David K. Lewis, Hermitage, for appellant.
P. Raymond Bartholomew, Sharon, for participating parties.
Spaeth, Johnson and Hoffman, JJ. Spaeth, J., files a concurring statement.
[ 311 Pa. Super. Page 519]
Aleksandria Koltowich died on April 23, 1978. Her will, executed on August 29, 1977, was admitted to probate by the Register of Wills on May 8, 1978. In this will Mrs. Koltowich left a thousand dollars each to a nephew and great-nephew, ten thousand dollars to the Seventh Day Adventist church in Sharpsville, Mercer County, and the residue, which amounted to $249,423.32, to Mr. and Mrs. Suman, the proponents of the will.
This will was the second will. An earlier will, executed in 1973, left her entire estate in trust to the Pennsylvania Conference Association of Seventh Day Adventists, with the provision that five thousand dollars each should be given out of the trust to her nephew and great-nephew. The primary beneficiary of this first, unprobated will appealed to Orphans' Court to contest the probate of the second will.
The basis asserted for the contest to the second will was that the signature to the second will was obtained by the exertion of undue influence, deception and fraud on the testatrix. The Orphans' Court, after a non-jury trial, found that the contestant did not produce sufficient evidence of undue influence to cause the shifting, to the proponents of the will, of the burden of showing lack of undue influence, and dismissed the appeal from the probate of the will. It is from this dismissal that the contestant appealed to this court.
Appellant raises three questions: (1) whether the contestant met its burden of proof of the exertion of undue
[ 311 Pa. Super. Page 520]
influence on the testatrix; (2) whether the Orphans' Court erred in considering certain evidence presented by the proponents in its determination as to the burden of proof; (3) whether the proponents met their burden of proof of the absence of undue influence.
Appellate review of decisions in the Orphans' Court on will contests is of limited scope. Estate of DiPietro, 306 Pa. Super. 238, 452 A.2d 532 (1982). The decree of the Orphans' Court will not be reversed unless it appears that the court abused its discretion, that the court's findings lack evidentiary support, that the court capriciously disbelieved the evidence, Lanning Will, 414 Pa. 313, 200 A.2d 392 (1964), or that the court committed an error of law, Estate of Fickert, 461 Pa. 653, 337 A.2d 592 (1975). The record is reviewed in the light most favorable to the appellee. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976). Once 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 proving, by clear and convincing evidence, that (1) a person in a confidential relationship with the testatrix (2) received a substantial benefit under the will (3) from a testatrix of weakened intellect. If this prima facie case of undue influence is shown, the burden then shifts to the proponent of the will to prove affirmatively the absence of undue influence. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975); Abrams Will, 419 Pa. 92, 213 A.2d 638 (1965).
The Orphans' Court found that the contestant failed to meet its burden of satisfying two of the three elements: the confidential relationship between testatrix and beneficiary, and the weakened intellect of the testatrix.
Testatrix was born circa 1892 of Ukrainian origin. With her husband she came to the United States from Canada. She was widowed in 1971. Thereafter she sold the farm on which she had lived with her husband, and moved to ...