Unsigned Copy of Will Failed to Meet the Two-Witness Rule to be Admitted to Probate
In the estate law and estate litigation case of Estate of Isabel Wilner, PICS Case No. 14-0764 (Pa. Super. May 6, 2014), the Honorable Kate Ford Elliot, writing on behalf of the Pennsylvania Superior Court, ruled that an unsigned copy of a will could not be admitted to probate where proponents presented only one witness to the contents of the will.
Decedent executed a will naming a church as the primary beneficiary. Upon request of decedent, caregiver (Baker) locked a conformed copy of the will in decedent’s safe under her bed upstairs and placed in the original in decedent’s unlocked metal box in the downstairs living room, where decedent’s hospital bed was located.
After decedent died, caregiver opened the metal box to discover the original will was missing. All papers were also missing from the locked safe upstairs. Caregiver testified that, sometime after decedent had executed her will and placed the original in the unlocked box, several family members came to visit decedent. Decedent’s niece, Dana, who had stolen financial documents from decedent in the past, showed up uninvited. Dana greatly upset decedent and harassed her until decedent cut off all communication. At probate, Dana, who stood to inherit half of the estate in intestacy (and who did not attend her aunt’s funeral), testified that she had no knowledge of decedent’s will.
The trial court granted caregiver’s petition to probate an unsigned copy of the lost will. The superior court reversed the trial court. The unsigned copy was not supported by sufficient proof to permit probate.
Under the two-witness rule, to establish a lost will, there must be proof by two witnesses, not only of due execution, but of the contents, substantially as set forth in the copy offered for probate. Here, appellees presented only one witness, the attorney who drafted the will as to the contents of the will proposed for probate. Attorney was only able to identify the document presented as a photocopy of the original will.
Appellees argued that the two-witness rule should no longer apply because Pennsylvania statutes no longer required two witnesses for the execution of a valid will. While this may be true, Pennsylvania statutes still required the oath or affirmation of two witnesses to prove a will before it may be probated. The proving of a will merely authenticated the testator’s signature on a will.
Next, appellees argued that there was not reason to apply the two-witness rule because the presumption of revocation had been rebutted. However, this in no way obviated the need to apply the two-witness rules as it applied to a separate inquiry. When a will is known to have been executed by the decedent and cannot be located after her death and no other will is found, the lost instrument can be probated if: (1) the presumption that the testator revoked the lost instrument is rebutted; and (2) proof is given of both the execution and of the contents of the missing document. Successfully rebutting the presumption of revocation only satisfied the first requirement; proof as to execution and contents remained unsatisfied.
The court noted the injustice of the opinion and urged the Pennsylvania Supreme Court to accept appeal, revisit the two-witness rule and possibly carve an exception in this case.
Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 37 PLW 470 (May 20, 2014)
Filed Under: Estate Law, Estate Litigation; Wills; Unsigned Copy of Will; Two-Witness Rule
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