Orphans’ court did not err in denying photocopy of will to probate, where court credited forensic examiner’s testimony indicating discrepancies with the photocopy raising questions of the document’s authenticity, and found beneficiary’s testimony of circumstances of finding photocopy not credible. Order of the orphans’ court affirmed.




Judy McClintock appealed from the order of the orphans’ court, granting appellee Marjorie Brumbaugh’s appeal from the register of wills. Decedent John Brumbaugh, at the time of his death, resided with McClintock, with whom he had been romantically involved for over nine years. Following decedent’s death, McClintock filed a petition with the register of wills seeking to probate a document purporting to be a photocopy of decedent’s last will and testament, which McClintock claimed to have found among decedent’s important financial documents. Brumbaugh opposed the petition, but the register admitted the document to probate. Brumbaugh appealed to the orphan’s court, arguing that the register improperly admitted the photocopy to probate without the requisite proof that the original had not been revoked and/or destroyed. Brumbaugh also alleged that the document was either forged or altered, and that the register erred in not permitting a forensic examiner to examine the document. Following a hearing, the orphans’ court reversed the decision of the register, ruling that McClintock had failed to sustain her burden of proof that the original will was not revoked by the testator, or that the contents of the original will were substantially as appeared on the photocopy.

In her appeal, McClintock argued that the orphans’ court erred in reversing the decision to admit the document to probate based on its photostatic nature, asserting that the circumstances permitted admitting a photocopied will. The court first noted that, to probate a copy of a lost will, the proponent of the alleged copy had to prove that the testator created a will, prove that the contents of the copy were substantially similar to the contents of the original will and overcome the lost will presumption that the testator destroyed or revoked the will.

The court ruled that the orphans’ court properly vacated the entry of the photocopy to probate upon finding that McClintock failed to sustain her burden of proof that the contents of the photocopy were substantially similar to the original will and that decedent did not destroy or revoke the original will. The court found that the orphans’ court credited the testimony of Khody Detwiler, a forensic document examiner who testified artifacts in the document raised questions of the document’s authenticity and suggested that the will provisions in the photocopy may have been altered. Conversely, the court found McClintock’s testimony regarding the circumstances of finding the photocopy not credible, which the court held rejected McClintock’s argument that finding the photocopy among decedent’s important records demonstrated that he had not revoked the will. Accordingly, the court affirmed the order of the orphans’ court.


Reference: In Re: Estate of Brumbaugh, PICS Case No. 17-1408 (Pa. Super. Sep. 6, 2017) Lazarus, J. (16 pages)


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