In Re Estate of Pedrick

NIX, Chief Justice,

concurring.

I accept the majority’s judgment that the conduct of the attorney-scrivener-beneficiary, Mr. Butler, shocks the conscience of the court and justifies a denial of the relief he seeks under the equitable doctrine of clean hands. 1 I am also in agreement that the fact the conduct may have transgressed Ethical Considerations (EC) 5-5 and 5-6 of the Code of Professional Responsibility is not of critical significance to this result. 2 It is the nature of the conduct itself and its effect upon the transaction which requires the remedy afforded. I therefore join the mandate of the majority reversing the Orphans’ Court and remanding for the probate of the earlier will in favor of John Gregory, appellant.

My agreement with the majority’s application of the doctrine of clean hands does not alter my view that the instant facts would also sustain a claim of undue influence. Nor am I unmindful of the limitation, in responding to *548 conduct of this kind, of the theory employed by the majority to decide this case. That doctrine would not have been a defense to the admission to probate of the will if someone other than the appellee had been the proponent or the executor. The doctrine of clean hands applies only where the plaintiffs wrongdoing directly affects the equitable relations existing between the parties. Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550 , 244 A.2d 10 (1968); Holst v. Butler, 379 Pa. 124 , 108 A.2d 740 (1954); Goldberg v. Goldberg, 375 Pa. 78 , 99 A.2d 474 (1953); Bennet v. Lane Homes, Inc., 369 Pa. 509 , 87 A.2d 273 (1952); Dales v. Muir, 351 Pa. 187 , 40 A.2d 476 (1945); Hartman v. Cohn, 350 Pa. 41 , 38 A.2d 22 (1944); Robinson v. Goldberg, 331 Pa. 401 , 200 A. 4 (1938).

Upon careful review of the entire record, I must disagree with the majority’s rejection of appellant’s contention that the evidence of weakened intellect and the conduct of appellee shifted the burden to appellee to disprove the allegation of undue influence. Under settled interpretation of existing law, a presumption of undue influence was raised, thereby shifting the burden to appellee to establish by clear and convincing evidence that the will represented the testator’s unfettered intention for the disposition of his estate. That burden clearly was not met on this record.

Undue influence has been described by this Court as follows:

“The word ‘influence’ does not refer to any and every line of conduct capable of disposing in one’s favor a fully and self directing mind, but to control acquired over another that virtually destroys his free agency____ In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind ... fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of a will.” Williams v. McCarroll, supra, 374 Pa. at 295-296, 97 A.2d at 20 *549 quoting from Phillips Estate, 244 Pa. 35, 43 , 90 A. 457, 460 (1914).

Estate of Ziel, 467 Pa. 531, 541 , 359 A.2d 728, 733 (1976).

It is beyond cavil that a contestant can raise a presumption of undue influence and thereby shift the burden of production of evidence to the proponent by establishing by clear and convincing evidence that, at the time of execution of the will, the testator was of weakened intellect, and that a person in a confidential relationship with the testator received a substantial benefit under the will. Estate of Reichel, 484 Pa. 610 , 400 A.2d 1268 (1979); Estate of Ziel, supra; Estate of Fickert, 461 Pa. 653 , 337 A.2d 592 (1975); Estate of Clark, 461 Pa. 52 , 334 A.2d 628 (1975); Estate of Button, 459 Pa. 234 , 328 A.2d 480 (1974).

This Court has stated that a confidential relationship exists

“when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both situations an unfair advantage is possible.” Leedom v. Palmer, 274 Pa. 22, 25 , 117 A. 410, 411 (1922). See also McClatchy Estate, 433 Pa. 232 , 249 A.2d 320 (1969). “A confidential relationship is created between two persons when it is established that one occupies a superior position over the other — intellectually, physically, governmentally, or morally — with the opportunity to use that superiority to the other’s disadvantage.” Union Trust Company of New Castle v. Cwynar, 388 Pa. 644, 653 , 131 A.2d 133, 137 (1957).

Estate of Thomas, 463 Pa. 284, 289-290 , 344 A.2d 834, 836 (1975).

Drob v. Jaffe, 351 Pa. 297, 41 A.2d 407 (1945), the late Chief Justice, then Mr. Justice Stern stated that “a confidential relationship is not limited to any particular association of parties but exists wherever one occupies toward another such a position of advisor or counsellor as reasonable to inspire confidence that he will act in good faith for the *550 other’s interest____” Id., 351 Pa. at 300, 41 A.2d at 408 ; accord, Frowen v. Blank, 493 Pa. 137 , 425 A.2d 412 (1981); Shook v. Bergstrasser, 356 Pa. 167 , 51 A.2d 681 (1947); Hamberg v. Barsky, 355 Pa. 462 , 50 A.2d 345 (1947). A confidential relationship can be presumed as a matter of law between the testator and attorney-scrivener. Estate of Thomas, supra; Leedom v. Palmer, 274 Pa. 22 , 117 A. 410 (1922); Restatement (Second) of Trusts § 44, comment (c) (1959).

This record not only establishes, as a matter of law, the confidential relationship, but also that the testator was of weakened mind prior to the execution of this will. Dr. De, the decedent’s treating cardiologist, testified before the hearing court that, .as a result of organic brain syndrome and arteriosclerosis, the patient exhibited forgetfulness, disorientation and depression. Further, Dr. Connor, the decedent’s treating physician of over twenty years, testified that he treated the decedent for congestive heart failure, arteriosclerosis, pleural effusion of the lung, cardiomegaly, and cerebral metastatic carcinoma, among other ailments. Dr. Connor testified that the decedent was “not capable of physically or mentally taking care of himself”, that he was “decrepit and feeble”, and that his physical abilities were impaired. Indeed, in the summer of 1979, Dr. Connor testified that the decedent visited his office wearing clothes covered with urine and excrement. Dr. Connor further testified that Mr. Pedrick would often be conversing coherently only to go off on a tangent, that he had a poor ability for prolonged concentration and that he was unaware of his assets. The inescapable conclusion is that the contestant to the will clearly and convincingly sustained his burden of establishing that the decedent was physically and mentally weak and that a confidential relationship existed between the testator and Mr. Butler so as to properly raise a presumption of undue influence. Estate of Reichel, supra.

*551 The burden therefore shifted to the proponent, Mr. Butler, to clearly and convincingly 3 establish that the “bequest was the free, voluntary and clearly understood act of the other party and that the entire transaction ... was unaffected by undue influence or imposition or deception or fraud.” Estate of Button, supra, 459 Pa. at 240 , 328 A.2d at 483 ; Williams v. McCarroll, 374 Pa. 281, 295 , 97 A.2d 14, 21 (1953).

Although the majority concludes that our scope of review is limited by the factual findings of the Orphans’ Court, we are not bound by the determinations of that court where its findings lacked evidentiary support or where the court capriciously disregarded competent evidence, Lanning Will, 414 Pa. 313 , 200 A.2d 392 (1964); Masciantonio Will, 392 Pa. 362, 367 , 141 A.2d 362 (1958); Pusey’s Estate, 321 Pa. 248 , 184 A. 844 (1936). The Orphans’ Court determination that the proponent satisfied his burden of proving the absence of undue influence by clear and convincing evidence cannot be successfully defended on this record.

The Orphans’ Court relied upon the appellee’s testimony in finding that the burden had been met. That testimony standing alone is insufficient, as a matter of law, to satisfy the appellee’s significant burden of rebutting the presumption of undue influence.

The Orphans’ Court inferred from the testator’s previous wills that he had an unfettered intention to confer a benefit on the Butlers. This inference was drawn in the face of evidence establishing the revocation of the prior will follow *552 ing a disagreement between Mr. Butler and the testator. It is also to be noted Mr. Butler testified that the testator did not know his brother although the brother was given one-half of the estate at Mr. Butler’s suggestion. By appellee’s own testimony, his relationship with the testator was such that he was able to influence the decedent to give one-half of his estate to someone unknown to him.

The fact that Mr. Butler procured the execution of this will in the complete absence of any impartial witnesses and/or without the participation of a disinterested attorney weighs heavily against him. Estate of Clark, supra, 461 Pa. at 66, 334 A.2d at 635 ; Blume v. Hartman, 115 Pa. 32, 40 , 8 A. 219, 222 (1887). The appellee created a situation where these events were cloistered from the observation of potential witnesses who may have been available to offer unbiased evidence.

This conclusion is further buttressed by his conduct when he returned to the testator’s bedside two days later, only to have himself named as beneficiary on the testator’s federal pension. There is absolutely no reason on the subsequent visit that an impartial third party could not have been present to witness that meeting. The proponent-appellee’s uncorroborated and self-serving testimony clearly does not provide evidence of sufficient probative value, as a matter of law, to rebut the presumption of undue influence that was raised in this case.

I therefore concur with the majority’s decision to remand to the Orphans’ Court for the probate of the earlier will in favor of John Gregory, appellant.

LARSEN, J., joins in this concurring opinion.

. The proponent of a will cannot seek the aid of a court of equity to secure the probate of a will, the execution of which was effectuated by his own wrongdoing. See Cross’ Estate, 319 Pa. 1 , 179 A. 38 (1935); Hays’Estate, 159 Pa. 381 , 28 A. 158 (1893).

. It is difficult to conceive of a situation where the conduct found to justify the bar under this doctrine, where it relates to the activities of an attorney in the performance of his or her professional responsibilities, would not also amount to an ethical violation.

. The test of clear and convincing evidence has been articulated as follows:

[T]he witnesses must be found to be credible, ... the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and ... their testimony is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue ... It is not necessary that the evidence be uncontradicted ..., provided it ‘carries a clear conviction to the mind’ ... or carries ‘a clear conviction of its truth ... ’

LaRocca Trust, 411 Pa. 633, 640 , 192 A.2d 409, 413 (1963).

Accord, Thomas v. Seaman, 451 Pa. 347, 351 , 304 A.2d 134, 137 (1973); Broida v. Travelers Insurance Co., 316 Pa. 444, 448 , 175 A. 492, 494 (1934).