In re Roche

1

IN RE: ESTATE OF JOSEPH T. ROCHE, SR., A DECEASED PERSON APPEAL OF: SUZANNE CAMPENNI

No. 1377 MDA 2022

Superior Court of Pennsylvania

October 27, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered August 26, 2022 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s) 4020-1311.

Benjamin D. Kohler, Esq.

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM

PANELLA, P.J.:

Suzanne Campenni appeals from the order denying her petition for citation sur appeal to set aside the last will and testament of Joseph T. Roche, Sr., deceased ("Decedent"), and affirming the decree of the register of wills admitting the will to probate. Campenni argues that Decedent's will was the product of undue influence. We affirm.

Decedent was married to Jeanne Roche, until her death in March 2019. Decedent and Jeanne Roche shared seven children: Thomas Roche, Joseph T. Roche, Jr., Mary Ellen Winn, Campenni, Richard Roche, Beverly Donachie, and Dorothy Moher. Beginning in 2014, Winn had power of attorney over Decedent, and used it on two occasions prior to Decedent's death. Further, Winn helped Decedent by taking him to doctor's appointments and cooking him food.

On June 5, 2019, Decedent met with Frank Aritz, Esq. ("Attorney Aritz") to draft a will ("2019 Will"). During the meeting, Decedent told Attorney Aritz that he was dissatisfied with four of his children, Thomas Roche, Joseph T. Roche, Jr., Beverley Donachie, and Campenni, and that his other three children, Winn, Moher, and Richard Roche, did more for him and his late wife than the other children. Under the terms of the 2019 Will, Winn was made the executor of the estate. Further, Winn, Richard Roche, and Moher would each receive a one-third share of two-thirds of Decedent's estate, while the remaining four children would each receive one-quarter of the remaining one-third share.^[1] The estimated value of the estate was approximately $720,000.

Decedent died on August 12, 2020. Winn subsequently filed a petition for probate and grant of letters testamentary with the Luzerne County Register of Wills. The register of wills granted Winn letters testamentary and admitted the 2019 Will to probate. On February 22, 2021, Campenni filed a petition of citation sur appeal from probate and to set aside the 2019 Will. Within months, the trial court held a non-jury trial, at which Winn, Campenni, Attorney Aritz, Richard Roche, Moher, and Joseph Roche, Jr. testified. At the conclusion of the trial, both parties submitted proposed findings of fact and conclusions of law. Thereafter, the trial court denied Campenni's petition for citation sur appeal and affirmed the decree of the register of wills admitting the 2019 Will to probate. Campenni timely appealed.

On appeal, Campenni raises the following questions for our review:

1. Did the trial court commit an error of law with respect to the legal standard it applied on the issue of weakened intellect by confusing the standards for lack of testamentary capacity with the element of weakened intellect?

2. Did the trial court commit an error of law when it severely discounted the testimonies of all witnesses pertaining to Decedent's depression?

3. Did the trial court abuse its discretion when it ruled against the weight of evidence and ignored or discounted significant testimony that the Decedent had become depressed by 2019 and instead found that the Decedent did not suffer from a weakened intellect?

4. Did the trial court commit an error of law when it failed to find that [Campenni] met her prima facie burden, and refused to shift the burden of proof to the proponents of the 2019 Will?

Appellant's Brief at 6.

This Court's standard of review in a will contest is restricted to determining whether the trial court's factual findings are supported by the record:

In a will contest, the hearing judge determines the credibility of the 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 is an error of law or abuse of discretion. Only where it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence may the court's findings be set aside.

In re Estate of Schumacher, 133 A.3d 45, 49-50 (Pa. Super. 2016) (citation omitted).

In her first claim, Campenni asserts that the trial court committed an error of law by confusing the standard for lack of capacity with the standard for a weakened intellect. See Appellant's Brief at 21, 23. Campenni argues that a demonstration of a weakened mental condition does not need to rise to a demonstration of testamentary incapacity. See id. at 22, 23. Campenni argues that the trial court improperly supported its determination that Decedent did not suffer from a weakened intellect by citing to Attorney Aritz's testimony that Decedent had testamentary capacity. See id. at 23.

Campenni also claims that the trial court improperly discounted evidence that Decedent was depressed due to the passing of his wife since undue influence is accomplished through a gradual inculcation of the mind and therefore facts remote to the signing of a will are critical in demonstrating undue influence. See id. at 23-24. Campenni notes that the trial court improperly relied on the occasions Decedent remembered certain things and failed to recognize the evidence establishing his mental decline. See id. at 24.

Preliminarily, Campenni does not refer to the place in the record that the trial court utilized an incorrect standard of review. See Pa.R.A.P. 2119(c) ("If reference is made to the … opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, … a reference to the place in the record where the matter referred to appears (see Rule 2132) (references in briefs to the record)."); see also Krauss v. Trane U.S. Inc., 104 A.3d 556, 584 (Pa. Super. 2014) ("This Court will not act as counsel and will not develop arguments on behalf of an appellant." (citation omitted)).

Moreover, Campenni does not dispute the trial court's ultimate finding that she failed to meet her burden of establishing, through any medical testimony or other evidence, that Decedent had a weakened intellect. See Trial Court Opinion, 8/26/22, at 11, 20; see also id. at 3-11 (wherein the trial court made findings of fact, including that Attorney Aritz testified that he had no reservations about Decedent's mental health and the children had conflicting testimony about Decedent's health). Instead, Campenni merely seeks to have this Court reweigh the evidence in her favor to establish Decedent had a weakened intellect. However, this Court may not reweigh the evidence, or usurp the trial court's credibility determinations. See In re Estate of Schumacher, 133 A.3d at 49-50; see also Estate of Mikeska, 217 A.3d 329, 336 (Pa. Super. 2019) (explaining that in a non-jury proceeding, "[c]redibility determinations and consideration of conflicts in the evidence are within the purview of the trial court." (citation omitted)). Accordingly, we cannot conclude that the trial court either utilized an incorrect standard in addressing the weakened intellect claim or improperly weighed the evidence.

In her second claim, Campenni reargues that the trial court's determination that Decedent did not suffer from a weakened intellect is against the weight of the evidence. See Appellant's Brief at 25. Campenni states that the uncontroverted evidence established that Decedent suffered from depression, noting that Jeanne's death left him weepy and vulnerable and that he lost the will to live. See id. at 25, 26. Campenni asserts that the trial court ignored evidence showing Decedent relied on Winn for daily life activities and Winn had power of attorney over him. See id. at 26. Campenni further claims that testimony at trial showed Winn would threaten to place Decedent in a nursing home. See id. at 25. Campenni concludes that the evidence demonstrated that Decedent's intellect had declined in the last year of his life. See id. at 26.

With respect to weakened intellect, this Court has recognized the case-by-case nature of the analysis:

The weakened intellect necessary to establish undue influence need not amount to testamentary incapacity. Although our cases have not established a bright-line test by which weakened intellect can be identified to a legal certainty, they have recognized that it is typically accompanied by persistent confusion, forgetfulness and disorientation. Moreover, 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. Accordingly, the particular mental condition of the testator on the date he executed the will is not as significant when reflecting upon undue influence as it is when reflecting upon testamentary capacity. More credence may be given to remote mental history.

In re Estate of Schumacher, 133 A.3d at 52 (internal citations and some quotation marks omitted).

As noted above, the trial court specifically found that Campenni failed to produce any medical testimony or records to support her claim that Decedent had a weakened mental intellect. See Trial Court Opinion, 8/26/22, at 11, 20. In fact, the trial court found that the evidence established that despite Decedent's declining physical health "he retained his mental capacity through recitation of the terms and execution of the 2019 Will." Id. at 12. ...