In re Estate of Lehman

1

IN RE: ESTATE OF MICHAEL E LEHMAN APPEAL OF: MICHAEL P. LEHMAN AND LISA ANN BOGO

No. 341 MDA 2022

No. J-A09009-23

Superior Court of Pennsylvania

July 24, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered January 25, 2022 In the Court of Common Pleas of Franklin County Orphans' Court at No(s) 187-OC-2014

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM

PANELLA, P.J.

Michael P. Lehman ("Michael") and Lisa Ann Bogo ("Lisa") (collectively, "Petitioners") appeal from the order affirming the Register of Wills's decree, which admitted for probate the July 27, 2017 Will executed by Michael E. Lehman, Deceased ("Decedent"). Petitioners, who had been disinherited by the 2017 Will, have repeatedly challenged the validity of the 2017 Will throughout this contentious litigation. They specifically asserted the 2017 Will was the result of undue influence by Decedent's business associate, Julie Fitchet. Through the instant appeal Petitioners raise the issue of Fitchet's undue influence once more. Petitioners also challenge the trial court's grant of summary judgment in favor of Fitchet based on its finding that Decedent did not lack testamentary capacity to execute the 2017 Will. Further, Petitioners contest the court's denial of the parties' proposed settlement agreement. After careful review, we affirm.

Petitioners are the adult children of Decedent. Decedent was the founder and sole shareholder of American Micro Industries, Inc. ("AMI"), in Chambersburg, Pennsylvania, and the sole owner of Four Forty Ramsey, LLC ("440"), the limited liability company which held the title to the AMI property. Michael joined AMI in 2005 and "eventually became head of one of the company's two divisions." Findings of Fact and Conclusions of Law, 1/25/22, ¶ 9.

Decedent first met Fitchet in 2004, while she was attending college and working as a server in a restaurant Decedent frequented. Fitchet completed her degree in 2006 and worked as a dementia unit program director in a nursing home until January 2013. She later applied to AMI and was hired as a division administrator in March 2013. Fitchet was promoted to general manager by the end of that year. See id., ¶¶ 11-17.

In March 2014, Decedent accused Michael of stealing from AMI. As a result, Michael resigned from his position and Decedent subsequently promoted Fitchet to chief operating officer.

In October 2014, Decedent sustained a serious brain injury after falling from a bar stool. He required hospitalization, rehabilitation, and additional occupational therapy for the injury. The day after the fall, Petitioners temporarily took over AMI pursuant to powers of attorney the Decedent had previously executed. Petitioners fired Fitchet almost immediately.

Decedent's relationship with Petitioners declined significantly after his injury. Decedent received little to no contact from Petitioners after that time. However, Decedent maintained frequent contact with Michael's two children ("Grandchildren").^[1]

The trial court set forth what next transpired as follows:

42. [Lisa] had blocked Fitchet's number on [Decedent's] phone. Nevertheless, in the middle of January 2015[, Decedent] contacted Fitchet to ask for help. He indicated that [Petitioners] were stealing the business from him and holding him prisoner in York[, where Petitioners had taken him to stay with Petitioners' maternal grandmother, with instructions not to drive Decedent to AMI or to Chambersburg].

43. At the suggestion of his banker, [Decedent] contacted Attorney John Miller in York on February 2, 2015. They met on February 5, 2015. The meeting was attended only by [Decedent] and the lawyer.

44. [Decedent] related that he suffered a brain injury in October. He further articulated his belief that [Petitioners] were trying to steal his business and were keeping him in York against his will. [Decedent] said that he wanted to revoke the powers of attorney [Petitioners] were using to run the business.

45. Attorney Miller drafted the revocations and had them executed. However, because of the strange nature of [Decedent's] story, as well as his recent brain injury, Attorney Miller refused to deliver them until he could get independent verification of [Decedent's] allegations. He also arranged for [Decedent] to undergo a psychological evaluation.

47. [Decedent] was evaluated by [Ray W. Christner, Psy.D.] on February 27 and March 17, 2015. The purpose of the evaluation was to determine whether [Decedent] had capacity to make independent decisions.

48. Dr. Christner performed an extensive evaluation of [Decedent].

50. [Dr. Christner] diagnosed [Decedent] with mild neurocognitive disorder, alcohol abuse disorder (early remission), and parent/child relationship problems.

51. Dr. Christner concluded that [Decedent] was capable of making independent decisions regarding his care and his finances.

Id., ¶¶ 42-51.

Shortly after returning to work in February 2015, Decedent terminated Michael's employment. Decedent then asked Fitchet to return to work. At that time, Fitchet had another job and "was emphatic with [Decedent] that she would only return to AMI if [Decedent] would make her a partner and ensure that his children would never have anything to do with the business." Id., ¶ 64. Ultimately, in August 2015, Decedent and Fitchet executed two agreements relating to the businesses ("the Operating Agreements"), under which Fitchet obtained a 50% interest in AMI and 440. The Operating Agreements included "a shareholder's agreement [pertaining to AMI] which contained a noncompetition provision, mutual covenants regarding the disposition of the parties' stock, and a requirement that [Grandchildren] be brought into the business if, and when, they desired." Id., ¶ 67. The Operating Agreements also include the following provision governing the death of a shareholder: "In the event of the death of a Shareholder during the term of this agreement, the legal representative of his/her estate shall be required to transfer, without consideration, all of decedent's share of stock of the Corporation to the surviving Shareholder." Petition for Pre-Trial Relief, 2/27/19, Exhibit A (Agreement).^[2]

With aid of legal counsel, Decedent executed a Will on July 27, 2017. The 2017 Will appointed Farmers and Merchants Trust Company of Chambersburg and Jan G. Sulcove, Esquire ("Executor"), to serve as coexecutors of his estate. Relevant to this appeal, the Will contains the following provisions:

3. Payment of Final Expenses. ... The estate inheritance and similar taxes assessable on my death (including taxes on assets not passing under this Will) shall be paid as a cost of administering my estate and my Co-Executors shall not request any beneficiary to pay any part of such tax.

4. Specific Bequest. I hereby give and specifically devise all of my right, title and interest in the real property located at and known as [] Alexander Avenue, Chambersburg, Pennsylvania to Julia Lachewitz Lehman.^[3] If this specific bequest fails for any reason, then such real property shall constitute a portion of my residual estate as set forth in Paragraph 5. 5. Residual Estate. I give and devise the rest, residue and remainder of my estate, including all of my real and personal property not specifically devised herein, to [Grandchildren], to be held and administered by the Michael E. Lehman Testamentary Trust as set forth in Paragraph 6 below.

6. Testamentary Trust. I hereby appoint Farmers and Merchants Trust Company of Chambersburg as Trustee of the Michael E. Lehman Testamentary Trust (the "Trust"), the corpus of which shall be initially comprised of the residual estate gifted and devised to [Grandchildren], as set forth in Paragraph 5. The Trust shall be administered as follows.

a. My Trustee shall hold and accumulate the income from the Trust until the oldest Beneficiary attains the age of 18, and at that time establish two funds within the Trust, one fund for each Beneficiary. If either of my Beneficiaries require distributions from their respective funds for their health, safety, education and welfare, my Trustee may make such distributions from accumulated income or principal, as determined by the Trustee in its sole discretion, for such Beneficiary's benefit by paying such needed amount directly to the provider of such service. Under no circumstances shall my Trustee provide any income or principal of the Trust to Michael P. Lehman or Lisa Ann Bogo, regardless of whether such amounts are for the benefit of the Beneficiaries.

f. The Trustee shall have the following powers, in addition to, but not in limitation of those granted by Pennsylvania law: ... (xiv) my Trustee shall not release any income or principal to my Beneficiaries hereunder if the Trustee reasonably determines that either Michael P. Lehman or Lisa Ann Bogo would receive any benefit whatsoever, directly or indirectly (including relief from normal parental expenditures that Michael P. Lehman could reasonably pay), and the Trustee may require that any distribution is paid directly to a provider of goods or services in order to avoid a potential benefit to Michael P. Lehman or Lisa Ann Bogo. 7. Intentional Omission and Exclusion. This Will intentionally does not provide for any gift, bequest or devise to my children, Michael P. Lehman and Lisa Ann Bogo. My omission and exclusion of any gift, bequest or devise to Michael P. Lehman and/or Lisa Ann Bogo is express, intentional and purposeful. To the extent that either Michael P. Lehman and/or Lisa Ann Bogo are found to be entitled to any gift, devise or bequest hereunder or by law, both Michael P. Lehman and/or Lisa Ann Bogo shall be deemed to have predeceased me without issue, and any distribution to

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