## Facts

- Albert Nalaschi, Sr. (“Decedent”) executed a will on January 28, 2010 (“2010 Will”) naming his son, Eugene Nalaschi, as executor and his daughter, Louise Lokuta, as sole beneficiary.
- During 2010, family members observed events suggesting Decedent’s mental condition was worsening, including accusations that two daughters stole from him, getting lost while traveling to a medical appointment, and episodes of agitation when dealing with the area agency on aging.
- In March 2011, Decedent met with attorney James Zipay to prepare a power of attorney; Zipay concluded Decedent was competent to execute a legal document.
- About one week before Decedent signed the later will, a physician who examined him reported no concerns about his mental functioning and found him cognitively intact.
- In April 2011, Decedent met with attorney Charles Witaconis, Esq., to create a new will; Witaconis confirmed Decedent knew his property and family members and concluded Decedent had testamentary capacity.
- On April 25, 2011, Decedent executed a new will (“2011 Will”) naming Witaconis as executor and naming Decedent’s son, James Nalaschi, as the sole beneficiary, changing the prior dispositive plan.
- Decedent died on July 6, 2012, survived by eight children.
- The Lackawanna County Register of Wills probated the 2010 Will and issued letters testamentary to Eugene.
- Witaconis petitioned the Orphans’ Court to revoke the letters issued under the 2010 Will and to compel probate of the 2011 Will.
- Eugene opposed probate of the 2011 Will, asserting (1) lack of testamentary capacity and (2) undue influence by James.
- Eugene offered, among other evidence, testimony from Dr. Eugene Turchetti, who had never examined Decedent but reviewed medical records and concluded Decedent suffered alcohol-related dementia that deprived him of capacity to execute the 2011 Will.
- After hearings, the Orphans’ Court entered a decree on June 19, 2013, revoking Eugene’s letters and allowing probate of the 2011 Will, finding Decedent had capacity and the will was not the product of undue influence.
- Eugene appealed to the Superior Court of Pennsylvania.

## Issues

1. Whether the Orphans’ Court erred or abused its discretion in finding Decedent had testamentary capacity when he executed the April 25, 2011 will.
2. Whether the Orphans’ Court erred or abused its discretion in finding the April 25, 2011 will was not the product of undue influence by James Nalaschi.

## Decision

- The Superior Court of Pennsylvania affirmed the Orphans’ Court decree.
- The court held the record supported the finding that Decedent had testamentary capacity at the time he executed the 2011 Will.
- The court held Eugene did not prove undue influence and did not establish the elements required to raise a presumption of undue influence; therefore, the burden did not shift to the will’s proponent.
- The probate of the 2011 Will and revocation of letters issued under the 2010 Will remained in effect.

## Legal Principles

- In Pennsylvania, the party contesting a will bears the burden to prove lack of testamentary capacity or that the will resulted from forgery, fraud, undue influence, or an insane delusion.
- Testamentary capacity is assessed at the time of execution, with consideration of the testator’s condition for a reasonable time before and after execution; a will may be valid if executed during a lucid interval.
- Capacity requires that the testator understand the act of making a will, the nature and extent of the property, and the natural objects of the testator’s bounty and intended disposition.
- A presumption of undue influence arises only if the contestant proves by clear and convincing evidence: (1) a confidential relationship between the testator and the person benefiting, (2) a weakened intellect, and (3) a substantial benefit conferred by the challenged instrument.
- If the presumption arises, the proponent must rebut it with clear and convincing evidence that the testamentary act was voluntary.
- Appellate review of Orphans’ Court determinations is deferential; supported credibility findings and fact findings will not be disturbed absent an error of law or abuse of discretion.

## Conclusion

The Superior Court affirmed admission of the 2011 Will to probate because contemporaneous testimony from attorneys (and other near-in-time observations credited by the Orphans’ Court) supported that Decedent knew his family, property, and intended plan when he signed the will, while the contestant’s proof of incapacity relied heavily on earlier incidents and a retrospective medical opinion based only on records review; the contestant also failed to prove weakened intellect and a confidential relationship necessary to trigger a presumption of undue influence.


Estate of Nalaschi, 90 A.3d 8 (2014)