Estate of Colucci

DEL SOLE, Judge: This case results from the Common Pleas Court’s refusal to allow an appeal from the granting of letters and admission to probate of the Estate of Lora Colucci. Appellant’s claim was found to be untimely, under 20 Pa.C.S.A. 908(a), filed the 366th day following the Register of Wills admitting the will into probate. The facts as set forth by the Common Pleas Court are: Decedent died on March 4, 1981; a will dated October 12, 1978 was duly admitted to probate in the Register of Wills Office ... on March 10, 1981. Letters were granted to Louise Benson on March 10, 1981. On May 4, 1981, the Appellant, William Colucci, brother of the decedent, through one of his attorneys, John J. Hovan, Esquire, notified the attorney for the estate that he intended to file two claims against the estate: one for personal property and one for real estate of which decedent died seized. Appellant took out letters of administration in the estate of his mother, Ada N. Colucci, who died intestate on March [351] 31, 1978, and who had lived with the decedent, Lora Colucci. Letters were issued in the Ada Colucci estate of March 8, 1982. Pursuant to 20 Pa.C.S.A. § 908(a), Appellant filed a notice of appeal, both as an individual and as administrator of his mother’s estate. The notice was dated March 11, 1982, and alleged fraud, forgery and undue influence. Appellant maintains that because he alleged fraud, forgery and undue influence in his notice of appeal, the statutory limit of one year should not apply. The trial court relied on Bunce v. Galbrath, 268 Pa. 389, 112 A. 143 (1920), where the Pennsylvania Supreme Court said: “Where a last will has been admitted to probate, the legal presumption at once arises that the will so probated is a last will, and is the free and voluntary expression of the testator, of sound and disposing mind and understanding, as to the disposition the testator desired to make of his property upon his death. Where the decree of the register is unappealed from within the period allowed for such appeal, the legal presumption becomes conclusive, and it makes an end to questions passed upon, or within the jurisdictional power of the register of consider, touching the validity of the will.” Bunce v. Galbrath, 268 Pa. 389, 392, 112 A. 143 (1920). See also, Estate of Shelly, 463 Pa. 430, 345 A.2d 596 (1975). The Court, however, held in Culbertson’s Estate, 301 Pa. 438, 152 A. 540 (1930), that where fraud was practiced upon the Register of Wills, an appeal was permissible after the statutory period had passed. A will that was forged would be a fraud upon the Register of Wills and would affect his jurisdiction to grant letters on that will. Alternatively, the Court refused to allow a similar appeal based on undue influence where it was determined, under Bunce, that this fraud was known or should have been known during the statutory period. In Re Estate of Kiger, 487 Pa. 143, 409 A.2d 5 (1979). Appellant’s claim of undue influ [352] ence, therefore, would not withstand the running of the statutory period. Appellant specifically relies on In Re Estate of Kirkander, 490 Pa. 49, 415 A.2d 26 (1980), where the Court permitted an appeal based on the alleged forgery of a will after the statutory period had run. The Court accepted all of the opposing party’s well-pleaded allegations as being true and found that the “attack upon a forged document on the ground of fraud is not barred by the statute of limitations.” Kirkander, 490 Pa. at 52, 415 A.2d at 28. Accordingly, that Court remanded for an evidentiary hearing on the existence of fraud in the presenting of a forged will to the Register. The trial court dismissed the Notice because although fraud, and forgery were alleged and would toll the statute, nothing was specified in the notice to substantiate the claim. We are inclined to remand for an evidentiary hearing on the issue of forgery of the will and fraud practiced on the Register in presenting the will as authentic. We cannot determine from the Notice whether Appellant alleges that there was a forgery of the will admitted to probate amounting to fraud on the Register of Wills sufficient to toll the one-year statute of limitations. Accordingly, we must remand to afford Appellant the opportunity to amend his Notice specifying his allegations and for an appropriate evidentiary hearing on the existence of forgery in the signature of the will admitted to probate. Reverse and remand for proceedings consistent with this opinion. Jurisdiction relinquished. POPOVICH, J., files a dissenting opinion.