Estate of Reichel

• Decision Date: 01 May 1979
• Citation: 484 Pa. 610,400 A.2d 1268
• Parties: ESTATE of Mary F. REICHEL, Deceased. Appeal of John REICHEL, Jr.
• Court: Pennsylvania Supreme Court

400 A.2d 1268

484 Pa. 610

ESTATE of Mary F. REICHEL, Deceased. Appeal of John REICHEL, Jr.

Supreme Court of Pennsylvania.

May 1, 1979

Argued Nov. 16, 1978.

Cuthbert H. Latta, Philadelphia, for appellant.

Calvin S. Drayer, Jr., Norristown, for appellee, Marian Honsaker.

Before EAGEN C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN JJ.

OPINION

O'BRIEN Justice.

This case arises out of a contest of the will of Mary F. Reichel, who died on January 11, 1975. The estate's assets consisted of a $128,000 marital trust over which decedent had a general power of appointment under the will of her husband, John Reichel, who died in 1957; stock in the American Telephone and Telegraph Company, worth $64,800; and a residuary estate of $48,400. The contested will provides that all of the trust assets, the stock and one-half of the residuary estate are to go to proponent-appellee, Marian Honsaker, decedent's daughter, and that the other one-half of the residuary estate is to be received by decedent's son, contestant-appellant, John Reichel, Jr. The will was executed on March 8, 1974. By giving the greater part of the estate to appellee, this will differed from three earlier wills executed by decedent. Her first will, executed in 1957, would have placed one-half of her estate in trust for appellee and given one-half to appellant outright. A 1966 will provided that each would receive one-half of the estate outright. A 1973 will provided that appellee would receive personal and household items and otherwise left the disposition of the estate as provided in the 1966 will.

The disputed 1974 will was offered to the Register of Wills of Montgomery County for probate. Appellant filed a caveat in which he alleged that the will was the result of undue influence exercised upon the decedent by appellee. The register of wills certified the matter to the Court of Common Pleas, Orphans' Court Division, for decision, pursuant to the Probate, Estates, and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, § 2, effective July 1, 1972, 20 Pa.C.P.S.A. § 907. The court held a hearing at which appellee offered evidence to establish that it was decedent's signature on the will, and appellant produced evidence by which he attempted to show that decedent lacked testamentary capacity, or was at least of weakened intellect; that appellee had a confidential relationship with decedent; and that the will preferred appellee over appellant. Both sides moved for compulsory nonsuit. The court denied appellant's motion and granted appellee's, acting under the authority of the Probate Code, § 779(b), 20 P.S. § 779(b), added December 10, 1974, P.L. ---, No. 293, § 2, immediately effective, which states:

". . . 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."

Exceptions were heard and dismissed by a court en banc. The case is before us pursuant to our jurisdiction over appeals from final decrees of the orphans' court division of a court of common pleas, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S.A. § 722.

In a will contest, the hearing judge determines the credibility of 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 was an error of law or abuse of discretion. Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979). In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976). When the proponent of a will proves that the formalities of execution have been followed, a contestant who claims that there has been undue influence has the burden of proof. The burden may be shifted so as to require the proponent to disprove undue influence. To do so, the contestant must prove by clear and convincing evidence that there was a confidential relationship, that the person enjoying such relationship received the bulk of the estate, and that the decedent's intellect was weakened. Shelly, supra, Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975).

Testamentary capacity exists when the testator has intelligent knowledge of the natural objects of his or her bounty, the general composition of the estate, and what he or she wants done with it, even if memory is impaired by age or disease, and the testator need not have the ability to conduct business affairs. Brantlinger Will, 418 Pa. 236, 210 A.2d 246 (1965).

Appellant argues that the court below erred in requiring him to prove an exploitation of the three elements articulated in Estate of Clark, supra, before the burden of proof would shift back to the proponent of the will to disprove undue influence. We agree.

In a concurring opinion in Estate of Clark, Mr. Justice Roberts (joined by Justices Pomeroy, Nix and Manderino) stated:

"I agree with the majority that where one contesting a will establishes 1) that a person in a confidential relationship with the testator 2) receives a substantial benefit under the will and 3) that the testator was of weakened intellect, a presumption of undue influence arises. The effect of this presumption is to shift the burden of producing evidence and the risk of nonpersuasion on the issue of undue influence to the proponent.

"Once the presumption has been established, the proponent can prove the validity of the challenged gift by clear and convincing evidence that it was not the result of undue influence. Button's Estate, 459 Pa. 234, 240-241, 328 A.2d 480, 484 (1974)."

The above quote makes clear that a contestant to a will needs to show

1) confidential relationship,

2) substantial benefit and

3) weakened intellect

and if such factors are proven by clear and convincing evidence, the burden of proof would then return to the proponent of the will to show that the gift or bequest was not the product of undue influence.

A reading of the opinion of the court en banc indicates that the court required the contestant to show that the proponent took advantage of the first three elements before the burden would return to the proponent to rebut the evidence that he or she used the confidential relationship and the weakened intellect to exploit his or her share of the substantial benefit. (Opinion of the court en banc, pp. 5-10).

The case must be remanded for a proceeding consistent with this opinion, Estate of Shelly, supra, and the Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975).

Decree reversed and case remanded for a proceeding consistent with this opinion.

POMEROY, former J., took no part in the decision of this case.

MANDERINO, Justice, dissenting.

I dissent. The majority notes that "(a) reading of the opinion of the court en banc" indicates that the Court en banc did not properly shift the burden of proof to the proponent of the will on the issue of undue influence after the contestant of the will had established

1) confidential relationship

2) substantial benefit

3) weakened intellect.

I agree with the majority that the trial court said that the burden should not shift in this case and the making of that statement was improper. A complete reading of the Chancellor's opinion and the court en banc's opinion leaves no doubt that the trial court Did not do what it in fact said it had done. The trial court said:

"The record establishes that on February 3, 1974 when decedent was in Bronxville, New York, visiting her daughter, she telephoned W. Harry Stromenger, Esq., the scrivener of the will. Mr. Stromenger is a resident of Bronxville, New York, a member of the New York Bar, and had specialized in estate and trust work since 1936. He had met decedent in 1960, or earlier, had consulted with decedent in 1966 concerning her then current will, and had prepared a will for decedent in 1973.

In a telephone conference of February 3, 1974, decedent expressed her concern about her daughter's lack of financial means and indicated that her son was well-to-do. Decedent instructed Mr. Stromenger to prepare a new will in which she would exercise her power of appointment under her husband's will in favor of her daughter, and also give to her daughter a substantial block of A. T. & T. stock. On February 6, 1974, Mr. Stromenger forwarded draft of the new will to decedent at her home in Bryn Mawr. On February 14, 1974, after further communications with decedent, Mr. Stromenger forwarded to decedent a revised draft of the new will, which he had re-written pursuant to her instructions. On February 24, 1974, decedent discussed with Mr. Stromenger At length the text of the will which he had drafted. Decedent was satisfied with the will and requested that the will be further changed Only with respect to the language used in the disposition of her jewelry. The will was revised in accordance with decedent's wishes and was sent to Charles J. Cooper, an attorney in Bryn Mawr, to arrange for its execution by decedent.

On March 8, 1974, Mr. Cooper, D. Scott Kelley, Esq. and their secretary, Mary P. Murray, went to the Bryn Mawr Terrace and visited with decedent for the purpose of having her execute her will. The group engaged in general conversation and then Mr. Cooper discussed the will with decedent. He offered to read the entire will, but decedent said that she preferred that he not read the will, that it was tiring, and that she wanted to get on with signing the will. Mr. Cooper did read item eighth of the will, which provides as follows:

'EIGHTH: I am fully aware that in disposing of my property by this my Will, I have not dealt equally with my two children. This is not...