Appeal from Order of the Court of Common Pleas, Orphans' Court Division of Susquehanna County, No. 83 of 1985.
Peter G. Loftus, Scranton, for appellant.
Raymond C. Davis, Susquehanna, for appellee.
Rowley, Wieand and Beck, JJ.
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James Robert Angier died testate on July 13, 1985. A will dated January 14, 1982, and a codicil dated October 1, 1982, were admitted to probate by the Register of Wills of Susquehanna County. By the terms of the will, the testator left his entire estate to his daughter, Michelle, but if she predeceased the testator, the estate was then to go to Kathy Angier Angel, another daughter.*fn1 On or about September 23, 1982, Michelle was killed by a person or persons unknown. On October 1, 1982, the testator executed a codicil which left his entire estate to a friend, Steven William Martel.*fn2 The testator's only living child, Kathy, filed an appeal from the probate of the codicil. She argued (1) that the testator's signature on the codicil had been forged; (2) that the testator had lacked testamentary capacity when he signed the codicil; and (3) that his signature, if genuine, had been the product of undue influence, fraud, or mistake. The orphans' court, after hearing, dismissed the appeal and affirmed the Register's decision to admit the testator's will and codicil to probate. Exceptions were dismissed, and this appeal by Kathy Angier Angel followed.
For thirty years prior to his death, the testator served as Postmaster in the town of Lanesboro, Susquehanna County. Steven William Martel lived in an apartment above the post office. The testator had sustained serious back and neck injuries during World War II, and thereafter suffered chronic physical ailments. Prior to his death, he had lived alone with his dog. Martel frequently had helped the testator by caring for testator's dog, and sometimes joined
[ 381 Pa. Super. Page 117]
the testator behind the counter at the post office. The testator's daughter, Kathy, had married and was living with her family in South Carolina but continued to correspond with her father.
The contestant of a will has the burden of proving the existence of a forgery by clear and convincing evidence. See: In re Estate of Elias, 429 Pa. 314, 321, 239 A.2d 393, 396 (1968); In re Kadilak's Estate, 405 Pa. 238, 243, 174 A.2d 870, 873 (1961). Mere suspicion and conjecture cannot take the place of evidence. In re Estate of Elias, supra (citing cases). In the instant case, appellant and one other witness testified that they did not believe that the signature which appeared on the codicil was that of the decedent. However, appellant did not produce a handwriting expert, and other witnesses stated that they recognized the signature as that of the testator. Moreover, the will had been executed in an attorney's office before subscribing witnesses. In view of this evidence, the court could properly conclude, as it did, that forgery had not been proved.
The law concerning testamentary capacity is well settled.
A testator possesses testamentary capacity if he knows those who are the natural objects of his bounty, of what his estate consists, and what he desires done with it, even though his memory may have been impaired by age or disease. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268, 1270 (1979); In re Estate of Hastings, 479 Pa. 122, 127, 387 A.2d 865, 867 (1978); Cohen Will, 445 Pa. 549, 551 n. 1, 284 A.2d 754, 755 n. 1 (1971). The burden of proving testamentary capacity is initially with the proponent; however, a presumption of testamentary capacity arises upon proof of execution by two subscribing witnesses. Thereafter, the burden of proof as to incapacity shifts to the contestants to overcome the presumption by clear, strong and compelling ...