HomeMy WebLinkAbout03-27-14 IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT
CUMBERLAND COUNTY, PENNSYLVANIA
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IN RE: BARBARA J. MCGILLVRAY, � �' -a � v� �
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DECREE OF THE REGISTER
AND NOW, this - u� day of 1��.C.4 , 2014, upon consideration of the
Petition for Probate and an original writing purporting to be the last Will of the above-
captioned Decedent, the Register of Wills duly noted certain shortcomings of said
writing and held a hearing on the matter.
Hamilton C. Davis, Esq., attorney for Decedent and her family for approximately
40 years testified that he met with Decedent in her home on November 21, 2013. At
this meeting, he made several notes on a single page of a yellow legal pad. Some of
these notes purport to address the disposition of her estate, some reference her
daughter Colleen's Trust, and some appear to be miscellaneous notes and names that
do not relate to her estate or to the Trust. The single page of notes was dated by
Attorney David and signed at the bottom of the page by the Decedent at the direction of
her counsel. It was this page that was submitted as the Last Will and Testament of the
Decedent. Attorney Davis testified that he had been taught in law school that it was
good practice to have clients sign the bottom of the attorney's notes in case the Testator
were to expire prior to signing a formally drafted Will.'
1 In his brief, Attorney Davis cites a prior hand written document that this County's Honorable
Court accepted as the Last Will and Testament, ironically, of DecedenYs Son, Fred. As in the case sub
judice, Attorney Davis had Fred sign the bottom of his page of notes just in case something happened
between the time he took the notes and the time a final Will was prepared for the Fred to sign. Fred did
expire prior to execution of the formal Will. That case is distinguishable as the notes contained ONLY
It is typical for an attorney to meet with a client, take notes as to the disposition of
his estate, draft those notes into a formal Will, and after review of such formal draft,
barring any changes, execute the formal draft with witnesses and a notary. This
formality in executing a Will makes clear the intent of the Testator. Although a "will" is
not required to be in any particular form or couched in technical language, for an
instrument to be valid, it must be testamentary in character, showing an obvious
intention or purpose on the part of testator to dispose of his property after his death. If
a further or additional act or writing is contemplated by the testator in order to make a
written document his will or codicil, the writing is nontestamentary in nature.
While there are some rudimentary notes as to the Decedent's estate and how
she wanted it to be divided, the document was peppered with extraneous information
having nothing to do with the Decedent's estate. By Attorney Davis' own testimony,
Decedent was unsure of how she wanted to handle some of the issues identified on the
page of notes, wanted additional time to consider those issues, and did not want them
to be part of her Will. Further, there was no evidence that Decedent believed that she
was executing her Last Will and Testament when she signed this page of notes or that
she intended that page to be a complete and final expression of her testamentary intent,
nor did she declare it to be her Will.
It is clear on its face that this page of notes is not a Will. There is insufficient
evidence as to the Decedent's intent that the page of notes be construed as her Will. It
is also clear that Attorney Davis planned to draft a formal document for the Decedent to
execute in the manner prescribed by Pennsylvania law. Without the testamentary intent
that the page of notes was indeed Decedent's Last Will and Testament, it cannot be
accepted as such.
information as to the disposition of the Fred's estate and nothing else. That case also faced probate
challenges prior to a family settlement agreement.
THEREFORE, it is hereby DECREED, after due consideration, that the said page
of notes shall not be admitted as the Last Will and Testament of Barbara J. McGillvray.
Letters Testamentary are hereby DENIED. Consideration will be given upon proper "
filing of Petition for Letters of Administration.
Lisa M. Grayson, Esq.,
Register of Wills & Clerk of Orphans' Court
Distribution:
Hamilton C. Davis, Esq.
: ORPHANS' COURT DIVISION
� . COURT OF COMMON PLEAS OF
In Re: BARBARA J MCGILLVRAY, DECEASED . CUMBERLAND COUNTY
. PENNSYLVANIA
. N0.21-14-0044
CERTIFICATE OF SERVICE OF ORDER
ORDER DATE: 3/27/14
JUDGE'S iNITIALS: LMG
TIME STAMP DATE: 3/27/14
IN RE: DECREE OF THE REGISTER
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SERVICE TO: HAMILTON C DAVIS 20 E BURD ST STE 6 PO BOX 40 SHIPPENSBURG PA 172570040
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Clerk of Orphans' Court