In re Bosley

• Decision Date: 20 June 2011
• Citation: 26 A.3d 1104,2011 PA Super 126
• Parties: In re Donald W. BOSLEY, Deceased.Appeal of Kenneth T. Bosley.
• Court: Pennsylvania Superior Court

26 A.3d 1104

2011 PA Super 126

In re Donald W. BOSLEY, Deceased.Appeal of Kenneth T. Bosley.

Superior Court of Pennsylvania.

Argued April 13, 2011.Filed June 20, 2011.

Timothy Nieman, Harrisburg, for appellant.Laura S. Manifold, Stewartstown, for Bosley, R., appellee.Sharon Bosley, appellee, pro se.BEFORE: PANELLA, LAZARUS and OTT, JJ.OPINION BY LAZARUS, J.:

Kenneth T. Bosley (“Kenneth”) appeals from the September 20, 2010 order of the Court of Common Pleas of York County, Orphans' Court Division, denying his appeal from probate and declaring void ab initio a power of attorney executed in his favor by Donald W. Bosley (“Decedent”). After careful review, we affirm in part and reverse in part.

Decedent, the oldest of five children, was born in Maryland in 1916. He never married and had no children. Although Decedent was very limited in his ability to read and write, he acquired substantial assets during his life, including securities and three parcels of real estate in Maryland.¹ Decedent's family owned and operated a dairy farm, Conclusion Farms, on which he lived and worked for most of his life. Kenneth, Decedent's brother, attended college and earned his law degree in 1962.

In the early 1990's, a family dispute erupted over the disposition of Conclusion Farms, which was ultimately sold after a lengthy legal battle. As a result, Decedent was forced to move from his home into a trailer on another parcel of property he co-owned with Kenneth. The trailer had no running water or toilet facilities and Decedent heated it with open-flamed portable heaters. In approximately 2001, Decedent began living with his second cousin, Howard Bosley (“Howard”) at his home in York County, Pennsylvania on a nearly permanent basis. Howard's son, David Bosley (“David”), appellee herein, lived in an adjacent home on the same property. By 2002, Decedent rarely returned to Maryland.

Decedent died on October 9, 2008, leaving a will dated December 19, 2003. In his will, Decedent gave to David two parcels of real estate located in Baltimore County, Maryland; to his brother, Kenneth, six acres of land known as the “Murray Gerber home”; and to his siblings Kenneth, Glen M. Bosley, Sr., and Elizabeth B. Durham, the remainder of his real estate, as well as “all corporate stocks (except those in the name of [David] ) of which I may die seized and possessed, or in expectancy.” Will of Donald W. Bosley, 12/19/03, at Item SECOND, ¶ 3. Decedent gave the residue of his estate to his sister, Elizabeth, or her surviving issue, or, if she predeceased him without issue, to his remaining heirs at law. Decedent appointed Howard as executor and David as alternate executor. Howard died in 2007.

Decedent had an earlier will, executed in 1987, under which he had disposed of his estate as follows: to his brother Daniel, his cows and the sum of $100; to Kenneth, the Murray Gerber home; to Kenneth and Glen, the remainder of his real property and all corporate stocks; and to Elizabeth, the residue. Decedent appointed Kenneth as executor, and Kenneth's son, Kenneth Webster Bosley, as alternate executor. The 2003 will explicitly revoked “any and all Wills and Codicils heretofore made by” Decedent.

On October 30, 2008, David submitted the 2003 will for probate with the York County Register of Wills and was granted Letters Testamentary thereon. On January 13, 2009, Kenneth filed with the Orphans' Court an appeal from the decree of the Register, seeking to invalidate the 2003 will on the grounds of undue influence and testamentary incapacity. He also filed a petition in which he sought David's removal as executor.² After a three-day trial, the court issued an order on September 30, 2010, in which it, inter alia, denied Kenneth's appeal from probate, granted the petition to remove David as executor and declared void ab initio a power of attorney dated July 16, 2007, executed by the Decedent in favor of Kenneth. The trial court concluded that, although Decedent suffered from a weakened intellect and had a confidential relationship with Howard, Howard did not receive a substantial benefit under the 2003 will. The court further found that Decedent possessed sufficient testamentary capacity to execute a valid will.

Kenneth filed this timely appeal, in which he raises the following issues for our consideration: ³

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT NEITHER HOWARD NOR DAVID RECEIVED A SUBSTANTIAL BENEFIT UNDER DECEDENT'S 2003 WILL AND THAT DAVID'S DEVISE WAS JUSTIFIED BY INDEPENDENT GROUNDS?

II. WHETHER THE TRIAL COURT ERRED BY FAILING TO CONSIDER RELEVANT EVIDENCE INTRODUCED BY APPELLANT'S FORENSIC ACCOUNTANT AND MARGARET BOSLEY AS TO HOWARD'S UNFETTERED CONTROL OVER DECEDENT AND DECEDENT'S TESTAMENTARY PLAN FOR THE BENEFIT OF DAVID?

III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DECEDENT POSSESSED THE REQUISITE TESTAMENTARY CAPACITY AT THE TIME HE EXECUTED HIS WILL?

IV. WHETHER THE TRIAL COURT ERRED BY FINDING THAT THE 2007 POWER OF ATTORNEY WAS VOID AB INITIO WHEN THE ISSUE WAS NEITHER SQUARELY BEFORE THE COURT NOR GERMANE TO THE DISPOSITION OF ANY OTHER PENDING ISSUE?

V. WHETHER THE TRIAL COURT ERRED IN APPLYING THE DOCTRINE OF UNCLEAN HANDS?

Brief of Appellant, at 4–5.

Our Supreme Court has held that our scope and standard of review on appeal from a decree of the Orphans' Court adjudicating an appeal from probate is as follows:

In a will contest, the 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.

Estate of Reichel, 484 Pa. 610, 400 A.2d 1268, 1269–70 (1979). 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. Estate of Masciantonio, 392 Pa. 362, 141 A.2d 362, 365 (1958).

The burden of proving undue influence is borne by the contestant once the formalities of probate are established, giving rise to a presumption of validity. Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975). In order to meet this burden, the contestant must establish, by clear and convincing evidence, that: (1) the testator suffered from a weakened intellect at the time the will was executed; (2) there was a person in a confidential relationship with the testator; and (3) the person in the confidential relationship received a substantial benefit under the challenged will. Reichel, 400 A.2d at 1270. Once these three elements are established by the contestant, the burden shifts back to the proponent to prove the absence of undue influence by clear and convincing evidence. Clark, 334 A.2d at 631–32.

Kenneth first alleges that the trial court erred in finding that neither Howard nor David received a substantial benefit under the 2003 will. Specifically, Kenneth argues that the court erred by declining to apply the “collateral benefits” doctrine to impute David's benefits under the will to Howard because of their familial relationship as father and son. Kenneth relies upon Estate of Button, 459 Pa. 234, 328 A.2d 480 (1974), in which our Supreme Court reversed the decree of the trial court and held that the decedent's will had been procured through undue influence. As in this case, the beneficiaries of the will were not the individuals who had overborne the will of the decedent, but rather their children. However, the Court did not address the issue of substantial benefit in any detail, other than to mention in passing that the minor children were to receive nearly the entire probate estate. Button, 328 A.2d at 484. Instead, the Court's analysis turned on the failure of the proponents to demonstrate the absence of undue influence by clear and convincing evidence. As such, we find Kenneth's reliance on Button unavailing.

The trial court, in declining to apply the “collateral benefits” doctrine, relied upon Estate of Simpson, 595 A.2d 94 (Pa.Super.1991) and Estate of Stout, 746 A.2d 645 (Pa.Super.2000). In Simpson, this Court affirmed the ruling of the Orphans' Court, which had concluded that the proponent's receipt of a 25% share of the decedent's estate did not constitute a “substantial benefit.” In addition, we determined that the lower court did not err in its “substantial benefits” analysis by failing to impute to the proponent the bequest made to the proponent's son, who was also a grandson of the decedent. We held that, since proponent's son was decedent's grandson there was “a sufficient, independent basis for the bequest to him.” Simpson, 595 A.2d at 98.

In Stout, the appellant was the contestant of a will which he alleged was the product of undue influence against his aunt, the decedent, by his aunt's brother-in-law, the will's proponent. In her contested will, the aunt appointed proponent as executor, disinherited the appellant and gave the bulk of her estate to the proponent's son and that son's daughter. The proponent's son was decedent's blood nephew and his daughter was decedent's great-niece. The trial court determined that the proponent did not receive a substantial benefit under the will.⁴ On appeal to this Court, the contestant argued that, although the proponent did not receive any direct benefit under the will, the bequests to his son and granddaughter should be imputed to him under the “collateral benefits” doctrine.

In affirming the holding of the trial court, the Stout Court reviewed this Commonwealth's scant existent case law on the issue, as well as that from other jurisdictions, and concluded that: “[c]ases that have found a substantial benefit accruing to a testator's confidant via collateral benefits include factual circumstances where the confidant had unfettered control, extensive powers, absolute discretion or...