J-A16036-16 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 

IN RE: ESTATE OF IRENE A. LONG, 

A/K/A IRENE LONG 

APPEAL OF: MICHELE LEMMO 

:

:

:

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

No. 1286 WDA 2015 

Appeal from the Order July 20, 2015 

in the Court of Common Pleas of Erie County 

Orphans’ Court at No(s): 139-2015 

BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 25, 2016 

 Michele Lemmo (Lemmo) appeals from the order entered on July 20, 

2015, which determined that the document allegedly executed by Irene A. 

Long (decedent) on March 2, 2015, was not a valid will and affirmed the 

appointment of Charlene A. Long (Charlene) as administatrix of Decedent’s 

estate. We affirm. 

 The certified record in this matter reveals the following facts. 

Decedent passed away on March 15, 2015, survived by three children, 

Charlene,1Linda McLean (Linda), and Patrick Long (Patrick), and her 

granddaughter, Lemmo, with whom Decedent had lived for the eight months 

prior to her death. Prior to her death, Decedent had been diagnosed with 

colon and uterine cancer. 

 

1

 Charlene is Lemmo’s aunt. 
J-A16036-16 

- 2 - 

 In the early months of 2015, Decedent allegedly executed two 

purported wills. The first, dated February 11, 2015 (February 11, 2015 

Document), was a handwritten document which stated as follows. 

 I, [Decedent,] on this day of Feb. 11, 2015, being of sound 

mind and body, make this my will and my final wishes. I make 

my granddaughter [] Lemmo and my daughter Charlene [] 

executresses [(sic)] of my entire estate. These two will be 

responsible for my son[] Patrick[’s] needs and care. 

 

 To my daughter, Linda [], I leave the total sum of $20.00 

(twenty). If she contests my will, she doesn’t get the $20.00. 

 There is a life insurance policy through my place of 

employment, Carlisle. I name [Lemmo and Charlene] 

beneficiaries of such policy. 

February 11, 2015 Document. 

 The February 11, 2015 Document appears to be signed by Decedent 

and witnessed by Charlene and Lemmo. Below all three signatures is the 

following note: “Executresses [(sic)] shall make all funeral arrangements to 

my wishes.” Id. 

 On or about March 1, 2015, Lemmo contacted the law offices of 

George Schroeck, Esquire2 and spoke with paralegal Melissa Giles (Giles) 

regarding execution of a new will for Decedent. At Lemmo’s request Giles 

drafted a new will for Decedent, dated March 2, 2015 (March 2, 2015 

 

2

 Attorney Schroeck is representing Lemmo in the present action and 

appeared on her behalf at oral argument. 
J-A16036-16 

- 3 - 

Document), using the February 11, 2015 Document as a template.3 Giles 

testified at trial that she did not speak with Decedent prior to drafting the 

March 2, 2015 Document. Attorney Schroeck did not review the document. 

 On March 2, 2015, Giles brought the March 2, 2015 Document to 

Lemmo’s home for execution. Also present at the home were Decedent, 

Lemmo, Charlene, Kathy Flynn (Flynn), and Michael Goetz (Goetz). Flynn 

and Goetz witnessed the March 2, 2015 Document and Giles notarized it.4, 5 

 Following Decedent’s death on March 15, 2015, Linda and Patrick 

renounced their rights to administer the Estate. On April 23, 2015, Charlene 

filed a petition for probate and grant of letters testamentary. This request 

was granted by decree on April 23, 2015. 

 On May 22, 2015, Lemmo filed the March 2, 2015 Document, along 

with a petition for probate and grant of letters testamentary. On June 1, 

2015, Charlene filed a petition seeking to invalidate the March 2, 2015 

Document. In that petition, Charlene alleged that on March 2, 2015, 

 

3

 The March 2, 2015 Document substantially conforms to the terms of the 

February 11, 2015 Document, except with respect to the inheritance of 

Linda. While the February 11, 2015 Document left Linda twenty dollars 

(payable only if the purported will was not contested), the March 2, 2015 

Document contains no such provision. 

4

 Charlene chose the witnesses: Flynn is her life partner and Goetz is her 

boss. 

5

 The orphans’ court recognized that this case raises issues concerning the 

unauthorized practice of law. Orphans’ Court Opinion, 10/12/2015, at 3. We 

trust that those concerns have been referred to the appropriate authorities. 
J-A16036-16 

- 4 - 

Decedent was not in the physical or mental state necessary to execute a will. 

Charlene claimed that Lemmo had manipulated Decedent’s hand to get her 

to sign the March 2, 2015 Document and had signed Decedent’s name to the 

February 11, 2015 Document when she was unable to get Decedent to sign 

it. 

 On July 20, 2015, a hearing was held, after which the orphan’s court 

determined that the March 2, 2015 Document was not a valid will. On 

August 19, 2015, Lemmo filed a notice of appeal.6 Both Lemmo and the 

orphans’ court complied with the mandates of Pa.R.A.P. 1925. 

 Lemmo raises the following issues for our review. 

1. Did the [orphans’ court] commit an abuse of discretion 

and/or an error of law when it failed to apply case law, 

specifically where [Charlene] presented no credible evidence that 

[Decedent], who suffered from metastatic carcinoma and took 

pain medication, was “non compos mentis,” in light of the fact 

[that Decedent] had signed a similar hand-written will the 

previous month, which showed the same general intent 

regarding legatees? 

2. Did the [orphans’ court] commit an abuse of discretion 

and/or an error of law in finding that [Decedent] was not a 

capable and competent individual, where no credible medical 

 

6

 Lemmo failed to serve her notice of appeal on the orphans’ court in 

violation of Pa.R.A.P. 906(a)(2). However, because the orphan’s court 

considered the issues Lemmo now raises before us, we decline to quash this 

appeal. See Pa.R.A.P. 902 (“Failure of an appellant to take any step other 

than the timely filing of a notice of appeal does not affect the validity of the 

appeal, but is subject to such action as the appellate court deems 

appropriate, which may include, but is not limited to, remand of the matter 

to the lower court so that the omitted procedural step may be taken.”); 

Meadows v. Goodman, 993 A.2d 912, 914 (Pa. Super. 2010).
J-A16036-16 

- 5 - 

testimony or evidence was presented that evidenced [Decedent] 

was unaware of her actions, specifically where [Decedent] was 

question by a notary public as to whether she understood the 

subject will and its intentions, and [Decedent] acknowledged 

that she did? 

3. Did the [orphans’ court] commit an abuse of discretion 

and/or an error of law in finding that the will was not a valid will 

properly executed by a capable and competent individual, where 

the will was witnessed by two individuals who signed sworn 

statements that they had witnessed [Decedent] sign the will? 

4. Did the [orphans’ court] commit an abuse of discretion 

and/or an error of law in failing to apply controlling precedent of 

case law and statutory law to the facts of this case? 

Lemmo’s Brief at 2-3 (unnecessary parentheticals omitted). 

 Our standard of review of the findings of an orphans’ court 

is deferential. When reviewing a decree entered by the orphans’ 

court, this Court must determine whether the record is free from 

legal error and the court’s factual findings are supported by the 

evidence. 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. 

 However, we are not constrained to give the same 

deference to any resulting legal conclusions. [T]he orphans’ 

court decision will not be reversed unless there has been an 

abuse of discretion or a fundamental error in applying the 

correct principles of law. 

In re Estate of Whitley, 50 A.3d 203, 206–07 (Pa. Super. 2012) (internal 

citations, quotation marks, and unnecessary capitalization omitted). 

 In her first issue, Lemmo argues that the orphans’ court erred in 

determining that Decedent was not capable or competent to execute the 
J-A16036-16 

- 6 - 

March 2, 2015 Document where Decedent had signed a similar document on 

February 11, 2015. Appellant’s Brief at 14-21.7

 The Probate, Estates and Fiduciary Code provides that “[a]ny person 

18 or more years of age who is of sound mind may make a will.” 20 Pa.C.S. 

§ 2501. 

 Testamentary capacity exists when the testator has

intelligent knowledge of the natural objects of his bounty, the 

general composition of his estate, and what he or she wants 

done with it, even if his memory is impaired by age or disease. 

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. 

 In determining testamentary capacity, a greater degree of 

proof of mental incapacity is required than would be necessary 

to show the inability to conduct one’s business affairs. Finally, 

testamentary capacity is to be ascertained as of the date of 

execution of the contested document. 

In re Estate of Smaling, 80 A.3d 485, 494 (Pa. Super. 2013) (citations 

and quotation marks omitted). 

A previous will executed by the testator who was admittedly of 

sound mind is admissible upon the theory that such a will tends 

to show the fixed and settled purpose of the testator, and any 

sudden change in such purpose without adequate cause may be 

evidence from which an unsound mind may be inferred. 

Burns v. Kabboul, 595 A.2d 1153, 1162 (Pa. Super. 1991) (citations 

omitted). 

 

7

 We note with displeasure that the argument section of Lemmo’s brief fails 

to divide her argument into sections corresponding to the issues raised in 

her statement of questions involved in violation of Pa.R.A.P. 2119(a). 
J-A16036-16 

- 7 - 

Instantly, the orphans’ court rejected Lemmo’s arguments, finding that 

that Lemmo, and not Decedent, had hand written the February 11, 2015 

Document, which Lemmo then signed, both on Decedent’s behalf and as a 

witness, rendering that document invalid. Orphans’ Court Opinion, 

10/12/2015, at 8. Thus, the court determined that the earlier document 

could not be used to demonstrate the validity of the March 2, 2015 

Document. 

With respect to the February 11, 2015 Document, Lemmo testified that 

she had a conversation with Decedent and Charlene about the terms of the 

document prior to drafting it. N.T., 7/20/2015, at 20. Lemmo stated that 

Decedent was “very coherent” at the time of this conversation. Id. at 21. 

However, Charlene testified that, prior to February 11, 2015, Decedent had 

indicated that she did not want a will. Id. at 84. 

 Charlene testified that she had fallen asleep in a chair at Lemmo’s 

home one evening and awoke around 11:00 pm to find Lemmo “writing in 

the dark.” Id. at 74. When questioned, Lemmo told Charlene she was 

writing Decedent’s will. Charlene testified that she and Lemmo signed page 

two of the February 11, 2015 Document, but that Decedent did not sign the 

document to her knowledge or in her presence. Id. 

 Lemmo testified that Decedent discussed coherently the terms of the 

February 11, 2015 Document with Lemmo and Charlene. However, hospice 
J-A16036-16 

- 8 - 

records, introduced at trial through Karen Moski, executive director of 

Hospice of Metropolitan Erie, indicated that Decedent requested admission 

into hospice on or about February 12, 2015. At that time, Decedent 

described her pain as excruciating. Prior to her admission to hospice, 

Decedent had been prescribed a regimen of pain management drugs, 

including MS Contin (later changed to Fentanyl) and liquid morphine, which 

are “narcotics that would impair cognitive abilities.” N.T., 7/20/2015, 63-64. 

Hospice records admitted at trial noted that Decedent “would benefit from 

pain control” and indicated that the medications previously prescribed would 

be continued and/or increased at the order of Decedent’s treating physician. 

 Elaine Dombrowski (Dombrowski), a nurse manager at hospice, 

testified that Decedent was prescribed what medical professionals would 

consider to be “high doses” of her pain medication. Id. at 64. Dombrowski 

also testified that hospice had encountered problems related to the 

administration of Decedent’s in-home pain medication by Lemmo. 

 Decedent was involved in hospice from February 12 through March 3, 

2015. She was ultimately discharged when hospice determined that it could 

not accurately monitor the in-home medication, including the morphine and 

Fentanyl, administered to Decedent. The notes created by hospice also 

indicate that (1) hospice workers had a difficult time contacting Lemmo 

during Decedent’s time in the program, and (2) Decedent was often 
J-A16036-16 

- 9 - 

unresponsive when hospice workers were performing wellness checks. 

Christine Flannigan, the Community Relations Manager who conducted 

Decedent’s hospice exit interview on March 3, 2015, testified that Decedent 

was tired and not responsive. Id. at 71. 

 The law is clear that a testator must have intelligent knowledge of her 

estate and what she wants to do with it at the time the will is executed. 

Smaling, 80 A.3d 494. Moreover, we are cognizant that 

[i]f 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(3) (emphasis added). 

 Based on our review of the record, we find no error in the orphans’ 

court’s determination that the Decedent lacked testamentary capacity to 

execute a will on February 11, 2015. Charlene testified that Decedent did 

not want a will, was taking high doses of medication, and was being 

evaluated for admission to hospice at the time the February 11, 2015 

Document was signed. Additionally, Charlene’s testimony that, contrary to 

what her signature on the February 11, 2015 Document would indicate, she 

did not witness Decedent sign the document, supports the orphans’ court’s 

determination that the February 11, 2015 Document was not a valid will. 

Accordingly, we agree with the orphans’ court that the February 11, 2015 
J-A16036-16 

- 10 - 

Document cannot support Lemmo’s claim that the March 2, 2015 Document 

is valid. Burns, supra. 

 In her second issue, Lemmo argues that the orphan’s court erred in 

determining that Decedent was not capable or competent to execute the 

March 2, 2015 Document because Charlene failed to present credible 

medical testimony to contradict that of Giles and Lemmo, who claimed that 

Decedent understood the March 2, 2015 Document and its ramifications. 

Appellant’s Brief at 14-21. 

 We note that Lemmo does not challenge the admission of the Hospice 

notes. Those notes indicate that Decedent was suffering from excruciating 

pain, which was being inconsistently treated using high doses of narcotic 

medication, and, as a result of her medical condition and treatment, 

Decedent was often tired and non-responsive. 

Further, Giles testified that when she arrived at Lemmo’s home, 

Decedent was in a hospital bed watching television. Her eyes were open, 

but would close occasionally. Giles indicated that, when responding to Giles’ 

questions regarding the March 2, 2015 Document, Decedent “may have 

made a sound first, at which point, I repeated by question and I would 

repeat it until either she said ‘yes’ or ‘no.’ She never said ‘no.’” N.T., 

7/20/2015, at 14. Giles testified that while Decedent signed all four pages 

of the March 2, 2015 Document, she was incapable of holding her arm up 
J-A16036-16 

- 11 - 

and dropped the pen several times. Lemmo had to hold Decedent’s arm for 

her to sign. Giles did not inquire as to Decedent’s medical condition or what 

medications Decedent was taking, nor did she contact Decedent’s treating 

physician for an opinion as to Decedent’s competency. Further, Giles 

testified that she knew hospice had recently been fired and assumed 

Decedent was close to the end of her life. 

It is well-settled that “courts evaluate testamentary capacity on the 

date of the execution of the contested will. Evidence of such state of mind 

may be received for a reasonable time before and after execution as 

reflective of decedent’s testamentary capacity. This information can be 

supplied by lay witnesses as well as experts.” In re Estate of Nalaschi, 90 

A.3d 8, 12–13 (Pa. Super. 2014). Contrary to Lemmo’s argument, Charlene 

was not required to admit additional medical evidence. However, instead of 

corroborating Lemmo’s claims that Decedent was lucid at the time the March 

2, 2015 Document was executed, the testimony of Giles supports the 

observations of the hospice employees who noted that Decedent was often 

unresponsive. Moreover, as fact-finder, the orphans’ court was free to 

believe all, part, or none of the evidence presented. See In re Bosley, 26 

A.3d 1104, 1107 (Pa. Super. 2011). We find no abuse of discretion. 
J-A16036-16 

- 12 - 

 Lemmo next argues that the orphans’ court erred in determining the 

March 2, 2015 Document is invalid because Flynn and Goetz averred that 

they had witnessed Decedent sign the document. Lemmo’s Brief at 19. 

 At trial, Flynn testified that at the time the March 2, 2015 Document 

was signed, Decedent was “pretty well out of it. She wasn’t coherent all the 

time and you really had to work on her to get answers or anything out of 

her. Usually it was like an ‘uh.’” N.T., 7/20/2015, at 87. Flynn indicated 

that Decedent dropped the pen when it was placed in her hand and that 

Lemmo had to help her sign. She noted that Lemmo was supposed to 

provide “a light[] assist, but there was just no way [Decedent] could hold 

the pen.” Id. at 88. 

 Goetz’s testimony corroborated Flynn’s assessment that Decedent was 

“pretty drugged” on March 2, 2015, but testified that she made eye contact 

with him and that she could make a mark on the page, which he believed 

was acceptable under the instructions Giles provided for execution of the 

Document. Id. at 92. However, he indicated that Lemmo was “holding 

[Decedent’s] hand.” Id. Importantly, Goetz testified that after the signing he 

expressed concern to the other witnesses because he “expect[ed] a little bit 

more positive communication” from Decedent. Id. at 94. He reiterated on 

cross-examination that he did witness Decedent sign her name to the March 

2, 2015 Document. Id. at 95. 
J-A16036-16 

- 13 - 

We are cognizant that 

[i]f 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. 

In re Milleman’s Estate, 203 A.2d 202, 209 (Pa. 1964) (emphasis added). 

 The orphans’ court’s opinion demonstrates that it considered the 

testimony presented by Flynn and Goetz, but still found that Decedent 

lacked testamentary capacity to execute a will on March 2, 2015, rendering 

her assisted signature invalid. Based on our review of the record, we find no 

abuse of discretion in this determination. 

 Finally, Lemmo claims that the court erred in “failing to apply 

controlling precedent of case law and statutory law to the facts of this case.” 

Lemmo’s Brief at 3. However, in her argument section, she fails to detail 

specifically which precedent the court overlooked. This Court has repeatedly 

held that “failure to develop an argument with citation to, and analysis of, 

relevant authority waives that issue on review.” In re Estate of 

Schumacher, 133 A.3d 45, 51 (Pa. Super. 2016). Accordingly, we hold that 

this claim is waived. 
J-A16036-16 

- 14 - 

 Based on the foregoing, we hold that the orphans’ court properly 

granted Charlene’s petition to invalidate the March 2, 2015 Document. 

Accordingly, we affirm. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/25/2016