J-A14026-20

2020 PA Super 299

IN RE: ESTATE OF CALEEM L.

JABBOUR, DECEASED

APPEAL OF: MAURA NICOTRA, CO- EXECUTRIX

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1275 WDA 2019

Appeal from the Order Entered July 24, 2019

In the Court of Common Pleas of Allegheny County Orphans' Court at

No(s): 02-15-01692

BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

OPINION BY McLAUGHLIN, J.: FILED DECEMBER 30, 2020

Maura Nicotra (“Maura”) appeals from the order granting the petition of

Arlene Jabbour (“Arlene”) to revoke her election to take against the will, and

granting in part and denying in part Maura’s petitions to compel Arlene to

return assets to the estate. We affirm.

Decedent married Arlene in 1995; each had three children from prior

marriages. Maura is one of Decedent’s children. In anticipation of the

marriage, Decedent and Arlene entered into a nuptial agreement that set forth

their assets, waived interest in each other’s pensions, and allocated $150,0001

for Decedent’s children. This sum could be reduced if funds were needed to

cover Decedent’s institutional care. See In re Estate of Jabbour, No. 1952

WDA 2016, unpublished memorandum at 2 (Pa.Super. filed July 17, 2018).

Decedent and Arlene executed a Joint and Mutual Will on November 25, 1998. ____________________________________________

1 Decedent and Arlene executed an addendum in 2007, increasing the sum

designated for Decedent’s children to $200,000.
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“During his lifetime, the Decedent, who was a Certified Public Accountant,

operated an accounting business out of his home. The business was entitled,

‘C.L. Jabbour, P.A.’ He had a stroke in early August 2014 and was hospitalized

for approximately thirty (30) days.” Orphans’ Court Opinion, filed July 25,

2019, at 1.

After his hospitalization, Decedent, with the advice of his attorney,

executed a power of attorney naming Arlene as his attorney-in-fact. Acting

within the scope of the power of attorney, Arlene closed a savings account

that had been in Decedent’s name (and designated as an “in trust for” account

for Maura). Arlene then transferred the money into an existing account in her

own name and added Decedent to that account. Arlene used funds from that

account to purchase a stair lift, a bed, a refrigerator, and a hot water tank,

and to pay doctor co-pays. See Estate of Jabbour, No. 1952 WDA 2016, at

*4-5. “Having never fully recovered from the stroke, the Decedent died testate

on December 22, 2014. His Will, dated November 25, 1998, was admitted to

probate and Letters Testamentary were issued to the Co-Executrices, Maura

Nicotra and Terri L. Vargo, on April 16, 2015.” Orphans’ Ct. Op., at 1.

On July 18, 2015, Arlene filed an election to take against the Decedent’s

will. She later testified that she filed the election “out of an abundance of

caution because she did not have sufficient information about the Decedent’s

non-probate assets, as her [h]usband was very secretive about his finances.”

Id. at 2 (record citations omitted).
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On December 29, 2015, Maura filed a petition for citation challenging

Arlene’s use of the power of attorney, and requesting that Arlene return to the

estate $106,209.83, the full balance of the account before Arlene transferred

the money into her own account. The orphans’ court denied the motion and

placed the funds remaining in Decedent’s account in the estate. Maura

appealed and this Court affirmed, stating, “Decedent authorized the closing of

the account and transfer of funds or ratified Arlene’s use of the [power of

attorney] for that purpose.” See Estate of Jabbour, No. 1952 WDA 2016, at *17.

Upon return to orphans’ court, on January 15, 2019, Arlene filed a

petition for revocation of her spousal election. On June 6, 2019, the court held

a hearing on the petition to revoke, as well as Maura’s petition for Arlene to

return funds to the estate and for distribution of assets.

On July 24, 2019, the orphans’ court entered an order granting Arlene’s

petition to revoke the spousal election. It also ordered her to return to the

estate funds withdrawn from an account that the court found was solely in

Decedent’s name, and after reimbursing Arlene for funeral expenses, ordered

distribution of funds in the escrow account. This timely appeal followed.

Maura raises the following questions on appeal:

1. Should Arlene have been permitted to revoke her spousal

election against will when she did not demonstrate fraud and the

petition was filed 3 years and 6 months after the statutory

deadline?

2. Should Arlene have been permitted to revoke her spousal

election against will given she had full knowledge of essential
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facts, including the full value of every non-probate asset passing

to other persons?

3. Are Decedent’s children entitled to inherit the funds remaining

from Decedent’s liquid investments based on the plain,

unambiguous language of the joint will and various nuptial

agreements?

4. Should the orphans’ court have ordered the reimbursement of

expenses to Arlene without a hearing when there was no pending

petition for reimbursement of those expenses, the record

contained no evidence in admissible form as to those expenses

and the court said it would schedule a hearing but did not do so?

Maura’s Br. at 6 (unnecessary capitalization omitted).

Our standard of review is well settled.

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. Where the rules of law on which

the court relied are palpably wrong or clearly inapplicable, we will

reverse the court’s decree.

In re Estate of Fuller, 87 A.3d 330, 333 (Pa.Super. 2014) (quoting In re

Estate of Hooper, 80 A.3d 815, 818 (Pa.Super. 2013)) (some capitalization

omitted). In her first two issues, Maura contends that the orphans’ court erred

when it found that Arlene was entitled to revoke the spousal election to take

against Decedent’s will. Maura argues that there is a “statutory deadline”

applicable to revoking a spousal election. Maura’s Br. at 23. She claims that

because Arlene’s petition to revoke was not timely, Arlene bore the burden of

proving that she was a victim of fraud and failed to carry that burden.
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Alternatively, Maura asserts that Arlene could not revoke the spousal election

because she made it with full knowledge of the facts of the estate. We

disagree.

Pursuant to Pennsylvania law, a surviving spouse has a right to an

elective share of one-third of certain property of the deceased, as set forth in

20 Pa.C.S.A. § 2203(a)(1)-(6). The statute provides a procedure for a

surviving spouse to elect whether or not to take this elective share.

Procedure for election; time limit

(a) How election made.—A surviving spouse’s election to take

or not to take his elective share shall be by a writing signed by

him and filed with the clerk of the orphans’ court division of the

county where the decedent died domiciled. Notice of the election

shall be given to the decedent’s personal representative, if any.

(b) Time limit.—The election must be filed with the clerk before

the expiration of six months after the decedent’s death or before

the expiration of six months after the date of probate, whichever

is later. The court may extend the time for election for such period

and upon such terms and conditions as the court shall deem

proper under the circumstances on application of the surviving

spouse filed with the clerk within the foregoing time limit. Failure

to file an election in the manner and within the time limit set forth

in this section shall be deemed a waiver of the right of election.

20 Pa.C.S.A. § 2210(a)-(b).

Despite Maura’s repeated references to a “statutory deadline,” no

statute sets forth a deadline for revocation of a spousal election. Rather,

Maura relies on case law—In re Daub’s Estate, 157 A. 908 (Pa. 1931)—in

support of her argument that a spousal election must be revoked within a

“statutory” period. There, the Pennsylvania Supreme Court held that a

surviving widow could not revoke her election to take under the will and
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instead opt to take a forced share. The widow contended that the executor’s

statements about the extent of her late husband’s estate were inaccurate. The

Court stated that under its cases, a surviving spouse ordinarily must petition

to revoke an election within the statutory period for taking the election, except

“where actual fraud has been committed to obtain the widow’s election, and

no laches appears . . . .” Daub’s Estate, 157 A. at 911.

The Court rejected the orphans’ court’s conclusion that the executor had

failed to disclose full information to the widow such that her election was the

product of “constructive fraud,” and “laches should not be attributed to her .

. . .” Id. at 910. The Court acknowledged that a surviving spouse is entitled

to full information about the deceased’s estate before having to make a

binding election, but stated that that rule did not control. The Court explained

that the widow had not been on friendly terms with the executor during the

statutory period and for long after, such that she was under “no stress to act

as she did.” Id. at 911. The Court concluded that because the widow had

delayed seeking to revoke her election for more than five years, “during which

important evidence was lost by death,” laches barred her from obtaining relief.

Id.

As the Court acknowledged in Daub’s Estate, the Court has established

a rule that the period for revoking an election is tolled until the spouse knows

all relevant information. The Court has explained:

If an election is made with full knowledge of all essential facts, it

cannot be withdrawn. But, no intervening rights appearing, the

expression of intent once may be retracted upon discovery of the
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true situation. If action has been taken by the wife or husband in

ignorance of the value of the estate, or of the rights which would

accrue under the provisions of the will as compared with the

interests given by the intestate laws, then the first election may

be set aside, and the distribution be made in the way provided by

law.

. . . The authorities are clear that nothing less than unequivocal

acts will prove an election, and they must be done with a

knowledge of the party’s rights, as well as of the circumstances of

the case. Nothing less than an act intelligently done will be

sufficient. She should know, and, if she does not, she should be

informed, of the relative values of the properties between which

she was empowered to choose; in other words, her election must

be made with a full knowledge of the facts.

In re McCutcheon’s Estate, 128 A. 843, 845 (Pa. 1925) (citations omitted).2

The two rules are easily harmonized. A surviving spouse may revoke an

election to take under the will within the statutory period in which the spouse

must ordinarily make such an election, unless there is fraud “and no laches

appears.” Daub’s Estate, 157 A. at 911. However, that time does not begin

to run until the spouse has “full knowledge of all essential facts.”

McCutcheon’s Estate, 128 A. at 845.

Instantly, the orphans’ court found that Arlene testified credibly that she

filed the election in an “abundance of caution because she did not have

sufficient information about the Decedent’s non-probate assets, as her

Husband was very secretive about his finances and she had no knowledge

about his finances.” Orphans’ Ct. Op., at 2. The court also found that Arlene

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2 See also Daub’s Estate, 157 A. at 910 (“[A] widow is entitled to full

information regarding her deceased husband’s estate before she can be called

upon to make her election. . . .”); Appeal of Kreiser, 69 Pa. 194, 200 (1871)

(“To bind the widow she must have full knowledge of the facts”).
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was “entitled to revoke the [e]lection, now that she has full knowledge of the

extent of the Decedent’s estate.” Id.

The orphans’ court did not abuse its discretion when it allowed Arlene

to revoke her spousal election. The record supports the court’s finding that

Arlene did not have full knowledge of the essential facts when she made her

spousal election. In the absence of such knowledge, she could not have

balanced the alternative options intelligently. See McCutcheon’s Estate, 128

A. at 845. Further, while the time between her initial taking of the election

and her petition to revoke it was not short, the court did not find that the

delay resulted in prejudice to others such that the court should have denied

equitable relief. We likewise perceive no such prejudice.

Maura’s citation to the Court’s statement in Daub’s Estate, and her

assertion that the tolling principle of McCutcheon’s Estate does not apply, are thus wide of the mark. The Court in Daub’s Estate was not stating that

the tolling principle does not apply unless there was actual fraud. Rather, the

Court held that the tolling principle was not controlling because, under the

facts of that case, the widow’s long delay resulted in the loss of important

evidence such that others were prejudiced. As we have explained, no such

prejudice exists here. Hence, here, the orphans’ court was well within its

discretion when it found that Arlene was entitled to revoke the election now

that she has full knowledge of the estate. Maura’s first two issues are

meritless.
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In her third issue, Maura claims that the orphans’ court erred when it

did not direct the distribution of escrowed funds to Decedent’s children. Her

argument centers on an account that contained approximately $106,000. The

account was the subject of an earlier appeal in which this Court held that

Arlene acted within her authority as attorney-in-fact for Decedent when she

closed the account and transferred the money into an existing account in her

name, to which she later added Decedent. See Estate of Jabbour, No. 1952

WDA 2016, at *4-5. Presently Maura claims that the court erred when it did

not direct distribution of the remaining funds from the account to Decedent’s

children in accordance with Decedent’s joint will and nuptial agreements. See

Maura’s Br. at 37-38.

Upon review, it appears that the orphans’ court found that Arlene was

entitled to reimbursement from that account of $22,136.47 ($7,622.22 for

Decedent’s care and $14,514.25 for funeral expenses). The court then

directed Arlene to transfer the balance of the funds in that account to the

estate account. See Orphans’ Ct. Op., at 3. Although the court rejected

Arlene’s argument that she was entitled to the funds because they were in a

joint account, the court did not rule on Maura’s claim that she is entitled to

the funds based on Decedent’s joint will and nuptial agreements. See id. at

3-4. Accordingly, this issue is not ripe for our review and we express no

opinion whether Maura is entitled to relief in this regard.

Finally, in her fourth issue, Maura claims that the orphans’ court erred

when it found that Arlene was entitled to reimbursement for $22,136.47, for
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funds spent on Decedent’s care and funeral expenses. She claims that Arlene

never properly filed a petition seeking such funds and did not substantiate her

claim for reimbursement, such that the court abused its discretion when it

granted her reimbursement. See Maura’s Br. at 49-50

According to documents in the certified record, after the evidentiary

portion of the June 6, 2019 hearing, the court asked the parties about Maura’s

petition for partial distribution of the escrow account. Counsel for Arlene

responded that Arlene should be reimbursed from the escrow account for

$7,622.22, which she spent on the Decedent’s care, as well as for funeral bills.

See N.T. Hearing, 6/06/19, at 148. The parties stipulated to the admission of

exhibits, and the court allowed counsel for Arlene to submit the exhibits after

the hearing, without objection. See id. at 69, 155-56. The court asked the

parties to file proposed findings of fact and conclusions of law, and they did

so. Thereafter, on July 24, 2019, the orphans’ court issued its opinion and

order in which it found that Arlene was to be reimbursed for Decedent’s care

and funeral expenses, citing the exhibits submitted following the hearing.

Unfortunately, the exhibits on which the orphans’ court relied in allowing

reimbursement are not in the record certified to this Court on appeal. Ensuring

that the certified record contains everything this Court needs to resolve the

appeal was Maura’s responsibility as the appellant. See Commonwealth v.

Bongiorno, 905 A.2d 998, 1000-01 (Pa.Super. 2006) (en banc) (“Our law is

unequivocal that the responsibility rests upon the appellant to ensure that the

record certified on appeal is complete in the sense that it contains all of the
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materials necessary for the reviewing court to perform its duty”). In the

absence of the exhibits, we cannot determine that the orphans’ court abused

its discretion when it ordered the reimbursement. Therefore, Maura has

waived this issue. See Commonwealth v. Holston, 211 A.3d 1264, 1277

(Pa.Super. 2019) (en banc) (finding waiver where absence of necessary

documents from certified record hindered appellate review). Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2020