Estate of Felix, R. Appeal of: Heeter, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN RE: THE ESTATE OF RUSSELL R. : IN THE SUPERIOR COURT OF
FELIX, DECEASED : PENNSYLVANIA
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APPEAL OF: CHRISTINA L. HEETER :
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: No. 1184 WDA 2022
Appeal from the Order Entered October 6, 2022
In the Court of Common Pleas of Venango County Orphans' Court at
No(s): OCD No. 34 - 2022
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: AUGUST 28, 2023
Christina L. Heeter (Christina) appeals from the October 6, 2022 order
of the Court of Common Pleas of Venango County (orphans’ court) granting
the petition of Tyler P. LeFevre (Tyler) to admit the will of Russell R. Felix
(Decedent) to probate and revoking the letters of administration naming her
as the administratrix of Decedent’s estate. We affirm.
I.
We glean the following facts from the certified record. On January 13,
2022, Decedent died in a gas explosion and fire at his home. Christina is the
sole child of Decedent and Carol Felix, who died in 2015. Christina has two
adult children, Tyler and Grace LeFevre (Grace), with her first husband and
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* Retired Senior Judge assigned to the Superior Court.
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two younger children, Dalton and Hanna, with her second husband, Dale
Heeter (Dale).
Decedent lived on a farm that included several homes. Christina, Dale
and their two children lived on the property until a March 2017 argument
between Decedent and Dale prompted the family to leave. Decedent had
virtually no contact with Christina and her younger children after that date.
At the time of Decedent’s death, Tyler, his wife, Michael LeFevre (Michael),
and his wife’s parents lived on the farm.
On January 20, 2022, Christina applied for and received letters of
administration from the Register of Wills of Venango County. On March 29,
2022, Tyler filed in the Office of the Register of Wills a pro se petition to admit
an unsigned copy of a will in Decedent’s name to probate. On that same date,
Tyler filed in the orphans’ court a counseled petition for a rule to show cause
why Christina’s letters of administration should not be revoked and the will
should not be admitted to probate. The Register of Wills did not take any
action on the pro se petition but the orphans’ court conducted a hearing on
the petition for a rule to show cause on July 20, 2022.
The first witness at the hearing, Susan Hannon, serves as Recorder of
Deeds, Register of Wills and Clerk of Orphans’ Court for Venango County. She
testified that in the course of her job, retiring notary publics will file their
notarial journals with the court. As a result of this practice, she had notarial
journals from Lynn McQuiston (McQuiston) dated June 2020. The journals
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indicated that she notarized a signature of Decedent on June 15, 2020, for a
document described as his “last will and testament.” N.T., 7/20/22, at 4-5.
McQuiston also testified and said she did not recall Decedent appearing
before her to sign his will, but she stated that if the will was signed in her
presence, she would have noted it in her journal. When asked why the names
of neither of the purported witnesses to the will appeared in her journal,
McQuiston said if she had notarized the signature of the witnesses, her normal
practice would have been to list the witnesses’ names on one or more separate
lines from the testator. She said it was possible that individuals signed
documents but did not have their signatures notarized, in which case they
would not be included in her journal.
Elizabeth Wegman (Wegman), the senior manager of fulfillment
operations at Legal Zoom, testified that a document entitled “The Last Will
and Testament of Russell Felix” was created on the Legal Zoom website on
November 8, 2018. Id. at 14-18; Petitioner’s Exhibit 1-2. The will provided
that Tyler and Grace each stood to inherit 50 percent of Decedent’s estate and
named Tyler as executor. The email address 308Pizza@gmail.com was used
for the services and a digital copy of the will was made available to the user
through the Legal Zoom account.
Michael testified that she accompanied Decedent to the notary and
signed the will as a witness on June 15, 2020. Michael familiarized herself
with the contents of the will during the execution process as she was standing
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next to Decedent and reading it while he initialed each page of the three copies
of the will. Decedent told her that he was keeping the copies in his safe and
she did not see the will again after witnessing it. Kimberly Jo Cousins,
Michael’s mother (Cousins), also observed Decedent sign the will and signed
it herself as the second witness. Michael heard Decedent express to friends
and family his dissatisfaction with his relationship with his daughter
“[m]ultiple, hundreds” of times based on Decedent’s feeling that Christina
chose her husband over her father. Id. at 40-41. Decedent also informed
Cousins on several occasions of his negative attitude towards Christina and
his feeling that she should not inherit from his estate.
Tyler testified that in 2018, Decedent approached him for assistance in
creating a will through Legal Zoom after seeing an ad for the service on TV.
Tyler used the computer at his pizza shop, 308 Pizza, as well as his business’s
email address to create the will on Legal Zoom. He testified that he filled in
the responses on the website but that each answer was Decedent’s alone.
Decedent used his credit card to complete the order. When the will was
completed several days later, Tyler printed three copies and handed them to
Decedent. Tyler saw the three copies of the will again after they were
notarized and Decedent informed Tyler at that time that he placed the three
copies in the safe in his house.
The copies of the wills were never located after Decedent’s death. On
the evening of the January 13, 2022 gas explosion and fire, Christina came to
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Decedent’s property and asked Tyler what he “wanted to do about the
situation” and Tyler responded that “she wasn’t involved” because Decedent
had created a will. Id. at 46-47, 87. According to Tyler, Christina responded
“[w]ell, we’ll see about that.” Id. A safe was recovered from the remains of
the property by an insurance adjuster and given to Christina and Dale. After
Tyler brought legal action to gain access to the safe, it was opened by a
locksmith and no copies of the wills were found inside.
Tyler testified that Christina and Decedent had a long-running conflict
dating back to when Decedent’s wife died in 2015. In March of 2017,
Decedent and Dale had an altercation in which Dale pointed a shotgun at
Decedent and was removed from the property by the police. After that
incident, Christina moved her family off the farm with Dale.1 Decedent was
particularly upset because he lost communication with his youngest grandson
after his rift with Christina. Tyler heard Decedent say on multiple occasions
that he wanted his estate to be distributed to Tyler and Grace as set forth in
the will created on Legal Zoom.
Decedent’s friends and acquaintances also testified regarding his
fractured relationship with Christina. Danielle Fyock (Fyock), Decedent’s
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1 Michael was also present during this incident and she recalled that Dale was
very angry and the police were called. She did not recall seeing Christina on
the farm property from the March 2017 incident until Decedent’s death.
Cousins likewise stated that after moving to the property in 2019, she never
saw Christina.
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supervisor at the bus company where he worked, stated that on many
occasions, Decedent expressed his dissatisfaction with Christina, stemming
ultimately from her decision to choose her husband over Decedent. He
informed Fyock “that [Christina] would get nothing” from his estate. Id. at
59. Brian Koi, the landlord of the building that housed Tyler’s pizza shop,
testified that Decedent stated on multiple occasions that he “was dead to her”
and he “was very adamant that she would not be the beneficiary of his estate.”
Id. at 69, 71-72. Sharon Chalmers (Chalmers), a long-time friend of
Decedent and his wife, stated that she had numerous conversations with
Decedent regarding his relationship with his daughter in which he expressed
his displeasure with the fact that Christina’s actions had deprived him of a
relationship with his youngest grandson. Chalmers had nearly daily
conversations with Decedent “[t]owards the end” of his life where he
expressed his desire that Tyler and Grace would “get everything” and Christina
would get nothing. Id. at 74, 77-78. He and his late wife had been concerned
that Christina would sell the farm and they wanted it to stay in the family.
Christina also testified at the hearing. She stated that she lived on
Decedent’s farm for 20 years and she paid her parents approximately
$200,000 in total for the property, including $32,000 for the initial purchase,
$600 per month for various years to help with the mortgage and $1,000
monthly for two years when her father was injured. Christina testified that
she and Decedent argued over whether he should make a will when he was
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suffering from cancer and he assured her that she should not worry as she
would “get everything.” Id. at 123. Christina also described a “verbal
contract” with her parents because she made a financial contribution towards
the purchase of one of the houses on the property and, while title was placed
in her parents’ name, ownership of the property was effectively jointly shared.
Id. at 123, 138.
Christina conceded that she had a falling out with her father in 2017 and
that she only saw Decedent one time after she moved. She said that she had
a good relationship with her parents prior to the 2017 incident, despite minor
disagreements over the years. Christina was impeached based upon a letter
that her mother wrote in 2014, prior to her death, and placed in the safe that
was recovered from the property. The eight-page letter purported to describe
various grievances that her mother had with Christina related to decisions
Christina had made, the men she dated and married, and her withholding of
her grandchildren. Christina admitted that she had hoped to “make amends”
and “work things out” with her father prior to his death, but had not had the
opportunity to do so. Id. at 131-32.
The orphans’ court granted Tyler’s petition to admit Decedent’s will to
probate and revoked Christina’s letters of administration, finding ample
evidence that Decedent assisted in drafting the will, signed it before witnesses
at a notary public, showed the post-execution copies to Tyler and placed them
in his safe in his home. Furthermore, Decedent’s exclusion of Christina as a
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beneficiary in favor of Tyler and Grace was consistent with the evidence of the
rift between the two, as well as Decedent’s numerous statements to friends
and family regarding his intent to disinherit Christina. The orphans’ court
further noted that there was no credible evidence to suggest that the will was
lost or destroyed or that he revoked any of the will’s provisions.
Christina timely appealed and she and the orphans’ court have complied
with Pa. R.A.P. 1925.
II.
Christina raises two issues on appeal: whether the orphans’ court
lacked subject matter jurisdiction to revoke the letters of administration and
admit Decedent’s will to probate and whether it abused its discretion in holding
that Tyler, as the proponent of a lost will, rebutted the presumption that
Decedent destroyed his will with the intent to revoke it.
A.
We begin with Christina’s challenge to the orphans’ court’s jurisdiction
to enter the October 6, 2022 order.2 She argues that the orphans’ court lacked
subject matter jurisdiction to consider the probate of the Legal Zoom will or
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2 Our standard of review concerning questions of subject matter jurisdiction is
de novo, while our scope of review is plenary. In re Estate of Huber, 197
A.3d 288, 292 (Pa. Super. 2018). “Whether a court has subject matter
jurisdiction over an action is a fundamental issue of law which may be raised
at any time in the course of the proceedings, including by a reviewing court
sua sponte.” Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa.
2008) (citation omitted); see also Huber, 197 A.3d at 292.
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to remove her as administratrix and, in doing so, it usurped the exclusive
authority of the Register of Wills to address these issues.
Without subject matter jurisdiction, a court lacks “authority to give
judgment and one so entered is without force or effect.” In re Estate of
Huber, 197 A.3d 288, 292 (Pa. Super. 2018) (citation omitted). Jurisdiction
over decedents’ estates and their fiduciaries is vested in the orphans’ court
division of the court of common pleas. 20 Pa.C.S. § 711(1), (12); Huber,
supra. The orphans’ court has jurisdiction to review the Register of Wills’
grant of letters if a party appeals the Register of Wills’ decision. 20 Pa.C.S.
§ 711(18).
As an initial matter, however, the Register of Wills “shall have
jurisdiction of the probate of wills, the grant of letters to a personal
representative, and any other matter as provided by law.” 20 Pa.C.S. § 901.
When a dispute arises concerning probate of a will or grant of letters, the
Register of Wills may certify the record to the orphans’ court for its
determination. 20 Pa.C.S. § 907. Alternatively, on petition of any party in
interest, the orphans’ court may direct that the record be certified to allow for
its resolution of the issue. Id. Additionally, when a party is aggrieved from
the Register of Wills’ probate of a will or another determination by the Register
of Wills, she may bring an appeal to the orphans’ court. 20 Pa.C.S. § 908
(“Any party in interest seeking to challenge the probate of a will or who is
otherwise aggrieved by a decree of the register, or a fiduciary whose estate
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or trust is so aggrieved, may appeal therefrom to the court within one year of
the decree. . . .”) (emphasis added). Finally, “[t]he register may amend or
revoke letters testamentary or of administration granted by him not in
conformity with the provisions of a will admitted to probate.” 20 Pa.C.S.
§ 3181(b).
Christina relies on Huber, supra, and In re Estate of Wisniewski,
283 A.3d 811 (Pa. Super. 2022), in support of her argument that the orphans’
court lacked jurisdiction to issue its October 6, 2022 order. In Huber, a
residual beneficiary under a will filed a motion to appoint him as personal
representative for the estate based upon the executrix’s incapacity, and the
executrix’s attorney-in-fact filed a counter-petition requesting that letters of
administration c.t.a. be issued to her. The orphans’ court denied the residual
beneficiary’s motion, granted the attorney-in-fact’s petition, and granted her
letters of administration. On appeal, this Court noted that there was no
indication on the record that the will was admitted to probate, nor was it
apparent whether letters had been issued to any party by the Register of Wills.
Likewise, there was no record of an appeal of an initial decision by the Register
of Wills and the orphans’ court had not acted under its statutory authority to
remove the executrix. Therefore, because the Register of Wills—and not the
orphans’ court—had initial jurisdiction to grant letters of administration, we
were constrained to vacate the court’s order.
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In Wisniewski, an attorney petitioned the Register of Wills for letters
of administration for her deceased client’s estate and the Register of Wills
refused to accept the filing. She then filed a petition for letters of
administration in the orphans’ court. Even though the Register of Wills had
never filed the petition, the orphans’ court directed it to docket and backdate
the initial petition, then treated the attorney’s new petition as an appeal from
a denial by the Register of Wills. We held that the orphans’ court lacked
jurisdiction to enter its order when no request was initially made with the
Register of Wills for letters of administration, which had original jurisdiction
over the matter. Id. at 813-14.
Unliked in Huber and Wisniewski, here, the record reveals that the
Register of Wills exercised its original jurisdiction to issue letters of
administration to Christina shortly after the Decedent’s death. As the Register
of Wills had already taken action to open the Decedent’s estate, the orphans’
court was empowered under Section 907, on petition of any party, to have
the record certified to the orphans’ court to resolve any dispute that arose.
20 Pa.C.S. § 907. In Huber and Wisniewski, no dispute had arisen on the
record in front of the Register of Wills that could then be certified to the
orphans’ court—rather, the parties filed their initial petitions in the orphans’
court before a will had been entered for probate or letters had been issued.
Here, approximately two months after the Register of Wills had issued letters
of administration to Christina, Tyler attempted to admit the will to probate
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and petitioned the orphans’ court to resolve the issue of whether probate of
the lost will was appropriate in light of the letters of administration that had
already been issued. Section 907 governs precisely this situation. See also
Estate of Osborne, 525 A.2d 788, 791 (Pa. Super. 1987) (en banc) (“Thus,
when a dispute arises regarding the Register’s choice for the grant of letters,
an interested party may either file a caveat with the Register or petition the
Orphans’ Court division for the matter to be transferred to the Orphans’ Court
for resolution.”) (emphasis added).
Moreover, as Tyler argues, once the orphans’ court exercised its
jurisdiction to resolve the dispute and remove Christina as administrator, it
was entitled to review all the evidence presented at the hearing and direct
that the will be admitted to probate. See id. at 792-94 (holding that although
the Register of Wills has authority to initially issue letters, once an
administrator is removed, the orphans’ court can select the new administrator
and need not remand back to the Register of Wills for a new selection).
Section 907 supports this exercise of authority: the orphans’ court is required
to “proceed to a determination of the issue in dispute” after the record is
certified to it for review. 20 Pa.C.S. § 907. Here, the relevant dispute
concerned not only whether Christina should continue as administrator but
also whether the purportedly lost will should be admitted to probate. The
orphans’ court was well within its authority to resolve both questions put
before it. Christina’s first issue on appeal merits no relief.
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B.
Next, we consider Christina’s challenge to the substance of the order.3
She argues that Tyler did not meet his burden to overcome the presumption
that a will in a decedent’s possession that cannot be found after his death was
revoked or destroyed. Tyler was the only witness to testify to having seen
Decedent’s will after it was notarized, and his wife was the only other witness
to have a conversation specifically regarding the location of the will. The will
was not in Decedent’s safe, which was the only place he had told witnesses
that he would be keeping it. Other than opening the safe, no evidence was
offered as to the search for the will after Decedent’s death. Moreover,
Christina asserts that testimony from witnesses about Decedent’s stated
intent to disinherit her was insufficient as a matter of law to rebut the
presumption that he had destroyed or revoked the will.
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3 Our scope and standard of review of the orphans’ court’s findings of fact is
well-established.
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
findings or that there is a capricious disbelief of evidence may the
court’s findings be set aside.
In re Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014) (quoting In re
Bosley, 26 A.3d 1104 (Pa. Super. 2011)).
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We begin with the relevant legal principles.
Our Supreme Court has repeatedly held that “where a [testator]
retains the custody and possession of [his] will and, after [his]
death, the will cannot be found, a presumption arises, in the
absence of proof to the contrary, that the will was revoked or
destroyed by the [testator].” To overcome that presumption, the
evidence must be positive, clear and satisfactory. Moreover, to
prevail over the presumption and establish the existence of a lost
will, the proponent of the copy of the will must prove that: 1) the
testator duly and properly executed the original will; 2) the
contents of the will were substantially as appears on the copy of
the will presented for probate; and 3) when the testator died, the
will remained undestroyed or revoked by him.
In re Estate of Maddi, 167 A.3d 818, 822 (Pa. Super. 2017) (cleaned up;
citations omitted). Here, Christina challenges only the third element of the
test and we do not address the first two.4
When considering the third factor of the test, “[d]eclarations of intent,
condition, and circumstances of family are insufficient to establish whether a
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4 Christina cites In re Estate of Wilner, 142 A.3d 796, 806 (Pa. 2016), for
the proposition that the proponent of a lost will must prove that the will was
undestroyed and unrevoked by clear and convincing evidence. In contrast,
Tyler cites to In re Estate of Brumbaugh, 170 A.3d 541, 545 (Pa. Super.
2017) to contend that the evidence rebutting the presumption must only be
“positive, clear and satisfactory,” a standard he argues is less than clear and
convincing evidence. We agree with Tyler, as this Court has repeatedly held
that “positive, clear and satisfactory” evidence is required to establish that a
will remained unrevoked by a testator. Id.; see also In re Estate of Maddi,
167 A.3d 818, 822 (Pa. Super. 2017). In Estate of Wilner, our Supreme
Court addressed the specific burden of proof required to establish the terms
of a lost will. Here, however, the relevant terms of Decedent’s lost will are
undisputed: he identified Tyler and Grace as the sole beneficiaries and named
Tyler as executor, as confirmed by the records from Legal Zoom and various
witnesses to the original will.
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will remains undestroyed or unrevoked by a decedent and thus rebut the
existent legal presumption.” Id. “Accordingly, a court will not weigh the
probability of the decedent’s wishes or otherwise speculate as to the motives
which may or may not have influenced the [testator] in the direction of
intestacy.” In re Estate of Janosky, 827 A.2d 512, 521 (Pa. Super. 2003)
(finding that the presumption was unrebutted when proponent of will
presented no evidence other than relationships of the parties to the decedent).
Nevertheless,
[t]his makes not only the testator’s character, condition, acts, and
declarations, but the conduct and interest of those who were
around him from and after the date of the making of his will,
legitimate subjects of inquiry. Each of these lines of proof are
important, in strengthening the other, and both together seem
necessary to constitute full proof.
Gardner v. Gardner, 35 A. 558, 558 (Pa. 1896) (emphasis added); see also
Maddi, supra (relying on Gardner to find sufficient circumstantial evidence
that will was not revoked by testator when he provided for his daughters
through transfers prior to death and did not seek to revise his will to include
them as beneficiaries).
Here, Christina overlooks a relevant circumstantial factor: that
Decedent died in a gas explosion and fire that damaged his home. Tyler
presented substantial evidence at the hearing that Decedent had for years
expressed to his friends, family and acquaintances that he intended to
disinherit Christina. He took the initial step to do so in November of 2018 by
creating and purchasing the will, with Tyler’s assistance, on Legal Zoom. He
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instructed Tyler to indicate that Decedent had no children when answering the
questionnaire to generate the will and he named only Tyler and Grace as
beneficiaries. He reaffirmed his decision to disinherit Christina over 18 months
later when he had the instrument notarized.
Multiple disinterested witnesses, including both witnesses to the will,
Michael and Cousins, testified that Decedent told them on multiple occasions
that he intended to disinherit Christina. Decedent was so vocal on the matter
that even his co-worker and the landlord of Tyler’s pizza restaurant testified
that he spoke to them of disinheriting Christina. Additionally, several
witnesses confirmed that Christina had not had any significant interaction with
Decedent in the years leading up to his death. Christina herself admitted that
she had hoped to mend fences with Decedent but was unable to do so before
his death. Decedent, who chose to write his will using Legal Zoom after seeing
an advertisement for the service on television, never revisited the site to
rewrite or revise the will after creating the initial instrument.
All of these circumstances then culminated in the gas explosion and fire
in Decedent’s home that destroyed most of his personal belongings.
Combined with Decedent’s well-documented behavior of repeatedly discussing
his plan to disinherit Christina with anyone who would listen, as well as their
failure to reconcile before his death, the trial court was entitled to conclude
that the will was inadvertently lost in the fire, not purposely destroyed by
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Decedent with the intent to revoke it.5 Gardner, supra; Maddi, supra(finding no evidence that will was destroyed by decedent when he had an
unusual way of filing paperwork that rendered it impossible to find the original
document after his death). As there was “positive, clear and satisfactory”
evidence to establish that Decedent did not revoke the will prior to his death,
this second issue merits no relief. Estate of Brumbaugh, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2023
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5 We note that the trial court expressed reservations about Christina’s
credibility in this matter, particularly with regard to the safe. Prior to the
hearing, the insurance adjuster delivered Decedent’s locked safe to Christina
and it was in her sole possession for two weeks before it was opened by a
locksmith in the presence of the parties’ attorneys. Despite a court order
prohibiting her from opening the safe outside the presence of the attorneys,
the trial court stated in its opinion that “[i]t is not known whether [Christina]
had access to the safe between the time it was delivered to her house and
opened by the locksmith.” Trial Court Opinion, 11/29/22, 8 n.1.
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