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ESTATE KATA BANKOVICH. APPEAL JOSEPH YURFICK (08/09/85)

filed: August 9, 1985.

IN RE ESTATE OF KATA BANKOVICH. APPEAL OF JOSEPH YURFICK


Appeal from Judgment of the Court of Common Pleas, Orphans' Court Division, of Beaver County, No. 4-83-281.

COUNSEL

Peter M. Suwak, Washington, for appellant.

Charles S. Morrow, Pittsburgh, for appellees.

Wieand, Cirillo and Johnson, JJ.

Author: Wieand

[ 344 Pa. Super. Page 521]

Joseph Yurfick, the sole beneficiary under the terms of the last will and testament of his deceased mother, has appealed from an order of the Orphans' Court of Beaver County which refused to allow the will to be probated because it was found to be a product of undue influence.

Kata Bankovich died on April 22, 1983 at the age of 87. She was survived by seven children,*fn1 including the appellant. She had lived on a farm in Beaver County until her husband died in 1973. Thereafter, the oldest son, Stephen Yurcic,*fn2 joined her at the farm and lived with her until his death in August, 1979. Stephen discovered in late 1978 or early 1979 that he was terminally ill. On May 4, 1979,

[ 344 Pa. Super. Page 522]

    appellant, who lived only a few miles from his mother's farm and who assisted Stephen in taking care of her, took his mother to the offices of her attorney where a will was prepared and executed. The will provided in pertinent part as follows:

All of my estate, real, personal or mixed, of whatsoever nature and wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to my son Stephen Yurcic, and in the event that he predecease me, then to my son Joseph Yurfick, to be his absolutely.

While at the lawyer's office, Kata Bankovich also executed a power of attorney in favor of appellant. In 1980, after Stephen had died, she also conveyed her farm to Joseph Yurfick, the appellant. On December 23, 1980, however, Kata Bankovich was declared incompetent; and on January 4, 1983, the deed was set aside.

Within three days after the death of the testatrix, Anne Megart, a daughter, filed a caveat in the office of the Register of Wills of Beaver County. When appellant offered the will for probate, the Register of Wills certified the record to the Orphans' Court to determine whether the will should be admitted to probate. After two days of hearings, the Orphans' Court found that the testatrix had been subjected to undue influence by her son, Joseph. In reaching this determination, the court found that Joseph had occupied a confidential relationship with the testatrix who, at the time of executing the will, had been of a weakened intellect. The court, therefore, placed the burden on appellant, the proponent of the will, to show that the will had been the product of the testatrix's free will and not the result of undue influence. The court found that appellant had failed to meet this burden and, therefore, refused to allow the will to be admitted to probate. Exceptions were denied, and this appeal followed.

"Our review in [a will contest] is limited to determining whether the findings of fact approved by the court en banc rest on legally ...


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