Estate of: Fabian, Stella, Appeal of: Krepicz, M.

J-A19024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF STELLA FABIAN, : IN THE SUPERIOR COURT OF

DECEASED : PENNSYLVANIA

:

:

APPEAL OF: MARIE T. KREPICZ, AS :

INDIVIDUAL AND CO-EXECUTOR, :

CHARLES R. TRESKOT, AS :

INDIVIDUAL AND CO-EXECUTOR, :

CAROLYN J. KUTTA, AND ROBERT A. : No. 302 EDA 2021

TRESKOT :

Appeal from the Decree Entered December 31, 2020

In the Court of Common Pleas of Carbon County

Orphans’ Court at No. 16-9051

BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 24, 2021

Marie T. Krepicz and Charles R. Reskot, individually and as co-executors,

and Carolyn J. Kutta and Robert A. Treskot (collectively, Appellants), appeal

from the decree entered following remand from this Court, in which the

orphans’ court granted the appeal from probate of the Last Will and Testament

of Stella Fabian, Deceased (Testatrix), and ordered Testatrix’s will dated June

20, 2014 “stricken as invalid,” and Testatrix’s will dated December 29, 1988

“be probated.” After careful review, we affirm.

In our prior decision, we summarized the case history as follows:

Testatrix died on January 31, 2016. Her husband predeceased

her, as did her daughter, Barbara Fabian, with whom she was very

close and had resided for several decades. Testatrix left a will

dated June 20, 2014, in which she left the entirety of her estate

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* Retired Senior Judge assigned to the Superior Court.

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to her nieces, Carolyn J. Kutta and Marie T. Krepicz, and her

nephews, Robert A. Treskot and Charles R. Treskot (collectively,

“Proponents”), in equal shares. Testatrix appointed Marie and

Charles as co-executors. The 2014 will superseded a prior will,

dated December 29, 1988, in which Testatrix left her entire estate

to Barbara and, in the event Barbara predeceased her, to the

following individuals: Robert Treskot, 10%; Carolyn Treskot

Kutta, 5%; Marie Krepics [sic], 10%; Susan [sic] Fabian (now

Sullivan) (great-niece), 10%; Michelle Fabian (now Kratzer)

(great-niece), 5%; Jennifer Fabian (now Slade) (great-niece),

10%; Louise Fabian (now Benson) (niece-in-law), 10%; Gregory

Fabian (nephew), 5%; the children of Katherine Kralik, 25%; Mary

Redline (niece), 5%; and Sacred Heart Church, 5%. See Will of

Stella Fabian, 12/29/88, at Item Third.

The 2014 will was admitted to probate on February 16, 2016, and

letters testamentary were granted to Marie and Charles. On May

27, 2017, Contestants filed a “Petition for Citation to Show Cause

Why Appeal from Probate Should Not Be Granted and Certain

Writing Offered as Will Vacated.” In their petition, Contestants

alleged that: Testatrix’s 2014 will was the product of undue

influence exercised upon Testatrix by Marie and Charles; Testatrix

lacked capacity to execute a valid will; the will was the product of

fraud exercised upon Testatrix by Marie; and the will was the

product of a mistake on the part of Testatrix and did not represent

her true testamentary intent.

Proponents filed a response to the petition on July 7, 2016.

Hearings were held on January 18, 2017, April 20, 2017, and July

21, 2017. By decision and decree issued on June 28, 2017, the

court denied Contestants’ appeal from probate.

Estate of Fabian, 222 A.3d 1146 (Pa. Super. 2019) (citation to record

omitted).

In our prior opinion, we vacated the orphans’ court’s decision and

remanded with instructions. We first held, although we found it to be

harmless, that the orphans’ court erred in failing to qualify Georgia Young,

RN, the Director of Nursing at the personal care home where Testatrix resided,

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as an expert on mental capacity. Id. at 1147-49. Further, we determined

the court erred in finding Testatrix did not suffer from a weakened intellect

and Contestants had not made a prima facie showing of undue influence. Id.

at 1149-52. We reasoned:

In the conclusions of law contained in its Decision issued on June

28, 2018, the Orphans’ Court discounted the testimony of Dr.

[John] Bosi [Testatrix’s physician] and Nurse Young regarding

Testatrix’s history of Alzheimer’s and dementia. Instead, the

court relied on the testimony of the scrivener of the will, Michael

Greek, Esquire, and his two employees who were present with him

at the time Testatrix executed her will. In doing so, the court

concluded that Testatrix did not suffer from a weakened intellect

because she was “quite lucid at the time she executed the

contested will.” Orphans’ Court Decision, 6/28/18, at 15. This was

clearly a misapplication of the law. [In re Clark’s Estate], [334

A.2d 628, 632 (Pa. 1975)] (mental condition of testator on date

of execution not as significant when reflecting upon undue

influence as when reflecting upon testamentary capacity).

***

Nevertheless, in the body of its opinion, the court continued to

place almost exclusive emphasis on the testimony of Attorney

Greek, who met Testatrix twice: on June 13, 2014, and on the

date of execution, June 20, 2014. The court focused on the

Testatrix’s ability to identify family members and express herself

and her testamentary wishes. The court stated that “[i]f Attorney

Greek had suspected [Testatrix] was subject to undue influence,

he would have stopped the will consultation process.” [Orphans’

Court Decision] at 7. However, the court misses the point. As

noted above, because undue influence is generally accomplished

by a “gradual, progressive inculcation of a receptive mind,” the

“fruits” of the undue influence may not appear until long after the

weakened intellect has been played upon. Clark, 334 A.2d at

634. Thus, Attorney Greek—a stranger to the Testatrix—could

have had no way of knowing whether, in the weeks and months

prior to his two meetings with Testatrix, her mental state could

have rendered her susceptible to the undue influence of third

parties. Once again, evidence of Testatrix’s mental state at the

time of execution is of substantially less probative value to an

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undue influence inquiry than it is to a determination of

testamentary capacity. As both Dr. Bosi and Nurse Young

testified, patients with Alzheimer’s dementia can have “good

days” and “bad days.”

***

“[T]he scrivener of a will, especially if a lawyer, is always an

important and usually the most important witness in a contested

will case, and, where the lawyer knew the testator prior to the

execution of her will, his testimony showing voluntary and

intelligent action by the testator makes out a prima facie case that

requires very strong evidence to offset it.” In re Mampe, 932

A.2d 954, 961 (Pa. Super. 2007) (emphasis added). Here,

however, where Attorney Greek had never met Testatrix until

seven days before she executed her will, this principle is

inapplicable. See id. (testimony regarding testatrix’s voluntary

and intelligent actions by scrivener unfamiliar with testatrix not

dispositive of question of testatrix’s weakened intellect).

In light of the Orphans’ Court’s clear failure to apply the correct

standard to its weakened intellect analysis, we review the

evidence presented in light of the correct standard. Our review of

the evidentiary record constrains us to conclude that the court

erred in failing to find that Testatrix suffered from a weakened

intellect in the period leading up to the execution of her will. The

disinterested testimony regarding Testatrix’s cognitive state

during the relevant time period demonstrates, by clear and

convincing evidence, that Testatrix suffered from a weakened

intellect in the period leading up to the execution of the June 20,

2014 will.

Estate of Fabian, 222 A.3d at 1150-52 (emphasis in original).

We explained that because the orphans’ court found Contestants had

met the remaining prongs1 to establish a presumption of undue influence, “the

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1 The orphans’ court found “the testator was in a confidential relationship with

Proponents, who [] receive[d] a substantial benefit under the will. Neither

party challenged those determinations on appeal.” Fabian, 222 A.3d at 1152.

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burden shift[ed] [to] Proponents to demonstrate the absence of undue

influence by clear and convincing evidence.” Id. at 1152 (citation omitted).

We vacated and remanded “for determination by the Orphans’ Court as to

whether Proponents established by clear and convincing evidence, the

absence of undue influence.” Id.

On remand, all parties submitted supplemental proposed findings of fact

and conclusions of law. On December 31, 2020, the orphans’ court issued its

decree and decision stating:

In light of the Superior Court’s reversal and remand, we recognize

that the burden has shifted to [Appellants] to demonstrate by

clear and convincing evidence, the absence of undue influence.

***

[Appellants] did not present any further disinterested witnesses

[other than Attorney Greek and his employees] to testify to the

mental condition of [Testatrix] in the weeks leading up to the

Execution of her Will.

***

[Appellants] have not presented sufficient evidence to rebut the

testimony of Dr. Bosi and Nurse Young that [Testatrix’s] condition

was consistent with a diagnosis of moderate to severe Alzheimer’s

Disease and advanced dementia.

***

[Appellants] have failed to establish, by clear and convincing

evidence, the absence of undue influence.

Decision and Decree, 12/31/20, at 20-23.

The orphans’ court granted Contestants’ petition and appeal, and

ordered the June 20, 2014 will stricken, and the December 29, 1988 will

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probated. Appellants timely appealed. The orphans’ court ordered Appellants

to file a concise statement of errors complained of on appeal,2 after which the

court issued an opinion.

Appellants present a single question for review:

Did the Orphans’ Court Judge Commit an Error of Law and/or

Abuse His Discretion When He Concluded that the Appellants Had

Not Proven the Absence of Undue Influence by Clear and

Convincing Evidence?

Appellants’ Brief at 5.

Appellants challenge the weight of the evidence. We have stated:

[W]e accord the findings of the Orphans’ Court, sitting without a

jury, the same weight and effect as the verdict of a jury; we will

not disturb those findings absent manifest error; as an appellate

court we can modify an Orphans’ Court’s decree only if the findings

upon which the decree rests are not supported by competent or

adequate evidence or if there has been an error of law, an abuse

of discretion, or a capricious disbelief of competent evidence.

Moreover, we will not reverse the Orphans’ Court’s credibility

determinations absent an abuse of the court’s discretion as

factfinder. On the other hand, we are not required to give the

same deference to the Orphans’ Court’s legal conclusions. Where

the rules of law on which the Orphans’ Court relied are palpably

wrong or clearly inapplicable, we will reverse the court’s decree.

Estate of Edward Winslow Taylor Inter Vivos Trust, 169 A.3d 658, 663

(Pa. Super. 2017) (citation omitted).

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2 Appellants’ 6-page, 10-issue statement is not concise or compliant with

Pa.R.A.P. 1925(b)(4). See Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super.

2004) (finding waiver where prolix Rule 1925(b) statement contained an

“outrageous number of issues,” “circumvented the meaning and purpose of

Rule 1925(b),” and “effectively precluded appellate review”). Instantly, we

decline to find waiver.

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The resolution of a question as to the existence of undue influence

is inextricably linked to the assignment of the burden of proof.

Once the proponent of the will in question establishes the proper

execution of the will, a presumption of lack of undue influence

arises; thereafter, the risk of non-persuasion and the burden of

coming forward with evidence of undue influence shift to the

contestant. The contestant must then establish, by clear and

convincing evidence, a prima facie showing of undue influence by

demonstrating that: (1) the testator suffered from a weakened

intellect; (2) the testator was in a confidential relationship with

the proponent of the will; and (3) the proponent receives a

substantial benefit from the will in question. Once the contestant

has established each prong of this tripartite test, the burden shifts

again to the proponent to produce clear and convincing evidence

which affirmatively demonstrates the absence of undue influence.

In re Estate of Smaling, 80 A.3d 485, 493 (Pa. Super. 2013) (citations

omitted). The standard of clear and convincing evidence “is defined as

testimony that is so ‘clear, direct, weighty and convincing as to enable the

trier of fact to come to a clear conviction, without hesitance, of the truth of

the precise facts in issue.’” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)

(citation omitted).

Also, the Pennsylvania Rules of Appellate Procedure provide:

(a) General rule. On remand of the record the court or other

government unit below shall proceed in accordance with the

judgment or other order of the appellate court and, except as

otherwise provided in such order, Rule 1701(a) (effect of appeals

generally) shall no longer be applicable to the matter.

Pa.R.A.P. 2591(a). The Supreme Court has stated, “it has long been the law

in Pennsylvania that following remand, a lower court is permitted to proceed

only in accordance with the remand order.” Commonwealth v. Sepulveda,

144 A.3d 1270, 1280 n. 19 (Pa. 2014).

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After careful review of the record and prevailing authority, we conclude

that no relief is due. Appellants assert the orphans’ court misapplied this

Court’s decision in Mampe, supra, by failing to give proper weight to the

testimony of Attorney Greek. Appellants argue:

[The orphans’ court’s] findings and misapplication of the Mampe

case constitute an abuse of discretion and/or error of law. Michael

Greek, an experienced estate planning lawyer, who regularly deals

with elderly clients, knew [Testatrix]. Michael Greek had

previously met with [Testatrix] when he prepared her Power of

Attorney in May 2014.

Appellants’ Brief at 27.

Appellants disregard that in the prior appeal, this Court addressed

Mampe and found it inapplicable. We described Attorney Greek as “a stranger

to the Testatrix,” and held Attorney Greek’s testimony was “less probative,”

where “Attorney Greek had never met Testatrix until seven days before she

executed her will[.]” Fabian, 222 A.3d at 1151. The court was bound by our

holding. See Commonwealth v. Williams, 877 A.2d 471, 474-75 (Pa.

Super. 2005) (“It is well-settled that a trial court must strictly comply with the

mandate of the appellate court[.]”); see also Commonwealth v Starr, 664

A.2d 1326, 1331 (Pa. 1995) (under the law of the case doctrine, “a court

involved in the later phases of a litigated matter should not reopen questions

decided by another judge of that same court or by a higher court in the earlier

phases of the matter.”). Thus, the orphans’ court did not err in its

consideration of Mampe.

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Appellants devote the remainder of their argument to claiming that

Testatrix did not have a weakened intellect and Appellants did not exert undue

influence. Appellants assert the evidence did not demonstrate Testatrix

“showed signs of persistent confusion[.]” Appellants’ Brief at 30. Again, the

issue of whether Testatrix had a weakened intellect was decided in this Court’s

prior decision and may not be relitigated. Fabian, 222 A.3d at 1151-52; see

also Starr, 664 A.2d at 1331. Appellants also emphasize they “did not isolate

[Testatrix]; they drove [her] to visit her daughter and permitted [her] to

remain at [sic] Assisted Living Facility when they could have removed her and

placed her in one of their homes.” Appellants’ Brief at 30.

In sum, Appellants disregard our scope of review. They do not address

their failure to offer medical testimony to refute the testimony of Dr. Bosi and

Nurse Young. They do not explain their failure to offer the testimony of any

independent witness to attest to Testatrix’s state of mind in the weeks leading

to the will change. Rather, Appellants cite evidence favorable to their claim

that Testatrix did not have a weakened intellect and Appellants did not exert

undue influence, but it is not our role to reweigh the evidence. Estate of

Edward Winslow Taylor Inter Vivos Trust, 169 A.3d at 663. Accordingly,

no relief is due.

Decree affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/2021

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