NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 560 WDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P IN RE: ESTATE OF THOMAS E. HAYES, IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: EVELYN HAYES, EXECUTRIX AND BENEFICIARY UNDER THE WILL OF THOMAS E. HAYES, Appellant No. 560 WDA 2013 Appeal from the Order March 3, 2013 In the Court of Common Pleas of Washington County Orphans' Court at No(s): BEFORE: BOWES, WECHT, and STABILE, JJ. MEMORANDUM BY BOWES, J.: FILED: March 11, 2014 Evelyn Hayes appeals from the determination of the orphans court that a will executed by her father was procured by undue influence. We affirm. We first outline the pertinent procedural history. On June 19, 2008, ninety-two-year-old Thomas E. Hayes ( Mr. Hayes ) died testate and was survived by three children, Appellant, Thomas G. Hayes, and Melvin B. Hayes. On July 8, 2008, the Register of Wills of Washington County admitted a will dated October 25, 2007, to probate and granted letters testamentary to Appellant. Under the October 25, 2007 will, Appellant was the sole beneficiary and executrix of the estate.

2 On July 21, 2008, Thomas G. and Melvin B. Hayes filed an appeal from probate and alleged that the will was procured by undue influence exercised by Appellant, that the testator lacked testamentary capacity when he executed that document, and that Appellant had wrongfully interfered with their right to inherit from their father. They asked that the October 25, 2007 will be stricken, that Appellant s letters testamentary be revoked, and that a will dated November 7, 2006 be admitted to probate. In the November 7, 2006 will, decedent left his estate in equal shares to his three children. On September 28, 2011, Melvin B. Hayes died, and his interest in this matter is now being represented by Nancy L. Hayes, his widow and the administratrix of his estate. We refer to Thomas G. and Nancy L. Hayes as the will contestants. The matter proceeded to three hearings on November 17, 2011, January 23, 2012, and January 31, After the final hearing, the record remained open so that Appellant could depose Dr. Ravindra Mehta, psychiatrist. That deposition occurred on April 4, 2012, and the record was closed on April 30, The will contestants and Appellant, as proponent of the October 25, 2007 will, filed countervailing proposed findings of fact. On August 31, 2012, the orphans court issued its adjudication. It concluded that the October 25, 2007 will was procured by undue influence exercised by Appellant, it revoked Appellant s letters testamentary, and it - 2 -

3 ordered that the November 7, 2006 will be admitted to probate. Appellant filed timely exceptions to the August 31, 2012 adjudication. 1 Appellant then filed untimely supplemental exceptions and also asked that the record be reopened for the receipt of after-discovered evidence. On October 30, 2012, the orphans court struck the supplemental exceptions as untimely and denied the motion for receipt of after-discovered evidence. The timely-filed exceptions were denied by order dated March 3, 2013, 2 and this timely appeal followed. 1 Orphans Court Rule 7.1 provides that, except with respect to adoptions and involuntary terminations where no exceptions can be filed: no later than twenty (20) days after entry of an order, decree or adjudication, a party may file exceptions to any order, decree or adjudication which would become a final appealable order under Pa.R.A.P. 341(b) or Pa.R.A.P. 342 following disposition of the exceptions. If exceptions are filed, no appeal shall be filed until the disposition of exceptions except as provided in Subdivision (d) (Multiple Aggrieved Parties). Failure to file exceptions shall not result in waiver if the grounds for appeal are otherwise properly preserved. Pa.O.C. Rule 7.1(a). The order in question was final under Pa.R.A.P Pa.R.A.P. 342(a)(2) ( An appeal may be taken as of right from the following orders of the Orphans, Court Division... [a]n order determining the validity of a will[.] ). 2 Orphans Court Rule 7.1(f) mandates that the orphans court decide exceptions within one hundred and twenty (120) days of the filing of the initial exceptions. Pa.O.C. Rule 7.1(f). The order denying exceptions was untimely since it was not rendered within 120 days after the filing of the exceptions. In that case, Orphans Court Rule 7.1(f) provides, (Footnote Continued Next Page) - 3 -

4 Appellant raises these contentions for our review: 1. Did the lower court err in making a finding, by clear and convincing evidence, that a confidential relationship existed between Evelyn Hayes and the testator[?] 2. Did the lower court err in making a finding, by clear and convincing evidence, that the testator was of weakened intellect[?] 3. Did the lower court err in finding by clear and convincing evidence that the testator understood at the time he executed the will that Evelyn Hayes would receive the bulk of the Testator's property[?] 4. Did the lower court err in finding that the will's proponent, Evelyn Hayes, did not provide proof of lack of undue influence[?] 5. Did the lower court err in disregarding the testimony of attorney Frank Magone, the scrivener and not giving his testimony paramount weight[?] 6. Did the lower court err in failing to consider after-discovered evidence which would have directly reflected on the credibility of Nancy Hayes, a primary witness for the contestants[?] (Footnote Continued) If the Orphans Court fails to decide the exceptions within one hundred and twenty (120) days, the exceptions shall be deemed denied by operation of law on the one hundred and twenty first (121 st ) day and the clerk is directed to enter the deemed denial on the docket as of that date. The appeal period shall begin to run as of the one hundred and twenty first (121 st ) day. Pa.O.C. Rule 7.1(f). In this case, the deemed denial was not entered by the clerk on the docket. The only notice sent to the parties pertained to the March 3, 2013 order denying exceptions. Hence, the appeal period did not commence to run until the March 3, 2013 order was entered. See, e.g., Commonwealth v. Blye, 33 A.3d 9 (Pa.Super. 2011) (appeal period did not run since counsel never notified of order denying post-sentence motion)

5 Appellant s brief at 4. Before addressing these contentions we note that, while Appellant purports to present these six distinct issues for our review, the argument portion of her brief is not divided into sections, and she fails to present separate, discernable arguments on any single issue, except regarding the after-discovered evidence allegation. 3 Appellant presents a single argument challenging the orphans court s conclusion that the will in question was procured by undue influence. In light of this posture, we will examine the evidence and apply the pertinent law to resolve the first five positions raised on appeal, and will deal separately with Appellant s final issue. Initially, we set forth our standard of review: In a will contest, the hearing judge determines the credibility of 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 was an error of law or abuse of discretion. In re Estate of Smaling, 80 A.3d 485, 493 (Pa.Super. 2013) (en banc) (quoting Estate of Reichel, 400 A.2d 1268, (Pa. 1979)). We outline the orphans court factual findings, which are supported by the record. 3 We observe that Pa.R.A.P. 2119(a) provides: The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent

6 Thomas E. Hayes, the decedent was born on December 10, 1915 and died on June 19, 2008 at the age of 92. He was a widower; his wife died in They had three children, Thomas G. Hayes, Melvin Hayes and Evelyn Hayes. The decedent enjoyed a healthy and normal relationship with his three children. Two of the children, Thomas G. and Evelyn, lived in Ohio. Thomas G. rarely returned home but talked to his father on the phone on a weekly basis. Evelyn returned home a few times a year and kept in phone contact. Melvin, or "Bud" as he was called, lived near by and saw his father three or four times a week and talked with him daily and assisted him with chores on the farm and going with him to medical appointments when needed. In 2007, both Bud and his father Thomas experienced serious medical issues. Bud, who already was declared to be disabled, lost sight in one eye and was no longer able to drive. In January, 2007, the decedent began to lose weight; he was hospitalized in January and treated by Dr. [Nicholas E.] Fuerst to determine the cause but no definite diagnosis was made. In July 30, 2007, Thomas was again hospitalized for a myriad of ailments for several weeks then released to Presbyterian Home for aftercare, and subsequently re-admitted to the Hospital and again released to Humbert Lane Nursing Home, a skilled nursing facility. For those two months, Bud visited him every day. Neither Thomas G. or Evelyn visited him in the hospital. Thomas, however, talked with Bud daily to receive an update on his father's condition. Evelyn rarely returned Bud's phone calls. At the end of September, 2007, Evelyn returned home and announced that she was moving in with her Father. She had lost her home in Cleveland in a foreclosure action. Evelyn then signed her father out of the nursing home against medical advice. Bud strenuously objected to her plan and argued with both Evelyn and the decedent. Mr. Hayes went home with Evelyn against medical advice and thereafter, he had no contact whatsoever with his two sons. Thomas's weekly phone calls went unanswered. No communication by either the Decedent or by Evelyn was made to Bud. Mr. Hayes' primary care physician, Dr. Nicholas Fuerst, diagnosed him in August of 2007 with senile onset dementia and organic brain syndrome. He also suffered from congestive heart failure and chronic renal insufficiency, among other ailments. Dr. [Manoj P.] Patel, a psychiatrist who was called in - 6 -

7 for a consultation, also diagnosed Mr. Hayes with dementia with symptoms of hallucinations and delusions. Shortly after Evelyn took her father home, she made an appointment for him to see Dr. [Ravindra] Mehta, a psychiatrist, Dr. Mehta examined him on October 8, 2007 and opined that he was competent. She then made an appointment to see Attorney Frank Magone. She met with Attorney Magone by herself on October 11, 2007 and gave the attorney information for him to prepare a Last Will and Testament and a revocation of a power of attorney. Then the two of them met with Attorney Magone and Mr. Hayes signed the Will in question. A year earlier in 2006, Thomas Hayes had executed a durable power of attorney naming Melvin (Bud) as his agent and Bud had assisted Mr. Hayes in his financial affairs. After Evelyn returned home, Bud placed Mr. Hayes' assets in a Revocable Trust which allowed for the assets in the Trust to be used for Mr. Hayes' care and upon his death, the remainder would go to the estate. His monthly Social Security and pension checks continued to be placed in his checking accounts. In October 2007, Evelyn Hayes took her father to the bank and attempted to have the assets that had been placed in the Revocable Trust turned over to the both of them. When her request was refused, she told her father that Bud had stolen all of his money. Evelyn asked Attorney Magone to prepare a revocation of a power of attorney, which the decedent signed and Evelyn provided to the financial institutions to terminate Bud's authority. When Thomas Hayes passed away, Evelyn did not inform her brothers nor did she have an obituary placed in the paper or any public viewing or announcement. Evelyn told her brother Thomas of their father's death eight days later. Trial Court Opinion, 8/31/12, at 2-4. The following legal standards apply to a position that a will was procured by undue influence: 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 - 7 -

8 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, supra at 493 (citation and footnote omitted). We first examine in detail the evidence produced by the will contestants regarding decedent s weakened intellect. Dr. Nicholas E. Fuerst was the decedent s primary care physician for several years before the pertinent events. Dr. Fuerst related the following regarding Mr. Hayes mental state by October Mr. Hayes was hospitalized in August 2007, two months before the will in question was executed. Dr. Fuerst reported that when Mr. Hayes, who suffered from congestive heart failure and other physical ailments, was admitted to Washington Hospital on August 3, 2007, he was confused, lethargic, and agitated. Deposition, Nicholas E. Fuerst, M.D., 12/9/10, at 20. Mr. Hayes was discharged to a nursing home a few days later, but he was re-admitted to Washington Hospital on August 9, 2007, due to an irregular heartbeat. On August 18, 2007, Mr. Hayes was transferred to a skilled nursing facility, Humbert Lane Nursing Home. At the nursing home facility, Mr. Hayes was delusional, hallucinatory, and paranoid. Id. at 34, 35. In other words, he was - 8 -

9 expressing things that were not true as well as seeing and hearing things that were not present. Mr. Hayes also was diagnosed with depression. Id. at 37. A brain scan revealed age-related deterioration, and, based upon his personal interactions with Mr. Hayes, the nurses notes and his review of the brain scan, Dr. Fuerst opined that by August 2007, Mr. Hayes suffered from senile onset dementia and organic brain syndrome. Id. at 50. Senile onset dementia has no known cure and worsens with time. Id. at 51. Deterioration was documented in the medical records in that, by August 31, 2007, Mr. Hayes had functional incontinence related to decreased mental status since he was unable to discern when he had to urinate. Id. at 54. Due to Mr. Hayes mental deficits, on September 4, 2007, Dr. Fuerst ordered a consultation with Dr. Manoj P. Patel, a psychiatrist. Dr. Patel related his findings regarding Mr. Hayes mental condition in September 2007: He had low energy, mood swings, loss of interest. His thought processes were tangential, rambling and [he had] psychomotor retardation. He appeared to be hallucinating. His attention and concentration were impaired. Present memory and recall were impaired. Remote memory was poor. His knowledge and intellect were impaired. He was alert, associations were loose and he was confused. Deposition Manoj P. Patel, M.D., 3/31/11, at 13. Dr. Patel diagnosed Mr. Hayes with dementia with psychosis and depression. Id. at 15. Dr. Patel opined that, due to these mental conditions, Mr. Hayes was - 9 -

10 susceptible to being influenced and that Mr. Hayes lacked sufficient capacity to make decisions[.] Id. at 17. On September 6, 2007, Dr. Fuerst likewise found that Mr. Hayes was incapable of understanding his rights and responsibilities due to the following. Cannot comprehend use of resources and liabilities, lacks sufficient capacity to make responsible decisions. Deposition, Nicholas E. Fuerst, M.D., 12/9/10, at 65. Dr. Fuerst opined that, as of September 2007, Mr. Hayes was predisposed to being influenced in his decision-making process due to his chronic organic brain syndrome and senile onset dementia. Id. at 86. Dr. Fuerst continued that by September 6, 2007, Mr. Hayes absolutely was not capable of making decisions. Id. at 87. On September 27, 2007, Dr. Fuerst recommended that Mr. Hayes be transferred to a personal care home. He explained that, due to his deteriorated mental state, Mr. Hayes required twenty-four-hour observation by an alert caregiver. Dr. Fuerst stated that, against medical advice, on September 29, 2007, Appellant took Mr. Hayes from the nursing home facility to his home rather than to a personal care facility. 4 4 While Appellant insists on appeal that her father made the decision to go home rather than to a personal care home, we disagree. Two doctors in charge of Mr. Hayes care concluded that, by September 6, 2007, Mr. Hayes was not capable of independent decision-making. Their opinions were credited by the orphans court. Hence, we are bound by the orphans court s factual finding that Appellant decided to take her father to his home against medical advice

11 In light of the credited testimony from Doctors Fuerst and Patel, we are compelled to conclude that the will contestants established by clear and convincing evidence that Mr. Hayes suffered from a weakened intellect. Estate of Smaling, supra (diagnoses of organic brain syndrome and dementia sufficient to establish weakened intellect). Next, we summarize the evidence that the will contestants presented regarding the existence of a confidential relationship between Appellant and her father. Appellant lived in Cleveland, Ohio until the end of September Prior to that time, Appellant had minimal contact with Mr. Hayes and did not visit him at his home in Pennsylvania often. In September 2007, Appellant lost her Ohio home due to foreclosure and announced to her brothers that she was moving in with her father. On September 29, 2007, Appellant removed her father from a skilled nursing facility and, against medical advice, took him home. After that date, Appellant isolated her father completely from her two brothers, both of whom previously enjoyed healthy relationships with their father. Appellant even failed to inform her two brothers that their father had died and hid the funeral arrangements from them. On October 8, 2007, Appellant took Mr. Hayes to a doctor, Ravindra Mehta, to establish that he was capable of executing a will. Dr. Mehta had a forty-five to sixty-minute interaction with Mr. Hayes, during which he asked the decedent thirty questions. Appellant met with attorney Frank D. Magone

12 alone and directed him to prepare a will leaving all of her father s assets to her and to prepare a document revoking Melvin s power of attorney. Mr. Magone drafted the revocation before seeing Mr. Hayes. Appellant took Mr. Hayes to a notary public where the revocation was executed. Mr. Magone drafted the October 25, 2007 will before he met with Mr. Hayes. On the day the will was executed, Appellant accompanied her father when he signed that document. Based on testing and personal care delivered over a period of time, Dr. Fuerst opined that Mr. Hayes mental condition in September 2007 made him vulnerable to influence, unable to manage his financial affairs, and incapable of decision-making. Dr. Patel, who was called in as a consultant by Dr. Fuerst, echoed Dr. Fuerst s conclusions. Dr. Patel opined that Mr. Hayes was susceptible to influence and that he lacked sufficient mental capacity to make decisions. We conclude that this proof was clear and convincing evidence establishing that Appellant had a confidential relationship with Mr. Hayes when the will was executed. Id. The third element that the will contestants must establish to sustain a finding of undue influence was that Appellant, as proponent of the will, received a substantial benefit from its execution. When Mr. Hayes executed the will in question, he had an existing will leaving his estate, in equal shares, to his three children. Appellant therefore received a substantial benefit from the October 25, 2007 will in that she became the sole recipient

13 of his estate. Appellant contests that this element of the undue-influence test was met because, when the will was executed, the majority of Mr. Hayes assets had been transferred into a trust for his benefit. She maintains that, in light of the title to Mr. Hayes assets on October 25, 2007, it was unclear that she would have received all of Mr. Hayes assets. However, Appellant also acknowledges that, under the trust, the assets funding it, upon Mr. Hayes death, would follow the Will[.] Appellant s brief at 18. Hence, it is clear that Appellant received a substantial benefit from the execution of the will because the will controlled disposition of Mr. Hayes property regardless of whether it was titled in the trust or in Mr. Hayes sole name. 5 In light of the evidence in question, we conclude that the orphans court herein did not legally err or abuse its discretion in finding that the will contestants presented clear and convincing evidence of undue influence and that Appellant did not produce clear and convincing evidence that demonstrated the absence of undue influence. In attacking the orphans court ruling, Appellant disregards the evidence accepted by the orphan s 5 In her brief, at various points, Appellant focuses on whether her father would have been aware that she would receive a substantial benefit from the execution of the October 25, 2007 will, given that he did not have knowledge of the terms of the trust into which his assets were placed. However, the question of the existence of undue influence is resolved by determining whether the proponent of the will actually received a benefit from that document and not whether the testator realized that the proponent would benefit from it

14 court and continually relies upon the evidence that she presented. In this respect, Appellant utterly fails to appreciate our standard of review. As delineated above, the orphans court is the sole arbiter of the credibility of witnesses. We are required to accept, as true, the evidence relied upon by the orphans court. That proof overwhelmingly established that Mr. Hayes suffered from severe cognitive decline on October 25, 2007, was incapable of making a decision, and would be influenced by others. The will contestants also established that Appellant had total control over her father after September 29, The trial court was not required to accept the proof offered by the witnesses presented by Appellant. In re Estate of Smaling, supra; see also In re Bosley, 26 A.3d 1104 (Pa.Super. 2011) (orphans court free to accept all part of none of a witness s testimony). We also reject the notion that the orphans court was required to accept the testimony of the scrivener of the will, who assessed whether Mr. Hayes had testamentary capacity, as conclusive on the question of whether Mr. Hayes suffered from a weakened intellect. Initially, we note that testamentary capacity is a much lower mental threshold than weakened intellect. Id. at 498 ( The weakened intellect necessary to establish undue influence need not amount to testamentary incapacity. ). Additionally, we have specifically ruled that the orphans court can make a finding that a person suffered from a weakened intellect, despite an attorney s assessment that the person had testamentary capacity when the contested will was

15 executed. In re Mampe, 932 A.2d 954 (Pa.Super. 2007); see also In re Estate of Smaling, supra. We now examine Appellant s final assertion that her request to reopen the record was improperly refused. To justify opening an adjudication by the Orphans' Court based on newly discovered evidence, the evidence must have been discovered since the original adjudication, must be such that it was not previously obtainable by reasonable diligence, and must be likely to have compelled a different result. In re Estate of Karschner, 919 A.2d 252, 256 (Pa.Super. 2007) (two judges joining this aspect of the opinion). following: Herein, Appellant s newly-discovered evidence consisted of the (b) Respondent, Evelyn Hayes, acquired evidence after the trial which reflects directly on the credibility of Nancy L. Hayes. (c) The new evidence relates to the In Trust For bank account records and renders the testimony of Nancy L. Hayes regarding the decedent s monies non-credible. Nancy having testified that she was involved in everything her husband did and further reflects on this Court s finding that Bud acted in the best interest of his father. (T.T. Nancy Hayes p. 93) (d) Respondent, Evelyn Hayes, secured this evidence in April- May 2012 after requesting records from PNC Bank. (e) The new evidence of bank records will reveal that the decedent s monies were taken from the In Trust For account set up September 28, 2007, as a joint account of Melvin B. Hayes and Nancy L. Hayes, at their address, and deposited in the personal joint account of Melvin B. Hayes and Nancy L. Hayes at their address on February 6, The In Trust For bank account was closed on this date. The monies of the decedent, Thomas E. Hayes were not returned to the Trust in

16 effect until the death of Thomas E. Hayes on June 19, 2008; nor were the monies returned to the Estate of Thomas E. Hayes. Supplemental Exceptions, 10/19/12, at 7. The orphans court concluded that this proof did not constitute afterdiscovered evidence since there was no reason why Appellant did not uncover these facts prior to trial. We agree with its assessment. Appellant fails to explain why she did not secure the bank records before trial, and she therefore was not duly diligent in discovering the proposed evidence. In sum, the will contestants presented clear and convincing evidence that when the October 25, 2007 will was executed, Mr. Hayes suffered from a weakened intellect and was in a confidential relationship with Appellant and that Appellant received a substantial benefit from the will in question since she became sole beneficiary of the estate. Appellant failed to rebut by clear and convincing evidence that the will was not the product of her undue influence. Finally, Appellant did not present a viable after-discovered evidence request. Hence, we affirm the rulings rendered herein. Order affirmed

17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/11/