HomeMy WebLinkAbout03-09-12IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF
WILLIAM I. EVANS :CUMBERLAND COUNTY, PENNSYLVA r ~ ~~_~
Decedent :ORPHANS' COURT DIVISION ?~ r ` T~' ~~
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NO.21-08-979 t ~' ~ -
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IN RE: OPINION PURSUANT TO PA. RA.P. 1925 ~ ~-; ~-> -- .
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OLER, S.J., March 8, 2012. ~. ~_ r~ `=-'
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In this decedent's estate case, the son of a decedent filed an appeal and petition
challenging the admission to probate of his father's will, which left the decedent's estate
to a sister of the decedent.l The challenge was based on a lack of testamentary capacity
and undue influence.2 Four days of hearing on the matter were held by the undersigned
judge.3
Following the hearing, the court issued an order on September 30, 2011, expressly
finding that the testator had not lacked testamentary capacity at the time of the execution
of the will and that he had not been subjected to undue influence, and dismissed the
petition.4 Petitioner's exceptions to the order were subsequently also dismissed, following
oral argument, by order dated December 3, 201 l.5
From the order dismissing the exceptions, Petitioner has filed an appeal to the
Pennsylvania Superior Court.6 The bases for the appeal have been expressed in a
statement of errors complained of on appeal as follows:
1. This matter arises out of the Court's Orders dated September 30, 2011, and
December 6 (sic), 2011 in which the Court dismissed the Petitioner's Appeal from
Decree of Probate without an opinion. The basis for the dismissal is not readily
Appeal from Decree of Register of Wills, filed March 5, 2009; Petition for Citation sur Appeal from
Decree of Probate, filed March 5, 2009.
s Petition for Citation sur Appeal from Decree of Probate, filed March 5, 2009.
s The hearing was held on March 22, 2011, March 29, 2011, June 29, 2011, September 29, 2011.
4 Order of Court, September 30, 2011.
5 Order of Court, December 3, 2011. The order was docketed on December 6, 2011.
6 Petitioner's Notice of Appeal, filed January 3, 2012.
1
discernible' and therefore this concise statement of matters complained of on appeal is
filed in general terms as contemplated by Pa. R.C.P. (sic) No. 1925(b)(4)(vi).
2. The Decedent, William I. Evans ("Decedent"), died on September 26, 2008
and on October 1, 2008, Appellee, Irma Davenport ("Appellee"), the Decedent's sister,
filed a Petition for Probate of a Will dated April 17, 2006 (the "2006 Will").
3. Appellee is the sole beneficiary of the 2006 Will.
4. The 2006 Will purports to revoke a prior Will created approximately eight (8)
months earlier in which the Decedent left the entirety of his estate to his son, the
Appellant.
5. By Decree dated October 1, 2008, the Register of Wills admitted the 2006 Will
to probate as the Last Will and Testament of the Decedent and Letters Testamentary were
issued to the Appellee.
6. After a series of hearings before the Honorable J. Wesley Oler, Jr. beginning
on March 22, 2011 and concluding on September 29, 2011, the Court dismissed the
Appellant's Appeal from Decree of Probate.
7. The Court's refusal to grant Appellant's Appeal from Decree of Probate was in
error because the Appellee failed to establish her initial burden of proving that the
formalities of execution had been followed with respect to the execution of the 2006
Will.
8. The Court erred in denying Appellant's Appeal from Decree of Probate
because the evidence presented established that the Decedent lacked testamentary
capacity.
9. The Court erred in denying Appellant's Appeal from Decree of Probate
because the evidence presented established that the 2006 Will was the product of undue
influence exercised by Appellee.
10. The Court erred in granting the Appellee's Motion to Amend her Pleadings
after the record was closed and after a Notice of Appeal was filed in violation of Pa.
R.A.P. No. 1701.
11. The Court's Order permitting the Appellee to amend her pleadings by
rescinding admissions of fact after hearing is violative of the Appellant's due process of
rights.$
This opinion in support of the dismissal of Petitioner's challenge to the admission
to probate of the Decedent's Will dated April 17, 2006, is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925{a).
' As previously noted in the text of this opinion, the order made express findings that the testator had not
lacked testamentary capacity and had not been subjected to undue influence.
s Petitioner's Concise Statement of Matters Complained of on Appeal, filed January 27, 2012.
2
STATEMENT OF FACTS
Petitioner is Danny Bruce Evans, afifty-six year old resident of Broadnax,
Vir ' 'a.9 Respondent is Irma Davenport, a resident of DeWitt, Virginia.l° Petitioner and
~ William I.
Respondent are among the four children who survived the Decedent, .a is
Penns loam
Evans,12 a resident of South Middleton Township, Cumberland County, 73 ears old,ls
who died on September 28, 2008.14 At the time of his death, Decedent was real estate
was unmamed,16 lived alone in a home that he owned, managed lus own
18 and maintained his own home.l9 He was astrong-willed, loquacious20
holdings,
s "his wa "21 and was not easily manipulated.22
individual, who did thing y reci hated
his son, had a falling out, p p
Prior to his death, Decedent and Petitioner,
b Petitioner's refusal to deed a certain prop' ~ ~7uginia to Decedent following a
y roe laced in
transaction in March of 2005 whereby Decedent had had the p p ~ a divorce
Petitioner's name23 to avoid its subjection to equitable chstnbution in
9 N.T. 6, Hearing, June 27, 2011.
10 N.T. 37, Hearing, September 29, 2011; Petitioner's Ex. 4, Hearing, June 27, 2011.
" N.T. 97, Hearing, June 27, 2011.
12 Last Will and Testament of William I. Evans, filed October 1, 2008.
13 N.T. 4-S, Hearing, September 29, 2011.
14 N.T. 145, Hearing, June 27, 2011.
15 Death Certificate, filed October 1, 2008.
16 Decedent had been divorced from his most recent spouse on May 31, 2005. N.T. 22, Hearing, March
22, 2011.
"N.T. S, Hearing, September 29, 2011.
'g N.T. 13-14, Hearing, September 29, 2011.
19 In fast, Decedent had been weeding and mowing on the evening that he died. N.T. 17, Hearing,
September 29, 2011.
20 See N.T. 173, Hearing, June 27, 2011; N.T. 17, Hearing, September 29, 2011.
21 N.T. 1S, Hearing, September 29, 2011.
z2 N.T. 16, Hearing, September 29, 2011. June
as ~ June 29, 2011. N.T. 40, Hearing, March 22, 2011; N.T. 20, Hearing,
Petitioner s Ex. 9, Hearing, Se tember 29, 2011.
27, 2011; N.T. 58-60, Hearing, p
3
proceeding between Decedent and his spouse at that time.24 It had been Decedent's
intent, upon regaining control of the property following the divorce, to move to Virginia,
live on the property, and reopen a store on a building that existed on the property.as
As a consequence of what he regarded as a betrayal on the part of Petitioner,a6
Decedent directed his attorney, Jane Adams, Esq., an experienced scrivener of wills and
sole practitioner in Cumberland County, Pennsylvania,27 to draft a new will for him that
made Decedent's sister, Respondent Irma Davenport, sole beneficiary of his estate.2S A
previous will, executed on August 2, 2005, and initiated at the suggestion of Petitioner,29
who expected his father's estate go to him as Decedent's sole surviving child,30 had
provided for his estate to go to Petitioner.31
Decedent's new will was executed an April 14, 2006,3 in the office of Attorney
Adams.33 Attorney Adams had drafted Decedent's prior will,34 was well-acquainted with
as N.T. 20-21, Hearing, June 27, 2011; N.T. 21-22, Hearing, September 29, 2011. Petitioner did not
dispute that the purpose of the transaction had been to avoid subjection of the property to equitable
distribution in his father's divorce action, and that the understanding at the time of the transaction was
that Petitioner would deed the property to Decedent when the divorce was finalized. Id. The divorce was
finalized on May 31, 2005. N.T. 22, Hearing, March 22, 2011. It should be noted, for the record, that
Decedern's Pennsylvania divorce attorney, an esteemed practitioner in Cumberland County, was unaware
of this subterfuge on the part of Decedent and would not have sanctioned it. N.T. 40, Hearing, March 22,
2011.
zs N.T. 20, 40, Hearing, June 27, 2011; N.T. 85, Hearing, June 29, 201 l; N.T. 58, 60, Hearing, September
29, 2011.
z6 N.T. 32, Hearing, September 29, 2011.
z' N.T. 6-7, Hearing, March 22, 2011.
28 N.T. 152, Hearing, June 27, 2011; Petitioner's Ex. 4, Hearing, June 27, 2011.
29 N.T. 34-35, 43, 49-50, Hearing, June 27, 2011.
so N.T. 50, Hearing, June 27, 2011.
31 Petitioner's Ex. 2, Hearing, March 22, 2011.
3z Executrix Ex. 1, Hearing, March 22, 2011.
33 N.T. 9-12, Hearing, March 22, 2011; N.T. 152-54, 168, Hearing, June 27, 2011. At this time, Decedent
also executed a power of attorney in favor of Respondent. Petitioner's Ex. 8, Hearing, June 27, 2011.
Respondent was not aware of either the new will or the power of attorney until after their execution, and
she had not accepted the appointment when the will was executed. N.T. 42, Hearing, September 29, 201 l;
N.T. 52. Hearing, June 29, 2011. Respondent never used the power of attorney. N.T. 43, Hearing,
September 29, 2011.
4
Decedent through her representation of him commencing with athree-yeaz divorce
proceeding that concluded in May of 2005,35 and had no concern whatsoever regarding
her client's testamentary capacity at the time of the execution of the second wi1136
Decedent, according to Attorney Adams, was "clear and consistent. I mean he was cleaz.
He had a big, loud voice, and he, you know, was he was consistent the times he came
~."37 "[I]t never occurred to me that he ...wouldn't have the capacity to execute a
Wlll.„ 38
According to Attorney Adams, her discussion with Decedent revealed that he was
awaze of the natural objects of his bounty and knew what property he had.39 At this time,
Decedent was still driving,40 and in fact there is no indication in the record that he was
not still driving as of his death more than two yeazs later.
On the occasion of the execution of Decedent's new will in 2006, Attorney Adams
Es 41 and his
secured the assistance of a neighboring attorney, Mazk F. Bayley, q.,
assistant, Jacqueline Ege, to witness the Decedent's execution of the document.aa
Although Attorney Bayley did not specifically remember Decedent at the time of the
hearing herein five years later,43 his participation in such an event at the request of
~ N.T. 24, Hearing, Mazch 22, 2011.
3s N.T. 19, Hearing, March 22, 2011.
~ N.T. 178, Hearing, June 27, 2011.
37 N.T. 178, Hearing, June 27, 2011.
ss N.T. 178, Hearing, June 27, 2011.
s9 N.T. 183-84, Hearing, June 27, 2011.
40 N.T. 46, Hearing, September 29, 2011.
41 N.T. 72, Hearing, June 29, 2011.
az N.T. 9, Hearing, March 22, 2011; Executrix Ex. 1, Hearing, March 22, 2011.
as N.T. 69, Hearing, June 29, 2011.
5
Attorney Adams was a routine occurrence, and he recalled no instance of such a service
where he suspected that the testator might have lacked testamentary capacity.as
Decedent's new will consisted of a first page, representing the substance of the
document and signed by the testator, a second page, consisting of a notarized
acknowledgment of the testator, and a third page, entitled Affidavit, consisting of the
signatures of the witnesses acknowledging that the testator had declared and signed the
document as his last will and testament, that he appeared to be of lawful age and sound
mind and memory, and that there was no evidence of undue influence.46 This page
included a notarized affidavit by the witnesses to the effect that they had subscribed their
names for the purposes therein contained.47 This will was admitted to probate by the
Cumberland County Register of Wills on October 1, 2008 48
An issue, not included in Petitioner's petition, was raised by Petitioner at the
commencement of the hearing in ZOl l before the undersigned judge as to whether the
will was "properly executed"49 and "valid,"50 and should have been admitted to probate
in the first places' It was apparently Petitioner's petition that the signatures of the
subscribing witnesses were improperly located in the affidavit section of the document,
pertaining to self-proving wills.52
~` N.T. 70, Hearing, June 29, 2011.
as N.T. 73, Hearing, June 29, 2011.
`~ Executrix Ex. 1, Hearing, March 22, 2011.
47 Executrix Ex. 1, Hearing, March 22, 2011.
~ Decree of Probate and Grant of Letters Testamentary, filed October 1, 2008.
a9 N.T. 4, Hearing, March 22, 2011.
so N.T. 4, Hearing, March 22, 2011.
51 N.T. 4, Hearing, March 22, 2011.
sz N.T. 4, 14, Hearing, March 22, 2011. In this regard, Petitioner's counsel argued that "under the statute
governing self-proving wills in Pennsylvania, which is 20 Pa. C.S. Section 3132.1, it requires the
subscribing witnesses to not only sign the attestation of the will, but also to sign the will itself." N.T. 14,
Hearing, March 22, 2011.
6
The creation and execution of this new will were not the result of any influence,
let alone undue influence, on the part of the beneficiary and executrix, Respondent Irma
Davenport.53 Indeed, she had not even been aware that Decedent was contemplating a
change in his will until after it had occurred.54 Decedent's choice of Respondent, among
his surviving siblings, to be the recipient of his estate, was explained by him to a
neighbor/tenant, who recalled the conversation as follows:
You know, he said I am going to write him [Petitioner] out of the will, and so I
said, well, you know, that is your choice. And I asked him-I said, well, who are you
going to give it to? I said don't include me, I don't want any part of it. You know, I just
want to be a tenant. I don't want any part of that, and he said, well, I am going to give it
to my baby sister, and I said, well, what is her name and where does she live and so he
went on to explain that of the-of all of the brothers and sisters, and no offense, but they
[Respondern and her husband} were the least prosperous55 of all of the brothers and
sisters, and so I said, well, you know, what about grandchildren and stuff like that? And
he said, well, he had given-I guess Danny [Petitioner] has some daughters, a couple of
daughters maybe, and he had given each one of them some money to start a house or to
build a house or buy a house or something to do along those lines, and he was upset that
they never even bothered to thank him for the money. And he went on to say that Danny
was upset because Bill [Decedent] didn't give Danny the money to give to the daughter,
and he said, I didn't want to give him the money because I didn't know that she would
get all of it. Okay.56
As noted, Decedent died on September 26, 2008,57 more than two years after the
execution of the will sub judice and after spending part of the day working on his lawn.58
His estate was estimated, at least initially, to be worth $423,000.00.59 The cause of death,
according to the death certificate, was an asystolic form of cardiac arrest, secondary to
ss N.T. 179-80, 186, Hearing, June 27, 2011; see N.T. 28, Hearing, June 29, 2011.
~ N.T. 28-29, 47-53, Hearing, June 29, 2011.
ss Respondent and her husband had gone bankrupt in 2002. N.T. 58, Hearing, June 29, 2011.
s6 N.T. 22-23, Hearing, September 29, 2011.
57 Death Certificate, filed October 1, 2008.
58 N.T. 17, Hearing, September 29, 2011.
59 Petition for Probate and Grant of Letters, filed October 1, 2008.
7
cardiac artery disease.60 Decedent had suffered prior myocardial infarctions and was the
recipient of a pacemaker.61
An autopsy performed at Petitioner's request and paid for by him62 revealed that
Decedent suffered, inter alia, from progressive dementia.63 However, the examiner was
not able on the basis of his physical findings and personal expertise to provide a
retrospective timeframe for this condition or its effects.64
For his part, Petitioner attributed his refusal to carry out his original understanding
with his father that the property would be deeded to Decedent after the divorce was
finalized to a private65 conversation between them, which he said occurred at some point
in 2006.66 In that conversation, according to Petitioner, Decedent told Petitioner that he
no longer wanted the property and that Petitioner could keep it in return for forgiveness
of a $3,500 debt which Decedent owed to Petitioner.67 Petitioner then proceeded, without
advising his father,68 and in spite of being cautioned by Respondent due to her
understanding of Decedent's plans regarding his intended use of the property,69 to have
the old store on the property burned down.70 Petitioner then deeded the property to one of
his daughters."
61 Death Certificate, filed October 1, 2008.
61 Petitioner's Ex. 6, at 6, Hearing, June 27, 201 l; N.T. 110, Hearing, June 27, 2011.
62 N.T. 58, Hearing, June 27, 2011.
6s Petitioner's Ex. 6, at 6, Hearing, June 27, 2011. No evidence of Alzheimer's disease was found. N.T.
116, Hearing, June 27, 2011.
~` N.T. 122-23, Hearing, June 27, 2011.
6s N.T. 42, 51-52, Hearing, June 27, 2011.
`~ N.T. 42, Hearing, June 27, 2011.
67 N.T. 22, 24, Hearing, June 27, 2011. Decedent had paid $25,000 for the property. N.T. 21, Hearing,
June 27, 2011.
6s N.T. 60, Hearing, June 27, 2011.
e9 N.T. 42, Hearing, June 29, 2011.
70 N.T. 41, Hearing, June 29, 2011; N.T. 30, Hearing, June 27, 2011.
" N.T. 39, Hearing, June 27, 2011.
8
reaction to the
Petitioner conceded (a) that he was aware of his father's angry
72 wing the property to Petitioner,73 (c) that he knew
foregoing, (b) that his father denied g that he did
from his father?4 and others75 that his father intended to change his will, (d)
of the building
not try to resolve the issue with his father with respect to the burning r about
"76 and (e) that he never talked to lus fathe
because "the damage was already done,
his decision to change his will." of Decedent, a
on the mental impairment, if any
The testimony at the hearing
former truck driver,'$ was conflicting. It was Petitioner's position that as early as 2002
Decedent had displayed behavior changes, coinciding with his wife's departure from then
home.79 He was, according to some witnesses, at times foxgetful80 and verbally
re etitious,g' on occasion lost his way driving,82 and tended to be suspicious of the
p
motives of other people.83
On the other hand, Petitioner had not hesitated to recommend that Decedent create
will in 2005 leaving his estate to Petitioner, and it does not appear that any of
a
Decedent's family, including Petitioner, felt he was in need of a supervised facility or a
aretaker.gs Petitioner conceded that Decedent was capable of lucidity86 and that it was in
c
'~ N.T. 27, 39, Hearing, June 27, 2011.
'~ N.T. 70, Hearing, September 29, 2011.
74 N.T. 70, Hearing, September 29, 2011.
75 N.T. 77, Hearing, June 27, 2011.
'6 N.T. 58, Hearing, June 27, 2011.
"N.T. 78, Hearing, June 27, 2011.
's N.T. 182, Hearing, June 27, 2011.
'~ N.T. 49, Hearing, June 27, 2011.
so N.T. 86, Hearing, June 27, 2011.
si N.T. 188, Hearing, June 27, 2011.
sa N.T. 33, 133, 146, Hearing, June 27, 2011.
ss N.T. 60, 64, Hearing, June 27, 2011.
~` N.T. 34-35, 43, 49-50, Hearing, June 27, 2011.
ss N.T. 59, Hearing, June 27, 2011; N.T. 40, Hearing, September 29, 2011.
9
the last year of his life that he deteriorated most mazkedly;8? according to Respondent,
Decedent had driven by himself without difficulty in another state after the new will was
written;88 and, as noted earlier in this opinion, as of his death more than two yeazs after
the execution of the will sub judice Defendant continued to maintain a highly
independent, successfiil lifestyle.89 A neighbor/tenant, with whom Decedent had frequent
contact and whom the court found unbiased and entirely credible, characterized him as
"normal" in terms of mental stability,90 and "coherent and rational,"91 with "a good
memory."92
On balance, in its capacity as trier of fact, and without in any way questioning the
sincerity of Petitioner in believing that he had not been treated fairly by his father, the
court was persuaded that Decedent was well awaze of the composition of his estate, what
he wanted done with it, and the natural objects of his bounty at the time he directed his
attorney to rewrite his will, leaving his estate to his sister rather than to his son, and at the
time he executed the same.
Following the filing of Petitioner's appeal to the Superior Court in this case, and
prior to the reassignment of the case to the undersigned in his capacity as a senior judge,
Respondent secured an order permitting an amendment to her answer to Petitioner's
petition to conform to the evidence presented.93 Specifically, the court permitted
Respondent to plead that an allegation in the petition to the effect that a "per se"
confidential relationship between Respondent and the Decedent existed by virtue of
s6 N.T. 73, Hearing, June 27, 2011.
g' N.T. 71, Hearing, June 27, 2011.
sa N.T. 46-50, Hearing, September 29, 2011.
s9 See text accompanying notes 15-22 supra; N.T. 14-15, Hearing, September 29, 2011.
90 N.T. 12, Hearing, September 29, 2011.
91 N.T. 12, Hearing, September 29, 2011.
9z N.T. 12, Hearing, September 29, 2011.
9s Order of Court, January 6, 2012. The motion to amend had been filed on December 9, 2011, prior to the
filing of the appeal. Motion of Respondent Irma Davenport To Amend Answer to Conform to Evidence
Admitted at Trial, filed December 9, 2011.
10
of Decedent and being his attorney-in-fact was a conclusion
Petitioner's being a sibling
no responsive pleading, rather than an adnutted fact 9a As is evident
of law, requiring
inion, regardless of Respondent's status in relationship to Decedent the court
from this op on Decedent
was satisfied that she had exercised no influence, undue or otherwise, up
with respect to the creation of his new will.
DISCUSSION
enta capacity. "Testamentary capacity exists when the testator has
Testam ry
wled a of the natural objects of his bounty, the general composition of his
intelligent kno g is impaired by age or disease,
estate, and what he wants done with it, even if his memory Neither old age,
and the testator need not have the ability to conduct business affairs.
artial loss of memory, inability to recognize
nor its infirmities, including untidy habits, p
will deprive a person of the right to dispose of his
acquaintances, and incoherent speech, ~ 26 A.3d 1104, 1111-12 (citations
own property." In re Bosley, 2011 PA Super 126, ¶~..
omitted}. roving testamentary incapacity is upon the
ps a general rule, the burden of p
d that burden can be sustained only by clear and strong or compelling
contestant[], an ,
lack of testamentary capacity ...." In re Agostini s Estate, 311 Pa. Super.
evidence of
233, 241, 457 A.2d 861, 865 (1983).
esent case, in the court's view, the evidence fell far short of meeting this
In the pr
in fact Decedent's testamentary capacity as defined above was positively
standard, and
established.
in uence. The burden of proving undue influence is borne by the
Undue .17 non of
ontestant once the formalities of probate are established, giving nse to a presump
c
validity. • • • clear and convincing
In order to meet this burdeor,su~ffee ea fro a weual~Cened nte11~ at the time the wand 3s
evidence, that. (1) the testat ( )
executed; (2) there was a person in a confidential relationship with the testator,
94 ower of attorney, it has been previously noted in this opinion that Respondent
Id. With respect to the p
of even received the appointment as of the time Decedent executed his new will. See note 3 supra.
had n 11
the person in the confidential trehlr~oelements are established bye thencont start, the
challenged will.... Once these
burden shifts back to the proponent to prove the absence of undue influence by clear and
convincing evidence.
In re Bosley, 2011 PA Super 126, ¶_, 26 A.2d 1104, 1107-08 (citations omitted).
In the present case, as indicated heretofore, the court was of the firm view that the
credible evidence established that Respondent had exerted no influence at all upon
Decedent with respect to his decision to create the will sub judice. rred ~ leadings
Amendment of pleading. "It is not open to question that facts ave p
are not evidence unless placed in evidence by the trial judge or counsel." Singleton v.
Johnson, 929 A.2d 1224, 1231 (Pa. Commw. 200?) (citations omitted). In order to take
's leadings, the pleading must be
advantage of an admission contained in a party P
formally offered into evidence." Miller v. Workers' Compensation Appeal Board, 737
A.2d 830, 832 (Pa. Commw. 1999).
In the present case, the court has been unable to find in the hearing transcript a
lace where Respondent's answer to Petitioner's averment concerning the existence of a
P offered into
confidential relationship between Respondent and Petitioner was "formally n e
evidence." Furthermore, the court's rejection of Petitioner's undue influence challe g
was not predicated upon a finding that a confidential relationship did not exist between
Respondent and Decedent, but upon a finding that Respondent had had no influence upon
it is believed that any issue as to the
Decedent's decision to change his will. Accordingly,
ro riety of the post-appeal order authorizing an amendment to Respondent's pleading in
P P
this respect is moot.
Statutory formalities for self-proving wills. Under Section 908(a) of the Probate,
Estates and Fiduciaries Code, it is provided as follows:
~,y party in interest seeking to challenge the probate of a will or who is
otherwise aggrieved by a decree oof the co rt with "n one yea of the dec~te or 9rust is so
aggrieved, may appeal therefrom t
Under Section 3132(1) of the Code, it is provided as follows:
9s 20 pa. C.S. §908 (2011 Supp.) (emphasis added).
12
In the case of a will to which the testator signed his name, proof by subscribing
witnesses, if there are such, shall be preferred to the extent that they are readily available,
and proof of the signature of the testator shall be preferred to proof of the signature of a
subscribing witness.
Under Section 3132.1(a) of the Code, it is provided, as a general rule, as follows:
[A]n affidavit of witness made in conformity with this section shall be accepted
by the register as proof of the facts stated as if it had been made under oath before the
register at the time of probate.97
There is, however, no requirement under Pennsylvania law that the execution of a
will by a testator be witaessed.98
In the present case, Petitioner's challenge to the admission to probate of
Decedent's will on aself-proving basis, premised upon an absence of proper subscribing
witnesses, was not timely. Furthermore, the will itself was valid, regardless of whether
the witnesses properly subscribed to it, and its authenticity in terms of being the testator's
intended last will and testament was amply demonstrated by the evidence. Finally,
although the positioning of the witnesses' signatures in the document may have been
somewhat unorthodox, the purpose for which they signed the instrument was clear from
the wording and any defect of procedure seemed to the court to have been immaterial.
For the foregoing reasons, it is believed that the court's refusal to sustain
Petitioner's appeal from probate in this case was proper.
BY THE COURT,
VV~
J. esley Oler, ., Senior Judge
Ronald L. Finck, Esq.
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
For Petitioner
~ 20 Pa. C.S. §3132(1).
97 20 Pa. C.S. §3132.1(a).
9s See, e.g.> In re Laurin's Estate, 492 Pa. 477, 424 A.2d 1290 (1981).
13
Mark A. Mateya, Esq.
55 West Church Avenue
Carlisle, PA 17013
For Respondent/Executrix
14
In Re: William I Evans, Deceased
ORPHANS' COURT DIVISION
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY
PENNSYLVANIA
NO. 21-08-0979
ORDER DATE:
JUDGE'S INITIALS:
TIME STAMP DATE:
CERTIFICATE OF SERVICE OF ORDER
IN RE: v miou
SERVICE TO: Mark A Mate a
Ronald L. Finck
METHOD OF MAILING: ENVELOPES PROVIDED BY:
® USPS ®PETITIONER
RRR ^ JUDGE
HAND DELIVERED ^ CLERK OF ORPHANS COURT
^ OTHER
MAILED: 3%9/12
SERVICE TO:
METHOD OF MAILING:
^ USPS
RRR
^ HAND DELIVERED
^ OTHER
MAILED:
ENVELOPES PROVIDED BY:
^ PETITIONER
^ JUDGE
® CLERK OF ORPHANS COURT
C~ ~ ~ ~ ~~ ~~ ~ ~ ~,~~ ~ ~P n~
Deputy `
Clerk of Orphans' Court