J-A11014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF CLARA FLATOW, DECEASED, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

APPEAL OF: SAMANTHA WESTON

No. 1248 EDA 2015

Appeal from the Order Entered March 25, 2015

In the Court of Common Pleas of Delaware County

Orphans' Court at No(s): No. 677 of 2011; No. 2312-2900

BEFORE: SHOGAN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 15, 2016

Samantha Weston (“Niece”) appeals from the March 25, 2015 order 

denying her exceptions in this will contest, thereby making final the orphans’ 

court’s February 10, 2015 order denying her motion for summary judgment 

and granting summary judgment in favor of The New York Public Library; 

Astor, Lenox, and Tilden Foundations; The Sierra Club Foundation; The 

Salvation Army of New York City; The Pennsylvania SPCA; and Surrey 

Services for Seniors (collectively “The Charities”).1 We affirm.

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1

 Attorney John Potts (“Attorney Potts”) and the Pittsburgh Office of the 

Attorney General (“the Commonwealth”) joined The Charities’ motion. The 

Commonwealth participated in this matter as parens patriae. See 

Commonwealth’s Brief at 20 (citing Commonwealth Attorneys Act, 71 P.S. 

(Footnote Continued Next Page)
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Clara Flatow (“Decedent”) was a childless widow who lived most of her 

life in New York and her final years as a resident of Dunwoody Village in 

Newton Square, Pennsylvania. She died in 2012 at the age of 99 with an 

estate valued at $5.1 million. Prior to the circumstances underlying this 

matter, Decedent executed seven wills. Pepper Hamilton LLP prepared the 

first three wills, and Attorney Potts prepared the last four wills, which 

Decedent executed in May of 2004, December of 2005, December of 2007, 

and June of 2011 (“June 2011 Will”). In each of the four wills, 

Attorney Potts was named executor with no benefit and no discretion 

regarding how to distribute the estate. Niece was a named beneficiary, but 

the residuary clause distributed the vast majority of Decedent’s estate to 

various charities.

Niece is the daughter of one of Decedent’s two brothers. Although 

Niece lived in Colorado before and during these proceedings, she re-entered 

Decedent’s life in 2006—shortly after Decedent’s sister died in 2005—with 

occasional visits and copious phone calls. At Niece’s urging, Decedent gave 

Niece a durable power of attorney in August of 2010. In July of 2011, Niece 

informed Attorney Potts that Decedent wanted to change her June 2011 Will. 

Upon reviewing the proposed changes, Attorney Potts explained that he 

(Footnote Continued) _______________________

§ 732-204(c) (“[P]ursuant to the Commonwealth Attorneys Act, the Attorney 

General is authorized to intervene in any action ‘involving charitable 

bequests and trusts.’”)).
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would need to meet with Decedent independently before modifying the June 

2011 Will. In response, Niece contacted Attorney Edward Glickman, who, 

after meeting with Niece and Decedent together and Decedent individually, 

prepared a new will for Decedent. On August 18, 2011, Decedent executed 

the new will (“August 2011 Will”), which distributed the majority of 

Decedent’s estate into a trust for Niece and named Niece’s husband as 

executor and trustee with absolute discretion to make distributions of the 

trust principle to Niece and her heirs. 

When Attorney Potts learned of the August 2011 Will via a letter from 

Attorney Glickman, he consulted three independent legal experts2about his 

concern that Decedent had been financially exploited.3 Based on those 

____________________________________________

2

 Attorney Potts first consulted with Bradley Rainer, Director of the 

Pennsylvania Bar Institute, co-chair of the Professional Responsibility 

Committee of the Pennsylvania Bar, and co-chair of the Professional 

Guidance Committee of the Philadelphia Bar Association. Next, Attorney 

Potts consulted with Mary Kenney of the Pennsylvania Attorney General’s 

Office. Lastly, Attorney Potts consulted with Joe Lastowka, Esquire, an 

estate planning attorney. Orphans’ Court Opinion, 2/6/15, at 8–9.

3

 Under the Older Adults Protective Services Act, 35 P.S. § 10225.101–

10225.5102, “exploitation” is defined as follows:

An act or course of conduct by a caretaker or other person 

against an older adult or an older adult’s resources, without the 

informed consent of the older adult or with consent obtained 

through misrepresentation, coercion or threats of force, that 

results in monetary, personal or other benefit, gain or profit for 

the perpetrator or monetary or personal loss to the older adult.

Id. at § 10225.103.
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conversations, Attorney Potts filed a report with the Delaware County Office 

of Services for the Aging (“COSA”) in September of 2011. COSA case 

manager, Jamilla Allen (“Ms. Allen”), opened an investigation and met with 

Decedent on September 12, 2011. At the meeting, Decedent asked 

Ms. Allen for more time to consider what she wanted to do with her estate. 

Ms. Allen and Decedent agreed to meet again on September 21, 2011. 

Neither Attorney Potts nor anyone from COSA, including Ms. Allen, contacted 

Decedent from September 12 through September 21, 2011; however, during 

that period, Niece repeatedly contacted Decedent by telephone.

Ms. Allen met with Decedent on September 21, 2011, as scheduled. 

As a result of that meeting, Attorney Potts met with Decedent the next day 

and prepared a will (“September 2011 Will”) reflecting Decedent’s earlier 

wills. Consistent with Decedent’s prior wills, the September 2011 Will made 

a specific bequest of $50,000 to Niece, distributed the majority of 

Decedent’s estate to the Charities as residuary beneficiaries, and named 

Attorney Potts as executor with no benefit or discretion as to distribution of 

the estate. COSA closed its investigation on October 7, 2011.

Decedent passed away on September 20, 2012. Six days later, the 

Delaware County Register of Wills admitted the September 2011 Will to 

probate. Niece filed a petition for citation sur appeal, alleging undue 

influence and fraud. Petition for Citation Sur Appeal, 6/18/13, at ¶ 71. The 

Charities filed preliminary objections, which the orphans’ court denied on 
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October 25, 2013. After the filing of answers and extensive discovery, Niece 

filed a motion for summary judgment solely on her undue-influence claim, 

and the Charities filed a motion for summary judgment on both of Niece’s 

claims. Motion of Petitioner for Summary Judgment, 11/20/14; The 

Charities’ Motion for Summary Judgment, 12/8/14. The orphans’ court held 

oral argument on January 16, 2015; it then granted the Charities’ motion for 

summary judgment and denied Niece’s competing motion on February 6, 

2015. Order of Court, 2/10/15. Niece filed timely exceptions to the order 

pursuant to Pa.O.C.R. 7.1 on February 27, 2015, which the orphans’ court 

denied on March 25, 2015. This timely appeal followed on April 22, 2015.

Niece presents the following questions for our consideration:

1. Did the Orphans’ Court err in denying a Motion for Summary 

Judgment in favor of a contestant in a will contest where that 

contestant demonstrated that:

a. the testator was falsely advised that her niece, a 

beneficiary of her existing will, was stealing from her;

b. the contested will was made hastily prior to a pending 

emergency psychiatric evaluation of the testator;

c. that emergency evaluation conducted just days after 

the will was signed found the testator to be unable to 

handle her own affairs;

d. those participating in the procuring of the will 

incorrectly claimed that the testator wished to cut off all 

contact with the disfavored niece; and

e. on the basis of that incorrect claim, those procuring the 

new will attempted to prevent the disfavored niece from 

contacting testator?
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2. Did the Orphans’ Court err in denying a Motion for Partial 

Summary Judgment in favor of contestant that [sic] the 

three-part test to impose a burden on the proponents of the 

contested will was not met, where the contestant 

demonstrated that the testator suffered from a weakened 

intellect, had a confidential relationship with the proponent, 

and the proponent derived a substantial benefit from the 

making of the new will?

3. Did the Orphans’ Court err in entering summary judgment 

against the contestant, both as to her claims of fraud and 

undue influence, and as to her alternative claim that the 

Court should shift the burden of proof to the proponents of 

the will?

Niece’s Brief at 4.4

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).

____________________________________________

4

 We discern only the slightest correlation between Niece’s statement of 

questions presented and the argument section of her brief in contrast to 

Pa.R.A.P. 2119(a), which provides, “The argument shall be divided into as 

many parts as there are questions to be argued.” However, because Niece 

is clearly challenging the denial of her motion for summary judgment and 

the grant of the Charities’ motion for summary judgment, we prefer to 

address the various claims she raises within the framework of her questions 

presented.
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In re Estate of Schumacher, 133 A.3d 45, 49–50 (Pa. Super. 2016); see 

also In re Estate of Harrison, 745 A.2d 676, 678 (Pa. Super. 2000) 

(noting that standard of review of decree of orphans' court is deferential). 

“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).

Additionally, we review the grant of summary judgment according to 

the following standards:

A reviewing court may disturb the order of the trial court only 

where it is established that the court committed an error of law 

or abused its discretion. As with all questions of law, our review 

is plenary. 

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non-moving party bears the burden 

of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. Failure of a 

non-moving party to adduce sufficient evidence on an issue 

essential to his case and on which he bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law. Lastly, we will review the record in the light most 

favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. Michael Salove Co. v. Enrico 

Partners, L.P., 23 A.3d 1066, 1069 (Pa.Super.2011) (citation 

omitted).
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In re Estate of Hooper, 80 A.3d 815, 818 (Pa. Super. 2013).

In her first question presented, Niece argues that the orphans’ court 

erred in denying her motion for summary judgment because she presented 

clear and convincing evidence of undue influence directly exerted upon 

Decedent. Niece’s Brief at 31–33. Specifically, Niece submits the following 

as evidence supporting her claim: (a) Decedent was falsely advised that 

Niece was stealing from her, id. at 42; (b) the contested will was made 

hastily prior to a pending emergency psychiatric evaluation of the testator, 

id. at 32; (c) an emergency evaluation conducted just days after the 

September 2011 Will was signed found Decedent unable to handle her own 

affairs, id. at 44; (d) Attorney Potts and COSA incorrectly claimed that 

Decedent wished to cut off all contact with Niece, id. at 48; and (e) on the 

basis of that incorrect claim, those procuring the new will attempted to 

prevent the disfavored niece from contacting testator, id. at 33.

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 selfdirecting 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, 467 Pa. 531, 359 A.2d 728, 733 (1976) 

(citations omitted).

Estate of Schumacher, 133 A.3d at 52. 
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Relying on the definition of undue influence expressed in In re Estate 

of Ziel, 467 Pa. 531, 359 A.2d 728, 733 (1976), the orphans’ court disposed 

of this claim with the following analysis:

In the present matter, [Niece] strongly believes that there 

is evidence of direct undue influence sufficient to meet the 

definition [set forth in Ziel]. To support this argument, [Niece] 

relies on COSA’s investigation of the Decedent’s situation based 

on the report of [Attorney Potts]. According to [Niece], 

[Attorney Potts] was appalled by the August 18, 2011 Will which 

was prepared by Edward Glickman, Esquire because it did not 

reflect the testamentary plan that [Attorney Potts] wanted in 

place for the Decedent. To correct this, [Niece] argues, 

[Attorney Potts] reported to COSA, a government agency, how 

the Decedent was being exploited by [Niece] in order to make 

COSA [Attorney Potts’] de facto agent. As his agent, the COSA 

primary care manager, Ms. Allen, under the auspices of the 

government agency, then reported the allegation that [Niece] 

was financially exploiting the Decedent to the Decedent who, in 

her weakened and elderly state, believed them without question. 

Once appropriately shocked by the actions of [Niece], as 

reported, the Decedent immediately changed her will to rid it of 

the exploitation. [Niece] adamantly argues that, at that time, 

the Decedent was profoundly impaired and thus more prone to 

influence as evidenced by the report of [Niece’s] doctor, Dr. 

Barry Rovner, who reviewed the medical records of the Decedent 

as well as Dunwoody Village reports and the depositions [of] Ms. 

Allen and [Attorney Potts].

This theory is not supported by the record despite the fact 

that the record in this matter is vast and thorough because the 

parties were granted near unlimited discovery. Instead, a 

recitation of the record does not raise any genuine issue of 

material fact that there was “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 her free agency and to operate as a present 

restraint upon her in the making of the September 22, 2011 

Will” which Ziel’s Estate, quoted and cited above, informs us to 

be the standard for meeting the burden of proving under 

influence directly. Instead, the record reflects a carefully 
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thought out course of action undertaken by [Attorney Potts] to 

understand the Decedent’s testamentary wishes and to 

effectuate them without influencing the Decedent in any way.

Orphans’ Court Opinion Sur Summary Judgment, 2/6/15, at 7–8. The 

orphans’ court continued with a thorough recitation of factual findings and 

the following conclusion:

Despite ample, unfettered discovery and despite giving 

[Niece] the benefit of all reasonable inferences, there is nothing 

in the record that comes close to clear and convincing evidence 

of direct undue influence as [defined] above. Far from being 

isolated or imprisoned, the Decedent was residing in Dunwoody 

Village where nurses and aids were coming and going all the 

time. In addition, [Niece] regularly contacted the Decedent via 

telephone and was able to physically visit the Decedent. Despite 

that access to and conversations with the Decedent, [Niece] 

never questioned the Decedent’s capacity. After the initial 

meeting with COSA, the Decedent had nine (9) days, which is 

ample time for any intimidation felt as a result of COSA being 

involved to dissipate, to consider her wishes. The Decedent’s 

body and mind were not imprisoned, she was not coerced, and 

her free agency was not destroyed. Instead, her free agency 

was encouraged and fostered to ensure that her testamentary 

plan was, in fact, hers and hers alone devoid of any third party 

influence. 

Accordingly, this [c]ourt finds [Niece] has failed to raise 

any genuine issue of material fact to support her argument of 

direct undue influence upon the Decedent by [Attorney Potts].

Orphans’ Court Opinion, 2/6/15, at 10.

Upon review of the certified record, we find support therein for the 

orphans’ court’s findings. Moreover, we find support in the law and the 

record for the orphans’ court’s analysis and conclusion, which we adopt as 

our own. Orphans’ Court Opinion, 2/6/15, at 6–10.
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We write separately to address Niece’s more specific arguments. 

Niece complains that the orphans’ court used an incorrect standard of review 

for summary judgment. Niece’s Brief at 36. She challenges the orphans’ 

court’s use of the phrase, “there is nothing in the record that comes close to 

clear and convincing evidence of direct undue influence.” Orphans’ Court 

Opinion Sur Summary Judgment, 2/6/15, at 10. This argument lacks merit. 

Upon reading the orphans’ court’s analysis as a whole, we reach the same 

conclusion it did in rejecting Niece’s third exception: “[T]he statement that 

the evidence ‘did not come close to clear and convincing evidence of undue 

influence’ has the clear meaning that no genuine issue of material fact of 

undue influence was raised to proceed to trial.” Orphans’ Court Opinion Sur 

Exceptions, 6/26/15, at 6. The interplay between the burden of proof for 

establishing undue influence and the standard for summary judgment is 

straightforward. Because Niece failed to present clear and convincing 

evidence of undue influence, she failed to raise a genuine issue of material 

fact to be tried by a jury. See In re Estate of Clark, 334 A.2d 628, 632 

(1975) (“Generally, undue influence, being somewhat akin to fraud, must be 

proved by clear and convincing evidence.”); Babb v. Ctr. Cmty. Hosp., 47 

A.3d 1214, 1223 (Pa. Super. 2012) (“[O]ur responsibility as an appellate 

court is to determine whether the record either establishes that the material 

facts are undisputed or contains insufficient evidence of facts to make out a 
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prima facie cause of action, such that there is no issue to be decided by the 

fact-finder.”) (citation omitted).

Next, Niece argues that the orphans’ court drew unwarranted 

inferences against her. Niece’s Brief at 37. The orphans’ court addressed 

this issue in denying Niece’s third exception. Orphans’ Court Opinion Sur 

Exceptions, 6/26/15, at 6–7. Upon review of that analysis and the record, 

we discern no basis on which to disturb the conclusion of the orphans’ court. 

The record indicates that the orphans’ court consistently viewed the 

evidence, and all reasonable inferences therefrom, in favor of Niece, even 

when she was the party moving for summary judgment. See Orphans’ 

Court Opinion Sur Summary Judgment, 2/6/15, at 12 (“[T]his Court will 

consider [Niece] to be the nonmoving party so that she may receive the 

benefit of any and all reasonable inferences.”).

Niece also argues that the orphans’ court did not consider all of the 

evidence related to Decedent’s cognitive impairment. Niece’s Brief at 44. 

Our review of the certified record belies Niece’s argument and confirms the 

conclusion reached by the orphans’ court in rejecting Niece’s first exception: 

Exception #1 reads as though [Niece] challenged the 

testamentary capacity of the Decedent and the [c]ourt 

improperly ruled on that cause of action. That simply is not the 

case. The only two (2) causes of action before the [c]ourt on 

the Summary Judgment Motions were fraud and undue 

influence. With respect to those causes of action, the [c]ourt did 

consider the evidence submitted regarding the Decedent’s 

cognitive state and the Opinion entered on February 6, 2015 

reflects that consideration.
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Orphans’ Court Opinion Sur Exceptions, 6/26/15, at 5.

Lastly, Niece argues that the orphans’ court erred in rejecting evidence 

of Attorney Potts’ efforts to isolate Decedent. Niece’s Brief at 48. The

orphans’ court rejected this argument, and so do we, with the following 

analysis:

[Niece] argues that, from August 18 to September 22, when the 

[September 2011 Will] was executed, [Niece] was in Colorado 

and was unaware that COSA had opened an investigation 

regarding the Decedent. That fact does nothing to suggest that 

the Decedent was isolated from [Niece]. It only serves to 

suggest what [Niece] was or was not aware of which is irrelevant 

to determining whether there was a genuine issue of material 

fact of undue influence. [Niece] may not have been aware of 

COSA’s involvement but, the record presented to this [c]ourt and 

outlined in the February 6, 2015 Opinion, reveals that [Niece] 

had unfettered access to the Decedent from August 18 to 

September 22 and even contacted the Decedent at least ten (10) 

times between September 8 and September 22. Such access 

supports the [c]ourt’s finding that the Decedent was not isolated 

from [Niece].

[Niece] also argues that the Decedent was isolated 

because [Attorney Potts] caused the Decedent to sign a letter, 

just after executing the September 22 Will, stating that the 

Decedent wished to have no further contact with [Niece]. Again, 

this does not support a finding of isolation that would raise a 

genuine issue of material fact that the Decedent was unduly 

influenced. To raise a genuine issue of material fact of undue 

influence, [Niece] must point to an example of isolation prior to 

the execution of the September 22 Will would could have caused 

the execution. By citing the letter, [Niece] only points out a 

statement of the Decedent’s desire to not have contact with 

[Niece] after the September 22 Will had been executed.

Orphans’ Court Opinion Sur Exceptions, 6/26/15, at 7–8.

In her second question presented, Niece argues that the orphans’ 

court erred in denying her motion for partial summary judgment because 
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she satisfied the tripartite test for shifting the burden of proving undue 

influence. Niece’s Brief at 33, 51. According to Niece, she established that: 

(1) Decedent suffered from a weakened intellect and diminished capacity; 

(2) Attorney Potts had a confidential relationship with Decedent; and (3) 

Attorney Potts derived a substantial benefit just from making the 

September 2011 Will according to his purposes, not Decedent’s.5 This 

evidence, Niece concludes, shifted the burden to the Charities “to prove that 

the September [2011] Will was not the product of undue influence.” Id. at 

33.

Contrarily, the Charities and the Commonwealth argue that the 

orphans’ court did not err in denying Niece’s motion for partial summary 

judgment because she presented no evidence of undue influence; therefore, 

the burden did not shift. Specifically, the Charities and the Commonwealth 

insist that, because Attorney Potts did not receive anything under the 

September 2011 Will and had no discretion in distributing the estate 

pursuant thereto, Niece failed to meet her burden of proof. The Charities’ 

Brief at 36–45; Commonwealth’s Brief at 25–32.

“The resolution of a question as to the existence of undue influence is 

inextricably linked to the assignment of the burden of proof.” Estate of 

Clark, 334 A.2d at 632. We recently explained:

____________________________________________

5

 No one disputes that the substantial-benefit factor is the sticking point in 

this case.
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In making a will, an individual may leave his or her 

property to any person or charity, or for any lawful purpose he 

or she wishes, unless he or she “lacked mental capacity, or the 

will was obtained by forgery or fraud or undue influence, or was 

the product of a so-called insane delusion.” In re Johnson’s 

Estate, 370 Pa. 125, 127, 87 A.2d 188, 190 (1952). If an 

individual challenges a will on any of these bases, the burden is 

on the proponent of the will to present evidence of the 

formalities of probate. In re Clark’s Estate, 461 Pa. 52, 59, 

334 A.2d 628, 631 (1975). Once the proponent presents this 

evidence, a presumption of validity arises, and the burden shifts 

to the person contesting the will to prove that the testator lacked 

mental capacity, or the will was obtained by forgery, fraud, or 

undue influence, or was the product of an insane delusion. See 

In re Bosley, 26 A.3d at 1107.

In re Estate of Nalaschi, 90 A.3d 8, 11–12 (Pa. Super. 2014). In the 

specific context of undue influence, the burden of proof is assigned as 

follows:

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 Clark, 334 A.2d] at 632. The 

contestant must then 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. Id. 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.

In re Estate of Smaling, 80 A.3d 485, 493 (Pa. Super. 2013).

Mindful of the burden-shifting standard for claim of undue influence, 

the orphans’ court opined as follows:
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If direct undue influence cannot be proven by clear and 

convincing evidence, the contestant of a will may still attempt to 

shift the burden to the proponent of a will to prove the lack of 

undue influence. Clark, [334 A.2d 628]; Smaling, 80 A.3d 485.

* * *

In the instant matter, [Niece] has both filed a motion for 

summary judgment and had a motion for summary judgment 

filed against her to which she filed a response. For purposes of 

this section, this [c]ourt will consider [Niece] to be the 

nonmoving part so that she may receive the benefit of any and 

all reasonable inferences. In that light, it is possible to infer that 

the first two (2) elements, weakened intellect and confidential 

relationship, of the three-part burden shifting test have been 

met4for purposes of analyzing the Motion for Summary 

Judgment. Nevertheless, even proceeding as if the first two 

elements are met, [Niece] has failed to raise a genuine issue of 

material fact that there is clear and convincing evidence of a 

substantial benefit to [Attorney Potts].

4

 This is merely for the sake of argument and 

analysis and in no way reflects a conclusion of law 

reached by this Court. This Court chooses not to 

analyze the element of weakened intellect or 

confidential relationship because the record is 

completely devoid of evidence of a substantial 

benefit to [Attorney Potts].

[Niece] argues [Attorney Potts] received a substantial 

benefit because he was strongly motivated to have the Decedent 

execute a will which reflected his, not the Decedent’s, preferred 

testamentary plan. There is no case law to support this 

argument that motivation to modify a will equals a substantial 

benefit. Rather, the case law demonstrates that a substantial 

benefit is what motivates one to change a will. Motivation in and 

of itself is not a substantial benefit but, rather, a substantial 

benefit produces motivation to change a will.

The September 22, 2011 Will names [Attorney Potts] 

executor but grants him no discretion as to how the estate is 

distributed and makes no bequest to [Attorney Potts]. That 

being the case, there is not even a substantial collateral benefit 

let alone a substantial benefit. Unlike [In re Estate of] LeVin, 
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[615 A.2d 38, 42 (Pa. Super. 1992), [Attorney Potts] does not 

receive significant, ongoing compensation for his role as 

executor and [Attorney Potts] does not have any discretion in 

distributing the estate. Unlike [In re Button’s Estate, 328 A.2d 

480 (Pa. 1974), Attorney Potts] has no relationship with the 

primary beneficiaries similar to the parent-child relationship in 

Button which would motivate him to ensure that those 

beneficiaries receive the majority of the estate.

Orphans’ Court Opinion Sur Summary Judgment, 2/6/15, at 12–13. The 

orphans’ court then concluded:

Accordingly, this [c]ourt finds that [Niece] has failed to 

raise a genuine issue of material fact that there is clear and 

convincing evidence of a substantial benefit. Because evidence 

of the element of substantial benefit is so completely absent, this 

Court finds it unnecessary to discuss the elements of weakened 

intellect and confidential relationship.

Id. at 13. Notably, the orphans’ court reached the same conclusion in 

disposing of Niece’s eighth and ninth exceptions:

This [c]ourt appropriately inferred, to the benefit of [Niece], that 

weakened intellect and confidential relationship, two (2) of the 

three (3) elements necessary to shift the burden, were satisfied 

and appropriately found that there was no genuine issue of 

material fact that [Attorney Potts] received a substantial benefit 

based upon the record presented. Given the lack of a genuine 

issue of material fact as to the necessary element of substantial 

benefit, summary judgment was appropriate and an affirmative 

finding as to the other two (2) elements was unnecessary.

* * *

[Niece] also argues that [Attorney Potts’] substantial benefit was 

the testamentary scheme that he desired for the Decedent which 

was accomplished with the September [2011] Will. However, as 

was outlined in [the court’s] February 6, 2015 opinion, obtaining 

a testamentary scheme, without more, is not a substantial 

benefit. In fact, in [Niece’s] attempt to argue that the 

motivation to obtain a certain testamentary scheme and 

obtaining said testamentary scheme equals a substantial benefit, 
J-A11014-16

- 18 -

[Niece] contradicts herself and echoes this [c]ourt’s logic by 

stating that “the substantial benefit that he will gain by the 

terms of the will is what motivates him to seek to have the 

testator sign such will. (Exceptions to Adjudication on Motions 

for Summary Judgment p. 12). This is precisely the logic behind 

this [c]ourt’s finding that [Niece] failed to raise a genuine issue 

of material fact that there was a substantial benefit. The 

motivation to change a will does not equal a substantial benefit 

as [Niece] argued before contradicting herself. Rather, the 

substantial benefit is what creates the motivation to change the 

will. The testamentary scheme of the September [2011] Will 

does not confer a substantial benefit upon [Attorney Potts].

Orphans’ Court Opinion Sur Exceptions, 6/26/15, at 9–11.

Upon review, we discern no legal error or abuse of discretion. Estate 

of Shumacher, 133 A.3d at 49–50. Attorney Potts was designated 

executor under the September 2011 Will, not a beneficiary. His position as 

executor, without more, did not confer a substantial benefit. See In re 

Estate of Stout, 746 A.2d 645, 649 (Pa. Super. 2000) (holding that “receipt 

of commissions received for executor’s service to the estate is not enough to 

establish substantial benefit”). Moreover, as executor, Attorney Potts was 

not given any latitude or discretion in distributing Decedent’s assets. 

Decedent was specific in all of her devises and bequests, leaving no room for 

any exercise of discretion as to the identity of beneficiaries or the amount of 

their gifts. Additionally, Decedent created no ongoing authority under which 

Attorney Potts might maintain control of Decedent’s assets for any 

significant duration. Compare In re Estate of LeVin, 615 A.2d 38, 43 (Pa. 

Super. 1992) (holding that substantial benefit accrued to 

executor/testamentary trustee where he was vested with power to select 
J-A11014-16

- 19 -

beneficiaries, revise terms of testamentary trust, invest, sell or dispose of 

trust assets; and determine when/if trust became impracticable to 

administer). Although the September 2011 Will contains boilerplate 

language granting Attorney Potts the authority and powers necessary to 

effectively administer and distribute Decedent’s assets, in reality, 

Attorney Potts possessed little to no latitude in the ultimate distribution of 

the assets of the estate. Petition for Citation Sur Appeal, 6/18/13, at 

Exhibit 1. 

Nor are we persuaded by Niece’s novel “motive, means, and 

opportunity” theory. Niece’s Brief at 31. As the Charities contend, “[i]t is a 

made-up legal theory and [Niece] cannot cite any case law to support.” The 

Charities Brief at 40. Indeed, the case Niece does cite, In re Miller’s 

Estate, 108 A. 616 (Pa. 1919), is factually distinguishable. Therein, the 

Supreme Court explained that the burden would shift to the will’s proponent 

“[w]here a person has testamentary capacity, but is so weak physically or 

mentally as to be susceptible to undue influence, and a substantial part of 

his estate is left to one occupying a confidential relation to him.” Id. at 

616.6 The substantial benefit in Miller was a residuary bequest to the 

testator’s physician/executor. Id. at 617.

____________________________________________

6

 Niece also cites In re Estate of Button, 328 A.2d 480 (Pa. 1974), in 

support of her substantial benefit argument. Niece’s Brief at 53. We 

distinguish Estate of Button for the reasons set forth by the Charities in 

(Footnote Continued Next Page)
J-A11014-16

- 20 -

In sum, we agree with the orphans’ court that Attorney Potts did not 

receive a substantial benefit under the September 2011 Will. Consequently, 

Niece failed to shift the burden of proving undue influence to the Charities.

In her final issue, Niece argues that the orphans’ court erred in 

granting the Charities’ motion for summary judgment on all her claims. 

Having disposed of Niece’s undue influence claims, we are left with the fraud 

claim. Notably, Niece does not present a separate argument regarding fraud 

in her appellate brief. To the extent she raises such a claim, it appears 

within the folds of her direct undue influence analysis. Niece’s Brief at 28–

33. In response, the Charities argue that the orphans’ court did not err in 

granting its motion for summary judgment because Niece presented no 

evidence of fraud. The Charities’ Brief at 36–45. 

Viewing the evidence in favor of Niece as the non-moving party and 

giving her the benefit of all reasonable inferences therefrom, the orphans’ 

court analyzed Niece’s fraud claim as follows:

[Niece] argues that [Attorney Potts], in his report to COSA, 

misstated that [Niece] had exploited and/or influenced the 

Decedent into changing the Decedent’s will. This accusation is 

not borne out in the record.

There is no evidence that [Attorney Potts] intentionally 

misstated any facts. The record reveals that it was Ms. Allen, on 

behalf of COSA, who told the Decedent that there was a report 

(Footnote Continued) _______________________

their appellate brief, see Charities’ Brief at 36–37 (“Button’s Estate is 

unavailing to [Niece] for at least three reasons.”), and by the orphans’ court, 

see Orphans’ Court Opinion Sur Summary Judgment, 2/6/15, at 12–13.
J-A11014-16

- 21 -

that [Niece] was financially exploiting her. [Attorney Potts] 

reasonably reported his concerns to COSA based on the fact that 

the August 18, 2011 Will was drastically inconsistent with the 

Decedent’s prior wills and the fact that [Niece] obtained a 

different attorney to draft the will after [Attorney Potts], the 

Decedent’s long-time estate attorney, insisted on meeting the 

with [sic] Decedent alone to review the proposed changes.

Even accepting, for purposes of summary judgment 

review, that the Decedent believed the statement that [Niece] 

was financially exploiting her, there is no evidence that the 

Decedent would not have made the same bequests had she 

known the truth. The record reveals just the opposite. The 

Decedent executed six (6) wills prior to the Will at issue—the 

September 22, 2011 Will. Five (5) of those (6) wills were 

virtually identical to the will at issue. In addition, [Niece] 

continued to have telephone contact with the Decedent during 

this period of time and the Decedent continued to take [Niece’s] 

calls which belies the allegation of animosity created by the 

COSA primary care manager, Ms. Allen.

Orphans’ Court Opinion, 2/6/15, at 5–6.

Upon review, we find support in the law and the record for the 

orphans’ court’s conclusion that Niece’s fraud claim lacked merit. We 

recently reiterated that:

[g]enerally speaking, fraud with respect to a will consists in 

anything calculated to deceive, whether by single act or 

combination, or by suppression of truth, or a suggestion of what 

is false, whether it be direct falsehood or by innuendo, by speech 

or silence, word of mouth, or look or gesture, by which a person 

is deceived to his or her disadvantage. However, to invalidate 

a will, the fraudulent act must have the effect of 

misleading the testator, which can occur only if the 

testator relies on it. Thus, if the testator to whom a 

misrepresentation was made knew the truth at the time he or 

she executed the will, it cannot be said that the testator relied 

on such representation, and fraud is not established. In order to 

establish that a will was fraudulently induced, it must also be 

shown that: (1) the testator had no knowledge of the concealed 
J-A11014-16

- 22 -

or misstated fact; and (2) the testator would not have made the 

same bequest had he or she known the truth.

In re Estate of Sacchetti v. Sacchetti, 128 A.3d 273, 288–289 (Pa. 

Super. 2015) (quoting 31 Standard Pennsylvania Practice 2d § 148:76 

(emphasis supplied; footnotes and illustration omitted)).

Significantly, the orphans’ court:

never made a finding that false accusations were made to the 

Decedent. In addition, [the c]ourt found that, regardless of 

what statements were made to the Decedent, there was strong 

evidence that the Decedent would have made the same bequests 

given that five (5) of the six (6) wills executed by the Decedent 

prior to the September [2011] Will had virtually identical 

distribution schemes.

Orphans’ Court Opinion Sur Exceptions, 6/26/15, at 8. The record before us 

confirms that Attorney Potts did not mislead Decedent and cause her to 

execute the September 2011 Will through fraud. Rather, as Decedent’s 

long-term attorney and the scrivener of her four previous wills, 

Attorney Potts thought the Decedent “could have been subject to undue 

influence by [Niece] to change her will leaving the residue of her estate 

outright to [Niece]” and not to the Charities. N.T. (Potts Deposition), 

6/25/14, at 49–52, 68. As the Charities point out, Niece’s position “ignores 

[Decedent’s] testamentary history, which is entirely consistent with the 

challenged Final Will.” The Charities’ Brief at 6 (citing Burns v. Kabboul, 

595 A.2d 1153, 1162 (Pa. Super. 1991) (“It is well-settled that a prior will 

containing the same testamentary disposition is strong evidence against 

undue influence.”)). Moreover, there is no indication that Decedent relied on 
J-A11014-16

- 23 -

any allegedly disparaging statements about Niece. Indeed, the record 

suggests otherwise in two regards. First, Decedent had a personal 

relationship with Niece and, therefore, knew exactly how Niece treated her. 

Second, despite any allegations concerning Niece’s conduct toward 

Decedent, Decedent still bequeathed Niece $50,000 under the September 

2011 Will.

Troubled by the about-face in Decedent’s testamentary direction, 

Attorney Potts consulted with experts in the fields of legal ethics and estate 

planning. Based on their advice, he contacted COSA and reported his 

concern that Niece may have been financially exploiting the Decedent. N.T. 

(Potts Deposition), 6/25/14, at 23–33. In turn, Ms. Allen conducted a legally 

mandated investigation. See 34 P.S. § 10225.303(a) (requiring agency to 

investigate a report within seventy-two hours after receipt, and to determine 

whether the report is substantiated or unsubstantiated; if the latter, the 

agency is to provide protective services to the older adult). Attorney Potts 

had no contact with Decedent during COSA’s investigation, nor did Ms. Allen. 

N.T. (Potts Deposition), 6/25/14, at 170. Attorney Potts became involved 

again only after Decedent told Ms. Allen that she wanted a new will, which 

Attorney Potts then prepared. Id. at 45. Finally, as discussed above, the 

evidence Niece cites in support of her argument that Attorney Potts 

prevented her from contacting Decedent occurred after execution of the 
J-A11014-16

- 24 -

September 2011 Will. Appellant’s Brief at 16–21. As such, it does not 

support Niece’s fraud claim. Estate of Nalaschi, 90 A.3d at 13.

In sum, we agree with the orphans’ court that Niece failed to establish 

by clear and convincing evidence that (a) Attorney Potts exerted undue 

influence on Decedent, (b) Attorney Potts obtained a substantial benefit 

under the September 2011 Will, or (c) Attorney Potts committed fraud, 

causing Decedent to execute the September 2011 Will. Because Niece failed 

to satisfy her burdens of proof or to shift the burden to the Charities, we 

further agree with the orphans’ court that there are no genuine issues of 

material fact regarding Niece’s claims of undue influence or fraud. 

Consequently, we conclude that the orphans’ court did not err in granting 

the Charities’ motion for summary judgment and in denying Niece’s 

opposing motion.

Order affirmed.

Judge Mundy and Justice Fitzgerald Concur in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2016
1 

( 1 

\__ __ / 

which the Petitioner was ordered to and did ftle an Accounting of her administration as agent 

for the Decedent under a Durable Power of Attorney, both the Petitioner and RespondentCharltles flied Motions for Summary Judgment and Responses. Both the Respondent-Scrivener 

and the Office of the Attorney General joined the Motion and Response flied by the 

Respondent-Charities. 

·-------------··--••-••-••••••••,.•----••••-••-•·----··-H---·----···----~----~-u••-•H•-••--·•-•n•••-··--••-•••-••-··••••••••'"••H••--•--• 

·----w13;Ariswers-·with··-NeW-l'v'fatters were fllecr·oy"lne··Responaent-ch-arlt1es;--1he-'Re·s1lcmdent:::- 

scrivener and the Office of the Attorney General. After a protracted period of discovery during 

residuary beneficiaries In the probated Wiii, and by John Potts, Esquire (herelnafter-referredto _ 

as Respondent-Scrivener), whom the Petitioner accused of undue Influence and fraud. In 

addition, the Office of the Attorney General, as parens patrlae, joined the Preliminary 

Objections filed by the Respondent-Charities. 

On October 25, 2013, the Prellmlnary Objections were denied and, In November of 

This matter came before the Court on a Petition for Citation Sur· Appeal From the 

Decision of the Register of Wills to Admit Wlll to Probate flied by Samantha Weston 

(hereinafter referred to as Petitioner) on June 17, 2013. On June 18, 2013, this Court received a 

certified copy of the Register of Wills file. 

In response to the Petition, Prellmlnary Objections were flied by The New York Publlc 

library, Astor, Lenox and Tilden Foundations, The Sierra Club Foundation and The Salvation 

Army of New York City (hereinafter referred to as Respondent-Charities), who were named the 

OPINION 

Estate of Clara Flatow, deceased No. 677 of 2011 

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

ORPHANS' COURT DIVISION 

Filed 05/20/2015 Superior Court Eastern District 

1248 EDA 2015 

Received 05/20/2015 Circulated 06/30/2016 10:14 AM Superior Court Eastern District 
2 

( i '-. _ _./ 

1 Throughout the entire process of the will contest and at the time of the oral arguments on the Motions for 

Summary Judgment the Petitioner resided In Colorado. 

discretion as to how to distribute the estate property. 

· ··-·· --·-······-··· ---------inlu(yoriorr;tfiePetfflon er contacted lfieRespon dent .:Scrlvene r a na "stated ·rnarttfe- --------------- --- 

Decedent wanted to make some changes to her wlll so a meeting of the Respondent-Scrivener 

the Petitioner, and the Decedent was scheduled. At that meeting, the Petitioner provided the 

Respondent-Scrivener with a two-page document which outllned the changes that were to be 

made to the Decedent's will. Upon review of the proposed changes the Respondent-Scrivener 

Clara Flatow (hereinafter referred to as Decedent) died on September 20, 2012 at the 

age of 99. The Decedent's husband died In 1976 and the Decedent never had any children. 

However, the Decedent had a brother who had three (3) chlldren one of whom is the Petitioner 

which makes the Petitioner the niece of the Decedent. The Petitioner and the Decedent did not 

have much of a relatlonshlp untll 2006 because the Petitioner lived ln Colorado1 and the 

Decedent lived most of her life In New York City and her final decades In Pennsylvania during 

which time she resided at Dunwoody VIiiage. In 2006, the Petitioner became Involved In the 

Decedent's life when, after the Decedent's sister died In 2005, the Decedent had no family In 

Pennsylvanla. In August 2010, the Decedent executed a Durable Power of Attorney which 

named the Petitioner her agent. 

Prior to her death, the Decedent executed at least seven (7) wllls. The first of those wllls (~) 

________________ was e_re_p~red __ by Pe_pper _H_amllton, LLP and was executed by the _Decedent on May 24~ 1999. _ 

The provisions of that will distributed the residue of the Decedent's estate, the vast majority of 

her estate, to charities. The next four (4) wills were all prepared by the Respondent-Scrivener 

and were executed by the Decedent In May 2004, December 2005, December 2007, and June 

2011. In each of those wills, the majority of the estate was to be distributed to charities 

------1"-truhrY'l - .otfgh=the=:residtHtt..y=cla.ttSt=an€t.=the=R-esponde~et:iv.en-el=Wa5=t'lame.Ei:::eMe.eutef.:=With:::a.Ho_-. -- .. -.---------.. ---- .. - - 

On January 16, 2015, oral argument was held on the Motions for Summary Judgment. 

For the reasons set forth below, this Court grants the Motion for Summary Judgment filed by 

the Respondent-Charities and denies the Motion for Summary Judgment filed by the Petltloner. 

I. FACTS 
3 

--····-· -··-··-··-·-regarding--the-allegatl0ns-made-in-the-repor-trthe.-Decedent'--s-relatlonshlp-wlth-the-.Petitloner, ··--···-·-- . 

•• To••... -•·•·-·• 0 0 -•• .... oO -·-•• 00 _d .. h..,_,.000 _...... •• .......... ... _, ......... 

Decedent on September 12, 2011 at which time Ms. Allen asked the Decedent questions 

(__) 

and the Decedent's wishes for her estate. Ms. Allen reported that the Decedent wanted more 

time to consider what she wanted to do with her estate so Ms. Allen and the Decedent 

arranged for Ms. Allen to meet with the Decedent again on September 21, 2011. From 

September 12, 2011 to September 21, 2011, neither Mr. Potts nor anyone from COSA (including 

Ms. Allen) contacted the Decedent but the Petitioner was still able to contact the Decedent 

during that time and, In fact, dld contact her via telephone during that time. As arranged, Ms. 

expressed his concerns that the Decedent may have been the victim of financial exploitation 

particularly with respect to her will and estate plan. 

A COSA primary care manager, Jamilla Allen, opened an Investigation on September 8, 

2011 to determine if the Decedent had been financially exploited. Ms. Allen first met with the 

After consulting with these attorneys, the Respondent-Scrivener contacted the County Office of 

·-··-·-·-···-··- .. ·---------·---·--··------------------------_,._----·--------------·-- 

Services for the Aging (hereinafter referred to as COSA) In September 2011 and, again, 

Informed the Petitioner that he would need to meet Independently with the Decedent to 

review the proposed changes with her before modifying the Decedent's will. 

After that meeting and Instead of allowing the Respondent-Scrivener to meet with the 

Decedent independently, the Petitioner contacted Edward Glickman, Esquire to prepare a new 

will for the Decedent. Mr. Glickman met with the Petitioner and the Decedent as a group and 

with the Decedent individually. Mr. Glickman prepared a new will and the Decedent executed 

that will on August 18, 2011. That will incorporated the proposed changes and distributed the 

residue of the Decedent's estate, the majority of her estate, into a trust for the benefit of the 

Petitioner. It also provided that the Petitioner's husband would be the executor of the estate 

and the trustee of the trust with absolute discretion to make principal distributions from the 

trust for expenses Incurred by the Petitioner on behalf of herself and her heirs. 

The Respondent-Scrivener learned of this new August 18, 2011 will when he received a 

fax from Mr. Glickman. In response, the Respondent-Scrivener consulted with three (3) 

attorneys who were all well-respected In their fields - professional responsibility and estate 

planning - and expressed his concerns that the Decedent may have been financially exploited. 
4 

Fraud is a trick, artifice or management which induces a person to dispose of her 

property or to do some act contrary to her wishes, or In such a way as she would not do but for 

the fraud. See Markantone Will, 16 Flduc. Rep. 2d 134 (O.C. Allegh. 1996). In order to prove ( ) 

\_; 

entered In favor of the moving party. Pa.R.C.P. 1035.3. 

B. THE PETITIONER HAS FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT THAT THE 

SEPTEMBER 22, 2011 WILL WAS OBTAINED BY FRAUD 

appropriate when there Is no genuine Issue of material fact as to a necessary element of the 

cause of action and the moving party Is entitled to relief as a matter of law. Pa.R.C.P. 1035.2(1). 

When conslderlng a motion for summary Judgment, the Court views the record in the light most 

favorable to the nonmoving party, and accepts as true all well-pleaded allegations, giving that 

··-···························-···par.t1t.J:h.L.boodlt oLallr~ble ~.thatcan be dra\•.'ILB'..Q!l'l_ those .all@Batlons. _, . 

Kostenbader, 23 Flduc.Rep.2d 39. However, If the nonmovlng party fails to set forth specific 

·· ···· · .. ·· tactsthstd emonstrate···a··genul n·e 1ssue···otmate·r1a1 ·tact··tor ·trl al;···summ-arrJud gmenr ·shaU··be····· 

.. 

A. SUMMARY JUDGMENT STANDARD 

Orphans' Court may properly consider motions for summary Judgment. In re Estate of 

Kostenbader. 23 Flduc.Rep.2d 39 (Monr. Co. 2002}; Pa.O.C.Rule 3.1. Summary Judgment Is 

II. DISCUSSION 

Allen met with the Decedent on September 21, 2011 and again asked the Decedent her wishes 

for her estate. 

As a result of that meeting, Mr. Potts, his law partner, Stephen Potts, and his assistant, 

Ellen Clinton, met with the Decedent on September 22, 2011 and prepared a will which 

reflected the Decedent's earlier wllls and named the Respondent-Charities reslduary 

beneficiaries. Mr. Potts discussed the key terms and read the document to the Decedent after 

which the Decedent executed the wlll. The September 22, 2011 Will named the RespondentCharltles residuary beneficiaries receiving the majority of the Decedent's estate, gave a specific 

bequest of $50,000.00 to the Petitioner, and named Mr. Potts executor but gave Mr. Potts 

neither a specific bequest nor any discretion as to how the estate was to be distributed. 

· COSA closed Its investigation on October 7, 2011 and on September 26, 2012, six (6} 

days after the Decedent's death, the September 22, 2011 Will was admitted to probate. 
(_) 

5 

a different attorney to draft the wlll after the Respondent-Scrivener, the Decedent's long-time 

estate attorney, insisted on meeting the with Decedent alone to review the proposed changes. 

Even accepting, for purposes of summary judgment review, that the Decedent believed 

the statement that the Petitioner was fl nan cl ally exploiting her, there Is no evidence that the 

Decedent would not have made the same bequests had she known the. truth. The record 

reveals just the opposite. The Decedent executed six (6) wills prior to the Will at Issue - the 

.... ········ ···· ···· ·· ·····drastically-inconsistent-with-the Decedent's prlorwllls and· the factthat-the Petltlonerobtatned · ··· · ·· ···· ··· ··· ··· ··· ···· 

('-· ...) . 

4- - .. ~.......... .,., ...._.... .. ... _, _. ... _, .,..,_ - 

reasonably reported his concerns to COSA based on the fact that the August 18, 2011 Wiii was 

fraud, the contestant of a probated will must show by clear and convincing evidence that the 

(1) decedent had no knowledge of the concealed or misstated fact, and (2) the decedent would 

not have made the same bequest had she known the truth, Estate of Paul, 407 Pa. 30 (1962); 

Cressman Estate, 346 Pa. 400 (Pa. 1943). In Paul, the testatrlx's attorney and scrivener of her 

will received 84 shares of a corporation which amounted to 33% of the testatrlx's gross estate. 

The other beneficiaries under the will challenged the bequest on the basis of fraud alleging that 

the scrivener had misrepresented to the testatrix that the shares were worth $50.00 each when 

they were really worth $800.00 each. The challengers contended that the testatrlx relied on 

this misrepresentation and bequeathed the shares to the scrivener never Intending to 

bequeath him such a large percentage of her estate. The Court found no fraud because the 

record made It clear that the testatrix had Intended for the scrivener to be a beneficiary and 

that the testatrix was an Intelligent business woman who would have known that the value of 

the shares was much more than $50.00. Therefore, the Court found that neither element of 

fraud had been met. 

In the present matter, fraud was addressed only tangentially at the oral argument on 

the summary judgment motions. Nevertheless, the Petitioner argues that the RespondentScrivener, in his report to COSA, misstated that the Petitioner had exploited and/or Influenced 

the Decedent into changing the Decedent's will. This accusation Is not borne out In the record. 

There is no evidence that the Respondent-Scrivener intentionally misstated any facts. 

The record reveals that it was Ms. Allen, on behalf of COSA, who told the Decedent that there 

was a report that the Petitioner was flnanclally exploiting her. The Respondent-Scrivener 
( ) '-~ .... ·' 

6 

operate as a present restraint upon him In the making of a wlll." In re Ziel's Estate, 467 Pa. 531 

(Pa. 1976). A contestant to a will which has been formally probated can either attempt to meet 

the burden directly by producing clear and convincing evidence of a situation and/or incident 

which meets the definition of undue influence or a contestant may attempt to shift the burden 

to the proponents by showing clear and convincing evidence 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. Clark. 

-··- o-r mlsrepresentatlons;···a·r- circumvention: or inordfnate flattery or pnysfcaformoral coercion, 

[t]o such a degree as to prejudice the mind of the testator, to [d]estroy his free agency and to 

Undue influence Is defined as "lrnprlsonment of the body or mind ..• fraud, or threats, 

In the present matter, the September 22, 2011 Wiii was admitted to probate by the 

Register of Wiiis of Delaware County on September 26, 2012. As such, there Is a presumption 

of a lack of undue Influence and the Petitioner, as the contestant of the September 22, 2011 

Will, has the burden of proving undue Influence. The Petitioner must raise at least one genuine 

issue of material fact as to that allegation. 

D, THE PETITIONER HAS FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT 

AS TO DIRECT UNDUE INFLUENCE 

C. THE BURDEN TO PROVE UNDUE INFLUENCE WAS ON THE PETITIONER 

Once the proponent of a will presents evidence of a formally probated will, a 

presumption of lack of undue Influence arises and the burden of producing evidence to support 

an allegatlon of undue Influence shifts to the contestant of the will. Estate of Clark. 461 Pa. 52 

(1975). 

September 22, 2011 Wiii. Five (5) of those (6) wills were vlrtually Identical to the will at issue. 

In addition, the Petitioner continued to have telephone contact with the Decedent during this 

period of time and the Decedent continued to take the Petitioner's calls which belles the 

allegation of animosity created by the COSA primary care manager, Ms. Allen. Indeed, after the 

Will was executed the Decedent continued to want to take the calls of the Petitioner who, by 

the way, as a result of all the phone calls, never raised a concern about the Decedent being in a 

profoundly weakened state. Thus, there Is evidence that the Decedent would have made the 

same bequests. 
( ) , .•. / 

7 

well as Dunwoody VIiiage reports and the depositions Ms. Allen and the Respondent-Scrivener. 

·· · ·· · ·····This theory Is not-supported by-the-record despite the fact. that the record In this matter 

is vast and thorough because the parties were granted near unlimited discovery. Instead, a 

recitation of the record does not raise any genuine issue of materlal fact that there was 

"Imprisonment of the body or mind . . . fraud, or threats, or misrepresentations, or 

circumvention, or Inordinate flattery or physical or moral coercion, [t]o such a degree as to 

prejudice the mind of the testator, to [d]estroy [her] free agency and to operate as a present 

restraint upon [her) In the making of [the September 22, 2011 Wiii]" which Zlel's Estate, quoted 

C) 

c·-) 461 Pa. 52; In re Estate of Smallng, 80 A.3d 485 (Pa. Super. 2013). The burden of clear and 

convincing evidence means that mere suspicions, opinions or beliefs not founded on 

established facts are lnsufflcient to support a charge of undue Influence. lg. In addition, 

Pennsylvanla has found that financial benefit from compensation as executor Is de mlnimis. !.n 

re Peterman's Estate, 367 Pa. 302 (1951). 

In the present matter, the Petitioner strongly believes that there Is evidence of direct 

undue Influence sufficient to meet the deflnltlon quoted above. To support this argument, the 

Petitioner re lies on COSA's Investigation of the Decedent's situation based on the report of the 

Respondent-Scrivener. According to the Petitioner, the Respondent-Scrivener was appalled by 

the August 18, 2011 Wiii which was prepared by Edward Glickman, Esquire because It did not 

reflect the testamentary plan that the Respondent-Scrivener wanted In place for the Decedent. 

To correct this, the Petitioner argues, the Respondent-Scrivener reported to COSA, a 

government agency, how the Decedent was being exploited by the Petitioner In order to make 

COSA the Respondent-Scrivener's de facto agent. As his agent, the COSA primary care 

manager, Ms. Allen, under the auspices of the government agency, then reported the allegation 

that the Petitioner was financially exploltlng the Decedent to the Decedent who, in her 

weakened and elderly state, believed them without question. Once appropriately shocked by 

the actions of the Petitioner, as reported, the Decedent Immediately changed her wlll to rid It 

of the exploitatlon. The petitioner adamantly argues that, at that time, the Decedent was 

profoundly Impaired and thus more prone to Influence as evidenced by the report of the 

Petitioner's doctor, Or. Barry Rovner, who reviewed the medical records of the Decedent as 
8 

Conduct 1.14 which reads ln pertinent part: 

(a) When a client's capacity to make adequately considered decisions In connection with a 

representation ls diminished, whether because of minority, mental Impairment or for some other 

reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer 

relatlonshlp with the client. 

(b) When the lawyer reasonably believes that the client has diminished capacity, Is at risk of 

substantlal physical, financial or other harm unless action Is taken and cannot adequately act In 

the dlent's own Interest, the lawyer may take reasonably necessary protective action, Including 

consulting with Individuals or entitles that have the ability to take action to protect the client 

and, In appropriate cases, seeking the appointment of a guardian ad lltem, conservator or 

guardian. 

Pa. R.P.C. 1.14, Although the Respondent-Scrivener was convinced that the Decedent had testamentary capacity, 

the Respondent-Scrivener was aware of the Decedent's short-term memory deficits and reasonably believed that 

the Decedent was at risk of financial harm as a result. ( ) 

\ .. -· 

CJ 

(~) 

···- ·--2-rne recorclreflects thanhe Resporrdent~se1ve11er-was'"att1nnurscmnrttrPelfflsylvantrRule=oFProfesslonal 

Upon learn Ing of the August 18, 2011 Wiii, via fax from Mr. Glickman, the RespondentScrivener became concerned that the Petitioner may have exploited and/or Influenced the 

Decedent in some way. Cognizant of his role as the Decedent's attorney, the RespondentScrivener knew he possessed privileged Information about the Decedent and her affairs. To 

ensure that he did not act unethlcally,2 the Respondent-Scrivener consulted with three (3) 

attorneys. The Respondent-Scrivener first spoke to Bradley Rainer, Esquire who was wellrespected and accomplished In the field of professlonal responsibility. The RespondentScrivener then spoke with Mary Kenney, Esquire of the Pennsylvania Attorney General's Office 

and cited above, Informs us to be the standard for meeting the burden of proving undue 

Influence directly. Instead, the record reflects a carefully thought out course of action 

undertaken by the Respondent-Scrivener to understand the Decedent's testamentary wishes 

and to effectuate them without influencing the Decedent In any way. 

When the Petitioner Informed the Respondent-Scrivener that the Decedent wanted to 

change her will, he did not hesitate to meet with both the Petitioner and the Decedent. Once 

presented with the proposed changes, the Respondent-Scrivener reviewed them and 

appropriately Informed the Petitioner that he would need to meet with the Decedent alone to 

review the changes with her before actually drafting them. However, there was no follow-up 

meeting and the Petitioner, instead, hired Edward Glickman, Esquire to make the proposed 

changes. Mr. Glickman made those changes and the executed August 18, 2011 Wiii reflects 

them. 
l_) 

9 

agent, which this Court must do at this summary Judgment stage of the proceeding, It Is belled 

by the fact that, In the course of her Investigation, Ms. Allen noted that the Decedent wanted 

more time to consider what she wanted as her testamentary plan and Ms. Allen honored that 

desire by giving the Decedent nine (9) days with her own thoughts during which time neither 

the Respondent-Scrivener nor anyone from COSA contacted the Decedent. 

After that September 21, 2011 meeting, the Respondent-Scrivener drafted a will 

reflecting the Decedent's pre-August 18, 2011 wills. On September 22, 2011, the RespondentScrivener, accompanied by his law partner, Stephen Potts, Esquire, and his assistant, Ellen 

(_) 

(~) and, flnally, the Respondent~Scrivener spoke with Joseph lastowka, Esquire, a well-respected 

and accompllshed estate planning attorney who was also famillar with the ethics code. Based 

on his discussions with those three (3) attorneys, the Respondent-Scrivener reported his 

concerns to COSA - particularly the differences between the August 18, 2011 Wiii and all 

previous wills executed by the Decedent. Once the Respondent-Scrivener submitted his report 

to COSA, he removed himself from the situation and let COSA do their Job. As such, COSA was 

not acting as the Respondent-Scrivener's agent. Rather, COSA followed its normal course of 

action without any consultation with the Respondent-Scrivener. The Respondent-Scrivener 

purposely did not contact the Decedent directly and purposely did not interfere with COSA's 

Investigation in order to avoid Influencing the Decedent. 

After the report was filed, Ms. Allen, the COSA primary care manager, opened her 

Investigation on September 8, 2011 and met with the Decedent on September 12, 2011. At 

that meeting, Ms. Allen introduced herself, explained the purpose of her visit, and asked the 

Decedent what her wishes were for her estate. The Decedent requested more time to consider 

her wishes. Ms. Allen respected that request and Ms. Allen and the Decedent arranged for Ms. 

Allen to return on September 21, 2011. From September 12, 2011 to September 21, 2011, 

neither the Respondent-Scrivener nor anyone from COSA contacted the Decedent. On 

September 21, 2011, Ms. Allen met with the Decedent again. The Decedent recognized Ms. 

Allen and explained that she wanted the Respondent-Scrivener to prepare a new will which 

reflected the terms and provisions of the wills pre-dating the August 18, 2011 Will. Even If the 

. Petitlooer were. gJyen the benefit Qf ao lnfereoce. tbal .COS.A. w.a.s tbe B~sp9ndeol~?!,;rjyener'~ . 
3 It Is worth noting that, while the Petitioner attempted to prove undue Influence dlrectly, the Petitioner did not 

depose the two (2) people, other than Mr. Potts and the Decedent, who were actually In the room when the (___) 

September 221 2011 WUI was executed despite having the opportunity to do so. 

mind were not Imprisoned, she was not coerced, and her free agency was not destroyed. 

Instead, her free agency was encouraged and fostered to ensure that her testamentary plan 

was, In fact, hers and hers alone devoid of any third party influence. 

Accordingly, this Court finds the Petitioner has failed to raise any genuine Issue of 

material fact to support her argument of direct undue Influence upon the Decedent by the 

Respondent-Scrivener. 

10 

Clinton/ met with the Decedent who then executed the September 22, 2011 Wiii. At all times 

prior to the execution of the September 22, 2011 Will and after, the Petitioner had telephone 

access to the Decedent but did not visit the Decedent because the Petitioner chose to remain In 

Colorado. In fact, the record reflects that the Petitioner spoke with the Decedent on the phone 

at least ten (10} times between September 8, 2011 and September 22, 2011, including the 

morning of September 22, 2011 just before the September 22, 2011 Wiii was executed. 

Even if this Court were to accept as true the Petitioner's arguments that the Decedent 

was profoundly impaired when she executed the September 22, 2011 Wiii and that the 

Decedent was Intimidated by the Involvement of COSA as a government agency and, thus, 

more Inclined to believe Ms. Allen as their representative when she said that the Petitioner was 

financially explottlng the Decedent, the record as outl!ned above and presented to this Court at 

oral argument still does rise to the level of undue Influence. 

Despite ample, unfettered discovery and despite giving the Petitioner the benefit of all 

reasonable Inferences, there is nothing In the record that comes close to clear and convincing 

evidence of direct undue Influence as quoted above. Far from being Isolated or Imprisoned, the 

Decedent was residing in Dunwoody Village where nurses and aids were coming and going all 

the time. In addition, the Petitioner regularly contacted the Decedent via telephone and was 

able to physically visit the Decedent. Despite that access to and conversations with the 

Decedent, the Petitioner never questioned the Decedent's capacity. After the initial meeting 

with COSA, the Decedent had nine (9} days, which Is ample time for any intimidation felt as a 

. result of CO~f.\ .. beir,g Involved to dlssl_P,ate,. to c_e>n._sld~r. ~er wishes. The Dece_df:!r.i_t's. _bo_dy_ a_n_d 
11 

/. ' 

\ __ j 

··· ··· · (00)~drorfl1e tnlrd element, "Ts]u6sfantlal 6enefif,....lias nofoeen specifical1y cleflnecrby 

Pennsylvanla courts, and whether one receives a substantial benefit is determined on a caseby-case basis." In re Estate of Fritts, 906 A.2d 601 (Pa. Super. 2006). The most typical 

substantial benefit Is direct financial gain by the proponent but a substantial benefit can also be 

collateral. In re Button's Estate, 328 A.2d 480 (Pa. 1974); In re Estate of LeVln, 615 A.2d 38 at 

42 (Pa. Super. 1992). For Instance, a substantial collateral benefit exists "where a proponent 

holds the position of executor and trustee, has control over the entire estate and has a possible 

residuary Interest In the whole estate." In re Estate of LeVln, 615 A.2d 38 at 42 (Pa. Super. 

1992). In Button. the Supreme Court found a substantial collateral benefit sufficient to shift the 

Paolinl Wiii. 13 Fiduc. Rep. 2d 185, 187-88 (O.C. Montg. 1993) (quoting Heffner Wiii. 19 Flduc. 

Rep. 542, 546-47). For the second element, "a confldentlal relationship exists when the 

circumstances make It certain that the parties do not deal on equal terms, with one side 

exercising an over-mastering Influence over the other." In re King's Estate, 87 A.2d 469, 472 

( _) 

If direct undue Influence cannot be proven by clear and convincing evidence, the 

contestant of a wlll may still attempt to shift the burden to the proponent of a will to prove the 

lack of undue Influence. Clark. 461 Pa. 52; Smallng, 80 A.3d 485. In order to shift the burden to 

the proponent of a formally probated will, the contestant must show by clear and convincing 

evidence that (1) the testator suffered from a weakened Intellect; (2) the testator was In a 

confidential relatlonshlp with the proponent of the will; and (3) the proponent receives a 

substantlal benefit from the wlll In question. Id. For the first element, Pennsylvania courts 

have defined weakened Intellect as: 

[A] mind which, In all circumstances of a partlcular situation, Is inferior to normal 

minds In reasoning power, factual knowledge, freedom of thought and decision, 

and other characteristics of a fully competent mentality. It should be viewed 

essentlally as a relative state as the term Is applied to cases of undue Influence, 

as these always Involve the effect of one Intellect upon another; If the Intellect Is 

substantially Impaired in comparison to that of the proponent or beneficiary It 

must be regarded as weakened since there could be no equal dealings between 

the two parties. 

E. THE PETITIONER HAS FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT (, '. SUFFICIENT TO CONSIDER THE UNDUE INFLUENCE THREE PART BURDEN SHIFTING \ J 

TEST AT TRIAL 
4 This Is merely for the sake of argument and analysis and In no way reflects a conclusion of law reached by this 

Court. This Court chooses not to analyie the element of weakened Intellect or confidential relatlonshlp because ( ) 

the record Is completely devoid of evidence of a substantial benefit to the Respondent-Scrivener. \. _ _/ 

12 

no discretion as to how the estate is distributed and makes no bequest to the RespondentScrivener. That being the case, there is not even a substantial collateral benefit let alone a 

substantial benefit. Unlike LeVin, the Respondent-Scrivener does not receive significant, 

ongoing compensation for his role as executor and the Respondent-Scrivener does not have any 

discretion In distributing the estate. Unlike Button, the Respondent-Scrivener has no 

C) 

burden because the proponents' children received practically the entire probate estate. In 

LeVln, the court found that a substantial collateral benefit existed sufficient enough to shift the 

burden to the proponent of a contested will because the proponent was appointed 

testamentary trustee with extensive powers over the distribution of the remainder of the 

testator's $1.5 million estate and with significant compensation. 

In the Instant matter, the Petitioner has both filed a motion for summary judgment and 

had a motion for summary Judgment flied against her to which she filed a response. For 

purposes of this section, this Court will consider the Petitioner to be the nonmoving party so 

that she may receive the benefit of any and all reasonable Inferences. In that light, it is possible 

to infer that the first two (2) elements, weakened intellect and confidential relationship, of the 

three-part burden shifting test have been met4 for purposes of analyzing the Motion for 

Summary Judgment. Nevertheless, even proceeding as If the first two elements are met, the 

Petitioner has failed to raise a genuine Issue of material fact that there Is clear and convincing 

evidence of a substantial benefit to the Respondent-Scrivener. 

The Petitioner argues the Respondent-Scrivener received a substantial benefit because 

he was strongly motivated to have the Decedent execute a will which reflected his, not the 

Decedent's, preferred testamentary plan. There Is no case law to support this argument that 

motivation to modify a will equals a substantial benefit. Rather, the case law demonstrates 

that a substantial benefit is what motivates one to change a will. Motivation In and of Itself is 

not a substantial benefit but, rather, a substantial benefit produces motivation to change a will. 

The September 22, 2011 Will names the Respondent-Scrivener executor but grants him 

. ····· ... . . ... ·- 
( l \_j 

(~) 

13 

DATED: d ~ ~ - d,Q\ < BV THE COURT: 

There was extensive discovery In this matter and the only arguments offered by the 

Petitioner are that COSA, a government agency, acted as the Respondent-Scrivener's agent to 

directly unduly Influence and/or defraud the Decedent when she was profoundly impaired and 

that, at the very least, the evidence is sufficient to shift the burden to the proponent because 

the Respondent-Scrivener was highly motivated to have the Decedent execute a will which 

reflected his desired testamentary plan. However, based on the law cited, the record 

presented and the reasons set forth above, this Court finds that the Petitioner has failed to 

raise a genuine Issue of material fact sufficient to proceed to trial on the Issue of direct undue 

Influence or fraud and has falled to raise a genuine Issue of material fact as to the undue 

Influence three-part burden shifting test sufficient to allow this matter to proceed to trial. 

Accordingly, this Court enters the attached Final Decree which DENIES the Motion for 

Summary Judgment filed by the Petitioner and GRANTS the Motion for Summary Judgment 

filed by the Respondent-Charities and Joined by the Respondent-Scrivener and the Office of the 

Attorney General. 

Ill, CONCLUSION 

relationship wlth the primary beneficiaries similar to the parent-child relationship In Button 

which would motivate him to ensure that those beneficiaries receive the majority of the estate. 

Accordingly, this Court finds that the Petitioner has failed to raise a genuine issue of 

material fact that there ls clear and convincing evidence of a substantial benefit. Because 

evidence of the element of substantial benefit Is so completely absent, this Court finds It 

unnecessary to discuss the elements of weakened Intellect and confidential relationship. 

• .:··==:x,... ~ .. ~ , m,~ M """ """" "~""""""'H' -""""'~ "' H"'""' , ,-,, ~ - .. ,-, "" • 
(_J 

14 

· :::i U JI ocuments a·r·e· ·p··-a.. t··· ra·· ··~·;n.;.. ·e·r··· eco"r··:;:J·.·- .... · .... 

l. I It U .. _. .. _ .. . _ .. · -......... . ·........... .. .. __, ... 

o I 

I 

! 

Summary Judgment, the Responses thereto, and oral argument thereon, it is 

hereby ORDERED and DECREED that the Motion for Summary Judgment filed by 

the Petitioner, Samantha Weston, is DENIED and the Motion for Summary 

FINAL DECREE 

( ,~ . 

AND NOW, this lO' day of February, 2015, based upon the Motions for 

Estate of Clara Flatow No. 677 of 2011 

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

ORPHAN'S COURT DIVISION 

' Judgment filed by the Respondents, the New York Public Library, Astor, Lenox and 

Tilden Foundations, The Sierra Club Foundation and The Salvation Army of New 

York City, and joined by John Potts, Esquire and the Office of the Attorney General (_) 

is GRANTED. 

It is further ORDERED that all discovery produced in this matter shall be 

made part of the record and marked as discovery documents. The parties to this 

proceeding shall review the Orphans' Court to ensure that all discovery