In re Estate of Smaling

CONCURRING AND DISSENTING OPINION BY

BOWES, J.:

I join the portions of the majority’s decision that find Appellant’s issues are not waived and that affirm the conclusion that the will in question was procured by undue influence. However, I respectfully dissent to the extent that the majority reverses the determination of the orphans’ court that the testator lacked testamentary capacity on October 29, 2008.

William O. Smaling died on December 31, 2009, and, on January 22, 2010, the Register of Wills of Monroe County (the “Register”) admitted to probate a will dated April 11, 2005, and the…