In re Simpson

305 A.3d 176

IN RE: ESTATE OF William H. SIMPSON, Deceased

Appeal of: David Colecchia

No. 1042 WDA 2022

Superior Court of Pennsylvania.

Argued May 10, 2023 Filed: October 31, 2023

Appeal from the Order Entered August 16, 2022, In the Court of Common Pleas of Westmoreland County, Orphans’ Court, at No(s): No. 65-20-297, Harry F. Smail, J.

Justin P. Schantz, Greensburg, for appellant.

Michael E. DeMatt, Greensburg, for participant.

BEFORE: BENDER, P.J.E., STABILE, J, and PELLEGRINI, J^*

OPINION BY BENDER, P.J.E.:

Appellant, David Colecchia, appeals from the order entered on August 16, 2022, in the Court of Common Pleas of Westmoreland County Orphans’ Court Division, requiring him to pay a surcharge in the amount of $3,754.11, to the Estate of William H. Simpson, deceased. After careful review, we reverse.

This matter arises from the administration of the Estate of William H. Simpson, deceased ("Estate"). The underlying action involves the January 9, 2018 last will and testament of the decedent (the "Will"), which was drafted by Attorney Del P. Nolfi, III, Esquire. Orphans’ Court Opinion ("OCO"), 10/25/22, at 1. The Will was probated in the Office of the Register of Wills of Westmoreland County on February 7, 2020. Id. On March 10, 2020, Nancy Olga Simpson, decedent’s wife, completed an election to take under the Will in accordance with Section 2203 of the Probate, Estates and Fiduciaries ("PEF") Code, 20 Pa.C.S. §§ 101-8815.¹ The Will did not include Ms. Simpson as a beneficiary; thus, her election resulted in her receiving no money from the Estate. Id.

On January 18, 2022, David Colecchia, Esquire ("Appellant") filed an "Objection to Account (Fraud)" on behalf of his client, Ms. Simpson. See Objection to Account, 1/18/22, at 1-10.², ³, ⁴ Notably, the Objection to Account did not contain any assertions of mistake in the first and final account filed by the Executrix on December 3, 2021.⁵ Rather, it averred the following, in relevant part:

FACTUAL BACKGROUND

5) In this matter, the decedent’s Will does not provide for his spouse, Nancy Simpson.

6) Ms. Simpson on or about March 10, 2020, completed an election to take under the Will and therefore receive [sic] nothing.

7) This election occurred at the office of Attorney Del Paul Nolfi III, the representative of Ms. Lisa Waeyaert, Executrix, and the Estate….

8) Ms. Simpson traveled to the office of Attorney [Nolfi] because of a letter he sent her requesting that she consider taking under the Will. This letter is attached to the petition for distribution.

9) At the time of the election, no one [had] informed Ms. Simpson of the value of the Estate as of that date and no inventory had been filed or provided to her.

10) At the time of the election, Attorney [Nolfi] allegedly advised Ms. Simpson that she should take under the Will because if she elected to take against the Will, it would influence and/or cause a decrease in her Social Security.

11) This statement of law, if made by Attorney [Nolfi, was] in error, in that taking against the Will would not affect Ms. Simpson’s Social Security benefits.

12) This misstatement of law actively harm[ed] Ms. Simpson, as failing to elect against a will acts as a resource transfer without consideration, and thus would be a basis for denial of Medicaid benefits. Perna ex rel Bekus ?. DPW, 807 A.2d 310, 313 (Pa. Super. [Cmwlth.] 2002)[.]

13) Ms. Simpson justifiably and detrimentally relied on Attorney [Nolfi’s] legal advice to execute the election to take under the Will.

14) Also, because of this alleged improper advice, Ms. Simpson trusted the advice and did not seek independent legal counsel to investigate whether the decedent’s January 9, 2018 Will was the product of undue influence.

15) By discussing Ms. Simpson’s legal rights with her, Attorney [Nolfi] created and perpetuated an improper and irreconcilable conflict of interest between Ms. Simpson and the Estate.

16) This conflict was further perpetuated by the … Executrix, Lisa Waeyaert, who paid off the mortgage on Ms. Simpson’s home by giving her a gift exceeding $40,000.

OBJECTION TO ACCOUNT REQUEST TO TAKE AGAINST THE WILL

17) The objector re-avers and incorporates herein the prior paragraphs.

18) Normally, a deceased spouse has one year to elect to take against the will.

19) Further, in this matter, Ms. Simpson agreed to take under the Will despite receiving nothing from the Will.

20) However, actual fraud against the spouse can toll this deadline or provide a basis to nullify the written election. In re DiMarco’s Estate, [435 Pa. 428, 257 A.2d 849 (1969)].

21) Such actual fraud can occur due to the breach of a fiduciary duty to inform. In re Amon’s [E]state, 1 Pa. D. & C.3d 479, 484 ([Montgomery Cty.] 1976).

22) Inducing a spouse to sign an election under a will prior to the filing of an inventory, and without disclosing the value of the assets of the estate and the value she would receive under certain alternatives, is a breach of such a fiduciary duty. In re Amon’s Estate, supra ….

23) An intentional misstatement of the law also can act as a basis for showing actual fraud. DiMarco’s Estate, supra.

24) The objector, Ms. Simpson, requests this Honorable Court issue citation [sic] verses [sic] the executor and her attorney[,] Del Paul Nolfi III, to show cause why[,] … given these circumstances[,] Ms. Simpson should not be entitled to elect to take against the Will and take her statutory share.

25) A trial by jury is requested. WHEREFORE, Objector Nancy Simpson respectfully requests this Honorable Court issue a citation verses [sic] Executrix Lisa Waeyaert and Attorney Del Paul Nolfi III[,] to show cause why the above relief should not be granted and that Ms. Simpson should be entitled to take her elective share against the Will.

Id. at 3-5 (cleaned up).⁶

On January 20, 2022, a hearing was scheduled on this matter for June 6, 2022.⁷ At the hearing, the following appearances were entered: Appellant, on behalf of Ms. Simpson; Attorney Nolfi, on behalf of the Estate; and Todd Turin, Esquire, on behalf of the Estate and Attorney Nolfi. N.T. Hearing, 6/6/22, at 1. At the beginning of the hearing, in response to the court’s reference to this matter as "a will contest[,]" Appellant informed the court: "This is not a will contest. This is a contest concerning the election." Id. at 5. See also id. (Appellant’s indicating that he has an expert "[f]or legal malpractice"). Mr. Turin countered, "The manner of pleading in this particular case was an objection to an account." Id. at 6. After calling the court’s attention to Orphans’ Court Rules 2.7 and 3.13, Mr. Turin further averred that the Objection to Account was not properly verified by Ms. Simpson, that it did not contain any specific objections to the account, and that perhaps Appellant intended to petition the court for an extension of time regarding Ms. Simpson’s election. Id. at 6-7. The following colloquy then took place between the court and Appellant:

THE COURT: I’ll allow you to respond. If you are outside of the purview of the objections to accounts and in fact you aren’t in compliance with Rule 3[.]13, you cannot move forward today.

[APPELLANT]: I respectfully disagree, Your Honor, because the objection to the account is an objection as to fraud. It is very simple.

THE COURT: Show me in the rule where it applies.

[APPELLANT]: Judge, we can object to the account in terms --

THE COURT: No. You have to show me in the rule where it applies. … When Rule 2.7 applies in regards to an orphans’ court and fiduciary matter. My question to [you is] under the objection of the account, how do you move this action for fraud and perhaps malpractice forward… ?

…

[APPELLANT]: The point of the matter here and the point of what we’re trying today here is whether Mr. Nolfi gave my client legal advice. And if he did, he created an improper conflict of interest and fraudulently induced her to sign the election to take under the will. Which is improper. And that is the basis of our objection…….

THE COURT: My question to you then is why aren’t you in the civil court division filing under a malpractice claim specific to the attorney as opposed to an objection on the account of an estate inside of the orphans’ court division?

[APPELLANT]: That’s a fair question. That I agree with. I debated that. Because I believe that the orphans’ court is the proper place to adjudicate that claim. Because at the bottom of this is whether, in fact, the election to take under the will was proper….

Id. at 7-10.

After some further debate regarding the format of Appellant’s claim,⁸ the exchange between Appellant and the court continued:

[APPELLANT]: We stand on our position, Your Honor. We believe that - if I may, Amon’s Estate and also Rowe Estate from 1967, these cases - this has long been black letter law that we can challenge the election to take under the will in an orphans’ court proceeding.

THE COURT: But a challenge to the election under a will is separate and apart to an objection of the account. That’s a totally different action with a totally different standard, and in use of your precedent law, the election challenge is appropriate with those cases but not on an objection to an account. Counsel.

…

[APPELLANT]: … What we intend to proceed upon is the issue of whether, in fact, [Ms.] Simpson’s election to take under the will was the product of fraud or undue influence.

THE COURT: That’s a totally different case than you pled. If that’s the action you want…, you need to withdraw this objection of the account and file with regard to the election under the will. Because that’s then the proceeding that they, under fairness, have a right as the respondents to prepare to defend relative to your action.

[APPELLANT]: Your Honor, it is our intention here to attack the election under the will, Because that’s the issue in this estate. And whether in fact -

THE COURT: Well, that’s not what’s before the [c]ourt today.

[APPELLANT]: I guess where you’re coming from -

THE...