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HomeMy WebLinkAboutBrief filed for Registers Hearing IN RE: ESTATE OF NANCY T. ANTHONY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 11-1385 BRIEF OF PETITIONER AND NOW, come Frey & Tiley, Attorneys for the Petitioner, and respectfully submit. the following in support of the Petition for Letters Testamentary: FACTUAL BACKGROUND Petitioner intends to present evidence at the hearing as stated herein. The primary testimony will be provided by Claire T. Grant, sister of the Decedent, Nancy T. Anthony. The Decedent and her sister originally had wills prepared by an attorney and executed them contemporaneously. In 2009, the Decedent decided to make a change to the executor but to otherwise leave the will as previously prepared. The change only effected the second page of the two-page will. The Decedent and Ms. Grant were living together at the time. Ms. Grant retyped page two of the will, making the change desired by her sister, using Ms. Grant's personal computer and matching the font type and paragraph numbering to the previous will. She printed the new second page. She then removed the stapling and backing from the previous will and then attached page one from the prior will to the page two that she had printed. Ms. Grant drove the Decedent to her financial institution, Americhoice Federal Credit Union because the Decedent did not drive. The Decedent signed the will consisting of page one from the prior will with the new page 2 by signing on the signature line on the newly prepared page two at the end of the will. She signed in the presence of Ms. Grant and two credit union employees. The employees signed as subscribing witnesses. Ms. Grant and the Decedent returned to their home where, at the Decedent's request, Ms. Grant made copies of the will that were sent to the Decedent's children. The will submitted by the Petitioner for probate is the same will as was prepared by Ms. Grant, signed by the Decedent at her credit union and witnessed by the employees. The employees signed Oaths of Subscribing Witnesses that have been filed to the above-captioned estate file. Testimony will also besubmitted -that the Decedent changed the form of her signature over time. Documentary evidence will also be submitted to illustrate the change in the form of signature. This change in the form of the signature, it is submitted, explains the different signature on the first and second page. ISSUES PRESENTED AND SUGGESTED ANSWERS Dces the document presented for probate satisfy the requirements to be considered the last will and testament of Nancy T. Anthony? Suggested Answer: Yes, it does. ARGi)MENT IN SUPPORT OF SUGGESTED ANSWER The requirement for a will is simply stated: "Every will shall be in writing and signed by the testator at the end thereof...." 20 Pa.C.S. §2502. In the will at issue, there is no question that the signature appears at the end of the document. Nor is there any question that Nancy T. Anthony signed at the end of the will: the two subscribing witnesses signed oaths that they were present at the signeing and one nonsubscring witness signed an oath authenticating the signature. Rather a question has been raised because the signature on the first page does not match the signature on the second page. This appears to be a question of whether the will submitted was the same document as the one witnessed by the subscribing witnesses or whether it had been altered after signing. There is no requirement that a signature be in a certain form. What is a sufficient signature at the time depends on the custom of the time and place, the habit of the individual and the particular circumstances. Appeal of Knox, 131 Pa. 220, 18 A. 1021 (1890). Similarly, a t ~ ~ ` ~ ~ variance in signature on the will from the testator's usual signature does not necessarily constitute proof of fraud as the variance could be explained by a variety of circumstances such as age and health. In re Henry's Estate, 276 Pa. 511, 120 A. 454 (1923) These cases recognize that what constituted an individual's signature could changer over time. Therefore, a signature to will should not be required to match the signature to a codicil executed later. The same argument should apply to the will in this matter. In the matter of In re: Kulwaitis' Estate, 83 Montgomery 198 (1964), the court ruled that an informal signature or by initials as long as the intent of the testator was apparent. Perhaps the case most relevant to the within matter is Frew v. Clarke, 80 Pa. 170 (1875). That case revolved around a handwritten will in which the handwriting of the body of the will did not match the testator's signature. The Supreme Court ruled that proof of testator's signature by two witnesses was prima facie evidence of execution. For the same reason, the proof by the two subscribing witnesses and the nonsubscribing witness should establish the will that has been submitted for probate in this matter. Respectfully submitted, Frey & Tiley, Attorneys for Petitioner ~ By: ~ l / Robert G. Frey, Esquire Supreme Court Number 46397 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838