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In re Estate of Brumbaugh

Superior Court of Pennsylvania

September 6, 2017

IN RE: ESTATE OF JOHN BRUMBAUGH APPEAL OF: JUDY MCCLINTOCK

         Appeal from the Order of December 21, 2016 In the Court of Common Pleas of Bedford County Orphans' Court at No(s): 26 for 2016

          BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

          OPINION

          LAZARUS, J.

         Judy McClintock appeals from the order entered in the Court of Common Pleas of Bedford County, Orphans' Court Division, sustaining Appellee Marjorie Brumbaugh's appeal from the Register of Wills. Upon careful review, we affirm.

         John Brumbaugh ("Decedent") died on November 7, 2015. At the time of his death, he resided with McClintock, with whom he had been romantically involved for over nine years. Letters of Administration were issued to Decedent's mother, Marjorie Brumbaugh, on November 12, 2015. On January 15, 2016, McClintock filed a petition before the Register of Wills seeking to probate a document dated March 22, 2015 and purporting to be a photocopy of Decedent's last will and testament. McClintock claimed to have found the document in the Decedent's zippered bank pouch, in which he kept his important papers. Brumbaugh opposed the petition, but, on May 4, 2016, the Register issued a decision admitting the document to probate as the Decedent's will and revoking Brumbaugh's Letters of Administration. In her decision, the Register stated as follows:

The document produced by Ms. McClintock and purported to be the decedent's Will was notarized by Dorothy E. Lykins, formerly Dorothy E. Hilton, a notary public in the state of Ohio. She also serves as the Clerk of Courts for the City of Franklin Municipal Court in Franklin, Ohio. Ms. Lykins confirmed the subject Will was signed by the decedent in front of her and the Will sought to be admitted to probate was in fact the one signed by the decedent. She also explained the circumstances involving his execution of the Will and the type of writing instrument he used. No handwriting expert testified before me on [McClintock's] behalf so as to give an opinion contesting the Will or the decedent's signature thereon.
Per the document admitted into evidence, the testimony presented to me at the hearing, including the Affidavit of Ms. Lykins, and my telephone conversation with Ms. Lykins, it appears that such document is the decedent's Last Will and Testament and was intended so to be.

         Decision of the Register of Wills, 5/4/16, at [2].

         Brumbaugh filed an appeal to the Orphans' Court[1] asserting that the Register improperly admitted the photocopy to probate, absent the requisite proof that the original had not been revoked and/or destroyed. Brumbaugh argued that the Register improperly relied on an affidavit signed by the notary, despite her repeated objections to the admissibility of the statement. Brumbaugh also asserted that the Register's decision was based, in part, on an improper ex parte conversation with the notary. Brumbaugh argued that the document was either forged or altered and that neither the proponent nor the Register permitted her to submit it to a document examiner for analysis prior to the Register rendering its decision.

         The Orphans' Court held hearings in the matter on August 25, 2016 and October 7, 2016, at which time it heard the testimony of, inter alia, McClintock, Lykins and Khody Detwiler, a document examiner. On December 21, 2016, in open court, the court rendered its decision, concluding that McClintock had failed to sustain her burden of proving that the original will was not revoked by the testator. Specifically, the court found that McClintock failed to prove that the contents of the original will were substantially as appeared on the copy of the will presented for probate. Accordingly, the Orphans' Court reversed the order of the Register and directed that the probate of the document in question be vacated. McClintock filed a timely appeal, in which she raises the following issue for our consideration:

Did the Orphans' Court below err in reversing the decision of the Register of Wills, which had admitted to probate the document at issue at the Last Will and Testament of John Edward Brumbaugh, on the basis it could not so qualify because of the photostatic nature of its non-notarial content, given the circumstances present?

Brief of Appellant, at 4.

         We begin by noting our scope and standard of review on appeal from a decree of the Orphans' Court adjudicating an appeal from probate:

[T]he hearing judge determines the credibility of the witnesses. The record is to be reviewed in the light most favorable to appellee, and review is to be limited to determining whether the trial court's findings of fact were based upon legally competent and sufficient evidence and whether there is an error of law or abuse of discretion. Only where it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence may the court's findings be set aside.

In re Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014), quoting In re Bosley, 26 A.3d 1104, 1107 (Pa. Super. 2011) (internal citations omitted).

         Here, the document submitted for probate was not an original will, but a photocopy.[2] Where a testator retains the custody and possession of his will and, after his death, the will cannot be found, a presumption arises that it was revoked or destroyed by the testator. In re Estate of Murray, 171 A.2d 171, 176 (Pa. 1961). In order to establish the existence of a lost will which was in the custody of the testator prior to his death, the proponent of the will must overcome the presumption that the testator destroyed or revoked the will. Burns v. Kabboul, 595 A.2d 1153, 1167 (Pa. Super. 1991), citing In re Estate of Keiser, 560 A.2d 148, 151 (Pa. Super. 1989). In order to overcome the presumption and establish the existence of a lost will, the proponent of the copy must prove that: (1) the testator duly and properly executed the original will; (2) the contents of the will were substantially as appears on the copy of the will presented for probate; and (3) when the testator died, the will remained undestroyed or revoked by him. In re Estate of Janosky, 827 A.2d 512, 519-20 (Pa. Super. 2003). The proponent's evidence must be positive, clear and satisfactory. In re Estate of Murray, 171 A.2d at 176.

         Here, the Orphans' Court concluded that McClintock failed to prove the second prong of the test, i.e., that the contents of the photocopied will were substantially the same as the original document. In arriving at this conclusion, the court relied primarily on the testimony of two witnesses: Detwiler, the forensic document examiner, whose testimony the court found credible, and Lykins, the ...


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