Opinion
J-A27022-17 No. 524 WDA 2017
12-08-2017
IN RE: ESTATE OF JEAN B. AUGUSTINE, DECEASED, ALCINDA A. NENSEL, NANCY PALMER AND SALLY A. LINT v. PETER C. AUGUSTINE AND DANIEL E. AUGUSTINE APPEAL OF: ALCINDA A. NENSEL, NANCY PALMER AND SALLY A. LINT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree March 6, 2017
In the Court of Common Pleas of Somerset County Orphans' Court at No(s): No. 56-15-00126 BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.:
Nancy Palmer, Alcinda Nensel, and Sally Lint (collectively, "Sisters") appeal the orphans' court decree denying their "Appeal from Decree of Probate and Petition for Citation for Rule to Show Cause" and their "Petition for Citation Sur Appeal from Probate." Sisters claim their brothers, Peter and Daniel Augustine ("Brothers"), exerted undue influence on the siblings' mother, Jean Augustine ("Decedent"), resulting in Brothers' inheritance of the bulk of Decedent's estate. We affirm.
Following the death of her husband Edward Augustine on May 30, 2009, Decedent executed a durable power of attorney ("POA") on June 16, 2009, naming Nancy and Sally as agents. The next day, Decedent executed a will, devising all of her property equally to her five children.
Decedent's demeanor toward her daughters changed noticeably in or around the fall of 2009, after: Nancy invited an appraiser to ascertain the value of Decedent's property; Sisters proposed an auction of Decedent's property; Sisters helped Decedent sell her boat for $800; and Decedent decided to sell her boat slip. Brothers were upset about the proposed auction, thought the boat was worth $4,500, and wanted to keep the boat slip. After Brothers shared their feelings with Decedent, she removed Nancy and Sally as agents and named Brothers as agents on October 15, 2009.
Despite a deteriorating relationship with her daughters, Decedent executed a new will on February 24, 2010, again devising all of her property equally to her five children. Then, in March 2010 and January 2011, Brothers assisted Decedent in purchasing and/or funding investment contracts, which ultimately resulted in substantial transfers of wealth to Brothers as beneficiaries. Additionally, between June 30, 2009, and March 24, 2011, Decedent met with Attorney James B. Courtney approximately five times to discuss oil and gas leases. Brothers were active participants in those meetings. During the period Attorney Courtney worked with Decedent, he observed that she maintained her sense of humor, she was able to understand what he told her, and "[s]he never stopped giving [him] a hard time." N.T. Vol. 1, 12/12/16, at 1.50-1.51.
At a March 16, 2011 meeting with Attorney Courtney, Decedent expressed her desire to disinherit her daughters. In revising Decedent's will, Attorney Courtney convinced Decedent not to disinherit her daughters, but he did honor her request to provide the greater share of her estate to Brothers. Consequently, Decedent executed two more wills, one on March 16, 2011, shifting the majority of Decedent's estate to Brothers, followed by an amended will on March 24, 2011, that specified bequests favoring Brothers.
On May 16, 2011, Decedent was hospitalized briefly for a gastrointestinal issue. As of that admission, Decedent's past medical history included "Alzheimer's disease," and her medical records contained evidence of cognitive impairment. Sisters' Exhibits K and L. On March 20, 2015, Decedent died in a personal care home in Maryland; the cause of death indicated on her death certificate was "dementia." Sisters' Exhibit H.
Brothers submitted the March 24, 2011 will for probate on March 27, 2015, and received letters testamentary. Sisters appealed the decree of probate on March 24, 2016. Various filings ensued. After denying Sisters' motion for a jury trial, the orphans' court held a three-day nonjury trial beginning on December 12, 2016. At trial, Sisters asserted that Brothers exercised undue influence on Decedent who suffered from a weakened intellect. In support of their position, Sisters relied on their observations of Decedent's forgetfulness, confusion, and inability to carry out the basics of daily living, as well as Decedent's medical records and death certificate. The orphans' court admitted Decedent's medical records and death certificate for the limited purpose of proving the time and fact of Decedent's hospitalization and death, but not as substantive evidence of Decedent's alleged cognitive deficiencies. N.T. Vol. 1, 12/12/16, at 1.3-1.10; N.T. Vol. 2, 12/13/16, at 2.120-123. In response, Brothers relied on a rift between Decedent and Sisters involving Decedent's property and the testimony of Decedent's doctor and attorney to support their assertion that Decedent showed no signs of weakened intellect at the time she executed the contested will.
The orphans' court concluded that Sisters proved two of the three elements of a claim of undue influence, i.e., existence of a confidential relationship with the will proponent and receipt of a substantial benefit by the will proponent, but they failed to prove that Decedent suffered from a weakened intellect. Orphans' Court Memorandum, 3/8/16, at 8, 16, 27-28. In support of its ruling, the orphans' court credited testimony that Decedent's physician and attorney did not observe her as having a weakened intellect in March 2011 and that Decedent exercised her will in opposition to Brothers' influence on multiple occasions. Id. at 18-21, 27. Sisters filed the instant appeal, and, along with the orphans' court, complied with Pa.R.A.P. 1925.
Sisters present the following questions for our consideration:
I. Did the trial court commit an error of law or abuse of discretion in refusing to admit as substantive evidence observations of forgetfulness, confusion, disorientation and cognitive impairment contained in authenticated medical records from Uniontown Hospital as well as that portion of
[Decedent's] death certificate that identified "dementia" as the cause of death?Sisters' Brief at 4.
II. Generally, did the trial court commit an error of law or abuse of discretion in determining that the evidence adduced at trial relative to the weakened intellect issue favored [Brothers] when, in fact, nearly all of [Sisters'] testimony on this issue was undisputed, and also when [Decedent's] medical records and the testimony of [Decedent's] primary care physician established that [Decedent] suffered from cognitive impairments and deficits, memory loss, forgetfulness, confusion and disorientation?
The scope and standard of review on appeal from a decree of the orphans' court in a will contest are as follows:
The record is to be reviewed in the light most favorable to [the contestant], 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 Bosley , 26 A.3d 1104, 1107 (Pa.Super. 2011) (internal citations omitted).In re Estate of Schumacher , 133 A.3d 45, 49-50 (Pa. Super. 2016). "Because the Orphans' Court 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." Estate of Pendergrass , 26 A.3d 1151, 1153 (Pa. Super. 2011) (quoting In re Estate of Harper , 975 A.2d 1155, 1158 (Pa. Super. 2009)) (internal citation omitted).
Sisters first argue that the orphans' court erred in denying the admission of Decedent's medical records and death certificate as substantive evidence of her weakened intellect. Sisters' Brief at 42. "[I]t is well settled that the admissibility of evidence is a determination left to the sound discretion of the trial court, and it will not be overturned absent an abuse of discretion or misapplication of law." In re Fiedler , 132 A.3d 1010, 1025 (Pa. Super. 2016) (quotations and citations omitted).
Although Sisters recognize that Decedent's medical records are hearsay, they cite the business records exception of Pa.R.E. 803(6) and the medical treatment exception of Pa.R.E. 803(4) as authority for admission of the records. Sisters' Brief at 42. Those exceptions provide as follows:
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for--and is reasonably pertinent to--medical treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.
* * *
(6) Records of a Regularly Conducted Activity. A record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a "business", which term includes business,
institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;Pa.R.E. 803(4), (6).
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Sisters contend that medical records of Decedent's hospital admission two months after executing the contested will were admissible as business records. Sisters' Brief at 43. Additionally, Sisters reason that the medical records contained mere observations and, therefore, were admissible as substantive evidence of Decedent's weakened intellect. According to Sisters, the medical records established, inter alia, that "Decedent was unable to consent to her own treatment;" she "suffered from memory loss and forgetfulness"; she "was completely disoriented as to person, place and time;" and "she suffered from cognitive impairment." Id. at 47. They argue that the comments were "not otherwise medical diagnoses, conclusions or opinions" and, therefore, "the healthcare professionals who reduced these observations to writing need not appear in court." Id. at 48.
In support of their position, Sisters rely on In re Mampe , 932 A.2d 954 (Pa. Super. 2007), which involved a will contest based on an assertion of undue influence. Sisters cite Mampe for the proposition that "confusion, forgetfulness, and disorientation are phenomena that are observable and within the realm of common knowledge." Sisters' Brief at 44 (citing Mampe , 932 A.2d at 962).
Contrarily, Brothers argue that Decedent's medical records "refer to a 'cognitive deficit', note issues with respect to the Decedent's problem solving capabilities, and state[d] that the Decedent suffered from confusion." Brothers' Brief at 15 (internal quotation marks and citations omitted). According to Brothers, "each entry in the Medical Records was made after an evaluation or assessment by a trained healthcare provider at Uniontown Hospital." Id. (citation omitted). Brothers further contend, "The statements found in the Medical Records are exactly the type of medical opinion evidence that is deemed inadmissible absent a corroborating witness." Id. Moreover, Brothers distinguish Mampe : "The evidentiary issue before the court in Mampe was not the admissibility of medical record testimony as an exception to the hearsay rule. Instead, the court considered whether lay testimony regarding the weakened intellect of a testatrix was admissible under Pa.R.E. 701." Id. at 16 (citing Mampe , 932 A.2d at 960). Brothers also challenge Sisters' reliance on Pa.R.E. 803(4): "[T]he statements [Sisters] seek to admit were not made for the purpose of receiving treatment . . . in relation to the gastrointestinal malady" for which she was hospitalized. Brothers' Brief at 17.
The orphans' court addressed Sisters' medical records issue as follows:
We did not refuse wholesale to admit as substantive evidence Decedent's medical records. See, e.g., Trial Tr. 1.4-5 (the [c]ourt stating, "The records are admissible to show the fact of hospitalization, treatment prescribed and symptoms given"); id. at 1.8-10. However, we limited admission of the medical records to "merely . . . prove facts, such as the event of hospitalization, treatment prescribed, symptoms given, or the existence of some readily ascertained substance or chemical within the body." Commonwealth v. Seville, 405 A.2d 1262, 1264 (Pa. Super. Ct. 1979). We interpreted "symptoms given" to be those symptoms presented by the patient or subject of the records, as opposed to symptoms observed or perceived by hospital staff, especially observations by staff that were vague and laden with interpretation, such as "unable to problem solve," which we believed were closer to diagnoses and/or opinions than observable facts. Furthermore, [Sisters] did not offer testimony from any medical or hospital staff in support of said medical records which would have enabled [Brothers'] counsel to cross examine the witnesses with respect to the accuracy, reliability and veracity of the objectionable information in the medical records.Orphans' Court Pa.R.A.P. 1925(a) Opinion, 5/16/17, at 2; see also Orphans' Court Memorandum, 3/8/17, at 28 n.2 (discussing medical records and death certificate); N.T. Vol. 2, 12/13/16, at 2.2-2.6 (discussing medical records); N.T. Vol. 3, 12/14/16, at 3.82-3.88 (discussing medical records).
As observed by the orphans' court, the Seville case supports the exclusion of Decedent's medical records as substantive evidence of her mental state. The Seville Court explained: "[H]ospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms" provided by the patient, but "opinions, diagnoses, and conclusions contained therein are not admissible." Seville , 405 A.2d at 1264. The orphans' court opined, and we agree, that the statements Sisters sought to admit were not just lay observations; they were opinions, diagnoses, and conclusions that were inadmissible absent a corroborating witness. Orphans' Court Pa.R.A.P. 1925(a) Opinion, 5/16/17, at 2-3 (citing N.T. Vol. 1, 12/12/16, at 1.3-1.10; N.T. Vol. 3, 12/14/16, at 3.82-3.88). Moreover, as Brothers assert, the statements Sisters sought to admit were not related to her hospitalization for a gastrointestinal malady and, therefore, did not satisfy that requirement of Pa.R.E. 803(4). We further agree with the orphans' court and Brothers that Mampe is inapposite to the case at hand. The Mampe Court addressed the admissibility of lay testimony regarding the decedent's behaviors, not the admissibility of observations made by medical and hospital professionals. Based on the foregoing, we discern no abuse of the orphans' court's discretion in excluding Decedent's medical records as substantive evidence of her alleged weakened intellect.
The record supports Brothers' assertion that Sisters' testimony regarding their personal observations of Decedent's behavior was admitted without objection. Brothers' Brief at 16; N.T. Vol. 1, 12/12/16, at 160, 168, 172-188; N.T. Vol. 2, 12/13/16, at 38, 101-102, 105-107, 113, 124, 137.
As part of their first issue, Sisters also challenge the orphans' court exclusion of Decedent's Maryland death certificate, specifically, the reference to "dementia" as the cause of death. Sisters' Brief at 48. Sisters argue that:
[w]hile it is true that the [sic] 35 P.S. §450.810 expressly states that any record or duly certified copy of a record filed with the Pennsylvania Department of Health shall constitute prima facie evidence of its contents, Section 450.810 does not necessarily stand for the inverse proposition - i.e., that if a record is not filed with the department, it cannot under any circumstances be deemed prima facie evidence of its contents.... Section 450.810 is completely silent on how to treat an authenticated, original death certificate issued by a sister state.Id. at 51. According to Sisters, an authentic Maryland death certificate is entitled to the same rebuttable presumption of trustworthiness afforded an authentic Pennsylvanian public record. Id. at 52.
Brothers counter that the orphans' court properly excluded Decedent's death certificate because "it is not entitled to the presumptions set forth in the Vital Statistics Law." Brothers' Brief at 18. Brothers explain, "[T]he contents of the [death] certificate are admissible only insofar as they would be admissible if the official preparing the same had been called as a witness." Id. (citing Pittsburgh Nat. Bank v. Mutual Life Ins. Co. of New York , 417 A.2d 1206 (Pa. Super. 1980)).
The orphans' court explained its exclusion of the death certificate as follows:
[Sisters] have also attempted to demonstrate undue influence, or at least bolster their undue influence claim, through use of ... the fact that [D]ecedents' Maryland death certificate states that she died of dementia, the implication being that if the [D]ecedent died from dementia, she was likely to have suffered from it in 2011, and [Brothers] had exploited her dementia, which is how they convinced her to make them beneficiaries of her investments.
We ruled that the death certificate was inadmissible for the purpose of establishing that the [D]ecedent's death was related to dementia which had been in onset for years. Trial Tr. 2.81, 2.122; [Sisters'] Ex. H. However, even considering it arguendo, we question its relevance: the declarant, P. Daniel Miller, D.O., was not present to testify in court, so the basis for his conclusion that dementia caused [D]ecedent's death was not established; moreover, even if the [D]ecedent died from complications resulting from dementia, her death occurred approximately four years after her execution of the will, and while her ostensible dementia may have developed years before her death, there is no evidence from which we could conclude that she necessarily or even probably suffered from dementia in March, 2011.Orphans' Court Memorandum, 3/8/17, at 28 n.2; see also , N.T. Vol. 2, 12/13/16, at 2.120-2.123 (explaining why a death certificate is not admissible as substantive evidence).
Upon review, we conclude that Sisters' death-certificate challenge lacks merit for two reasons. First, the Pittsburgh National Bank case supports the orphans' court's exclusion of the Maryland death certificate as substantive evidence of Decedent's cause of death. Therein, we held that an official Pennsylvania death certificate was not admissible as substantive evidence to establish that an insured's death was accidental. Pittsburgh National Bank , 417 A.2d at 1209. Second, any record properly filed with the Pennsylvania Department of Health and not a delayed or corrected record or related to paternity constitutes prima facie evidence of its contents. Vital Statistics Law, 35 P.S. § 450.810. Here, however, Decedent's death certificate was issued by the Maryland Department of Health; therefore, it does not constitute prima facie evidence of Decedent's mental acuity. In light of these two authorities, and the absence of contrary authority, we reject Sisters' argument that a foreign death certificate is entitled to the same presumption as a Pennsylvania death certificate. Thus, we discern no abuse of the orphan's court's discretion in excluding the Maryland death certificate as substantive evidence of Decedent's alleged weakened intellect.
Sisters' second issue challenges the orphans' court's conclusion that they presented insufficient evidence of undue influence. Sisters' Brief at 55. Sisters argue that, like the testator in Estate of Schumacher , Decedent "was an independent and strong-willed woman." Sisters' Brief at 57. However, they continue, "the factual record is replete with substantial evidence of [Decedent's] forgetfulness, confusion and disorientation," including medical records and testimony indicating that Decedent suffered from a weakened intellect. Id. at 59-62.
In resolving this claim, we are guided by the following analysis:
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. The Orphans' Court's mandate in assessing such evidence is relatively broad. If the court's decision rests upon legally competent and sufficient evidence, we will not revisit its conclusions. Under no circumstance will we substitute our judgment of credibility for that of the Orphans' Court.Owens v. Mazzei , 847 A.2d 700, 707 (Pa. Super. 2004). The test we apply on review is not whether we "would have reached the same result, but rather whether the findings of fact approved by the [orphans'] court . . . are based upon legally competent and sufficient evidence and whether the court below committed an error of law or abused its discretion." In re Estate of Clark , 334 A.2d 628, 635 (Pa. 1975).
"The resolution of a question as to the existence of undue influence is inextricably linked to the assignment of the burden of proof." In re Estate of Smaling , 80 A.3d 485, 493 (Pa. Super. 2013) (quoting In re Clark's Estate , 334 A.2d at 632). "Once the proponent of the will in question establishes the proper execution of the will, a presumption of lack of undue influence arises; thereafter, the risk of non-persuasion and the burden of coming forward with evidence of undue influence shift to the contestant." Estate of Smaling , 80 A.3d at 493 (internal citations omitted). Thus, the will contestant must establish:
by clear and convincing evidence, a prima facie showing of undue influence by demonstrating that: (1) the testator suffered from a weakened intellect; (2) the testator was in a confidential relationship with the proponent of the will; and (3) the proponent receives a substantial benefit from the will in question. Once the contestant has established each prong of this tripartite test, the burden shifts again to the proponent to produce clear and convincing evidence which affirmatively demonstrates the absence of undue influence.Id. (internal citations omitted).
Undue influence is a subtle, intangible and illusive thing, generally accomplished by a gradual, progressive inculcation of a receptive mind. Consequently, its manifestation may not appear until long after the weakened intellect has been played upon. Because the occurrence of undue influence is so often obscured
by both circumstance and design, our Courts have recognized that its existence is best measured by its ultimate effect.Owens , 847 A.2d at 706 (internal quotation marks, brackets, and citations omitted). Our Supreme Court has defined undue influence as follows:
The word "influence" does not refer to any and every line of conduct capable of disposing in one's favor a fully and self-directing mind, but to control acquired over another that virtually destroys his free agency. ... In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind, ... fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of a will.In re Estate of Ziel , 359 A.2d 728, 733 (Pa. 1976) (citations omitted). "Neither old age, nor its infirmities, including untidy habits, partial loss of memory, inability to recognize acquaintances, and incoherent speech, will deprive a person of the right to dispose of his own property." Estate of Smaling , 80 A.3d at 494 (quoting Estate of Hastings , 387 A.2d 865, 868 (Pa. 1978)). Moreover, "[f]or purposes of the undue influence test, a weakened intellect does not rise to the level of testamentary incapacity." In re Estate of Angle , 777 A.2d 114, 113 (Pa. Super. 2001).
Resolution of this case hinged on the orphans' court credibility determinations and its assessment of the testimonial and documentary evidence regarding Decedent's mental resolve. We have reviewed the briefs, the relevant law, the certified record before us on appeal, and the thorough memorandum of the orphans' court filed on March 8, 2017. We conclude that Sisters' sufficiency argument lacks merit. Although Sisters presented evidence of Decedent's "old age, . . . its infirmities, including untidy habits, partial loss of memory, inability to recognize acquaintances, and incoherent speech," Estate of Smaling , 80 A.3d at 494, they failed to present evidence that, at the time Decedent executed the contested will, Brothers had destroyed Decedent's free agency through "fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery or physical or moral coercion." In re Estate of Ziel , 359 A.2d at 733. Moreover, the orphans' court's well-crafted memorandum adequately disposes of Sisters' sufficiency claim. Accordingly, we affirm on the basis of the orphans' court's March 8, 2017 memorandum and adopt its reasoning as our own.
We direct the parties to attach a copy of the March 8, 2017 decision to this memorandum in the event of further proceedings in this matter. --------
Decree affirmed. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/8/2017
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