Estate of LeVin, In re

• Decision Date: 13 November 1992
• Citation: 615 A.2d 38,419 Pa.Super. 89
• Parties: In re ESTATE OF Miriam R. LeVIN. Appeal of Joseph TERCHA, the Foundation for Animals and Culture, and the Unity School for Christianity.
• Court: Pennsylvania Superior Court

Page 38

615 A.2d 38

419 Pa.Super. 89

In re ESTATE OF Miriam R. LeVIN Appeal of Joseph TERCHA, the Foundation for Animals and Culture, and the Unity School for Christianity.

Superior Court of Pennsylvania.

Argued May 27, 1992.

Filed Sept. 3, 1992.

Reargument Denied Nov. 13, 1992.

Bernard M. Berman, Stephen M. Asbel, Media, on brief; Clifford B. Cohn, Philadelphia, on oral argument, for appellants.

Kevin Holleran, West Chester, for Meridian Trust Co., participating party.

Before CIRILLO, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

This case involves an appeal from the September 5, 1991, order of the Court of Common Pleas of Chester County, Orphans' Court Division, entering a nonsuit in favor of the Meridian Bank & Trust Company ("Meridian") and against Joseph Tercha, The Foundation For Animals and Culture, and The Unity School For Christianity, appellants. We reverse.

The standard of review has been articulated in Estate of Dunlap, 471 Pa. 303, 370 A.2d 314, 315 (1977) (Footnote omitted):

The power of the orphans' court to enter a nonsuit derives from section 779 of the Probate, Estates and Fiduciaries Code. Section 779 provides, in pertinent part:

"(a) In general.--The orphans' court division may enter a nonsuit under the same circumstances, subject to review in the same manner and with the same effect as in an action at law.

(b) Will contest.--A nonsuit may be entered against a contestant in a will contest whenever the contestant has the burden of overcoming the presumption of validity arising from due proof of execution as required by law and the contestant has failed to satisfy that burden."

In actions at law, a nonsuit may be granted at the close of plaintiff's case only when it is clear that plaintiff has presented insufficient evidence to maintain the action. See Esposito v. Dairymen's League Cooperative Assoc'n, Inc., 236 Pa.Super. 401, 344 A.2d 505 (1975). In ruling on a nonsuit, the trial court views the evidence in the light most favorable to plaintiff and gives plaintiff the benefit of all favorable evidence and all reasonable inferences therefrom. E.g., Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970); Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963).

The facts, viewed in a light most favorable to the appellants/contestants, reveal that in the fall of 1984, John Tercha's wife, Naomi, met Ms. LeVin and the two became "very dear friends". The two regularly ate lunch together, went shopping and, for one year before Ms. LeVin's death, Ms. Tercha phoned every morning to inquire how she had slept and if she needed anything. Eventually, the Terchas considered Ms. LeVin "a member of the family."

In this same vein, Ms. LeVin discussed the disposition of her property with Mr. Tercha and asked him to be the executor of her will. When he consented, Ms. LeVin was "very happy". Asked "about getting a lawyer", Mr. Tercha offered the name of a friend. Ms. LeVin met with this attorney and the by-product was a will dated July 29, 1987, in which Mr. Tercha was named co-executor and trustee. Also, during this same period, Ms. LeVin executed a power-of-attorney in favor of Mr. Tercha. ¹

While in the hospital in March of 1988, Ms. LeVin's health began to deteriorate. For example, she discontinued her "normal" routine, e.g., reading her mail and handling her financial matters, because of her weakened medical condition. Consequently, after the Terchas decided to travel to Florida in April of 1988, they suggested that a Ms. Tulumello (a long-time friend of Ms. LeVin and a manager for Meridian Bank & Trust Company) handle the day-to-day payment of Ms. LeVin's bills. This was done. Also, arrangements were made for Ms. LeVin to have around-the-clock nursing care.

Even with her departure, Ms. Tercha would telephone every morning and Ms. LeVin was "very happy" to speak with her, even though she could only talk for 3-5 minutes. During her third week in Florida, however, Ms. Tercha could not get access to Ms. LeVin. Every time she phoned, Tercha was told Ms. LeVin was "resting" or "too weak to come to the phone". On one occasion, Ms. Tercha recalled hearing Ms. LeVin's voice in the background saying: "give me the phone" and crying while telling Ms. Tercha: "They've got me so confused."

When the Terchas returned home in the latter part of April, they learned that Ms. LeVin had died on the 29th of the month and that Ms. LeVin had executed a new will dated April 25, 1988. A will contest was instituted thereafter challenging the validity of the April 25, 1988, will. ²

Meridian, the proponent of the last will and testament of the decedent, established the formalities of execution of the April 25, 1988, instrument over the objection of the attorneys for Tercha and the other contestants--American Antivivisection Society and the Foundation of Culture & Animals, the former being named trustee and the latter two listed as legatees in an earlier will dated July 29, 1987. No such provisions were carried over into the April 25, 1988, will. This created a presumption of lack of undue influence. Id. Thereafter, the appellants had the burden of establishing by clear and convincing evidence that (1) the will was executed when the testatrix was of a weakened intellect, and (2) that a person (or entity) in a confidential relationship with the testatrix (3) received a substantial benefit under the will. See In re Estate of Clark, 461 Pa. 52, 334 A.2d 628, 632 (1975). ³

The Orphans' Court ruled that the appellants, although establishing the presence of a weakened intellect and confidential relationship, failed to make out a prima facie case of undue influence by not proving that Meridian received a substantial benefit under the will. See In re Estate of Simpson, 407 Pa.Super. 1, 595 A.2d 94, 98 (1991) (Before burden of proof shifts from contestant back to proponent of will, the contestant must establish all three parts of the test outlined in Clark, supra).

After careful review, we hold that the evidence in the record, when viewed against the backdrop of the applicable law, does not support the findings of the Orphans' Court. See In re Estate of Button, 459 Pa. 234, 328 A.2d 480, 483 (1974).

Neither party disputes the Orphans' Court's findings that the testatrix possessed a weakened intellect and had a confidential relationship with Meridian's agents/employees at the time the April 25, 1988, will was executed. Given that the record is supportive of such findings, and the parties are not raising either issue on appeal, we dispense with the need to discuss them. Thus, we need not recount the facts upon which they are premised, and we merely note our perusal of the testimony proffered on these points and recounted supra, and find each to be consistent with the Orphans' Court's determination in regard thereto.

However, the same result does not obtain with regard to the absence of the "substantial benefit" criterion, reaffirmed in Clark, supra, whose existence is a condition precedent to proving, prima facie, undue influence sufficient to shift the burden of non-persuasion back to the proponent to produce clear and convincing evidence demonstrating affirmatively the absence of undue influence. See Dunlap, supra; Clark, supra.

The dearth of cases in this Commonwealth has necessitated a search of the decisions on point by our sister-jurisdictions on the issue of whether Meridian can be said to have received a substantial benefit under the testatrix's will so as to convert it into a beneficiary and tainting its continuing retention of the position of trustee of decedent's assets, which have been valued at approximately 1.5 million dollars.

The first aspect of the appeal is to decide what constitutes a "substantial" benefit to trigger Clark's tripartite test of undue influence. In this regard, our Supreme Court has spoken on the subject in Adams' Estate, 220 Pa. 531, 69 A. 989 (1908).

Adams' Estate deals with a will contest in which the admission of a will to probate was objected to on the ground of undue influence. The issue on appeal was whether the executor, who was also a trustee under the will, had a "substantial" interest so much as to shift the burden of proof upon the proponent to prove that the testatrix was cognizant of the disposition made of her property by will and the trust relation created in favor of the executor/trustee and the benefits inuring to him.

The Court in Adams' Estate found that a presumption of undue influence arose to shift the burden of non-persuasion to the executor/trustee because he had obtained a "substantial" interest under the will executed by a testatrix who was mentally and physically impaired and he was a confidential adviser of the decedent. In the course of reversing the decree in favor of the proponent the Court wrote:

... it is argued with much force that, in order to make the rule operative, the confidential adviser must have benefited to a considerable extent or in a substantial manner. In other words, in order to shift the burden of proof, the benefit derived from the will must be a large, or considerable, or substantial interest. It is true in some of our cases such expressions have been used, and in Linton's Appeal, 104 Pa. 228, it was held that the appointment as executor with the right to receive the usual commissions did not constitute such an interest. In no case, however, has the court undertaken to exactly define the character of benefit or the extent of interest the confidential adviser must receive in order to shift the burden of proof, and, indeed, it may be said no hard and fast rule can be laid down. Something must depend upon the circumstances of each particular case. What the law requires is that a person acting as confidential adviser to a testator, bodily infirm and mentally weak, must act in the utmost good faith, and if he is benefited in a legal sense by the will procured by him, he must assume the burden of showing deliberation, volition, and...