Estate Litigation; Testators Handwritten Codicil Was Ambiguous

In the Pennsylvania Superior Court case of In re Estate of Jessie M. Tyler, PICS Case No. 13-3165 (Pa. Super Nov. 13, 2013) the Honorable Paula Francisco Ott, writing on behalf of the Court, ruled that the trial court improperly determined that a Sept. 8, 2010 handwritten document was non-testamentary where the document was signed by testator; even though the testators intent was ambiguous. The case was remanded to Orphans’ Court to determine the decedents’ testamentary intent.

Appellants James L. and Josephine Henry appealed from the Orphan’s Court’s order entered June 14, 2011 and amended June 23, 2011 in the trial court, which found that the Sept. 8, 2010 handwritten document was not a valid codicil to the Aug. 11, 2002 will of decedent Jessie M. Tyler, and affirmed the register of wills’ Oct. 29, 2010 decree denying probate.

Appellants contended that the trial court improperly determined that the Sept. 8, 2010 document was non-testamentary.

This court explained that if an instrument is in writing and signed by decedent at the end, and is an otherwise legal declaration of his intention which he wills to be performed after his death, it must be given effect as a will or codicil. If a testator intends to make a testamentary gift, it can be done in many ways and in many forms, and the intent is the pole-star.

Here, decedent’s signature was not at the end of the document. It was found next to or near every handwritten interlineations. Although decedent did not sign next to or near the multiple “Xs” written over “Paragraphs EIGHTH B.1 and B.2,” there was a signature under handwritten name in “Paragraph EIGHTH B.” The contemporaneous signatures by decedent, if considered alone, could evidence her intention to make changes to the two specific bequests and the residuary clause.

The Orphans’ Court found the Sept 8, 2010 handwritten document to be non-testamentary and not a valid codicil because there was evidence of a contemplated future formal codicil. Because the 2010 document contained indicia of a testamentary writing, as well as indicia that a future document was contemplated, the Orphans’ Court judge erred in finding as a matter of law that the document was non-testamentary.

The court observed that the Sept. 8, 2010 document was ambiguous and the record did not contain sufficient extrinsic evidence to permit a determination of decedent’s testamentary intent. Thus, the matter was remanded to the Orphans’ Court to conduct hearings on that issue.

The record was silent as to why decedent signed at various places on the Sept. 8, 2010 document and whether decedent ever signed handwritten changes to prior wills or codicils in advance of execution.

There was no testimony as to decedent’s health, or whether, given her age, she believed she would be unable to wait for a final document, as was her prior practice in preparing her 2002 will and 2003 codicil. Nor did the record reflect whether decedent ever reviewed the final document in the six weeks prior to her death.

The court therefore vacated the portion of the Orphans’ Court’s order that affirmed the decision of the register of wills to deny probate of the Sept. 8, 2010 document and remanded. The order was otherwise affirmed.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly (November 26, 2013)

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