J-A17042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF PEARL ROSE 

ANNA GROSS CAVANAUGH, 

DECEASED

APPEAL OF: LEE CAVANAUGH

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1872 WDA 2017

Appeal from the Order November 15, 2017

in the Court of Common Pleas of Cambria County,

Orphans' Court at No(s): File No. 11-14-519

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 05, 2018

Lee Cavanaugh (“Lee”) appeals from the Order declaring invalid the April 

25, 2010 Last Will and Testament (“the 2010 Will”) of Pearl Rose Anna Gross 

Cavanaugh, Deceased (“Decedent”), and directing that Decedent’s Estate 

(“the Estate”) be administered pursuant to Pennsylvania’s intestacy laws. We 

affirm in part, reverse in part, and remand with instructions.

Decedent died testate on July 10, 2013, at the age of 93. Decedent was 

survived by three children, Linda Cavanaugh (“Linda”), Lois Cavanaugh 

Fischer (“Lois”), and Lee.

1

 At issue in this case are two wills that Decedent 

executed prior to her death.

The first will, executed on January 31, 2006 (“the 2006 Will”), appointed 

all three of Decedent’s children as Executors of the Estate. The 2006 Will 

____________________________________________

1 Decedent also had a fourth child, Robert Cavanaugh, Jr., who predeceased 

her.
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devised Decedent’s property located at 728 Lake Shore Drive, Friedens, 

Pennsylvania (“the lake house”), and the residue of the Estate, to her children

in equal shares.2 Additionally, the 2006 Will devised Decedent’s residence at 

122 Elknud Lane, Johnstown, Pennsylvania (“the residence”), to Linda, if she 

chose to live there; otherwise, the residence would be divided among her 

three children in equal shares.

On March 13, 2010, Lee sent an email to various family members, 

including Linda and Lois,3informing them that Decedent would be moving into 

his home in Mechanicsburg, Pennsylvania,

4 and noting that he had taken over 

____________________________________________

2 As the Orphans’ Court pointed out in its Opinion and Order, Lee had sent a 

letter to Decedent on July 7, 2005, prior to her execution of the 2006 Will, 

detailing changes he believed should be made to her will, as well as his 

personal complaints against Linda and her husband. Relevantly, Lee asked to

be appointed as the sole executor, and stated that it is not acceptable for

Linda to be in charge of managing the lake house. See Opinion and Order, 

11/15/17, at 2; see also Contestants’ Exhibit D.

3 The Orphans’ Court stated in its Opinion, and Lee testified during the nonjury trial, that Lee also sent the email to David J. Schiller, Esquire (“Attorney 

Schiller”). See Opinion and Order, 11/15/17, at 2-3; see also N.T., 9/25/17, 

at 29-30. Lee had recommended Attorney Schiller to Decedent for the 

purpose of preparing her will. Lee additionally sent a letter to Attorney 

Schiller, wherein he stated that Decedent wished to establish a trust for each 

of the three children; outlined the terms of the proposed trust; and proposed 

that Lee manage all three trusts as the trustee, or alternatively, that he serve 

as trustee for his sisters’ trusts, and that Lee’s daughter serve as trustee for 

his trust. 

4 Decedent moved into Lee’s home in early April of 2010.
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the management of most of Decedent’s investment accounts.

5

 Lee also stated

in the email that Decedent had indicated to him that she was considering 

making changes to her will. Specifically, Lee stated that Decedent “is seriously 

considering gifting [the lake house] to a Family Trust,” and detailed the 

proposed terms of the trust. Linda replied to Lee’s email, indicating that she 

had spoken with Decedent, and Decedent “didn’t seem to be aware of this 

trust business.” 

Decedent executed the 2010 Will on April 25, 2010.6 The 2010 Will 

made significant changes to the 2006 Will. Relevantly, the 2010 Will

appointed Lee as the sole Executor and Trustee, and named Lee’s daughters,

Elizabeth and Lauren Rose Cavanaugh June (“Lauren”), as the first and second 

alternate Executors and Trustees, respectively. Under the 2010 Will, each of 

Decedent’s three children would receive an equal share of the residue of the 

Estate (not including the lake house), together with any life insurance 

proceeds, to be held in a trust, and to be administered as follows:

A. My Trustees shall pay all of the realized income from the 

separate trusts to my respective children in convenient 

installments, not less frequent than quarterly.

____________________________________________

5 Lee is a certified public accountant, and owns a company named PSI 

Investments.

6 Decedent executed a Power of Attorney, and a Durable Health Care Power 

of Attorney, in Lee’s favor on the same date. Lee’s daughter, Elizabeth Lynn 

Cavanaugh Sweigart (“Elizabeth”), was named the alternate on both 

documents.
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B. My children can individually elect at any time to receive 

additional monies based upon an annual amortization of the 

principal and all realized income based on each child’s individual 

life expectancy with the assumption that death will occur at age 

100, disregarding actual life expectancy. The Trustee shall 

amortize the principal sum each January 1st and make periodic 

payments with adjustments made annually based upon any 

growth or losses in the principal and the remaining life 

expectancy, as described above. Any child can elect to receive 

the amount determined as described in this paragraph; the 

amount described in the prior paragraph or any amount in 

between and shall notify the Trustee of their decision. However, 

to the extent that any child receives less than the maximum 

permitted amount, there shall be no permitted “make up” of 

amounts that could have been taken but were not. ...

C. In addition to the provisions of subparagraph (B) for 

distribution of principal, my Trustees may pay, from time to time, 

as determined in my Trustee’s sole discretion, from the 

principal of the separate trusts such amounts to, or for the benefit 

of, my respective children, as my Trustees in their absolute 

discretion may deem appropriate to provide for the support, 

education, medical care, other need, or a comfort of my respective 

children. There is no requirement that my Trustees treat my 

beneficiaries equally, so distributions under this [s]ubsection 

may be made unequally and without any standard or criteria, 

other than as described above.

D. In the event any child of mine should die before the entire 

principal of his or her separate trust has been distributed or 

expended, the remaining principal of such trust shall be 

distributed to the child’s issue outright. In the case of the Trust 

held for [Linda], her separate trust shall be distributed to the 

trusts of her siblings. If either sibling is not living, the assets shall 

pass to the children of the deceased sibling.

The 2010 Will, 4/25/10, at 2-3 (emphasis added). Additionally, the 2010 Will 

directed that the lake house be contributed to a trust, and appointed Lee as

Trustee. The 2010 Will set forth the following provisions for the administration 

of the lake house trust:
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All descendents [sic] of Lee Gross and Dorris Gross[,] except 

Carol Gross and Jon Gross[,] shall benefit under the Trust (herein 

“beneficiaries”). All beneficiaries must be at least age 18. 

Stepchildren and adopted children of beneficiaries are only 

included as beneficiaries if elected in writing by at least 40% of 

the then-existing beneficiaries.

During the thirty (30) day period following establishment of 

the Trust and during each succeeding December, all descendents

[sic] can elect to actively participate in the Trust as an active 

member for the succeeding year. Any descendent [sic] choosing 

to be active shall pay an equal portion of the expenses of 

maintaining the real estate and improvements including real 

estate taxes, maintenance, utilities, insurance and any and all 

other expenses as well. The Trustees shall establish an escrow 

fund to require the accumulation of funds for major repairs and 

capital improvements to the property. All active members shall 

be entitled to an equal vote on any capital improvements (but not 

routine maintenance) desired on the property. The Trustee shall 

calculate all contributions made by active members over the 

years.

Upon any sale of the property, sale proceeds shall first 

reimburse any descendents [sic] who were active at any time if 

they are then-living and such reimbursement shall be an amount 

equal to their prior contributions, with interest calculated from 

each contribution at the rate of five percent (5%) per annum. All 

contributions beginning January 1, 2010[,] shall count for all 

purposes hereunder. If sale proceeds are not adequate to 

reimburse all prior contributions, they shall be reimbursed on a 

pro[]rata basis so that all people reimbursed receive the same 

percentage of the monies they contributed.

All descendents [sic] shall be entitled to have use of the 

property based upon a schedule created by the Trustee. All 

use is conditioned upon maintaining and leaving the property in 

excellent condition. The Trustee may preclude use of the 

property by any beneficiary who is not meeting the 

aforementioned requirements.

If the active members do not adequately support the 

property, the Trustee shall immediately sell the property. If any 

one beneficiary is willing to pay the costs of maintaining the 

property, the property shall not be sold. After reimbursing all prior 
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contributions ... any sale proceeds shall be divided equally among 

the beneficiaries who are at least age 18 and meet the “use 

requirement.” The use requirement is that the beneficiary must 

have spent a minimum of four nights at [the lake house] with 

utilization of the property on at least part of the previous and 

succeeding day for enjoyment or work on the property in every 

two successive calendar years. Furthermore, if the Trustee does 

not meet the use requirement, the beneficiaries may elect to 

change Trustees. The Trustee shall keep a log of use by the 

beneficiaries and such log records shall be determinative.

Id. at 3-5 (emphasis added). Notably, in the section titled “Administrative 

Powers,” the 2010 Will also allows the Executor and Trustee to “retain as an 

investment any asset” of the Estate and to make investments, and specifically 

authorizes the Executor and Trustee “to use and pay for the services of PSI 

Investments[, i.e., Lee’s company,] for these purposes.” Id. at 7.

The following day, Lee sent an email to inform the family that Decedent

had signed the 2010 Will, and asked them to “weigh in” if they had any issues. 

Linda replied to the email, including comments on the 2010 Will, and 

expressing concerns that the 2010 Will was “one-sided and unfair.” Following 

additional email exchanges, Lois also expressed her concerns with the 2010 

Will.

On May 28, 2014, nearly a year after Decedent’s death, Linda and Lois

(collectively, “Contestants”) filed a Caveat with the Register of Wills, asking 

the Register of Wills to refuse to probate the 2010 Will. Specifically, 

Contestants alleged that (1) Decedent “was not of sound mind, memory or 

understanding” prior to and on the date of execution of the 2010 Will, and (2) 

execution of the 2010 Will was the result of undue influence by Lee. On the 
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same date, Contestants filed a Petition for Citation to Show Cause in the 

Orphans’ Court, asserting that Lee was in possession of the 2010 Will, but had 

not deposited the 2010 Will with the Register of Wills or requested letters 

testamentary for the Estate. Contestants therefore asked the Orphans’ Court 

to issue a citation directing Lee to show cause why the 2010 Will should not 

be deposited. The Orphans’ Court subsequently issued a Decree, directing 

Lee to show cause why the 2010 Will should not be deposited with the Register 

of Wills, and scheduling a hearing on the matter. 

On October 24, 2014, the parties entered into a Stipulated Order, which 

provided, inter alia, that (1) Lee, Elizabeth and Lauren were to renounce their 

respective rights to serve as Executor and Trustee under the 2010 Will in favor 

of Gerald P. Neugebauer, Jr., Esquire (“Attorney Neugebauer”); (2) Attorney 

Neugebauer was to file a Petition for Letters of Administration for the Estate 

with the Cambria County Register of Wills; and (3) a $500 deduction from 

Lee’s distribution from the Estate was to be made payable to Linda for 

attorneys’ fees. Attorney Neugebauer subsequently filed a Petition for Letters 

of Administration C.T.A. for the Estate. On May 12, 2015, the 2010 Will was 

admitted to probate, and the Register of Wills issued Letters of Administration 

C.T.A. for the Estate to Attorney Neugebauer. 

On May 15, 2015, Contestants filed an Appeal to the Orphans’ Court, 

alleging that Decedent lacked testamentary capacity to execute the 2010 Will, 

and that Decedent had executed the 2010 Will as a result of undue influence 

by Lee. Contestants also raised concerns that Lee had taken actions on behalf 
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of the Estate without being granted letters testamentary, and had expended 

Estate assets. Lee filed a Response to the Appeal on June 5, 2015.

Following a pre-trial conference, the Orphans’ Court entered a Case 

Management Order on November 3, 2015, directing Lee to transfer any Estate 

assets in his possession to Attorney Neugebauer. The Orphans’ Court also 

ordered Lee to provide to Attorney Neugebauer any documents related to the 

value of the Estate assets, an accounting of all bills and invoices he had paid 

for the benefit of the Estate, and an accounting of all bills and invoices he had 

paid related to the lake house.

Both parties engaged in discovery. The Orphans’ Court scheduled a 

non-jury trial for June 12-13, 2017, at which Lee and his counsel failed to 

appear. The Orphans’ Court thereafter rescheduled the non-jury trial, and 

directed Lee’s counsel to reimburse Contestants and their counsel for travel 

expenses. 

Following the non-jury trial on September 25, 2017, the Orphans’ Court 

ordered each party to file a “detailed memorandum,” including proposed 

findings of fact, argument, and a proposed order. Both parties complied. The 

Orphans’ Court issued an Opinion and Order on November 15, 2017, 

concluding that Decedent was subject to the undue influence of Lee, and 

declaring the 2010 Will invalid. The Orphans’ Court also ordered that the 

Estate be administered pursuant to the intestacy laws of Pennsylvania.
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Lee filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 

1925(b) Concise Statement of matters complained of on appeal.7

On appeal, Lee raises the following issues for our review:

1. Was the evidence insufficient to sustain a requisite finding of 

diminished capacity or undue influence[,] and contrary to 

sufficiency standards set forth in In re Ziel’s Estate, 467 Pa. 531, 

540, 359 A.2d 728, 733 (Pa. 1976) (“contradicted testimony of 

occasional confusion or lapses of memory... is insufficient to 

demonstrate clearly and convincingly” either weakened intellect 

or testamentary incapacity.[])[?]

2. Was the [Orphans’] Court’s decision inconsistent with the 

allocation of burdens of proof set forth in In re Estate of 

Hastings, 479 Pa. 122, 127, 387 A.2d 856, 867 (1978); [In re 

Estate of Cohen], 445 Pa. 549, 551 n.1, 284 A.2d 754, 755 n.1 

(1971), cited with approval [in] In re Estate of Kuzma, 487 Pa. 

91, 408 A.2d 1369 (1979)?

Brief for Appellant at 2.

We observe the following standard of review:

In a will contest, the hearing judge determines the credibility of 

the witnesses. The record is to be reviewed in the light most 

favorable to appellee, 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 

____________________________________________

7 Because the Orphans’ Court referred to the hearing in this matter as a nonjury trial, this Court issued a Rule to Show Cause on January 16, 2018, stating 

that Lee had failed to file post-trial motions within 10 days of the entry of the 

decision pursuant to Pa.R.A.P. 302(a), and questioning whether any issues

had been preserved for appellate review. Lee filed a Response, stating that, 

pursuant to Pa.O.C. Rule 8.1, no post-trial motions may be filed. This Court 

subsequently entered an Order discharging the Rule to Show Cause.
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findings or that there is a capricious disbelief of evidence may the 

court’s findings be set aside.

In re Estate of Schumacher, 133 A.3d 45, 49-50 (Pa. Super. 2016) (citation 

omitted).

We will address Lee’s claims together.8 Lee argues that the evidence 

did not support the Orphans’ Court’s determination that Decedent was subject 

to undue influence by Lee at the time she executed the 2010 Will, and that 

the Orphans’ Court did not correctly apply the burdens of proof to the

respective parties. See Brief for Appellant at 5-28.9 Lee first points to 

Attorney Schiller’s deposition testimony10 that he believed Decedent to be of 

sound mind at the time she executed the 2010 Will. Id. at 9. Lee also points 

to the testimony of his wife and son, who witnessed Decedent’s signature, 

that Decedent was of sound mind, and was able to speak her mind at the time 

the 2010 will was signed. Id. at 10. Additionally, Lee directs us to his own 

testimony that Decedent was “adamantly independent” before she moved into 

____________________________________________

8 We observe that Lee failed to divide his argument “into as many parts as 

there are questions to be argued,” as required by Pa.R.A.P. 2119(a). 

9 We also note that Lee does not clearly and specifically address each of the 

requirements of a prima facie showing of undue influence, and instead 

summarizes the testimony of each witness presented at the non-jury trial. 

Further, although Lee cites to relevant case law to define a challenge based 

on undue influence and the required findings, he fails to apply such case law 

to his own argument, or to explain why those cases support a finding that his 

actions in this matter did not constitute undue influence. See generally

Pa.R.A.P. 2119(a).

10 The parties stipulated to the admission of Attorney Schiller’s March 1, 2016 

deposition testimony at trial, and the transcript and video recording were

admitted into evidence. See N.T., 9/25/17, at 87; see also Joint Exhibit 5.
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his home, and that she was able to take care of herself and manage her own 

expenses. Id. at 12; see also id. at 13-14, 15, 16 (wherein Lee argues that 

even after Decedent moved into his home, she remained self-sufficient and 

could express her own opinions); id. at 17 (wherein Lee states that 

“[Decedent’s] capacity did not decline until 2013[,] when it declined 

precipitously before her death.”). Lee refers to his testimony that he believed 

that Decedent was competent to execute the 2010 Will. Id. at 13. Lee also 

states that Elizabeth’s testimony confirms that Decedent’s mental state did 

not deteriorate until 2013. Id. at 25. Further, Lee asserts that Contestants 

were not present when the 2010 Will was executed, and that neither of them 

presented evidence that Decedent exhibited confusion, forgetfulness or 

disorientation at any time prior to the execution of the 2010 Will. Id. at 7; 

see also id. at 18, 20, 25. 

According to Lee, the evidence presented at trial confirmed that 

Decedent wanted to keep the lake house for use by future generations. Id.

at 26. Lee argues that Contestants never sought to confirm Decedent’s

reduced capacity while she was alive, and states that they provided merely 

anecdotal evidence of her short-term memory problems. Id. Lee also points 

out that there was no medical evidence presented at trial concerning 

Decedent’s mental capacity. Id. In sum, Lee contends that Contestants did 

not satisfy their burden of proof. Id. at 28.

“Any person 18 or more years of age who is of sound mind may make a 

will.” 20 Pa.C.S.A. § 2501. “In making a will an individual may leave his or 
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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 Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014) 

(citation and quotation marks omitted). 

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

is inextricably linked to the assignment of the burden of proof. 

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. 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. 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.

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

citations, quotation marks, and footnote omitted); see also id. at 497 (stating 

that “[i]n order to constitute undue influence sufficient to void a will, there 

must be imprisonment of the body or mind[, or] 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.” (citation and ellipses omitted)).
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With respect to “weakened intellect,” this Court has observed the 

following:

The weakened intellect necessary to establish undue influence 

need not amount to testamentary incapacity. Although our cases 

have not established a bright-line test by which weakened intellect 

can be identified to a legal certainty, they have recognized that it 

is typically accompanied by persistent confusion, forgetfulness 

and disorientation. Moreover, because undue influence is 

generally accomplished by a gradual, progressive inculcation of a 

receptive mind, the fruits of the undue influence may not appear 

until long after the weakened intellect has been played upon. 

Accordingly, 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. at 498 (internal citations and quotation marks omitted).

During the non-jury trial, Linda testified that, beginning in 

approximately 2009, when Decedent was still living at the residence, Decedent

no longer cleaned up after her dog consistently, and on one occasion left the 

dog outside overnight. See N.T., 9/25/17, at 111. Linda testified that in 

approximately 2010, but before Decedent had moved in with Lee, she noticed 

that Decedent “seemed to be getting forgetful.” Id. at 112. Linda also stated 

that Decedent started to repeat herself during that time. See id. at 113. 

Lois testified that, during a visit by Decedent in approximately October 

of 2010, she noticed that Decedent “was starting to lose it.” N.T., 9/25/17, 

at 94. Lois explained that Decedent displayed short-term memory loss and 

confusion. See id. at 94-95. Lois also referred to an email from Lee dated 

May 22, 2010 (approximately one month following the execution of the 2010 
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Will), and her response thereto. See id. at 99; see also Contestants’ Exhibit 

R (March 22, 2010 email). In her response to Lee’s email, Lois stated that 

“[Decedent] is not herself and getting worse every time I talk to her. She 

tells me something and a minute later tells me the same thing again.” 

Contestants’ Exhibit R (May 22, 2010 email). 

Lee testified that he began making investments on behalf of Decedent

in approximately 2006. See N.T., 9/25/17, at 16. Lee also confirmed that 

the letter he sent to Decedent on July 7, 2005 accurately reflects how he felt 

about Decedent’s will, and provisions that should be included, both at the time 

he drafted the letter and at the time of trial. Id. at 18-20. According to Lee, 

Decedent’s residence was “unfit for human habitation” by approximately 2008 

or 2009. Id. at 35; see also id. at 25-26 (wherein Lee explained that the 

residence was “very smelly;” “the dust bunnies were like dust lions they were 

so big;” and the residence was generally unclean). Lee testified that Decedent

had not showed signs of forgetfulness, and that he did not observe any 

inability by Decedent to remember things at the time she executed the 2010 

Will. See id. at 39-40, 57. Lee also testified that Decedent’s mental state 

did not deteriorate until 2013. See id. at 42, 44, 83.

Additionally, the Orphans’ Court set forth the following Findings of Fact 

regarding Lee’s testimony about Decedent’s mental state:
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13. In a prior deposition,[11] [Lee] testified that he took financial 

matters over for [Decedent] as soon as she moved in with him in 

2010[;] he also indicated that she was not capable of doing so on 

her own.

14. When asked about Decedent’s mental state at trial, [Lee] 

indicated she was sharp as ever when she moved in with him[,] 

and when challenged about the inconsistency with the prior 

deposition referenced above, he qualified his response to say that 

he had meant she was not capable of managing her finances in 

2013[,] not in 2010.

15. Despite [Lee’s] qualification[,] we found his testimony to be 

not credible in regards to [Decedent’s] mental state when she 

moved in with him.

Opinion and Order, 11/15/17, at 3-4 (footnote added; citations to record 

omitted); see also Joint Exhibit 1.

Here, the Orphans’ Court determined that Contestants had presented

sufficient evidence to establish that Decedent had a weakened intellect at the 

time she executed the 2010 Will. See Opinion and Order, 11/15/17, at 6; 

see also id. at 5 (wherein the Orphans’ Court specifically credited Lois’s 

response to Lee’s May 22, 2010 email, as it was sent prior to the 

commencement of litigation). Upon review, we conclude that the Orphans’ 

Court’s findings are supported by competent evidence. See In re Estate of 

Smaling, 80 A.3d at 498; see also Owens v. Mazzei, 847 A.2d 700, 707 

____________________________________________

11 Upon agreement by the parties, the transcript of Lee’s March 22, 2013 

deposition testimony was admitted into evidence at trial. See N.T., 9/25/17, 

at 87; see also Joint Exhibit 1 (Lee’s March 22, 2013 deposition) (wherein 

Lee testified that “[Decedent] is never the same in any given two moments, 

let alone two days. She might come out ... and say where am I and why am 

I here? ... And then the next time she comes out, she might be totally 

coherent. ... But she gets a little more that way with every passing month.”).
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(Pa. Super. 2004) (stating that “[i]f the court’s decision rests upon legally 

competent and sufficient evidence, we will not revisit its conclusions.”). 

Further, to the extent that Lee asks us to reassess the credibility of the 

testimony presented during the non-jury trial, we decline to do so. Owens, 

847 A.2d at 707 (stating that “[u]nder no circumstance will we substitute our 

judgment of credibility for that of the Orphans’ Court.”).

With regard to a confidential relationship, our Court has stated the 

following:

[A] confidential relationship exists when the circumstances make 

it certain that the parties did not deal on equal terms, but on the 

one side is an overmastering influence, or, on the other, 

weakness, dependence or trust, justifiably reposed. A confidential 

relationship is created between two persons when it is established 

that one occupies a superior position over the other—

intellectually, physically, governmentally, or morally—with the 

opportunity to use that superiority to the other’s disadvantage. 

Such a relationship is not confined to a particular association of 

parties, but exists whenever one occupies toward another such a 

position of advisor as reasonably to inspire confidence that he will 

act in good faith for the other’s interest.

In re Estate of Smaling, 80 A.3d at 498 (internal citations, quotation marks 

and brackets omitted). Additionally, 

[w]here a testator, although possessed of testamentary 

capacity[,] is aged, infirm bodily, with mental faculties impaired, 

as against a confidential adviser who is a beneficiary under the 

will, there is a presumption of fact that undue influence was 

brought to bear on the mind of the testator, and the burden is on 

the beneficiary to rebut the presumption.

In re Estate of Stout, 746 A.2d 645, 648 (Pa. Super. 2000) (citation and 

brackets omitted; emphasis in original). “The clearest indication of a 
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confidential relationship is that an individual has given power of attorney over 

her savings and finances to another party.” In re Estate of Fritts, 906 A.2d 

601, 608 (Pa. Super. 2006). However, the existence of a power of attorney 

in the proponent’s favor does not, without more, establish the existence of a 

confidential relationship. See In re Estate of Luongo, 823 A.2d 942, 964 

(Pa. Super. 2003). Similarly, a parent-child relationship between the 

decedent and the proponent is not sufficient per se to establish the existence 

of a confidential relationship. See id.; see also Estate of Gilbert, 492 A.2d 

401, 404 (Pa. Super. 1985) (stating that “[a]lthough a parent-child 

relationship does not conclusively suggest a confidential relationship, it is a 

fact to be considered.”).

During the non-jury trial, Lois stated that before Decedent moved in 

with Lee and his family, she spoke to her mother on the phone about once a 

week. See N.T., 9/25/17, at 90. Lois also testified that after Decedent 

moved, her ability to communicate with Decedent decreased, and they spoke 

“[p]robably only once every couple weeks.” Id. at 97; id. (wherein Lois 

explained that sometimes when she called Lee’s house no one answered, and 

that Decedent no longer initiated phone calls). Lois testified that she and 

Decedent did not have any discussions regarding Decedent’s desire to change 

her will in the month prior to moving to Lee’s home. See id. at 96. Further, 

Lois stated in her response to Lee’s May 22, 2010 email that Decedent had 

told Lois that she did not read the will. Contestants’ Exhibit R (May 22, 2010 

email); see also N.T., 9/25/17, at 99-100 (wherein Lois explained that 
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Decedent had indicated during a telephone conversation with Lois that she did 

not read the 2010 Will, and that Decedent had always told Lois that 

“everything was left equally”). 

Linda testified that she saw or spoke to Decedent almost every day 

before Decedent moved to Lee’s house, and that after the move, she and 

Decedent spoke on the phone about once a week. See N.T., 9/25/17, at 108, 

112. Additionally, Linda spoke with Decedent shortly after receiving Lee’s 

March 13, 2010 email, and according to Linda, Decedent did not seem to be 

aware of any discussion with Lee regarding the trust. See id. at 117; see 

also id. (wherein Linda testified that Decedent told her that she “wanted to 

dump the cottage”); see also Contestants’ Exhibit F (March 13, 2010 email) 

(wherein Linda, responding to Lee’s email, stated that she had spoken to 

Decedent; Decedent stated that she wanted to “dump” the lake house; and 

Decedent “didn’t seem to be aware of this trust business.”). Linda also 

testified that Lee did not contact her prior to Decedent’s execution of the 2010

Will, and that Lee never sent her a final, signed copy of the 2010 Will. See 

N.T., 9/25/17, at 119.

Lee testified that he and Decedent had discussed Decedent’s will “from 

time to time” before she moved into his house. Id. at 20-21, 27. Lee testified 

that he had “constantly” had discussions with Decedent during which he asked 

her to move in with him and his family, and that he usually initiated those 

conversations. Id. at 24-25. Lee also stated that he began paying Decedent’s 

bills directly from her account after she moved in with him. See id. at 39. 
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According to Lee, he read the 2010 Will to Decedent, and reviewed it with her 

“word for word” prior to the day of signing, because her ability to read the 

document herself was impeded by cataracts. See id. at 57-58; see also id.

at 63. Lee testified that Attorney Schiller reviewed the 2010 Will with 

Decedent before she signed it. See id. at 58. However, Lee also stated that 

he “specifically did not want to be” present when Attorney Schiller and 

Decedent reviewed the 2010 Will, so he left the room at that time. See id. 

The Orphans’ Court set forth the following Findings of Fact:

9. The changes to be made to the will outlined in this [March 13, 

2010] email by [Lee] and his testimony that they were the wishes 

of the Decedent are not credible when viewed in light of his letter 

of July 7, 2005, the [2006] Will ..., the letter he sent to Attorney 

Schiller and his status as a financial planner.

10. The [c]ourt finds from the testimony and evidence submitted 

that [Lee] wanted the Decedent’s will to be changed and that he 

took affirmative steps to do so beginning in March of 2010 when 

he contacted Attorney Schiller.

11. Attorney Schiller indicated that it was Lee who initiated the 

call to him regarding changes to the Decedent’s will in 2010.

12. Attorney Schiller stated that he never had any conversations 

or meetings with the Decedent, that he could recall, at his office 

or on the phone PRIOR to the execution of the [2010 W]ill on 

April 25, 2010.

...

16. Based on the depositions of [Attorney] Schiller and [Lee] we 

find that the Decedent never met or spoke to Attorney Schiller in 

private or without the direction of [Lee] prior to her execution of

the [2010 W]ill on April 25, 2010.

17. Based on the email correspondence sent out by [Lee] 

indicating drafting changes suggested by [Contestants] and 
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responded to by [Lee] AFTER the [2010 W]ill had already been 

executed by the Decedent on April 25, 2010, we do not credit 

[Lee’s] testimony regarding the events surrounding the drafting 

and execution of the [2010 W]ill.

18. On the whole, [Lee’s] testimony was self-serving and 

inconsistent; at times when it seemed to bolster his case he 

remembered things clearly and unequivocally[,] and at times 

when it seemed to weaken his case he could not recall details 

surrounding the drafts and review of the April 25, 2010 [W]ill with 

[Decedent].

Opinion and Order, 11/15/17, at 3, 4-5 (emphasis in original; citations to 

record omitted).

A review of the record confirms that Decedent moved into Lee’s home, 

at his suggestion, less than a month before the 2010 Will was executed. On 

the date Decedent executed the 2010 Will, she was 90 years old, had 

decreased contact with her other children, and—as discussed above—had a 

weakened intellect. See, e.g., Opinion and Order, 11/15/17, at 5 (wherein 

the Orphans’ Court specifically credited Lois’s response to Lee’s May 22, 2010 

email, and Linda response to Lee’s March 13, 2010 email, as both were sent 

prior to the commencement of litigation in this matter). Additionally, Lee, a 

beneficiary under the 2010 Will, was Decedent’s primary caregiver and 

managed her finances at that time. See Fritts, 906 A.2d at 608; see also 

Stout, supra; Burns v. Kabboul, 595 A.2d 1153, 1163-64 (Pa. Super. 1991)

(concluding that there was sufficient evidence to establish a confidential 

relationship where the proponent of the will was the decedent’s primary 

caretaker, was entrusted with a power of attorney to carry out banking 

transactions on the decedent’s behalf, and was the scrivener of the will that 
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left her the bulk of the estate). Lee also chose Attorney Schiller to draft the 

2010 Will, and he alone communicated with Attorney Schiller regarding the 

proposed changes. See generally Burns, 595 A.2d at 1163 (stating that 

“[i]t will weigh heavily against the proponent on the issue of undue influence 

when the proponent was either the scrivener of the will or was present at the 

dictation of the will.”). Thus, upon review, we agree with the Orphans’ Court’s 

determination that Contestants presented sufficient evidence to establish that 

a confidential relationship existed between Lee and Decedent. See Opinion 

and Order, 11/15/17, at 6.

With regard to the third prong of the undue influence test, “‘[s]ubstantial 

benefit’ has not been precisely defined in our case law.” In re Estate of 

Smaling, 80 A.3d at 497. Instead, the Orphans’ Court must consider the 

circumstances of each particular case. Id. 

Here, the 2010 Will generally divides any life insurance proceeds and 

the residue of the Estate, notwithstanding the lake house, equally among 

Decedent’s three children. However, Lee’s status as the sole Executor and 

Trustee under the 2010 Will “gives [him] control and mastery over Decedent’s

Estate to the exclusion of the [Contestants]. This fact is acknowledged by 

[Lee] in his email of May 4, 2010.” Opinion and Order, 11/15/17, at 5; see 

also Contestants’ Exhibit Q (May 4, 2010 email) (wherein Lee stated that “the 

fact that I have control could certainly be seen as ‘one-sided.’”); id. (wherein 

Lee stated that “[Linda’s] comment is absolutely correct that the control is 

‘one-sided.’”). Specifically, as the Trustee, Lee has the sole discretion to make 
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additional payments from each beneficiary’s trust for “support, education, 

medical care, other need, or a comfort,” with no requirement that the three 

children are treated equally, and without any standards or criteria for making 

those determinations. The 2010 Will, 4/25/10, at 4. With respect to the lake 

house, the 2010 Will, on its face, gives each of the children and other adult 

descendants an equal opportunity to become active participants in the trust. 

However, as the sole Trustee, Lee creates the schedule for use of the property, 

and maintains the record of use, which “shall be determinative.” Id. at 4, 5. 

Additionally, use of the lake house is “conditioned upon maintaining and 

leaving the property in excellent condition[,]” and Lee may preclude use of 

the lake house by any beneficiary who does not meet those undefined 

requirements. Id. at 4. Thus, considering the circumstances of this case, Lee 

received a substantial benefit under the 2010 Will.

Based upon the foregoing, the Orphans’ Court concluded that 

Contestants had satisfied their initial burden of producing evidence to support 

a prima facie showing of undue influence. Id. at 6. The Orphans’ Court also 

concluded that Lee had failed to meet his burden of producing clear and 

convincing evidence that the 2010 Will “was not the product of his undue 

influence.” Id. We agree with the Orphans’ Court’s determinations, and 

discern no error in the Orphans’ Court’s allocations of the burdens of proof. 

We further observe that although Lee argues that Contestants failed to meet 

their burden of proof, he failed to establish that he satisfied his burden by 
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producing clear and convincing evidence to affirmatively demonstrate the 

absence of undue influence. See In re Estate of Smaling, 80 A.3d at 498.

As a final matter, we must address the portion of the Orphans’ Court’s 

Opinion and Order directing that the Estate be administered pursuant to the 

intestacy laws of Pennsylvania. “If it is possible to do so, a will must be 

construed to avoid an intestacy.” Burns, 595 A.2d at 1167.

In compliance with this policy favoring testamentary distribution 

of a decedent’s assets, where a later will contains a clause of 

revocation of an earlier will, the clause of revocation fails if the 

testator is induced to make the later will by the exertion of undue 

influence. The very incapacity which destroyed the necessary 

intent to make the will also destroyed the intent to revoke the old 

one. Thus, the earlier will is reinstated when the unduly 

influenced will is declared invalid.

Id.; see also In re Estate of Luongo, 823 A.2d at 957 (stating that “once 

a will is proved to be intrinsically invalid, it no longer has the effect of revoking 

prior wills because the entire instrument is inoperative, including the 

revocation provision.”); id. at 958 (indicating that a challenge to a will based 

on undue influence raises an intrinsic defect in the instrument). Based on

these principles, we observe that the invalidation of the 2010 Will also 

invalidated the revocation provision contained therein. Thus, because 

Decedent had executed a prior will, an intestacy does not automatically result 

from the invalidation of the 2010 Will. However, it is unclear from the record 

before us whether the Orphans’ Court considered the existence of the 2006 

Will before entering its Order in this matter. We therefore reverse the portion 

of the Orphans’ Court Order directing that the Estate be administered pursuant 
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to intestacy laws, and remand to the Orphans’ Court to issue an order 

addressing the 2006 Will, and if appropriate, directing that the 2006 Will be 

deposited with the Register of Wills.

Order affirmed in part and reversed in part. Case remanded with 

instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/2018