Appeal from the Order and Judgment of the Court of Common Pleas, Orphans Division, of Philadelphia County at No. 1477 of 1977.
John M. Elliott, Philadelphia, for appellants.
Cirillo, Montemuro and Popovich, JJ.
[ 352 Pa. Super. Page 416]
This is an appeal from the order, later reduced to judgment, of the Orphans' Court of Philadelphia County, sitting en banc, denying the exceptions of the appellants, American Committee of Weizmann Institute of Science, Inc. and Philadelphia Geriatric Center, and confirming the last Will of the decedent (Alexander Younger). We affirm.
The facts surrounding the execution of the 81-year-old decedent's fifth, and final, Will admitted to probate are well-documented in the opinions of the Orphans' Court (per Judge Gutowicz) and this Court in response to the appellants' initial appeal in Estate of Younger, 314 Pa. Super. 480, 461 A.2d 259 (1983), overruled 505 Pa. 530, 482 A.2d 215 (1984). We find it, therefore, unnecessary to reiterate those facts here.
The first issue concerns whether the appellants/contestants have satisfied their burden of proving that the decedent had such a "weakened intellect" that all but the No. 1 and No. 2 Wills executed by him should be held untainted by any evidence of undue influence.
Although all parties concede, as evidenced in the opinions of the Orphans' Court dated August 26, 1980, and this Court in Estate of Younger, supra, that the decedent did have a confidential relationship with the attorney-scrivener-beneficiary, and he did leave this individual a substantial part of his estate,*fn1 the failure of the contestants to
[ 352 Pa. Super. Page 417]
establish by clear and convincing evidence that the testator was suffering from mental infirmities falls short of their entitlement to have the last Will and Testament (No. 5) of the decedent, or, for that matter, any of the other previous testamentary documents, voided. Wills Nos. 1-4 were properly revoked by the decedent, and no evidence has been presented to us to hold otherwise.
As the Orphans' Court so aptly stated in this matter:
This Court is fully aware of the financial interest Ocks [attorney-scrivener-beneficiary-appellee] has in the outcome of the instant will contest. However, we find nothing improbable, implausible, inconsistent, in short, nothing incredible, in his testimony. He paints a picture of the testator which matches perfectly that drawn by Dr. LaVan and Mrs. Sullivan. Dr. LaVan noted,
"If he (Alexander Younger) had a mental quality that one might look at I would have to call it stubbornness and a tenacity to ...