In re Staico

143 A.3d 983

2016 PA Super 158

In re Albert STAICO, Jr.

Appeal of Dorothy Staico.

No. 2627 EDA 2015

Superior Court of Pennsylvania.

Submitted February 29, 2016.

Filed July 20, 2016.

Dorothy Staico, appellant, pro se.

Vito F. Canuso, Jr., Philadelphia, for appellee.

BEFORE: OLSON, STABILE, and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

Dorothy Staico (Dorothy) appeals from the decree entered by the orphans' court with respect to the estate of her son, Albert Staico, Jr.¹ Upon review, we affirm.

The orphans' court summarized the facts underlying this case.

Albert Staico, Jr., ( [Decedent] ) died on June 12, 2011, a resident of Philadelphia. He was unmarried and survived by his Mother, [Dorothy], and his sister, Janice Martin. A document dated June 7, 2011, was admitted to probate by the Register of Wills on July 7, 2011, as [Decedent's] last will and testament.

In April of 2008, [Decedent] moved from [Dorothy's] house to that of his long-time girlfriend[, Emma Martin,] and her brother[, Lawrence.] [Decedent] lived with [Emma] and her brother until his death three years later. Also in 2008, [Decedent] designated [Emma] as the beneficiary of his Fidelity IRA, and in 2011 he designated her [as] the beneficiary of his pension.

[Emma] testified at trial that [Decedent] asked [Emma] to contact an attorney to draft his will in May of 2011[.] [Emma] testified that she contacted attorney Frank Pasquini, and visited his office to discuss [Decedent's] situation and convey his wishes. At this meeting, [Emma] informed [A]ttorney Pasquini that [Decedent] wished to leave his entire estate to her, and that [Decedent] could not attend the meeting because he was hospitalized. Attorney Pasquini prepared [Decedent's] will accordingly, and visited [Decedent] at Thomas Jefferson University Hospital on June 7, 2011, for its review and execution. It was [A]ttorney Pasquini's testimony that, after [Decedent] recognized him upon his entry, he discussed the will with [Decedent] and satisfied himself that [Decedent] was aware of the nature of the document and purpose for the meeting, and could clearly express his wish that [Emma] be left his entire estate. [Emma] was present and assisted [Decedent] in signing the will, but did not take part in the discussion between [Decedent] and [A]ttorney Pasquini. Attorney Pasquini signed the will as the first witness. He then returned to his office and located a second witness, James Quinn, who also signed the will and stated by way of affidavit that [Decedent] had signed the will the same day in [A]ttorney Pasquini's presence. Alexandra Torrie, [A]ttorney Pasquini's secretary, then notarized the will.

[Decedent] died the following week, and the Register of Wills admitted his will to probate on July 7, 2011, and granted [Emma] letters testamentary.

On June 1, 2012, [Dorothy] filed an appeal of the decision of the Register of Wills to admit the document dated June 7, 2011 to probate. Following discovery, witness and document exchanges, Dorothy filed a motion for summary judgment on November 14, 2014, which [the orphans' court] dismissed by decree of November 18, 2014, because it lacked any indication of service and because it was filed on the eve of trial. [The orphans' court] held an evidentiary hearing on November 25, 2014, at which [Dorothy] proceeded pro se, and at the request of Dorothy and with consent of opposing counsel, Dorothy's son[-]in [-]law, Paul Martin, who is not an attorney, participated on her behalf. At the hearing, [Emma], the will's proponent offered the Register of Wills file as evidence, and it was admitted without objection as proof of the will.

Subsequent to this hearing, and after careful consideration of the credibility of witnesses and the post-trial proposed findings of fact and conclusions of law, [the orphans' court] issued a decree on July 15, 2015, finding that [Dorothy] failed to meet her burden of proving that [Decedent] lacked testamentary capacity, and failed to meet her burden proving that [Emma] exercised undue influence of [Decedent] when the will was executed, and so affirmed the decision of the Register of Wills. [Dorothy] filed a motion for reconsideration on August 11, 2015, and the following day, filed a notice of appeal of [the orphans' court's decree] of July 15, 2015. [The orphans' court] issued a decree declining to consider the motion for reconsideration for lack of jurisdiction due to the pendency of the appeal, and did not issue an order requesting a statement of errors complained of on appeal under Pa.R.A.P.1925(b). [The orphans' court issued an opinion on October 30, 2015.]

Orphans' Court Opinion, 10/30/2015, at 1–4 (footnotes and unnecessary capitalization omitted).

On appeal, Dorothy sets forth two issues for our review.

A. Whether the [orphans'] court abused its discretion in confirming the Decedent's last will and testament since the document lacked the necessary criteria under the statute?

B. Whether the [orphans'] court abused its discretion in finding that [Dorothy] failed to meet her burden of proof by clear and convincing evidence that the Decedent lacked testamentary capacity in executing the will and was subject to undue influence.

Dorothy's Brief at 6 (suggested answers omitted).

We set forth our well settled standard of review.

When an appellant challenges a decree entered by the [o]rphans' [c]ourt, our standard of review “requires that we be deferential to the findings of the [o]rphans' [c]ourt.” In re Estate of Miller, 18 A.3d 1163, 1169 (Pa.Super.2011) (en banc ).

[We] must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the [o]rphans' [c]ourt sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion. However, we are not constrained to give the same deference to any resulting legal conclusions. Where the rules of law on which the court relied are palpably wrong or clearly inapplicable, we will reverse the court's decree.

Id. (alterations and citation omitted).

In re Estate of Wilner, 92 A.3d 1201, 1206 (Pa.Super.2014) quoting (In re Estate of Brown, 30 A.3d 1200, 1206 (Pa.Super.2011) ).

Dorothy's first issue relates to the validity of the will itself. Specifically, she argues that the will was defective pursuant to 20 Pa.C.S. § 2502, which governs the execution of a will, and provides the following in relevant part.

Every will shall be in writing and shall be signed by the testator at the end thereof, subject to the following rules and exceptions:

* * *

(2) Signature by mark.—If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed before or after he makes his mark shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence.

(3) Signature by another. If the testator is unable to sign his name or to make his mark for any reason, a will to which his name is subscribed in his presence and by his express direction shall be as valid as though he had signed his name thereto: Provided, That he declares the instrument to be his will in the presence of two witnesses who sign their names to it in his presence.

20 Pa.C.S. § 2502.

Specifically, Dorothy argues that the will is not valid because it was not signed by Decedent without assistance. Thus, Dorothy suggests that the sections governing signature by mark or signature by another should apply. She goes on to argue that if either of these two sections applies in this case, the will is invalid because the only witness who signed the will in Decedent's presence was Attorney Pasquini. Dorothy's Brief at 14–22.

In Vandruff v. Rinehart, 29 Pa. 232, [234 (1857),] the Supreme Court held ...:

‘If one having testamentary capacity, is unable from palsy or other cause to steady his hand so as to make to his will the signature required by law, another person may hold his hand and aid him in so doing; and it is not necessary to prove any express request from the testator for such assistance. The act is his own with the assistance of another, and not the act of another under authority from him. This principle is the only one questioned here. It was rightly decided.[’]

In re Milleman's Estate, 415 Pa. 261, 203 A.2d 202, 209 (1964).

Based upon the foregoing law, the orphans' court concluded that Decedent himself signed the will; therefore, it was valid pursuant to section 2502, and neither subsection (2) nor (3) applies in this case. Orphans' Court Opinion, 10/30/2015, at 5 n. 16.²

This conclusion is supported by the record. At trial, Emma acknowledged that she assisted the Decedent with his signature.

[Emma:] And then it was time to sign. And he had a hard time signing and I helped him.

[Counsel:] And when you say you helped, would you describe for us specifically what you did?

[Emma:] Well, he had the pen in his hand, but it wasn't really pressing down, it was like going, so I guided his hand.

N.T., 11/25/2014, at 59.

Moreover, Attorney Pasquini corroborated this testimony. Attorney Pasquini testified that

when [he] gave [Decedent his] pen for signature, [Decedent] initially could hold the pen, but when he started to try to press down and move to sign his name he was having difficulty making any imprint. So at [his] behest [he] asked [Emma] to come over and help him hold the pen and guide his hand, which she did and that is how the signature was accomplished.

Id. at 44.

The trial court credited the testimony of both Emma and Attorney Pasquini, and we will not disturb that credibility determination. Thus, we agree with the orphans' court that Decedent signed the will; and therefore, subsections (2) and (3) do not apply. Accordingly, so long as the Decedent did not lack testamentary capacity at the time he signed the will, the will was signed in a valid manner...