MEMORANDUM
KING
J.
Appellants
Heidi E. Gitterman and Howard L. Gleit, Esquire, appeal from
the decree entered in the Delaware County Court of Common
Pleas Orphans' Court, which granted the petition for
citation sur appeal filed by Appellee, Laurence M. Cramer,
Esquire. The decree also removed from probate a copy of the
last will and testament of Frederick Gitterman
("Decedent") and set aside letters of
administration issued to Appellants. We affirm.
The
relevant facts of this appeal are as follows.
[Decedent] and Heidi E. Gitterman met when each were a
matriculating student in 1966 attending the University of
Wisconsin. They were married in 1970 and following a
separation of sometime prior divorced as of 1981. No
children were born of this union and neither [Decedent] nor
Heidi E. Gitterman subsequently remarried, although the
decedent had thereafter what seems to be at least one (1)
significant and long-term relationship….
Although divorced and not bound by any children, [Decedent]
and Heidi Gitterman had varied and periodic contact from
their 1981 divorce through 2011, including but not limited to
telephone conversations, holiday cards, letters and emails,
all of which evidenced a mutual fondness.
From 2012 until [Decedent's] March 2018 passing and
coinciding with his growing impoverishment, he and his
ex-wife remained in more frequent contact through regular
telephone conversations, as well as routine emails. The tone
and content of those admitted exhibits … material to
such considerations, as well as the various other evidentiary
items and witness testimony salient to [Decedent] and Heidi
E. Gitterman's personal relationship during particularly
the last six (6) years immediately preceding the
decedent's March 2018 passing were all positive and at
least facially that of a wistful, yet reciprocated affection.
Despite the former spouses enjoying a relationship of mutual
fondness and wistfully reciprocate affections, there was
throughout the intervening thirty-seven (37) years between
their divorce and [Decedent's] March 2018 death not a
single instance of in-person contact.
The relationship between [Decedent] and his only sibling, Sue
Ellen Epstein Reinish, was for many years cordial, but not
overly close with direct interactions seemingly limited to
familial celebrations and some telephone contacts. After he
… became impoverished, [Decedent] solicited money from
Ms. Reinish and her husband, Robert Reinish, which they at
first gave with the understanding those funds would be
repaid. [Decedent] continued to request from Ms. Reinish
additional amounts of money which at some point she declined
to provide because of her sibling not having paid back any of
the previously advanced funds and certain of her own familial
financial obligations. Once Ms. Reinish refused to give her
brother any more money, the relationship as it then was
between the siblings deteriorated and that estrangement
continued through [Decedent's] March 2018 death.
Just after his marriage to Heidi E. Gitterman, [Decedent]
attended from 1970 through 1973 the University of California
Law School from which he graduated in his class's upper
percentile. [Decedent] on his graduation from law school
returned to the Philadelphia area, was hired by Blank Rome,
and worked for approximately four (4) years as a member of
that firm's estates department developing in that area a
proficient expertise. The decedent … left Blank Rome
and began his own legal practice and continued with the same
until his law license some years later was suspended, a
licensing suspension which remained in place for an
appreciable time through his March 2018 passing.
[F]rom the loss of his law license, [Decedent] spent the last
several years of his life impoverished. After he was evicted
from his Radnor Township … home via a mortgage
foreclosure action, he lived for a number of years mainly in
a series of motel rooms, the most recent of which on his
March 2018 death was at the America's Best Value Inn,
Media, Pennsylvania, and he to meet his daily living expenses
relied almost exclusively on the generosity of others,
including but not limited to in large part his former wife,
Heidi E. Gitterman, her sister, Francine Smolen, friends,
Phyllis J. Allen and Thomas S. McNamara, Esquire, as well as
his sister, Sue Ellen Epstein Reinish.
[Decedent] throughout his ongoing solicitation of money from
friends and family most often couched repaying those funds
with discussions and/or commentary about his being supposedly
positioned to consummate any number of apparently lucrative
business opportunities and/or that he would be imminently
resuming a legal practice. He relatedly and not infrequently
referenced various of his purported assets seemingly for
these funds received regularly from friends and family as an
informal collateral.
(Orphans' Court Opinion, filed January 13, 2021, at
49-51) (internal footnotes and citations to the record
omitted).
Decedent
died on March 6, 2018. On April 10, 2018, Appellee filed a
petition for the granting of letters of administration. In
the petition, Appellee
claimed that Decedent died intestate, and his only surviving
relative was Ms. Reinish. The petition included a letter from
Ms. Reinish renouncing her right to administer the estate and
requesting the issuance of letters of administration to
Appellee. That same day, the register of wills granted
letters of administration to Appellee and appointed him
executor.
On May
7, 2018, Appellants filed a petition for the removal of
Appellee as executor. Appellants alleged that Decedent
executed a handwritten will, dated November 15, 2013
("2013 will"). Appellants claimed that Decedent
faxed a copy of the will to Ms. Gitterman in 2013, which she
put away for safekeeping. Ms. Gitterman found her copy of the
will on April 22, 2018. The 2013 will left Decedent's
entire estate to Ms. Gitterman and named her as
executrix.[1] Appellants concluded that Ms.
Gitterman's copy of the 2013 will "must be
recognized as the governing instrument of [Decedent's]
Estate." (Petition for Removal, filed 5/7/18, at 3).
The
register of wills conducted a hearing on February 13, 2019.
On April 9, 2019, the register of wills entered an order
revoking the letters of administration issued to Appellee.
Thereafter, the register of wills granted letters of
administration to Attorney Gleit and accepted the copy of the
2013 will for probate.
On
April 15, 2019, Appellee filed a notice of appeal and
petition for citation sur appeal from probate. Appellants
filed an answer to Appellee's petition on May 1, 2019. On
October 23, 2019, the Orphans' Court conducted an
evidentiary hearing.[2] At that time, Appellee presented prior
deposition testimony from Ms. Reinish. Appellants presented
testimony from Ms. Gitterman and Decedent's friends,
Attorney McNamara and Ms. Allen. Appellants also presented a
handwriting expert, who opined that Decedent was the author
of the handwritten 2013 will.
On
February 6, 2020, the court entered a decree granting
Appellee's petition for citation sur appeal from probate.
The decree also removed from probate the copy of the 2013
will and set aside the letters of administration issued to
Attorney Gleit. In its opinion in support of the decree, the
court indicated that the original 2013 will was not found
after Decedent's death. Because Decedent retained
possession of the original 2013 will and, after his death,
the 2013 will was not found, a presumption arose that it was
revoked or destroyed by Decedent. The court concluded that
Appellants had failed to rebut this presumption.
Appellants
timely filed a notice of appeal on February 21, 2020. On
March 2, 2020, the court ordered Appellants to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Appellants subsequently complied.
Appellants
now raise four issues for our review:
Whether the [Orphans' Court] erred intending that
Appellants failed to properly reserve any issues for further
review?
Whether the [Orphans' Court] erred in finding that
Appellants did not overcome the presumption of revocation in
spite of overwhelming proof of the intent of the testator,
and speculation as to circumstances of his destruction of his
will.
Whether the [Orphans' Court] erred in failing to
recognize the mandates of [In re Estate of Wilner,
636 Pa. 277, 142 A.3d 796 (2016)] in permitting proof of
rebuttal of the presumption of a lost will by any lawful
means.
Whether the [Orphans' Court] erred in finding that
Appellants had not provided clear, direct, convincing
evidence adequate to overcome the presumption of revocation
in refusing to admit the testator's will to probate?
(Appellants' Brief at 4).
In
their first issue, Appellants complain about the court's
conclusion that Appellants' prolix Rule 1925(b) statement
did not preserve any issues for appellate review. Appellants
insist that they raised the issues in their Rule 1925(b)
statement in good faith. We need not tarry long with this
issue, however, as our review of the record does not reveal a
basis to support waiver. See Eiser v. Brown &
Williamson Tobacco Corp., 595 Pa. 366, 383, 938 A.2d
417, 427-28 (2007) (encouraging lower courts to recognize
that on rare
occasions party may, in good...
