J-A01010-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF EVELYN F. SCHERMER IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: MARC A. SCHERMER, 

EXECUTOR

No. 366 WDA 2016

Appeal from the Order February 12, 2016

In the Court of Common Pleas of Allegheny County

Orphans' Court at No(s): 5043 of 2011

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED: OCTOBER 2, 2017

Marc A. Schermer appeals the ruling of the orphans’ court that 

sustained an appeal from probate and invalidated a will1on the ground that 

it was procured by Marc’s undue influence. We affirm. 

On August 13, 2011, then eighty-seven-year-old Evelyn F. Schermer 

(“Evelyn” or “Decedent”) died of cancer. She was survived by three sons, 

Gary, the eldest, Marc, the middle son, and Leland, the youngest son. Gary 

and Leland are the Appellees herein.2 On August 16, 2011, a document 

____________________________________________

1 We have jurisdiction over this appeal under Pa.R.A.P. 342(a)(2), which 

permits an appeal to be taken as of right from the decision of an orphans’ 

court “determining the validity of a will[.]” 

2

 Gary and Leland have objected to Marc’s standing to pursue this appeal. 

Appellees’ brief at 2 n.4. Marc purported to file this appeal in his capacity as 

executor. As our Supreme Court observed in In re Estate of Hain, 346 

(Footnote Continued Next Page)
J-A01010-17

- 2 -

dated June 7, 2010, was admitted to probate as Decedent’s last will and 

testament and letters testamentary were issued to Marc. 

Gary and Leland filed a timely appeal to the orphans’ court from 

probate, maintaining that the will was invalid based upon Evelyn’s lack of 

testamentary capacity when it was executed and because it was procured by 

undue influence exerted by Marc. The orphans’ court conducted nine 

hearings and thereafter determined that the will was procured by undue 

influence. Marc filed exceptions to that decision;3they were denied on 

(Footnote Continued) _______________________

A.2d 774, 776 (Pa. 1975), “Unless an executor has been surcharged or has 

been ordered to distribute more than the admitted balance in the estate, the 

executor is not a ‘party aggrieved’ by the final order or decree of the 

orphans' court. The executor is merely a holder of the estate's assets for 

the purpose of administration and distribution . . . .” See also In re 

Faust's Estate, 73 A.2d 369 (Pa. 1950) (holding the executor cannot, at 

the estate’s expense, employ legal counsel for purposes of a will contest 

because executor is not a party to a will contest). However, Marc does have 

standing in his individual capacity in that he was aggrieved by the order 

invalidating the will, and we therefore can reach the merits of this appeal. 

Hain, supra; But see Estate of Karahuta, 393 A.2d 22 (Pa. 1978) 

(quashing an appeal by co-executors where order in question determined 

who should benefit under the will). In this case, Marc filed his exceptions in 

his capacity as executor, and Appellees raised no issue to his standing in 

that respect. Hence, we conclude that their present objection is waived, as 

it was not raised in the lower court proceedings. 

3 We observe that the new rule pertaining to exceptions in orphans’ court 

proceedings, Pa.O.C.R. 8.1, did not take effect until September 1, 2016, 

after completion of the final adjudication and filing of this appeal. That rule 

now states: “Except as provided in Rule 8.2 [relating to motions for 

reconsideration], no exceptions or post-trial motions may be filed to any 

order or decree of the court.” Pa.O.C.R. 8.1.
J-A01010-17

- 3 -

February 12, 2016. This timely appeal followed. Marc raises the following 

contentions. 

[1.] Whether the Orphans' Court erred as a matter of law in 

giving decisional weight to the testimony of three of the 

individuals who cared for the Decedent in her final years 

("caregivers") demonstrating the Testatrix showed signs of 

forgetfulness, confusion and repeating herself, where the 

caregivers were indefinite regarding when the instances of 

forgetfulness and confusion occurred relative to the actual 

signing of the probated Will, but unanimously testified the 

Decedent's forgetfulness and confusion became distinctly worse 

seven months after the Testatrix executed the probated Will.

[2.] Whether the Orphans' Court erred as a matter of law by 

affording limited or no evidentiary weight to the credible 

testimony of the Scrivener of the probated Will, on the theory 

the attorney had only met the Testatrix "on limited occasions in 

an office setting," where the record reveals the attorney had 

worked with the Testatrix on several matters over a two year 

period, was specifically consulted by the Testatrix on the matter 

of the ongoing conflict with her two sons, and who advised the 

Testatrix regarding the Will in which the Decedent disinherited 

the Petitioners.

[3.] Whether the Orphans' Court erred as a matter of law in 

disregarding all expert testimony presented below, on grounds 

the expert opinion of an internist called by the Petitioners had 

been "opposite" the opinion of a psychiatrist called by the Estate, 

where the internist admitted he did not understand the legal 

concept of "weakened intellect," only testified that conditions 

from which the Testatrix had suffered "could" or "might" cause 

cognitive impairment, and never testified that in his opinion the 

Testatrix actually suffered from "weakened intellect" on or before 

the date the Testatrix executed the probated Will.

[4.] Whether the Orphans' Court capriciously disregarded 

evidence in the course of finding the Testatrix's decision to 

disinherit two of her sons was presumptively due to undue 

influence, where the Testatrix had decided to specially benefit 

Marc Schermer in a will drafted years before any evidence of 

"weakened intellect" was shown, and repeatedly declared to her 
J-A01010-17

- 4 -

attorney and in the probated Will that her decision to disinherit 

the Petitioners was due to "the pain and heartache [the 

Petitioners] have caused me by their actions" in trying to force 

the Decedent to change her settled purpose to benefit Marc 

Schermer, and the Testatrix's beliefs, even if mistaken, were 

rational under the circumstances.

Appellant’s brief at 5-6. 

We are duly cognizant of the applicable standard of review in these 

matters:

Our standard of review of the findings of an Orphans' 

Court is deferential.

When reviewing a decree entered by the Orphans' 

Court, this Court must determine whether the record 

is free from legal error and the court's factual 

findings are supported by the evidence. Because the 

Orphans' Court sits as the fact-finder, it determines 

the credibility of the witnesses and, on review, we 

will not reverse its credibility determinations absent 

an abuse of that discretion.

However, we are not constrained to give the same 

deference to any resulting legal conclusions.

In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa.Super. 

2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000) 

(internal citations and quotation marks omitted). “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 Estate of Luongo, 823 A.2d 

942, 951 (Pa.Super. 2003), appeal denied, 577 Pa. 722, 847 

A.2d 1287 (2003).

In re Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (emphasis added). 

The issues on appeal implicate the well-known doctrine of undue 

influence. We observed in In re Estate of Smaling, 80 A.3d 485, 497 
J-A01010-17

- 5 -

(Pa.Super. 2013) (en banc) (citing In re Ziel's Estate, 59 A.2d 728 (Pa. 

1976)), “A party claiming undue influence must establish, by clear and 

convincing evidence, that: (1) when the will was executed the testator was 

of weakened intellect and (2) that a person in a confidential relationship with 

the testator (3) receives a substantial benefit under the will.” In the present 

case, none of the contentions raised on appeal challenges the orphans’ court 

determination that Marc was in a confidential relationship with the Decedent, 

and the record contains evidence of the same. Similarly, there is no 

averment raised that Marc did not receive a substantial benefit under the 

June 7, 2010 will.4 Thus, the sole issue before this Court is whether the 

evidence of record supports the conclusion of the orphans’ court that Evelyn 

suffered from a weakened intellect on June 7, 2010. 

As to that inquiry, the Smaling Court elucidated, “The weakened 

intellect necessary to establish undue influence need not amount to 

testamentary incapacity.” Smaling, supra at 498. While there is not a 

“bright-line test by which weakened intellect can be identified to a legal 

certainty,” a testator suffered from weakened intellect if he or she exhibited 

“persistent confusion, forgetfulness and disorientation.” Id. Since undue 

influence is often exerted by “a gradual, progressive inculcation of a 

____________________________________________

4 At oral argument before this panel, Marc acknowledged that he was not 

contesting on appeal either that he was in a confidential relationship with 

Evelyn or that he obtained a substantial benefit under the probated will. 
J-A01010-17

- 6 -

receptive mind,” the benefit from undue influence may only manifest itself 

after a period of manipulation of the decedent. Id. Thus, for purposes of 

undue influence, “the particular mental condition of the testator on the date 

he executed the will is not as significant when reflecting upon undue 

influence as it is when reflecting upon testamentary capacity. More 

credence may be given to remote mental history.” Id. 

The pertinent facts follow.5 Between 1984 and 2010, Evelyn executed 

ten different wills. In 1994, a will was prepared for her by Ed Grinberg, but 

she did not sign that document. Of the ten wills that Evelyn did execute, 

seven were prepared in the final five years of her life, and Marc took his 

mother to the various attorneys who drafted them. In the nine 

testamentary dispositions executed prior to June 7, 2010, Evelyn left her 

residuary estate equally to her three sons. Wills that the Decedent executed 

in 1984 and 1988, as well as the unsigned will that was prepared in 1994 by 

Mr. Grinberg, stated that any money or loans received from Evelyn by Marc 

or any of his companies would be accounted for at the time of the 

distribution of the residuary estate and treated as advancements. A 2001 

____________________________________________

5

 This narrative is gleaned from the evidence adduced by Gary and Leland, 

who prevailed in the orphans’ court. We observe that, based upon glaring 

inconsistences that Marc related, the orphans’ court specifically found that 

Marc was not a credible witness. Trial Court Opinion, 11/30/15, at 

(unnumbered pages) 7-8. Accordingly, we discount any testimony that he 

proffered. 
J-A01010-17

- 7 -

will was the first one that failed to treat those loans as advancements. As of 

2001, Evelyn had loaned Marc approximately $140,000. Gary and Leland 

were unaware of any of the wills executed after 1988, but they knew about 

the 1994 will, which continued to treat Evelyn’s loans and gifts to Marc as 

advancements, and, until 2008, Gary and Leland believed that Evelyn had 

executed the 1994 Grinberg will. 

In the June 7, 2010 probated will, the Decedent disinherited Gary and 

Leland as well as their issue, and she left her residuary estate entirely to 

Marc, to his wife Marjorie if Marc were deceased, and then to his daughter if 

both Marc and Marjorie were deceased. Evelyn stated, “I leave no portion of 

my property and estate to my sons, LELAND SCHERMER and GARY 

SCHERMER, or their issue. I take this action [as] a result of their behavior 

towards me and the pain and heartache they caused to me by their 

actions[.]” Last Will and Testament of Evelyn F. Schermer, 6/7/10, at 1. 

Evelyn recited in the will that the actions undertaken by Gary and Leland 

that caused her pain included “suing my son Marc, alienating my 

grandchildren from me, using my grandchildren to try to cause me to make 

changes to my will, and failing to respect my wishes in handling my property 

and estate.” 

The June 7, 2010 will definitively stated that, during her life, Evelyn 

had forgiven any loans that she made to Marc and any company that he had 

owned. The will ratified the inter vivos loan forgiveness, confirming that 
J-A01010-17

- 8 -

there was no valid outstanding indebtedness owed to her by Marc so that 

the loans were not to be treated as advancements. That will also provided 

that stock that Evelyn had given to Marc was not to be treated as an 

advancement. 

Marc claimed that he was left the entirety of Evelyn’s estate because 

she was estranged from Gary and Leland and their families. Marc 

maintained that Evelyn’s estrangement from Gary and Leland occurred 

because Gary and Leland and their children tried to coerce Evelyn into 

changing a will that Evelyn made on November 7, 2007. See Appellant’s 

brief at 51 (Evelyn “executed the probated will in reaction to the 

machinations of Gary and Leland Schermer and their children, trying to force 

the Decedent to change an earlier will.”). Gary and Leland presented 

evidence, credited by the orphans’ court, that they were not estranged from 

their mother, that their children were not estranged from Evelyn, and that 

neither they nor their children tried to force Evelyn to change her 

testamentary disposition. 

The following background is relevant. Evelyn’s husband Joseph was 

the father of Gary, Marc, and Leland (the “brothers”). In 1982, Joseph 

worked at and co-owned a family-owned business, Feldman Brothers 

Company, Inc. (“Feldman”), which was started by Evelyn’s father Herman 

and Herman’s brother. In 1982, Marc worked at Feldman with his father and 

other family members. That year, Herman died and Joseph died eight 
J-A01010-17

- 9 -

months later. At the time, Gary worked in the City of Pittsburgh Public 

Schools as a teacher. After earning a law degree, Gary continued to work 

for the school district until he retired. Gary had three sons and a 

stepdaughter: Evan (a tennis pro in Hawaii), Gordon (a musician in New 

York), Joseph (a child during the relevant events), and Gina (a teacher). 

Leland, who had sons Phillip and Jonathan, was a lawyer who worked in New 

York City in 1982. He eventually moved to Pittsburgh. As noted, Marc had 

one daughter. 

Evelyn was unsophisticated and subject to the control of her father 

Herman. Joseph assumed management of her affairs after they married. 

When Joseph died in 1982, Marc, who still lived at home, began to control 

her assets. When Joseph died, Feldman was contractually obligated to 

purchase the shares that Evelyn inherited from Joseph, but it was financially 

unable to do so. Marc continued to operate the stores owned by Feldman, 

and, after Feldman failed, other businesses. Eventually, Marc started to 

work at various jobs. 

Both Gary and Leland testified that their mother historically treated all 

three of her sons and her seven grandchildren equally. Gary reported, “[A]t 

holiday times or anything . . . . [when] she felt like she wanted to make a 

gift, all the gifts were pretty much similar whether they were to the three 

brothers or to the grandchildren.” N.T. Hearing 5/5/15 (Morning Session), at 

60. Leland confirmed, “I think it’s fair to say that all three of us had a very 
J-A01010-17

- 10 -

similar relationship to our mother,” who “was adamant to go out of her way 

to make sure that all three of her sons and that all three of her daughtersin-law and that all seven of her grandchildren were always treated equally. 

That was a big deal to her.” N.T. Hearing, 5/26/15, at 1452. 

Gary and Leland presented evidence about Evelyn’s mental decline, 

which began in the early 2000s, was marked by 2004, and was severe by 

2010. Beginning in the early 2000’s, it was noticeable that the parties’ 

mother was having “some memory problems,” so the three brothers 

discussed the situation at that time, and they jointly agreed that a long-term 

care policy should be purchased. N.T. Hearing, 5/5/15 (Morning Session), at 

51. In 2003 or 2004, a long-term care insurance policy was purchased for 

her from Fortis, which assigned the policy to John Hancock. Gary reported 

that by 2006, the degradation in Evelyn’s mental acuity was such that she 

was repetitive, called her children by the incorrect names, and “would say 

things that she had said earlier as if she couldn’t remember.” N.T. Hearing, 

5/5/15 (Morning Session), at 61. Evelyn would also say things and then 

deny saying them because she did not remember saying them. 

In 2007, Evelyn was admitted to the hospital three times and was 

diagnosed with dementia. On one occasion, she gouged her skin trying to 

board a bus, was treated in the emergency room at the hospital, and, after 

arriving home, fainted and hit her head on a stool, rendering her 
J-A01010-17

- 11 -

unconscious. The fall was the result of a mini-stroke, Evelyn was 

hospitalized, and then entered rehabilitation.6 

After Evelyn was diagnosed with dementia in 2007, she started to 

receive caregiver services. John Hancock, which had issued the long-term 

care policy, covered those services. The policy coverage was triggered only 

when Evelyn had “cognitive impairment.” N.T. Hearing, 5/11/15, at 1155. 

She briefly took Aricept, which is prescribed to treat dementia resulting from 

Alzheimer’s disease. That medication was discontinued after it proved 

ineffective. By summer 2010, Evelyn required full-time care. 

The brothers had a good relationship with each other until 2008. This 

relationship soured after Gary and Leland learned that Marc had influenced 

their mother to alter the disposition of her estate so that the three brothers 

no longer benefited equally. The events in question started on January 13, 

2008, when Leland, Gary, and Marc met at a Panera Bread to discuss their 

mother’s declining mental health, how each son would help her, and the 

location of her power of attorney and will. Even though Marc knew that 

Evelyn had executed a will in 2001, a will in 2006, and two wills in 2007, 

____________________________________________

6

 The record indicates that, on September 27, 2007, about one month after 

Evelyn was released from rehabilitation, Marc took her to a lawyer, Thomas 

Kessinger. Mr. Kessinger prepared a will stating that any loans that Marc 

received were not advancements and also indicating that Evelyn had gifted 

Marc her Feldman stock and the gift was not to be treated as an 

advancement. 
J-A01010-17

- 12 -

Marc professed to his two brothers that he believed her latest will was the 

one drafted in 1994. Marc told his brothers that he did not believe that 

Evelyn had signed the 1994 document. Leland was shocked at this 

revelation, as the will had undergone many iterations, and Gary and Leland 

had always thought that the 1994 will, which treated all three sons equally, 

was executed by Evelyn and that it was the last will that she had signed. 

Leland immediately suggested the 1994 will be executed. Marc 

responded, “Well, how do we know that that’s Mom’s intent?” N.T. Hearing, 

5/26/15, at 1505-06. Leland said to Marc, “Well, why wouldn’t it be? It’s 

been her intent for 20 years. What insight do you have that you’re alluding 

to but not explaining?” Id. at 1506. When Marc would not answer, Leland 

began to suspect that Marc was exercising undue influence over Evelyn. 

On January 14, 2008, a Sunday, Leland went over to Evelyn’s house, 

as he had been going there every Sunday for about four or five months. He 

was helping with the bills when he saw an entry in her check register for a 

check made payable to Kessinger and Klanica. When Leland asked her 

about it, Evelyn responded, “That’s the law firm that Marc and Marjorie took 

me to.” Id. at 1507. Evelyn directed Leland to go into her bedroom and get

the will. 

The document in question was a November 7, 2007 will drafted by 

Thomas Kessinger. Leland asked his mother “What does the Will say?” Id. 

at 1509. She answered, “I don’t know. You tell me. You’re the lawyer.” 
J-A01010-17

- 13 -

Id. The November 7, 2007 will indicated that loans and gifts made to Marc 

were not to be treated as advancements. Leland told Evelyn that the will 

was inconsistent with “everything the family had discussed and agreed upon 

for 25 years. What gave rise to this Will?” Id. at 1509. Evelyn said, “Marc 

and [his wife] Marjie took me to get this Will.” Id. at 1513. 

Leland then described the substance of the will to Evelyn, explaining to 

her that it provided for an unequal distribution of her assets since it did not 

treat gifts and loans to Marc as advancements. Evelyn told Leland, “That’s 

not what I want.” Id. at 1514. Leland asked Evelyn what she did want, and 

she answered, “I want the way it always was, that we would account for all 

the moneys that Marc received, and whatever is left would be split three 

ways.” Id. Leland informed Evelyn that the will that she signed on 

November 7, 2007, was inconsistent with that stated intent, she asked what 

could be done about it, and Leland stated that she had to write a new will.

Leland immediately called Marc, who denied knowing Kessinger or his 

law firm. Leland then accused Marc of lying, since Evelyn told Leland that 

Marc took her to the law firm, but Marc continued to insist that he did not 

know anything about Mr. Kessinger. After January 14, 2007, Evelyn did 

contact Mr. Kessinger for preparation of a new will as Mr. Kessinger called 

Leland, and Leland prepared some suggestions for a new will. 

The next time that Leland saw Evelyn, she had decided that she no 

longer wanted to talk about the situation, appearing hostile and agitated 
J-A01010-17

- 14 -

when he broached the subject of a new will. As Evelyn had never treated 

Leland with hostility, he was perplexed, “thought something must have 

happened,” and concluded that “it was clear something was bugging her 

about that.” Id. at 1519. He did not display any animosity toward Evelyn, 

merely indicating that the family needed to talk about the will. 

In February 2008, the three sons, their wives, and Evelyn had a 

meeting that was intended to resolve the concerns of Gary and Leland about 

Marc’s exercise of undue influence over Evelyn. At the February 2008 

meeting, Marc claimed that Evelyn did not sign the 1994 Grinberg will 

because “Evelyn couldn’t understand legalese.” N.T. Hearing, 5/5/15 

(Morning Session), at 21. As it was apparent that Marc was insisting that his 

loans and gifts not be treated as advancements and Evelyn remained silent 

on the subject, that meeting ended in an argument. Evelyn was upset after 

that event. 

In September 2008, Gary and Leland sued Marc and Marjorie for 

intentional interference with their expectation of an inheritance, a cause of 

action that is viable in some states. That lawsuit was dismissed for failing to 

state a claim in Pennsylvania, and the dismissal was upheld on appeal. 

Gary and Leland were emphatic that, while they were estranged from 

Marc, they did not involve their mother or their children either in the lawsuit 

or the dispute over the uneven distribution of their mother’s estate outlined 
J-A01010-17

- 15 -

in the November 7, 2007 will. Evelyn was upset about the estrangement 

among her sons. 

Gary talked to Evelyn about the family problem once. He emphatically 

denied making any demands on her or attempting to force her to sign 

anything. He merely told Evelyn that she had the power to resolve the 

controversy and that she should do so. Gary explained to Evelyn that he 

was aware that she was resisting confronting the issue, as she had resisted 

all “kinds of difficult situations in your life before,” but that the matter about 

the will was important and that she should resolve it. N.T. Hearing 5/5/15 

(Morning Session), 5/5/15, at 41. When Evelyn did not respond, he 

immediately left and told her that he would see her later. 

Gary and Leland testified that they continued to visit and telephone 

their mother after February 2008, and that their children continued to 

regularly visit and telephone Evelyn. In 2008, Evelyn attended the bar 

mitzvah of Leland’s son, Jonathan, as well as the luncheon that followed that 

ceremony. 

On Thanksgiving 2008, Gary’s sons Gordon and Joseph, and Leland’s 

son Phillip visited Evelyn. Neither Gary nor Leland knew about the visit 

beforehand. Gordon described the meeting as non-confrontational and as 

their attempt to resolve the family estrangement. The three grandchildren 

merely asked Evelyn to resolve the situation by returning to her original 

estate plan. They never tried to force her to do anything. 
J-A01010-17

- 16 -

After Gary and Leland initiated their litigation against Marc and his 

wife, Marc Rosenwasser, Esquire, sent Gary and Leland a letter dated 

December 5, 2008. The letter was prepared after Mr. Rosenwasser met with 

Marc and Evelyn together, and Mr. Rosenwasser indicated that he did not 

know whether Marc or Evelyn was the source of the information contained in 

that document. Gary and Leland testified that the December 5, 2008 letter 

1) falsely accused Gary and Leland of displaying hostility toward Evelyn at 

the February 2008 family meeting; 2) incorrectly indicated that Gary tried to 

force his mother to change her will; and 3) wrongly characterized the 

Thanksgiving 2008 visit as initiated by Gary and Leland and as an attempt to 

coerce Evelyn into equalizing the distribution of her estate.7

____________________________________________

7

 At this juncture, we must point out that the record does not support 

Marc’s representation that the information in the December 5, 2008 letter 

that Mr. Rosenwasser sent to Gary and Leland “came directly from Evelyn

Schermer.” Appellant’s brief at 13. Mr. Rosenwasser said his notes from his 

file, which he used to compose the letter, were taken during a December 1, 

2008 meeting where both Evelyn and Marc were present. He was asked 

whether Marc “was assisting in providing some of the detail that you 

apparently set forth on your notes?” N.T. Hearing, 5/11/15, at 1124. He 

responded, “Jeez, I can’t recall.” Id. He remembered only that Evelyn was 

upset about the lawsuit that Gary and Leland filed and about “having signed 

some document that she thought would be – was the wrong thing to do.” 

Id. The orphans’ court directly asked Mr. Rosenwasser whether he was able 

to “recall with any degree of precision” if Marc provided information 

contained in the notes used to compile the December 5, 2008 letter. Mr. 

Rosenwasser responded, “No, sir.” Id. at 1125. 

We also are aware that Marc introduced into evidence certain 

handwritten notes from Evelyn. The record does not substantiate that the 

(Footnote Continued Next Page)
J-A01010-17

- 17 -

Specifically, no hostility was displayed toward Evelyn at the February 

2008 family meeting since Gary and Leland were upset with Marc and not 

with Evelyn. Gary, aware that his mother was upset about the controversy 

among the three brothers, merely asked his mother to resolve the family 

situation. The three grandchildren visited Evelyn on Thanksgiving 2008 

because they wanted to stop the dissention among Leland, Gary, and Marc. 

Gordon, Phillip, and Joseph merely asked Evelyn to try to resolve the 

unpleasant family situation by providing for an equal distribution of her 

estate. 

During the hearings before the orphans’ court, the three caregivers 

who attended to Evelyn in 2010 testified, as did the scrivener of the June 7, 

2010 will, Mr. Rosenwasser. The court specifically credited Mr. 

Rosenwasser’s testimony and found that it established that Evelyn had 

testamentary capacity on June 7, 2010. On the other hand, the court 

concluded that Mr. Rosenwasser’s testimony had no value on the issue of 

weakened intellect because Mr. Rosenwasser “only saw the decedent on 

limited occasions in an office setting, not on a daily basis in her normal 

environment.” Trial Court Opinion, 11/30/15, at (unnumbered page) 6. 

(Footnote Continued) _______________________

notes in question were prepared in anyone’s presence, and they could have 

been written by Evelyn while she was under the influence of Marc. 
J-A01010-17

- 18 -

In addition, Gary and Leland presented the testimony of Dr. Robert 

Bernstein, and Marc’s expert witness was Dr. Christine Martone. These 

expert witnesses gave opposing viewpoints on the question of whether 

Evelyn suffered from weakened intellect when the probated will was signed. 

Given the conflicting opinions of the two experts, the orphans’ elected to rest 

its decision as to whether Evelyn had weakened intellect in 2010 upon “the 

testimony of other unbiased witnesses,” who consisted of “three of the 

Decedent’s daily caregivers (Beth Simoni, Prudence Myers, and Jessica 

Myers) who provided care for [Evelyn] between 2008 and 2011.” Id. Based 

upon the testimony of Beth, Prudence, and Jessica, the orphans’ court found 

that Evelyn suffered from weakened intellect in June 2010.

The following testimony was credited by the orphans’ court when it 

concluded that Evelyn had a weakened intellect. Beth Simoni had a Bachelor 

of Arts degree in psychology and sociology and an Associate’s Degree in 

nursing. From the end of January 2009 until Evelyn’s death in August 2011, 

Beth provided daily care to Evelyn from 2:00 p.m. until 10:00 p.m., except 

for a maternity leave from the end of November 2010 to March 2011. Thus, 

Beth was a caregiver for Evelyn in June 2010, when the contested will was 

signed. 

Beth testified as follows. In January 2009, Marc and Evelyn 

interviewed her, and she was told that Evelyn already “had caregivers 

because of short-term memory loss. . . . [S]he needed assistance in 
J-A01010-17

- 19 -

remembering to eat, taking her medicines, things like that.” N.T. Hearing, 

5/7/15, at 524. In March 2009, Beth completed a form for John Hancock 

and handwrote that Evelyn had both short-term memory difficulties and poor 

judgment, which she underlined. Id. at 533. Beth also indicated on the 

form that she provided continual supervision for Evelyn due to memory 

impairment, and she also spoke with a representative of John Hancock on 

two occasions. On August 18, 2010, Beth informed the representative that 

Evelyn suffered from, “Cognitive changes with increasing forgetfulness and 

some confusion.” Id. at 537. 

Beth specified that Evelyn was chronically forgetful. “She would lose 

her glasses, her credit card, her rings.” Id. at 527. When Beth and Evelyn 

would go places, she would forget to place her credit card back in her wallet 

or leave her rings in the bathroom. One time, Evelyn left a pot on a lit stove 

burner, and it exploded. To remedy the problem, Marc ordered “Molly’s 

Meals, which is the kosher version of Meals on Wheels,” and Marc and Beth 

encouraged her not to use the stove. Id. at 528. Beth also reported that, 

during Beth’s tenure as her caretaker, Evelyn was confused and often 

repeated herself, telling the “same story or say[ing] the same thing over and 

over again[.]” Id. at 528-530. Evelyn often forgot that she said something 

shortly after she said it. Id. at 531. 

Beth substantiated specific instances of confusion displayed by Evelyn. 

Beth was unable to locate Evelyn a “couple of times” and found her 
J-A01010-17

- 20 -

wandering around on a different floor of the apartment building. Id. at 555. 

At the grocery store, Evelyn would “find something interesting,” and would 

“wander off in the store,” and would not have been able to find her way back 

to her home. Id. at 556. 

After Evelyn contracted cancer and was dying, she was not even aware 

of her diagnosis. One day Beth was lifting Evelyn, and Evelyn experienced 

significant pain. “She said, ‘What is wrong with me?’” Id. at 544. After 

Beth told Evelyn that she had cancer, Evelyn asked to speak to Gary and 

Leland. On another occasion, Evelyn told Beth that she wanted Gary’s oldest 

son to receive money at her death, thus evidencing confusion about the 

provisions of her will. Id. at 545. Beth also substantiated that Evelyn spoke 

with Gary and Leland and their children on the telephone, and that Gary and 

Leland’s children visited her. 

Jessica Myer was a certified nurse’s aide who provided companionship 

and hospice care for sixteen years, had helped about fifty patients, and 

observed the physical and mental status of her charges. When she began 

working for Evelyn in the summer of 2010, Evelyn was confused, forgetful, 

needed help with meals and personal hygiene, and wanted company. Id. at 

600. Jessica reported that Evelyn remained confused and forgetful the 

entire time that Jessica worked for Evelyn, progressing in her confusion to 

the extent that she required twenty-four hour care by fall 2011. Id. at 601. 
J-A01010-17

- 21 -

Jessica testified that Evelyn appeared physically or mentally weak 

frequently. Id. at 603. Evelyn displayed deficits in memory, the ability to 

remember words, and problem solving, and she “didn’t have good 

judgement.” Id. at 605. As an example of the latter problem, Jessica 

described an instance where Evelyn had shattered a glass plate by placing it 

directly on an electric burner rather than using a frying pan. Evelyn also did 

not have good personal hygiene and had to be directed to shower and keep 

herself clean. One time, she became covered in chocolate after eating a box 

of chocolate popsicles. 

Jessica established that Evelyn was confused:

Q. Did Evelyn ever appear to you to be disoriented as to time?

A. Yes.

Q. Frequently?

A. Yes. 

Q. Did Evelyn ever appear to you to be disoriented as to 

location?

A. Yes.

Q. Frequently?

A. Yes. 

Q. Did Evelyn ever appear to you to not be able to keep her 

family members straight, one from the other?

A. Sometimes.

Id. at 616. 
J-A01010-17

- 22 -

Prudence Myers, Jessica’s sister, started to assume caregiver 

responsibilities for Evelyn while Beth was on maternity leave, beginning in 

November 2010, and she testified as follows. Marc was present whenever 

Evelyn signed checks or documents, and, on numerous occasions, Prudence 

heard Evelyn tell Marc that she did not understand what she was signing. Id. 

at 583. Evelyn would continually re-read the same newspaper or magazine. 

When Prudence would take Evelyn shopping, she would not be able to 

remember either the PIN to her debit card or her zip code. Id. at 583-84. 

Prudence reported that Marc monitored who visited Evelyn, and that, after 

either Leland or Gary visited, Marc would call within five minutes after they 

left. Prudence stated that Evelyn “was very confused on most occasions.” 

Id. at 586. 

Marc’s first allegation is that the orphans’ court erred in “giving 

decisional weight to the testimony” from Beth, Prudence, and Jessica. 

Appellant’s brief at 27. Secondly, he maintains “it was legal error for the 

court to subordinate the credible testimony of the drafter of the will[.]” Id. 

at 34. Third, Marc posits that Dr. Bernstein’s testimony, which the orphans’ 

court decided not to credit anyway, should not have been admitted, and, 

concomitantly, was improperly used as grounds for “discounting” and 

“setting aside” the testimony of his expert witness, Dr. Martone. Id. at 38, 

48. Finally, even though Gary and Leland presented testimony that Evelyn’s 

reasons for disinheriting them were untrue, Marc maintains that the finding 
J-A01010-17

- 23 -

of the orphans’ court that her outlined reasons were false amounted to 

“capricious disregard of the evidence” and must be reversed. Id. at 51. 

Gary and Leland note that all four of Marc’s allegations challenge 

credibility determinations rendered by the orphans’ court and that this Court 

is not permitted to disturb such decisions. In re Fiedler, supra at 1018 

(“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.”). In his reply brief, Marc 

suggests that none of his positions constitutes a challenge to the credibility 

determinations of the orphans’ court. Appellant’s reply brief at 8 (“Appellant 

does not challenge any of the lower court’s credibility determinations,” and 

“the standard of review governing credibility is not material.”). 

Marc’s position is disingenuous. Marc’s use of synonyms for 

“credibility determinations” does not disguise the nature of his claims, and 

we reject his attempt to avoid the well-established precept that we are not 

permitted to overrule the credibility determinations of the orphans’ court. 

The following complaints are challenges to credibility determinations of the 

orphans’ court: it erroneously gave “decisional weight” to some witnesses’ 

testimony, improperly “subordinated the credible testimony” of one of his 

witnesses, should not have “completely set aside” the testimony of his 

expert witness, and evidenced “capricious disregard of evidence” that he 

presented. 
J-A01010-17

- 24 -

Simply put, Marc is challenging the orphans’ court’s decision to: 1) 

credit the caregivers’ testimony; 2) find that Mr. Rosenwasser’s testimony 

was not helpful on the issue of weakened intellect; 3) accord no weight to 

Dr. Martone’s opinion that Evelyn did not have a weakened intellect in June 

2010; and 4) accept Gary and Leland’s proof that the stated reasons for 

their disinheritance were false. Each and every one of Marc’s positions on 

appeal constitutes a challenge to the credibility determinations of the 

orphans’ court, and we reject his contention that they are not. While we 

recognize that Marc wants to avoid the import of a principle of law that 

effectively forecloses the grant of appellate relief herein, we reject this ploy. 

In his first issue on appeal, Marc suggests that the caregivers’ 

testimony should have been discounted. Marc maintains, “In any case 

where ‘weakened intellect’ is at issue, it is well settled the question is to be 

determined by the decedent’s mental condition at the point in time when 

he or she actually executed the Will.” Appellant’s brief at 27 (emphasis 

added). With this legal proposition as the foundation of his argument, Marc 

continues that the three caregivers did not establish weakened intellect 

because 1) they “were indefinite regarding when the instances of 

forgetfulness and confusion occurred relative to the actual signing of the 

probated Will,” Appellant’s brief at 5 (emphasis added); 2) they failed to 

establish that Evelyn’s forgetfulness and confusion occurred “at or before 

the time of the execution of the probated Will,” Id. at 27 (emphasis in 
J-A01010-17

- 25 -

original); and their testimony failed to establish that Evelyn “suffered from 

‘weakened intellect’ at the time she made the probated Will.” Id. 

Marc’s legal premise is incorrect and his ensuing argument fails due to 

its reliance on this faulty foundation. “[T]estamentary capacity is to be 

ascertained as of the date of execution of the contested document,” not 

undue influence. Smaling, supra at 494. In this case, the orphans’ court 

credited testimony proffered by the scrivener of the will, Mr. Rosenwasser, 

and concluded that Evelyn had testamentary capacity on June 7, 2010. 

However, testamentary capacity is a very low mental threshold. 

“Testamentary capacity exists when the testator has intelligent knowledge of 

the natural objects of his bounty, the general composition of his estate, and 

what he or she wants done with it, even if his memory is impaired by age or 

disease.” Id. 

The law is clear that, “The weakened intellect necessary to establish 

undue influence need not amount to testamentary incapacity.” Smaling, 

supra at 498 (emphasis added). Instead, weakened intellect is present if 

the testator consistently displayed confusion, forgetfulness, and 

disorientation. Id. Notably, for purposes of weakened intellect, “the 

particular mental condition of the testator on the date he executed the will is 

not as significant when reflecting upon undue influence as it is when 

reflecting upon testamentary capacity. More credence may be given to 

remote mental history.” Id. (emphases added). Thus, a person with 
J-A01010-17

- 26 -

testamentary capacity can nevertheless have been subject to undue 

influence sufficient to invalidate a will. Id. Simply put, Marc is incorrect in 

his assertion that weakened intellect is determined solely by reference to the 

date the will is signed and that the caregivers’ testimony was infirm because 

it encompassed the time frame before and after the will’s execution. 

In connection with the first issue in his brief, Marc heavily relies upon 

our decision in In re Estate of Angle, 777 A.2d 114 (Pa.Super. 2001), 

where we upheld a finding by the orphans’ court that the testator had 

testamentary capacity and was not subject to undue influence when he 

executed his will. Our ruling in Angle on the question of testamentary 

capacity is not relevant herein since the orphans’ court specifically found 

that Evelyn did have such capacity. Moreover, in Angle, the orphans’ court 

rejected the undue-influence challenge to the will based upon the fact that 

there was no confidential relationship. Specifically, the orphans’ court 

determined that the testator was not “dominated or manipulated by 

anyone[.]” Id. at 123. Thus, the Angle decision rested upon a finding that 

there was no confidential relationship whereas Marc has not challenged the 

finding by this orphans’ court that he was in a confidential relationship with 

his mother. Thus, Marc’s reliance upon Angle is wholly misguided. 

Our decision in Owens v. Mazzei, 847 A.2d 700 (Pa.Super. 2004), 

dispels the validity of Marc’s first position on appeal. Therein, the orphans’ 

court held that two bank employees and their employer were jointly and 
J-A01010-17

- 27 -

severally liable to the decedent’s estate for assets contained in a bank 

account. The estate averred that the employees had, while operating within 

the scope and course of their duties for the bank, exercised undue influence 

over the decedent and induced the decedent to name them as the sole 

beneficiaries of a bank account that contained the bulk of the decedent’s 

assets. Therein, the employees and the bank specifically challenged the 

finding by the orphans’ court that the decedent had weakened intellect when 

he created the bank account. In rejecting that argument, we specifically 

considered behavior displayed by the decedent both before and after the 

account in question was opened. 

In the present case, the three caregivers’ testimony established that 

Evelyn regularly displayed confusion, disorientation, forgetfulness, and poor 

judgment both before and after June 7, 2010. Beth was clear that this 

mental state existed when she first started working for Evelyn in 2009. 

Jessica began to care for Evelyn during the summer of 2010, coextensive 

temporally with when Evelyn executed the contested will. Jessica indicated 

that Evelyn was persistently disoriented, confused, forgetful, and reliant on 

her caregivers and Marc. Jessica also confirmed that Evelyn had memory, 

language, and problem solving deficits. Evelyn’s mental condition 

progressively deteriorated. 

Indeed, Evelyn’s mental decline began in the early 2000s, years before 

this will was executed. Her mental state prompted the purchase of long-
J-A01010-17

- 28 -

term care insurance, which Marc himself agreed was prudent to obtain. 

Coverage under the policy was triggered only if Evelyn suffered from 

cognitive impairment, and coverage under that policy commenced in 2007, 

three years before the will in question was signed. Thus, we reject Marc’s 

position that the orphans’ court improperly accorded “decisional weight” to 

the testimony of the three caregivers. 

Marc’s second position is that the orphans’ court improperly afforded 

limited or no evidentiary weight to the credible testimony of Mr. 

Rosenwasser, who drafted the will. After careful review, we conclude that 

Mr. Rosenwasser proffered no testimony at all as to the existence of 

weakened intellect. Between June 2008 and June 2010, Mr. Rosenwasser 

had four or five meetings with Evelyn lasting approximately one hour. He 

had little specific recollection of what occurred during those meetings. N.T. 

Hearing, 5/11/15, at 1083 (regarding the June 4, 2008 meeting, he did not 

remember if Evelyn was alone and based his memory of the event on the 

contents of a standard form that he completed); Id. at 1087 (regarding a 

June 18, 2008 meeting, Mr. Rosenwasser had “no recollection other than I 

know there was a meeting”); Id. at 1096 (unable to remember if file notes 

were based upon information given to him by Evelyn); Id. at 1122-25 (failed 

to remember details about a December 1, 2008 meeting involving Marc and 

Evelyn that resulted in the letter to Gary and Leland); Id. at 1124, 1125 

(responded he “can’t recall” when asked whether Marc or Evelyn was the 
J-A01010-17

- 29 -

source of his file notes about the events detailed in his December 5, 2008 

letter); Id. at 1177 (Mr. Rosenwasser had “no specific recollection” about 

having a conversation with Evelyn about why she altered disposition of her 

residuary estate and decided to disinherit Gary and Leland in her final will.”). 

Suffice it to say, Mr. Rosenwasser’s testimony was replete with instances 

where he could not remember events concerning his interactions with 

Evelyn. 

Mr. Rosenwasser reported that Evelyn appeared lucid and did not 

display short-term memory loss during their conferences, but qualified his 

testimony by stating that their interactions totaled “four or five hours not in 

a block, but over a period of time.” Id. at 1107. Mr. Rosenwasser did not 

know Evelyn’s age, as he never asked that as part of his biographical 

information when interviewing clients. Id. at 1069-70. Mr. Rosenwasser 

specifically reported that he did not employ “any practices” to establish 

whether or not a client had “weakened intellect,” and he admitted that he 

was sure that one of his clients “could have some mental issues that aren’t 

apparent [during] a short meeting.” Id. at 1073-74, 1107. Most 

significantly, Mr. Rosenwasser acknowledged he “didn’t do anything” to 

determine whether Evelyn was subject to undue influence at the time of the 

June 2010 will, and he stated that, instead, his “sole concern was whether 

Evelyn had mental capacity to execute a will.” Id. at 1189, 1183 (emphasis 

added). 
J-A01010-17

- 30 -

Mr. Rosenwasser’s testimony did establish that Evelyn had 

testamentary capacity, and the orphans’ court credited his testimony in that 

respect. Mr. Rosenwasser, however, candidly admitted that he did not try to 

ascertain whether she suffered from weakened intellect or whether she was 

being unduly influenced. The question of testamentary capacity was his only 

concern. After careful review, we cannot find that the orphans’ court abused 

its discretion in concluding that Mr. Rosenwasser’s testimony was unhelpful 

on the subject of whether Evelyn suffered from a weakened intellect on June 

7, 2010. 

Marc’s third position is that Dr. Bernstein’s testimony was improperly 

considered, and, thus, should not have been used to set aside Dr. Martone’s 

contrary opinion. Appellant’s brief at 48-50. Initially we note: “It is beyond 

argument that the fact-finder is free to accept or reject the credibility of both 

expert and lay witnesses, and to believe all, part or none of the evidence.” 

Brown v. Trinidad, 111 A.3d 765, 771–72 (Pa.Super. 2015) (citation 

omitted). In the present case, the orphans’ court found both expert 

witnesses credible and, since they proffered opposing opinions, elected to 

rely upon the testimony of the three caregivers. Marc’s specific contention is 

that Dr. Bernstein’s opinion was infirm and, concomitantly, should not have 

been used to nullify the testimony of Dr. Martone. 

Marc maintains that Dr. Bernstein’s testimony should not have been 

relied upon for two reasons: 1) Dr. Bernstein supposedly testified that he did 
J-A01010-17

- 31 -

not understand the legal concept of weakened intellect, Appellant’s brief at 

398-41; and 2) Dr. Bernstein “never testified that he was of the opinion, to a 

reasonable degree of medical certainty that [Evelyn] in fact suffered from 

‘weakened intellect’ at the time she executed the probated Will[.]” 

Appellant’s brief at 43 (emphasis in original). 

Marc’s positions are a gross mischaracterization of the record. Dr. 

Robert W. Bernstein, Chief of Medicine at UPMC Magee, was board-certified 

in internal medicine, had practiced in that field for thirty-five years, and, for 

those thirty-five years, fifty percent of his practice involved geriatric 

patients. Dr. Bernstein reviewed Evelyn’s medical documentation to 

“determine if there was any evidence in her medical records that would 

suggest weakened intellect.” N.T. Hearing, 5/8/15, at 889. Dr. Bernstein 

reviewed case law given to him by Leland so that he could understand “what 

the term weakened intellect means under the laws of the Commonwealth of 

Pennsylvania.” Id. Dr. Bernstein, after reviewing the cases, opined, “It was 

my opinion, based upon the medical evidence, even before 2010, there was 

evidence of significant weakened intellect.” Id. at 891 (emphasis 

added). On cross-examination, Dr. Bernstein confirmed, “I understand 

weakened intellect.” Id. at 904. 

Dr. Bernstein based his opinion that Evelyn had weakened intellect 

before 2010 on various medical records, but he found it significant that there 

was a “mental status exam performed, I believe, in 2007 that showed more 
J-A01010-17

- 32 -

than just weakened intellect but suggesting that possibly dementia was 

an issue as well.” Id. at 892 (emphasis added). Dr. Bernstein concluded 

that this mental condition stemmed from “the effects of vascular disease, 

which is a function of aging, diabetes mellitus, high blood pressure, all things 

that were in evidence in her medical care.” Id. at 892. Also contributing to 

Dr. Bernstein’s opinion that Evelyn suffered from weakened intellect before 

2010 was her history of transient ischemic attacks (mini-strokes) and 

“multiple falls leading to head trauma.” Id. at 895.8 At the end of his 

testimony, Dr. Bernstein reported that all of “the opinions that [he had] 

provided here today,” were based upon his review of the medical records 

and were offered “to a reasonable degree of medical certainty.” Id. at 901. 

Thus, the record categorically refutes Marc’s suggestion that Dr. 

Bernstein stated that he did not understand the legal definition of weakened 

intellect. Dr. Bernstein merely indicated that he did not understand portions 

of the cases that he read and that he did not review those sections of the 

cases that did not pertain to the issue before him. Id. at 920-21. Likewise, 

Dr. Bernstein opined that Evelyn suffered from a weakened intellect prior to 

2010 and rendered that opinion to a reasonable degree of medical certainty. 

____________________________________________

8 While Marc suggests that Dr. Bernstein’s testimony rested on protocols that 

pertained to obtaining a patient’s informed consent, Dr. Bernstein’s clearly 

articulated that these opinions were based upon his review of her medical 

records. He thereafter discussed the informed consent protocols. See N.T. 

Hearing, 5/8/15, at 900, et seq. 
J-A01010-17

- 33 -

Thus, Marc misrepresents the record when arguing that Dr. Bernstein 

articulated that he did not understand the legal definition of weakened 

intellect and never opined that Evelyn suffered from that condition to a 

reasonable degree of medical certainty. We reject the third issue raised on 

appeal. 

Marc’s fourth and final contention is that the orphans’ court 

capriciously disregarded substantial and direct evidence that the reasons 

that Evelyn disinherited Leland and Marc were true. Appellant’s brief at 51. 

Marc claims that Evelyn “executed the probated Will in reaction to the 

machinations of Gary and Leland Schermer and their children, trying to 

force the Decedent to change an earlier will.” Id. (emphasis added). Gary 

and Leland were adamant that they never tried to coerce Evelyn in any 

manner. They knew that she was upset about the family dissension and told 

her that she could resolve it by returning to her original estate plan. As the 

testimony of Gary, Leland, and Gordon established the absence of an 

attempt to force or coerce Evelyn into changing her will, the orphans’ court 

was permitted to credit that proof, and reject Marc’s position in that respect. 

We also note that Marc’s final contention is actually unrelated to the issue on 

appeal, which is whether Evelyn suffered from a weakened intellect. 

Gary and Leland offer an astute observation. The supposed events 

that led to their disinheritance occurred in late 2008. Specifically, the June 

7, 2010 document expressed that Gary and Leland were not beneficiaries 
J-A01010-17

- 34 -

because they sued Marc, alienated her from her grandchildren, used the 

grandchildren to influence her to change her will, and did not respect her 

desires as to disposition of her estate. This state of affairs was true as of 

December 2008. Meanwhile, Evelyn executed a will in 2009 that still left her 

residuary estate, in equal shares, to all three of her sons. The events that 

supposedly motivated Evelyn to leave all of her estate to Marc were in 

existence in 2009, when she did not disown Gary and Leland. These facts 

constitute a further reason to discount the reasons outlined in the 2010 will 

for the disinheritance of Gary and Leland. 

During this final argument, Marc also observes that, in the 2001 will,

which was executed before Evelyn suffered from weakened intellect, she 

forgave $140,000 in loans to him. He maintains that the 2001 testamentary 

disposition constituted proof that “powerfully rebuts any inference the 2010 

Will was the product of undue influence[.]” Id. at 52. Marc relies upon this 

precept: “It is well settled in Pennsylvania that a prior will containing the 

same testamentary disposition is strong evidence against undue influence.” 

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

The principle of law in question is inapplicable herein. The 2001 will 

left Marc one-third rather than one hundred percent of Evelyn’s estate. The 

2001 will also forgave Marc’s $140,000 debt. After 2001, there were gifts 

that Evelyn made, including a post-2001 gift of her Feldman stock, to Marc 

and his family. In the June 7, 2010 will, all these gifts, in addition to loans, 
J-A01010-17

- 35 -

were not treated as advancements. It is an utter fallacy to characterize the 

2001 will as the same testamentary disposition as the 2010 will. 

In accordance with the forgoing, this Court concludes that we cannot 

overturn the credibility determinations of the orphans’ court, and that the 

evidence credited by that court supports its conclusion that Evelyn suffered 

from a weakened intellect on June 7, 2010. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2/2017