MOTION TO ENFORCE A WILL FORFEITURE CLAUSE DENIED IN THAT THERE WAS PROBABLE CAUSE TO CHALLENGE WILL
Decedent’s daughter had probable cause to file this will contest where decedent abruptly changed her estate documents and substituted the agent under her existing a power of attorney during a period in which she suffered from serious ailments, including paranoia caused by strokes. The court recommended affirmance of its order denying appellant’s motion to enforce a forfeiture clause.
Decedent, Lillian Powell, died on Oct. 29, 2012. She was survived by three children, appellee Myrna Dukat and appellants Helen Kessel and Richard Powell. Lillian suffered from multiple health issues from 1989 until her death, including two strokes, macular degeneration, hearing loss and blindness. During this same period, Lillian created what was described as a “myriad of estate planning documents,” including five wills with codicils, seven trusts with amendments and three powers of attorney, all drafted by various attorneys. After Lillian’s first stroke in 1993, Dukat took early retirement to care for her mother. She assisted Lillian with bathing, dressing, food shopping and medical appointments for about 11 years. She also took her mother to Florida every year for three months to make her mother “feel whole again.” In early 2012, while Lillian was receiving hospice care, Kessel arranged to have Lillian’s estate planning documents revised. Lillian executed a last will and testament containing a penalty clause for contest on Feb 12, 2012. Shortly thereafter, Lillian executed a new power of attorney replacing Dukat with appellants. After Lillian died, her Feb. 2, 2012 last will and testament was admitted to probate and appellants were granted letters of testamentary. Dukat sued to have the will declared null and void. She alleged undue influence, fraud, constructive trust and, inter alia, lack of capacity. After a will contest trial, the trial court granted appellants’ motion for compulsory non-suit. Appellants then petitioned to enforce the forfeiture clause in the will and sought attorney fees and costs. The trial court denied the petition. Appellants filed this appeal, prompting the court’s opinion. The trial court erred as a matter of when it found that there was a probable cause to file a probate appeal, according to appellants. Citing 20 Pa.C.S. §2521, the appellate court noted that in Pennsylvania, a provision in a will or trust purporting to penalize an interested person for contesting a will or trust is unenforceable if probable cause exists for instituting proceedings. This statute codified a line of cases that carved out and expanded upon the probable cause exception to forfeiture clauses. Since then, Pennsylvania courts have attempted to more fully define probable cause in the enforcement of forfeiture clauses in will contests. Mere unsubstantiated suspicions can’t rise to the level of probate cause. However, Dukat filed this will contest based in part on allegations that Lillian lacked testamentary capacity when the probated will was executed. She testified about her personal knowledge of Lillian’s health issues. Moreover, Lillian’s granddaughter, a psychiatric nurse practitioner, testified that Lillian’s second stroke resulted in ongoing paranoia and increased agitation. The court also considered the “abrupt reversal” of the dispositive scheme of Lillian’s estate in finding probable cause for Dukat’s suit.
Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 41 PLW 441 (May 8, 2018) In Re: Este of Lillian Powell, PICS Case No. 18-0489 (C.P. Philadelphia April 12, 2018)
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