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Estate of Nalaschi

Superior Court of Pennsylvania

April 11, 2014

ESTATE OF ALBERT NALASCHI, DECEASED, APPEAL OF: EUGENE NALASCHI, EXECUTOR

Argued February 25, 2014

Page 9

Appeal from the Decree of the Court of Common Pleas, Lackawanna County, Orphans' Court Division, No. 35-2012-00848. Before MUNLEY, J.

Nicholas E. Fick, Scranton, for appellant.

BEFORE: GANTMAN, P.J., DONOHUE and STABILE, JJ.

OPINION

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DONOHUE, J.:

Eugene Nalaschi (" Eugene" ) appeals from the decree entered on June 19, 2013 by the Court of Common Pleas of Lackawanna County, Orphans' Court Division, granting the petition of Charles Witaconis, Esq. (" Witaconis" ) allowing the probate of the April 25, 2011 will of Albert Nalaschi, Sr. (" Decedent" ) and revoking the letters testamentary issued with respect to Decedent's January 28, 2010 will. We affirm.

Decedent died on July 6, 2012. Decedent was survived by eight children, three of whom were from his first marriage to Delores Nalaschi -- Albert Nalaschi, Jr., James Nalaschi (" James" ), and Leo Nalaschi, and five of whom were from his second marriage to Marion Nalaschi -- Anthony Nalaschi, Eugene, Louise Lokuta (" Louise" ), Cheryl Wilson (" Cheryl" ), and Dean Nalaschi. The controversy in this matter arises out of two wills executed by Decedent. The first will, dated January 28, 2010 (" the 2010 Will" ), named Eugene the executor and Decedent's daughter Louise the sole beneficiary. The second

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will, dated April 25, 2011 (" the 2011 Will" ), named Witaconis the executor and Decedent's son James the sole beneficiary.

Around July 11, 2012, the Register of Wills of Lackawanna County accepted the 2010 Will for probate and issued letters testamentary to Eugene, the executor named in that will. On July 27, 2012, Witaconis petitioned the Lackawanna County Court of Common Pleas, Orphans' Court Division, to show cause why letters testamentary should not be revoked for the 2010 Will based on the existence of the 2011 Will. Subsequently, Witaconis filed a second petition to compel the probate of the 2011 Will. In his answer to both of these petitions, Eugene asserted that the 2011 Will was invalid, in part, because Decedent lacked testamentary capacity at the time of the execution of the 2011 Will and because the 2011 Will was the product of undue influence by James. On June 19, 2013, after hearing the testimony of both parties, the trial court issued a decree revoking the letters testamentary issued with respect to the 2010 Will and allowing probate of the 2011 Will. The trial court found that Decedent had the testamentary capacity to execute the 2011 Will and that the 2011 Will was not the product of undue influence.

Eugene then filed a timely notice of appeal. He presents the following two issues for our review:

I. Did the lower court err as a matter of law and/or abuse its discretion in finding that the Decedent, Albert Nalaschi, had testamentary capacity and/or was competent on April 25, 2011 to execute a Will?
II. Did the lower court err as a matter of law and/or abuse [its] discretion in finding that the Decedent, Albert Nalaschi, was not subject ...

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