In re Byerley

284 A.3d 1225

IN RE: ESTATE OF David A. BYERLEY, Deceased

Appeal of: David M. Byerley

No. 2572 EDA 2021

Superior Court of Pennsylvania.

Filed October 18, 2022

Kenneth C. Russell Jr., Huntingdon Valley, for appellant.

David D. DiPasqua, Media, for appellee.

BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.

OPINION BY MURRAY, J.:

David M. Byerley (Appellant) appeals from the decree directing probate of the February 16, 2018, will (Will) of his father, David A. Byerley (Decedent). Appellant is Decedent's only child and "beloved son." Findings of Fact, 11/16/21, at 5 (quoting Will). Appellee, Mary McGurk (Ms. McGurk), was Decedent's "dear friend." Id. at 4 (same). The parties dispute the provision of the Will granting Ms. McGurk a life estate in Decedent's home. After careful review of the certified record and prevailing legal authority, we affirm.

FACTS¹

Decedent was born on August 17, 1927, and died on August 10, 2019, shortly before his 92^nd birthday. At the time of trial, Ms. McGurk was 73 years old. N.T., 10/15/20, at 186. The Orphans’ Court explained:

At the time of his death, Decedent resided at 2587 Radcliffe Road, Broomall, Delaware County, Pennsylvania (the Property).

Decedent [was] survived by his son, [Appellant,] and his long-time caregiver and friend, Mary McGurk. On December 15, 1998, Decedent executed a Last Will and Testament (the 1998 Will) wherein [Appellant] was named the sole Executor and sole beneficiary.

On February 16, 2018, Decedent executed a new Last Will and Testament (the 2018 Will) wherein Decedent provided for McGurk to have a life estate in the Property. As in the 1998 Will, [Appellant] was named as the sole Executor and sole beneficiary under the 2018 Will. The 2018 Will provides, in relevant part, as follows:

"SECOND; I give, bequeath and devise my estate as follows: 1. I give and devise my premises known as 2587 Radcliffe Road, Broomall, PA 19008, unto my Trustee hereinafter named, IN TRUST NEVERTHELESS, to be used for the sole occupancy of my dear friend, MARY MCGURK, until she vacates said premises, or upon her death, whichever shall first occur, and upon the occurrence of either event, this Trust shall terminate. Thereafter, exclusive title to the property shall be transferred by my Trustee unto my beloved son, DAVID M. BYERLEY, per stirpes. During the term of her occupancy, MARY MCGURK shall be solely responsible to timely pay all utilities for said premises."

McGurk was Decedent's longtime friend and caretaker. In approximately 2004, Decedent met McGurk at the Pet Smart Store where she worked. During his weekly visit to Pet Smart, Decedent used to leave notes on McGurk's car, including a note asking her out to dinner and a note with a map to his home. Sometimes when McGurk left work, Decedent would stand outside by her car and they would talk to each other. McGurk testified that Decedent tried for a long time to get her to date him and that he was such a nice and kind man; and therefore, she finally went out with him. When a fire caused McGurk to vacate her apartment, Decedent offered his storage room in the Property's basement to her. [Ms. McGurk] testified that following the fire, she lived with her aunt in Drexel Hill for a month, but never lived in her car or was homeless as alleged [by Appellant]. Eventually, Decedent and McGurk began dating, but it was a platonic relationship.

After dating for two years, McGurk moved into the Property in 2006. When she moved into the Property, McGurk was employed and had a checking account and a debit card. McGurk worked at Pet Smart until 2009 and then she went on Social Security. McGurk [testified that she] and her dog moved into separate quarters of the Property, specifically the top floor, and that Decedent insisted that she move into the home. McGurk further testified that there was no written lease agreement between her and Decedent.

Orphans’ Court Opinion, 4/21/22, at 2-3 (record citations omitted).

When Ms. McGurk moved into the Property in 2006, Decedent was independent. Id. at 4. He drove until 2016; when Decedent stopped driving, Ms. McGurk drove Decedent "anywhere he needed to go." Id. at 55. As Decedent "became more physically compromised," Ms. McGurk's "caregiver duties increased," and she "began to go shopping, fix meals for [Decedent], do the laundry and dishes, and change his diapers." Id. (citations omitted).

Attorney Thomas Burke drafted Decedent's 1998 will.² N.T., 3/17/21, at 34. Attorney Robert DiOrio drafted the 2018 Will. N.T., 9/14/20, at 11. Attorney DiOrio explained that Decedent was referred to him by a previous client, not Ms. McGurk. N.T., 9/29/20, at 27. He did not know Ms. McGurk or her family. Id.

Attorney DiOrio testified Decedent "contacted me by telephone ... probably sometime in 2017" to draft the Will. N.T., 9/14/20, at 8-10. Ms. McGurk accompanied Decedent to Attorney DiOrio's office on February 16, 2018.³ Id. at 21. Attorney DiOrio stated, "when I discussed the Will with [Decedent,] it was just me and [Decedent]." Id. Attorney DiOrio had no concerns about Decedent's capacity to execute the Will, although Decedent had "somewhat of a hearing problem." Id. at 20-21, 23. Attorney DiOrio testified that Decedent exhibited no signs of weakened intellect, and he "would not have had him execute the will if I had thought so." Id. at 23; see also id. at 24-25 (stating, "Once again, I would not have had [Decedent] execute the will if I didn't believe it was his complete and full understanding and intention[.]").

Attorney DiOrio described Decedent:

He looked like an elderly – he looked like the elderly nice man that I knew him to be in my brief relationship with him. He was – appeared to be appropriately dressed. He appeared to be focused on the task at hand. He responded appropriately to things that he wanted me to know and to things I was asking him. I don't recall specifics ... but there was nothing in his appearance or demeanor or behavior that lead me to believe that he was anything but cognizant and of free will and able to undertake the task at hand.

N.T., 9/29/20, at 20. Attorney DiOrio stated that Decedent "was in his 90s and he wasn't robust[.] ... He looked like a 90 year old person." Id. at 74. Nonetheless,

[Decedent] was no different than my exposure to any other client that asks me to prepare a will for them and I saw nothing in my relationship with him that lead [sic ] me to believe he was under any undue influence, which is more than influence, obviously, but undue influence I didn't see.

Id. at 23.

Attorney DiOrio stated that "[a]ccording to [Decedent], [Appellant] did not agree with certain things [Decedent] was involved with financially or otherwise as far as the home was concerned with Ms. McGurk." Id. at 38. Attorney DiOrio testified:

[Decedent] had a hearing impairment and therefore, [Ms. McGurk] would impart information to me based on the fact that [Decedent] had a hearing impairment and therefore, she would, quite loudly, so she could make sure apparently that he would hear also, give me information and I would confirm that information with him. So, my understanding of her role was someone who had assisted [Decedent,] according to both of them, in his life, assisting him in various ways, I guess as a – I don't want to say as a caregiver, but in the nature of a caregiver and therefore, she would call me and I got the impression that the purpose of her being involved in the calls was simply to be able to make sure [Decedent] heard everything that was going on during that call or during the meeting.

Id. at 42-43. He clarified that Decedent, "had a hearing impairment, but he wasn't deaf. He could hear." Id. at 43. In addition, "when I spoke with him in my office, there was no doubt in my mind that he could relate to me and he could hear what I was saying even though [Ms. McGurk] was present also repeating some of the things to him quite loudly." Id. at 43-44.

Attorney DiOrio described his perception of the relationship between Decedent and Ms. McGurk:

Originally, she was a tenant ... but she did assist him with doctor's appointments. I'm not sure about grocery shopping and things of that nature, but I believe doctor's appointments and also checking in on him on a daily basis or frequently because she was living in the same building as him in the same home in what I believe was a separate apartment from the way it was described. So that sort of thing. That was my understanding, although she was a tenant and I believe she was paying rent.

Id. at 44.

With respect to the life estate, Attorney DiOrio testified that Decedent "was very, very adamant about what he wanted me to do in that will." Id. at 48. "He didn't use the word premises. I used the word premises, but he said my home. I want her to continue to live there. That's what he said." Id. at 68. "The [W]ill indicates that there's a trust and she will have sole occupancy until she vacates[.]" Id. at 67. The home is the only asset in the trust, and Appellant is the trustee. Id. at 68-69. Decedent "wanted [Ms. McGurk to be] responsible for the utilities and [Decedent] was quite aware that his son would be responsible for all the other expenses." Id. at 71. Attorney DiOrio explained:

[Decedent] went through with me on a couple of occasions as far as what he wanted done. And as I said, he was rather adamant about it. I know I discussed it with him. But I know I discussed it with him even separately without Ms. McGurk being there. I know there was at least once, perhaps more than once when I had him in my office alone. I spoke very loudly but Ms. McGurk was not present. She would be in the waiting area and I would review certain things with [Decedent] independent of Ms. McGurk.

Id. at 52.

It is undisputed that except for the life estate, the 1998 and 2018 wills are similar; in both wills, Appellant is the executor and beneficiary. Id. at 50-51. Attorney DiOrio reiterated:

I made sure that with [Decedent], just like every other client, ... I went through every single

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