In re Estate of Nalaschi

• Decision Date: 11 April 2014
• Citation: 2014 PA Super 73,90 A.3d 8
• Court: Pennsylvania Superior Court
• Parties: Estate of Albert NALASCHI, Deceased. Appeal of Eugene Nalaschi, Executor.

90 A.3d 8

2014 PA Super 73

Estate of Albert NALASCHI, Deceased.

Appeal of Eugene Nalaschi, Executor.

Superior Court of Pennsylvania.

Argued Feb. 25, 2014.

Filed April 11, 2014.

Nicholas E. Fick, Scranton, for appellant.

BEFORE: GANTMAN, P.J., DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.:

Eugene Nalaschi (“Eugene”) appeals from the decree entered on June 19, 2013 by the Court of Common Pleas of Lackawanna County, Orphans' Court Division, granting the petition of Charles Witaconis, Esq. (“Witaconis”) allowing the probate of the April 25, 2011 will of Albert Nalaschi, Sr. (“Decedent”) and revoking the letters testamentary issued with respect to Decedent's January 28, 2010 will. We affirm.

Decedent died on July 6, 2012. Decedent was survived by eight children, three of whom were from his first marriage to Delores Nalaschi—Albert Nalaschi, Jr., James Nalaschi (“James”), and Leo Nalaschi, and five of whom were from his second marriage to Marion Nalaschi—Anthony Nalaschi, Eugene, Louise Lokuta (“Louise”), Cheryl Wilson (“Cheryl”), and Dean Nalaschi. The controversy in this matter arises out of two wills executed by Decedent. The first will, dated January 28, 2010 (“the 2010 Will”), named Eugene the executor and Decedent's daughter Louise the sole beneficiary. The second will, dated April 25, 2011 (“the 2011 Will”), named Witaconis the executor and Decedent's son James the sole beneficiary.

Around July 11, 2012, the Register of Wills of Lackawanna County accepted the 2010 Will for probate and issued letters testamentary to Eugene, the executor named in that will. On July 27, 2012, Witaconis petitioned the Lackawanna County Court of Common Pleas, Orphans' Court Division, to show cause why letters testamentary should not be revoked for the 2010 Will based on the existence of the 2011 Will. Subsequently, Witaconis filed a second petition to compel the probate of the 2011 Will. In his answer to both of these petitions, Eugene asserted that the 2011 Will was invalid, in part, because Decedent lacked testamentary capacity at the time of the execution of the 2011 Will and because the 2011 Will was the product of undue influence by James. On June 19, 2013, after hearing the testimony of both parties, the trial court issued a decree revoking the letters testamentary issued with respect to the 2010 Will and allowing probate of the 2011 Will. The trial court found that Decedent had the testamentary capacity to execute the 2011 Will and that the 2011 Will was not the product of undue influence.

Eugene then filed a timely notice of appeal. He presents the following two issues for our review:

I. Did the lower court err as a matter of law and/or abuse its discretion in finding that the Decedent, Albert Nalaschi, had testamentary capacity and/or was competent on April 25, 2011 to execute a Will?

II. Did the lower court err as a matter of law and/or abuse [its] discretion in finding that the Decedent, Albert Nalaschi, was not subject to undue influence by James Nalaschi?

Appellant's Brief at 4.

The appropriate 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. 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 Bosley, 26 A.3d 1104, 1107 (Pa.Super.2011) (internal citations omitted).

Under Pennsylvania law, “[a]ny person 18 or more years of age who is of sound mind may make a will.” 20 Pa.C.S.A. § 2501. In making a will, an individual may leave his or her property to any person or charity, or for any lawful purpose he or she wishes, unless he or she “lacked mental capacity, or the will was obtained by forgery or fraud or undue influence, or was the product of a so-called insane delusion.” In re Johnson's Estate, 370 Pa. 125, 127, 87 A.2d 188, 190 (1952). If an individual challenges a will on any of these bases, the burden is on the proponent of the will to present evidence of the formalities of probate. In re Clark's Estate, 461 Pa. 52, 59, 334 A.2d 628, 631 (1975). Once the proponent presents this evidence, a presumption of validity arises, and the burden shifts to the person contesting the will to prove that the testator lacked mental capacity, or the will was obtained by forgery, fraud, or undue influence,or was the product of an insane delusion. See In re Bosley, 26 A.3d at 1107.

Eugene first alleges that the trial court erred when it found that Decedent had testamentary capacity and was competent to execute the 2011 Will. Appellant's Brief at 11–23. Eugene relies on several examples in 2010 and early 2011 to demonstrate Decedent's lack of testamentary capacity. Id. at 12–23. For example, from early 2010 to January 2011, Decedent lost nearly 40 pounds of weight, which was a possible indicator of dementia. N.T., 2/21/13, at 22. In March 2010, Decedent reported his daughter Cheryl to the police, accusing her of stealing money from him. N.T., 1/30/13, at 94–95. In July 2010, while Decedent was speaking with Detective Renee Castellani (“Detective Castellani”) about Cheryl stealing from him, Decedent told Detective Castellani that he had stopped taking his medications. Id. at 158. After speaking with Decedent, Detective Castellani referred Decedent's case to the Area Agency on Aging. Id. at 157. As a result, Mary McAndrew (“McAndrew”), an Aging Care Manager at the Area Agency on Aging, began monitoring Decedent in July 2010. N.T., 1/8/13, at 68–69. McAndrew testified that when she began monitoring Decedent, she would sometimes find him disheveled, hung-over, and agitated. Id. at 64, 70–71. In September 2010, Decedent accused Louise, another one of his daughters, of stealing food and money from him. Id. at 133. Also in September 2010, Decedent missed an appointment with his primary care physician, Doctor Michael Jalowiec (“Dr. Jalowiec”) because he got lost on the way to his office. N.T., 2/21/13 at 26–27. In March of 2011, Decedent attempted to take a $2,300 cash advance from his credit card and instead wrote the check for $23,000. N.T., 1/30/13, at 112. Additionally, when providing the names of his children for the 2011 Will, he spelled Cheryl's name incorrectly as “Sheryl,” and despite the fact that both Cheryl and Louise were married, he used their maiden names. N.T., 1/8/13, at 32–33.

Finally, in support of his assertions, Eugene relies heavily on the testimony of Doctor Eugene Turchetti (“Dr. Turchetti”). Appellant's Brief at 20–22. Dr. Turchetti reviewed all of Decedent's records and opined that Decedent suffered from alcohol-related dementia. N.T., 4/8/13, at 7–8, 39. Based on his review of Decedent's records, he contended that Decedent was not competent to execute the 2011 Will. Id. at 11. Dr. Turchetti based his opinion on his belief that it is not possible to determine competence at one single point in time because dementia is a disease that progresses over time. Id. at 10. Rather, Dr. Turchetti asserted that after examining Decedent's records, he believed that Decedent's behavior over the course of 2010 and early 2011 indicated that Decedent had a mental illness that had progressed to the point that by April 25, 2011, there was enough information to conclude Decedent was not competent to execute a will. Id.

Testamentary capacity exists when a testator is aware of the natural objects of his bounty, the composition of his estate and what he wants done with it, even if his memory is impaired by disease. In re Bosley, 26 A.3d at 1111–12. The testator “need not have the ability to conduct business affairs.” Id. at 1112 (citation omitted). Courts evaluate testamentary capacity on the date of the execution of the contested will. Id. at 1112. “Evidence of such state of mind may be received for a reasonable time before and after execution as reflective of decedent's testamentary capacity. This information can be supplied by lay witnesses as well as experts.” In re Agostini's Estate, 311 Pa.Super. 233, 457 A.2d 861, 867 (1983).

The record, when viewed in the light most favorable to Witaconis, supports the trial court's conclusion that Decedent had testamentary capacity. Although Eugene cites several questionable actions by Decedent in 2010, he provides little evidence of Decedent's incompetence from the time reasonably close to the execution of the 2011 Will. See Appellant's Brief at 12–23. Moreover, Eugene fails to explain how his evidence of Decedent's mental deficiencies demonstrates that Decedent was not “aware of the natural objects of his bounty, the composition of his estate and what he wants done with it.” See In re Bosley, 26 A.3d at 1111–12.

Furthermore, as this Court has previously stated,

impressions of the Decedent on the very date he executed his will are more probative of the Decedent's testamentary capacity than those of someone ... who never met the decedent and formulated an opinion of Decedent's mental state based solely on medical records.

Id. at 1112. In this case, most of the evidence that Eugene cites in support of his argument that Decedent lacked testamentary capacity to execute the 2011 Will is from 2010. Appellant's Brief at 12–23. This evidence is not from a reasonable time before or after the execution of the 2011 Will, but in some instances over a year before Decedent executed the 2011 Will on April 25, 2011. See In re Agostini's Estate, 457 A.2d at 867. Additionally, Eugene relies heavily on the testimony of Dr. Turchetti, even though Dr. Turchetti never actually met with Decedent, but rather only reviewed...