Mary Sue Goreschak and Charlette Maddi ("Appellants") appeal the decree entered June 14, 2016, in the Court of Common Pleas of Lackawanna County, that denied Appellants' petition for appeal from the Register of Wills' decision to admit to probate a duplicate original of the Last Will and Testament of Charles F. Maddi (Decedent), their father. Appellants claim the orphans' court erred (1) in failing to hold Decedent's sister, Lillian Saracino ("Sister"), to the correct legal standard for rebutting the presumption of revocation of a lost will, and (2) in allowing inadmissible hearsay testimony and relying upon circumstantial evidence to conclude Sister defeated the presumption. See Appellants' Brief at 3. Based upon the following, we affirm.
The orphans' court judge, the Honorable Thomas J. Munley, summarized the procedural background and facts of this case, as follows:
Before this Court is the Petition of Mary Sue Goreschak and Charlette Maddi ("Petitioners") seeking a reversal of the Register of Wills' decision to admit a copy of the Last Will and Testament of Charles F. Maddi to probate. The Petitioners are the adult daughters of the Decedent and they request that the Letters Testamentary issued to Respondent Lillian Saracino be reversed, and that this Estate consequently be administered through the Commonwealth's laws of intestacy....
The testimony at the [April 13, 2016] hearing revealed the following facts. In the spring of 2013, Charles Maddi contacted Sandra Boyle, an attorney practicing in Northeastern Pennsylvania, and advised her that he wanted to hire her to prepare a new will, an advanced health care directive, and a power of attorney; Atty. Boyle's recollection was that Mr. Maddi had a prior, existing will and wished to change it. When Mr. Maddi met with Atty. Boyle, he brought his sister, Lillian Saracino, with him. He explained to Atty. Boyle that he wanted his sister to be named Executrix in the Will he wanted her to draft, that he had a list of named charities that he would like to leave certain amounts of money to, that he had other specific bequests for relatives, and finally, that he intended to leave any residuary estate to his sister. Mr. Maddi mentioned to Atty. Boyle that he had two adult daughters, and that he was not going to include them in any bequest in his will because he felt his daughters were well taken care of by him during his lifetime.
Weeks after the initial meeting with counsel, [on May 6, 2013,] Mr. Maddi returned to Atty. Boyle's office to review and sign the documents that she had prepared for him. Atty. Boyle testified that she, along with her secretary, who was also a notary, witnessed his signature, as did an adult individual named Curtis Stevens. As far as duplicate copies of the will, Atty. Boyle explained her usual process to be that she would produce several duplicates at her office, all of which are computer generated duplicates of the original, all to be individually and authentically signed. She emphasized that they are not photocopies of an original will, but duplicates, identical to the first computer-generated will, and they were all signed individually by Mr. Maddi. Generally, this attorney's clients, Mr. Maddi included, were asked to sign or initial the margin of every page of each duplicate will until he or she got to the last page, which would then be signed and dated by the client, and that signature would be witnessed and notarized.
At the end of her meeting with Mr. Maddi, where he signed the duplicate wills and other documents Atty. Boyle had prepared for him, she gave him the "original" with one duplicate copy, and she kept a duplicate copy; again, each was originally signed, witnessed, and notarized, as were the financial power of attorney documents. After this appointment, Mr. Maddi left with two of the three "originals", leaving one for safekeeping with Atty. Boyle, and never again contacted Atty. Boyle with respect to changing or revoking his will.
Charles Maddi departed this earth on October 31, 2015, and at death, he was unmarried and was survived by two adult children, Mary Sue Goreschak and Charlette Maddi. He was also survived by his sister Lillian Saracino. On December 9, 2015, Ms. Saracino filed a Petition seeking to admit to probate a duplicate copy of her brother's will, and this duplicate copy contained original signatures of Mr. Maddi and other witnesses. No "original" will was found among the Decedent's possessions in his home, nor was any will found in the safe deposit box the [Decedent] maintained at his bank. According to Lillian Saracino, neither she nor anyone else was able to find the will among his possessions, most likely because Charles Maddi had an unusual way of filing and storing papers, bills, and other documents which was essentially known only to him. Also, within hours after the passing of Charles Maddi, she as well as other relatives of the Decedent began removing many items of personal property from his home in an attempt to begin cleaning out the home; Mary Sue Goreschak described what was initially being cleared from the home as "bags of paperwork, folders". The will eventually presented by Respondent Saracino to the Register of Wills was the signed duplicate from Atty. Boyle's files. After a hearing, the Register admitted it to probate.
Other significant facts revealed at the hearing include Lillian Saracino's statements that she had an extremely close relationship with her brother, spoke with him every evening, and that he never expressed to her any desire to revoke or destroy the will prepared for him by Atty. Boyle. She also stated that it was Charles Maddi's acknowledged intention, memorialized in his will, to not make any bequest for his daughters because he believed that he had fully provided for his children while he was alive, in fact transferring several income-generating properties to his daughter Mary Sue Goreschak just prior to making the will in question. Ms. Goreschak testified that she lived near to her father and was a regular visitor at his home. She herself, along with her son, had keys to Mr. Maddi's residence, as did her one of her uncles and the Decedent's sister. She also stated her belief that prior to his death, her father could have been looking for another lawyer to make a new will for him, although to her knowledge her father never spoke with another attorney and never had another will created. While she had given her father the business card of an attorney she herself was familiar with, said attorney testified at the Court hearing and definitively stated that Charles Maddi had never contacted him for any reason.
Orphans' Court Opinion, 6/14/2016, at 1–4. Based on the evidence presented at the hearing, the orphans' court concluded:
Having heard the testimony, considered the factual circumstances and legal considerations of this matter, and evaluated the witnesses' credibility, it is this Court's decision that the Register of Wills was correct in admitting the duplicate original will of Charles Maddi to probate.
Id. at 9. This appeal followed.1
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. 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 Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014) (citation omitted). See also Burns v. Kabboul, 407 Pa.Super. 289, 595 A.2d 1153, 1161 (1991).
Appellants first argue that the orphans' court failed to hold Sister to the correct legal standard in rebutting the presumption that Decedent destroyed and revoked his will prior to this death.
The legal principles regarding a lost will are well settled:
Our Supreme Court has repeatedly held that "where a [testator] retains the custody and possession of [his] will and, after [his] death, the will cannot be found, a presumption arises, in the absence of proof to the contrary, that the will was revoked or destroyed by the [testator]." In re Estate of Murray, 404 Pa. 120, 129, 171 A.2d 171, 176 (1961). See alsoIn re Estate of McCaffrey, 453 Pa. 416, 418 n.3, 309 A.2d 539, 540 n.3 (1973) (same). "To overcome that presumption, the evidence must be positive, clear and satisfactory." In re Estate of Murray, 404 Pa. at 129, 171 A.2d at 176. Moreover, to prevail over the presumption and establish the existence of a lost will, "the proponent of the copy of the will 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." Burns v. Kabboul, 407 Pa. Super. 289, 595 A.2d 1153, 1167–68 (Pa. Super. 1991).
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... "Declarations of intent, condition, and circumstances of family are insufficient to establish [whether a will remains undestroyed or unrevoked by a decedent] and thus rebut the existent legal presumption." In re Estate of Keiser, 385 Pa. Super. 24, 560 A.2d 148, 150 (Pa. Super. 1989) (citing Gardner v. Gardner, et al., 177 Pa. 218, 35 A. 558 (1896). "Accordingly, a court will not weigh the
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