Exceptions: The New Waiver Trap


[author: Kendra D. McGuire]

If a party is unhappy with the trial court's application of the law to the facts presented during an orphans' court matter, can the unhappy party bypass the exceptions process and go directly to the appellate courts? Recently, the Superior Court answered that question and said "No." While fiduciary opinions coming from the Superior Court are often viewed with some skepticism, the panel deciding this case included Judge Lazarus, who sat on the OC bench in Philadelphia County before her election to the Superior Court bench. Accordingly, this one got my attention.

In the case of In re Estate of William O. Smaling (click here to download the opinion), the register of wills refused to probate a later produced will. The trial court upheld the decision of the register, finding a lack of testamentary capacity and undue influence by the surviving widow (who, incidentally, was a second spouse). The widow appealed the trial court's ruling by filing her appeal with the Superior Court where she argued a misapplication of the law to the evidence – often referred to as a "weight of the evidence" argument. The Court explained that "[w]eight claims ask the court to look back, after the factfinder reached a decision, and determine if that decision was so contrary to the evidence as to shock the court’s sense of justice."

The Superior Court ruled that the widow had to raise her arguments during the exceptions phase of the case. While the Court did not say that all matters had to be raised during the exceptions phase, it did say that where one argues a misapplication of the law to the evidence, one must file exceptions.

This is another in a line of cases, determining (in a seemingly random fashion) when exceptions are necessary and when they can be avoided. This case warns us that an appellant can get trapped if exceptions are not fully litigated before seeking appellate review.

Exceptions can be expensive and are typically heard by the trial court who has already denied you your relief. From a practical standpoint, exceptions seem to be a useless, costly step on the way to an appellate review. For now, it appears to be a necessary step.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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