J-S48002-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

IN THE ESTATE OF: RICHARD C. 

SWENSON 

: 

: 

IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

: 

: 

: 

APPEAL OF: LORA SWENSON AND 

RENEE SWENSON-CAMPBELL 

: 

: No. 2289 MDA 2013 

Appeal from the Order entered December 4, 2013, 

Court of Common Pleas, Bradford County, 

Orphans’ Court at No. 0813-0171 

BEFORE: DONOHUE, JENKINS and PLATT*, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED AUGUST 01, 2014 

 Lora Swenson and Renee Swenson-Campbell (“Appellants”) appeal 

from the order of court striking their appeal from the admission of Richard 

Swenson’s will to probate. Following our review, we affirm.

 The trial court summarized the relevant factual and procedural history 

of this case as follows: 

 Decedent, Richard Swenson, succumbed to 

illness on April 25, 2013. His Last Will and 

Testament dated June 10, 2009 was admitted into 

probate by decree of the Bradford County Register of 

Wills on May 11, 2013. Appellants filed an appeal to

the admittance of the Will claiming the Will was not a

valid instrument, and [that] they were entitled to his 

estate through intestacy laws. Appellants are the 

Decedent’s nieces. Appellants alleged [that] they 

believed and expected to be able to prove that 

Decedent was not of sound mind at the time of the 

execution of the Will, and that it was procured by 

undue influence, duress, constraint and fraud by the 

named Executor and residual beneficiary, Nancy 

Kitchin. The June 10, 2009 Will appoints Nancy 

Kitchin as executrix and the residual beneficiary. 
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On September 20, 2013, [Kitchin] filed a 

[m]otion to [s]trike the appeal arguing that 

Appellants lacked standing pursuant to Estate of 

Luongo, 823 A.2d 942 (2003 Pa.Super) [sic]. [It] 

further alleged that [Kitchin] had been a neighbor 

and a friend, as well as an employee to Mr. Swenson 

for over [21] years, and that she had been named as 

executrix in all three prior wills as well as a 

beneficiary. Attached to the [m]otion to [s]trike 

were copies of Decedent’s three prior wills dated 

April 11, 2008, February 6, 2009, and June 2, 2009. 

Appellants were not mentioned in these wills. 

[Kitchin] was appointed executrix and a beneficiary 

in all three prior wills. 

 Argument was heard on October 28, 2013. 

[The trial court] entered an order on December 4, 

2013, granting [Kitchin’s] [m]otion to [s]trike the 

[a]ppeal and decreed that the assets be turned over 

to her so she could distribute them as executrix 

accordingly. 

Trial Court Opinion, 2/10/14, at 1-2 (footnote omitted). 

 This timely appeal follows. Appellants present the sole issue on appeal 

as follows: “Do Appellants, as Richard C. Swenson’s next of kin, have 

standing to contest the validity of Richard C. Swenson’s June 10, 2009 [w]ill 

if they set forth grounds that Richard C. Swenson’s previous [w]ills were the 

product of undue influence?” Appellants’ Brief at 5. 

 We begin by acknowledging the following principles: 

On appeal from the Register of Wills' decree 

admitting a will to probate, the Orphans' court must 

consider the facts presented and ‘either dismiss the 

petition, grant an issue in case of a substantial 

dispute, or set aside the probate.’ Wagner's Estate, 

137 A. 616, 618 ([Pa.] 1927). With respect to this 
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Court's standard and scope of appellate review in will 

contests, the Orphans' court decision will not be 

reversed unless there has been an abuse of 

discretion or a fundamental error in applying the 

correct principles of law. In re Elias' Estate, 4 239 

A.2d 393 ([Pa.] 1968). See also In re Estate of 

Presutti, 783 A.2d 803 (Pa. Super. 2001). If the 

record supports the court's factual findings, we will 

defer to these findings and will not reverse absent an 

abuse of discretion. In re Estate of Blumenthal, 

812 A.2d 1279, 1286 (Pa. Super. 2002). We are not 

constrained, however, to give the same deference to 

the court's legal conclusions. Id.

In re Estate of Luongo, 823 A.2d 942, 951 (Pa. Super. 2003) (footnote 

omitted). 

 “As a general rule, a party must have standing to contest probate of a 

decedent's will. In will contests, the right to an appeal is statutory as is the 

designation of the parties on whom the right is conferred, and is defined at 

Section 908 of the Decedents, Estates and Fiduciaries Code.” Id. at 953 

(internal citation omitted). This statute provides that, 

[a]ny party in interest seeking to challenge the 

probate of a will or who is otherwise aggrieved 

by a decree of the register, or a fiduciary whose 

estate or trust is so aggrieved, may appeal 

therefrom to the court within one year of the decree:

Provided, That the executor designated in an 

instrument shall not by virtue of such designation be 

deemed a party in interest who may appeal from a 

decree refusing probate of it. The court, upon 

petition of a party in interest, may limit the time for 

appeal to three months. 
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20 Pa.C.S.A. §908 (emphasis added). In other words, “[a] contestant to the 

validity of a will does not have standing to do so unless he can prove he 

would be entitled to participate in the decedent's estate if the will before the 

court is ruled invalid.” Luongo, 823 A.2d at 954. (citing In re Ash's 

Estate, 41 A.2d 620 (Pa. 1945)). “To be aggrieved by the probate of a will, 

the contestant's share of the estate must be smaller because of probate or 

larger if probate is denied.” Id. Thus, “a will contestant's standing to appeal

from a decree of probate turns delicately on the specific facts and 

circumstances of the matter at hand.” Id. at 955. 

The facts in the present case establish that Appellants are Swenson’s 

nieces, but were not named in his June 2009 will. We encountered a similar 

situation in In re Estate of Briskman, 808 A.2d 928 (Pa. Super. 2002). In 

that case, the decedent left the entirety of her estate to a male friend in a 

will drafted in 1993 (the “1993 will”). The decedent’s niece challenged the 

will, arguing, inter alia, that it was the product of undue influence exerted by 

the decedent’s male friend, who was the sole beneficiary. Subsequently, a 

prior will (the “1984 will”) was discovered, in which the decedent made a 

few specific bequests (but none to the niece) and directed that the residue of 

her estate be held in a charitable trust. The 1984 will did not name the 

niece as a beneficiary, but only as a successor trustee, should the named 
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trustee, her attorney, be unable to serve.1

 Eventually, the trial court 

reversed the decision of the Register of Wills to admit the 1993 will to 

probate and vacated the letters testamentary that had been granted to the 

decedent’s friend and named executor. The executor appealed that decision 

to this Court. We did not reach the merits of the issues raised by the 

executor, however, as we concluded that the niece had lacked standing to 

challenge the probate of the decedent’s 1993 will. We framed the precise

issue before us as “whether an heir at law ... who is not a beneficiary, but is 

named successor trustee under a prior will is a ‘party in interest aggrieved 

by the decree of the register’ such that she has standing to appeal the 

decree[.]” Id. at 931 (emphasis in the original). We concluded that the 

niece was not aggrieved by probate of the 1993 will because she did not 

have an interest thereunder and that she would not have any interest under 

the 1984 will unless the decedent’s attorney were unable to serve as 

executor. Relevant to the case presently before us, we noted that the 

niece’s “interest as an intestate heir would arise only if both the 1993 and 

the 1984 wills were determined to be invalid.” Id. at 932. We then 

considered whether the possibility of an interest, which would arise only 

upon the invalidation of at least one prior will and the subsequent invocation 

 

1

 Although not germane to our discussion, we note that upon discovering 

this will, the niece filed a petition seeking to have it admitted to probate if 

the later will were set aside. 
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of the laws of intestacy, was sufficient to create standing to challenge the 

probate of a will: 

Although our research has not uncovered any 

appellate court decisions on this issue, we have 

found two Common Pleas Court cases which reach 

the opposite result; that is, in both cases, an heir at 

law, who was not named as a beneficiary in a prior 

will, was found to have standing to contest the 

validity of a later will ‘even though, at the moment, 

his coming into an intestate share may appear to be 

remote.’ Heffner Estate, 43 Pa.D. & C.2d 365, 369, 

1967 WL 5834 (1967). See also Holtz Estate, 30 

Pa.D. & C.2d 396, 1963 WL 6253 (1963). The trial 

court in Holtz Estate explained, 

If appellant, as an heir at law, were 

excluded as a party in interest, the court 

in this proceeding would be deciding that 

the prior testamentary document was 

admissible to probate. Such a 

determination cannot be made 

collaterally in this proceeding. It can only 

be made when the will in question is 

offered for probate. Only in the probate 

proceedings could the possible existence 

of later wills or the partial destruction or 

revocation of the will be authoritatively 

determined. Holtz Estate, supra at 

400. See also Heffner Estate, supra at 

367 (“If there were 10 invalid prior wills 

of decedent in existence, this, of itself, 

would not be a compelling reason for this 

court to foreclose contestant's efforts to 

prove that decedent died intestate.”).

However, if we were to follow this line of 

reasoning, then an heir at law would always be 

permitted to file an appeal from probate of a will in 

which the heir is not a named beneficiary. If the 

Legislature had intended that result, it could have 

specifically included ‘heirs at law’ among those 

permitted to appeal the decision of a Register in 
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[20 Pa.C.S.A.] § 908. It did not do so. Moreover, the 

statute was amended three times, in 1972, 1974, 

and 1976, since the Holtz and Heffner decisions. 

The clear and unambiguous language of the statute 

permits a party to appeal a Register's decision only if 

that party has an interest that has been aggrieved. 

We find that [the niece’s] contingent interest, either 

as a successor trustee under the 1984 will, or as an 

intestate heir at law if both wills are deemed invalid, 

is too remote to confer upon her an interest in the 

probate of the 1993 will. 

Moreover, even if we were to assume Appellee has a 

legitimate interest in the outcome of the will contest,

historically, that interest must be substantial, direct, 

and immediate to confer standing. In Re Francis 

Edward McGillick Foundation, 642 A.2d 467, 469 

([Pa.] 1994). 

A ‘substantial’ interest is an interest in 

the outcome of the litigation which 

surpasses the common interest of all 

citizens in procuring obedience to the 

law. A ‘direct’ interest requires a 

showing that the matter complained of 

caused harm to the party's interest. An 

‘immediate’ interest involves the nature 

of the causal connection between the 

action complained of and the injury to 

the party challenging it, and is shown 

where the interest the party seeks to 

protect is within the zone of interests 

sought to be protected by the statute or 

constitutional guarantee in question. 

South Whitehall Township Police Serv. v. South 

Whitehall Township, 555 A.2d 793, 795 ([Pa.] 

1989) (internal citations omitted). Here, although 

[the niece’s] interest might be considered 

substantial, that is, one that surpasses the common 

interest of all citizens, it is neither direct nor 

immediate. As we discussed supra, her interest 

arises only if the named trustee is unavailable to 
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serve under the 1984 will, or if both the 1993 will 

and the 1984 will are invalidated 

Id. at 932-33. 

Here, as in Briskman, Appellants’ possibility of an interest in 

Swenson’s estate depends on the invalidation of not only the June 2009 will, 

but of Swenson’s three prior wills as well. In accordance with Briskman, we 

conclude that this possibility is too remote to bring Appellants within the 

sphere of the people upon whom Section 908 confers standing. We further 

conclude, as in Briskman, that any possible interest they might have is not 

direct or immediate, as it would only come to fruition after successfully 

challenging a total of four wills. 

Appellants argue that the trial court erred by not having an evidentiary 

hearing to determine whether Swenson’s three earlier wills were validly 

executed before determining that Appellants lack standing. Appellants’ Brief 

at 8. However, this request is based on essentially the same premise that 

this Court rejected in Briskman: that an heir at law who is not a named 

beneficiary would always have standing to file an appeal from probate of a 

will on the theory that eventually, no matter how many prior wills there may 

have been, he or she will have an interest because he or she is entitled to 

take under the laws of intestacy.2

 As stated above, in Briskman we noted 

 

2

 This is distinguishable from a situation in which there is no prior will, as 

“generally an heir-at-law has the right to be heard on the validity of a will, 

where there is no prior will, and the estate would pass by the laws of 
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that the Legislature has chosen not to include unnamed heirs at law among 

those permitted to appeal from the decision of the Register of Wills in 

Section 908; rather, the Legislature has chosen to define that category as 

people who are parties in interest aggrieved by the Register’s decision, not 

simply by virtue of their status as an heir at law. 

For the reasons discussed above, we find no error in the trial court’s 

determination and so we affirm its order. 

Order affirmed. 

Platt, J. concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/1/2014 

 

intestacy if the challenged will were declared invalid.” Luongo, 823 A.2d at 

954.