship with decedent; and that the will preferred appellee over appellant. Both sides moved for compulsory non-suit. The court denied appellant's motion and granted appellee's, acting under the authority of the Probate Code, § 779(b), 20 P.S. § 779(b), added December 10, 1974, P.L. /--, No. 293, § 2, immediately effective, which states:

". . . A non-suit may be entered against a contestant in a will contest whenever the contestant has the burden of overcoming the presumption of validity arising from due proof of execution as required by law and the contestant has failed to satisfy that burden."

Exceptions were heard and dismissed by a court en banc. The case is before us pursuant to our jurisdiction over

[ 484 Pa. Page 614]

    appeals from final decrees of the orphans' court division of a court of common pleas, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S.A. § 722.

In a will contest, the hearing judge determines the credibility of witnesses. The record is to be reviewed in the light most favorable to appellee, and review is to be limited to determining whether the trial court's findings of fact were based upon legally competent and sufficient evidence and whether there was an error of law or abuse of discretion. Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979). In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976). 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. Shelly, supra, Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975).

Testamentary capacity exists when the testator has intelligent knowledge of the natural objects of his or her bounty, the general composition of the estate, and what he or she wants done with it, even if memory is impaired by age or disease, and the testator need not have the ability to conduct business affairs. Brantlinger Will, 418 Pa. 236, 210 A.2d 246 (1965).

Appellant argues that the court below erred in requiring him to prove an exploitation of the three elements articulated in Estate of Clark, supra, before the burden of proof would shift back to the proponent of the will to disprove undue influence. We agree.

In a concurring opinion in Estate of Clark, Mr. Justice Roberts (joined by Justices Pomeroy, Nix and Manderino) stated:

"I agree with the majority that where one contesting a will establishes 1) that a person in a confidential relationship

[ 484 Pa. Page 615]

    with the testator 2) receives a substantial benefit under the will and 3) that the testator was of weakened intellect, a presumption of undue influence arises. The effect of this presumption is to shift the burden of producing evidence and the risk of nonpersuasion on the issue of undue influence to the proponent.

"Once the presumption has been established, the proponent can prove the validity of the challenged gift by clear and convincing evidence that it was not the result of undue influence. Button's Estate, 459 Pa. 234, 240-241, 328 A.2d 480, 484 (1974)."

The above quote makes clear that a contestant to a will needs to show

1) confidential relationship,

2) substantial benefit and

3) weakened intellect

     and if such factors are proven by clear and convincing evidence, the burden of proof would then return to the proponent of the will to show that the gift or bequest was not the product of undue influence.

A reading of the opinion of the court en banc indicates that the court required the contestant to show that the proponent took advantage of the first three elements before the burden would return to the proponent to rebut the evidence that he or she used the confidential relationship and the weakened intellect to exploit his or her share of the substantial benefit. (Opinion of the court en banc, pp. 5-10).

The case must be remanded for a proceeding consistent with this opinion, Estate of Shelly, supra, and the Estate of Clark, ...

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