IN RE: ESTATE OF JOHN BRUMBAUGH APPEAL OF: JUDY MCCLINTOCK
from the Order of December 21, 2016 In the Court of Common
Pleas of Bedford County Orphans' Court at No(s): 26 for
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
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.
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.
of the Register of Wills, 5/4/16, at .
filed an appeal to the Orphans' Court 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absent the requisite proof that the original had not been
revoked and/or destroyed.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.
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.
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).
the document submitted for probate was not an original will,
but a photocopy. 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.
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 ...