Will Contests: Evidentiary Rules

Evidentiary Rules in Will Contests

Presented by

EDWARD L. PERKINS, JD, LLM (Tax) Gibson&Perkins, PC

D. BRUCE HANES Register of Wills Montgomery Co

PAUL FELLMAN, JD Gibson&Perkins, PC

PART ONE – CONTESTING THE WILL IN IT ENTIRETY INITIATING A WILL CONTEST I.

Initiating the Will Contest of the Will Itself.

A. End Result – A Will contest which seeks to invalidate an entire Will will result in reinstatement of the last validly executed Will, or if none exists intestacy.

B.

Procedural Ways to Bring a Will Contest

1.

In Pennsylvania a Will contest maybe initiated in two (2) different ways: A will contest is initiated by either by (i) filing a caveat with the Register of Wills or (ii) appealing the probate decision of the Register of Wills to the Orphans’ Court.

2.

In the first instance, jurisdiction over the will contest vests in the Register of Wills.

In the case of an appeal, jurisdiction vests with the Orphans’ Court.1 C.

Filing a Caveat 1.

A will contest may be initiated before the Register of Wills even prior to the probate

of a will.

2.

Prior to the probate of the will, an individual who wishes to contest a will begins the will contest by filing a caveat with the Register of Wills.2 D.

Form of the Caveat

1.

The object of a caveat is to prevent the grant of letters of administration or the probate of a will without a hearing at which the caveator may present his objections, and the procedure, whether the caveat is filed as to the grant of letters of administration or to the probate of a will, is similar.

2.

The form of the caveat is not material. It is a matter of local practice as to what type of caveat the Register of Wills will accept.

3.

There are no forms prescribed by the Probate Estates and Fiduciaries Code.

4.

As a matter of local practice, a Register of Wills may accept just a letter requesting that a will not be probated and advising the Register of Wills that a hearing is requested.

5.

It is a wise practice to consult the Supreme Court Orphans’ Court Rules and the local rules of court in advance of the preparation of any papers, and adapt the form thereof, as closely as may be appropriate, to the requirements of papers to be submitted to the orphans’ court division.3 II.

Standing to Initiate a Will Contest

1 Donald Petrille, Register of Wills Bucks County, Pennsylvania, Basic Principles &Outline of a Will Contest, 2013 2 Id. 3 1 Remick's Pennsylvania Orphans' Court Practice § 4.02

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A. To have standing to contest a will, a person must have sufficient interest in the estate so that he or she will be injured by the probate of the will or will benefit if the will is not probated.

B. For example, beneficiaries in a first will, though not heirs at law, would have standing to contest a later will.

C. If a successful will contest would result in the decedent dying without a will, then those persons entitled to inherit under the intestate laws would have standing to contest the will. 4 III.

Duty of the Register of Wills Upon Filing a Caveat

A. Upon a caveat being filed with the Register of Wills, the Register of Wills must fix a bond that must be filed by the person filing the caveat.

1.

Within ten (10) days of filing of the caveat or a petition for probate, whichever is later, the contestant must post any required bond for payment for costs.

2.

When a caveat has been filed, the Register has the authority to set a bond of not less than $500 or more than $5,000, as the register considers necessary, conditioned for the payment of any costs which may be decreed against the caveator.

3.

The purpose of the bond is to give protection to the proponents of the will in the event that the will contest is not successful.

B. The Register of Wills, in deciding against the contestants and upholding the validity of the will may award all or a part of the costs against the caveator, including attorney fees.

1.

If the costs are not paid by the caveator, any party in interest may bring suit upon the caveator’s bond and recover the costs from the bond.

2.

This section of the Probate Code has not been amended for since 1972 and it is recommended to the Register of Wills that the bond be set on the high side rather than on the low side.

C. abandoned.5 IV.

If no bond is filed within 10 days after the amount has been fixed, the caveat is deemed

Proceedings Before the Register of Wills

A. The Register of Wills is a judicial officer. The acts and decisions of the Register of Wills and the admission of a will to probate are all judicial functions of the Register.

B. Before the actual hearing before the Register of Wills, the parties are allowed to subpoena witnesses and documents to the hearing and the Register of Wills has the power to issue a subpoena to any person in any county of the Commonwealth to appear before the register at a hearing or to produce papers or records before the Register of Wills.6 4

Petrille, Basic Principles &Outline of a Will Contest.

Id. 6 20 Pa.C.S. § 903 5

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1.

The Register of Wills’ power to subpoena persons and their documents is exclusive throughout the Commonwealth of Pennsylvania.7 2.

The Register of Wills also has the power to issue commissions or rules to take depositions of witnesses in another county or outside of the Commonwealth.

C.

Unlike procedures in the Orphans’ Court, there is no right to engage in discovery.

1.

Discovery usually takes the form of depositions of witnesses before a hearing.

Discovery in Pennsylvania is controlled by Pennsylvania R.C.P. 4001, et.seq.

2.

The Rules say that the discovery rules apply only to a civil action or proceeding in equity “brought in or appealed to any Court which is subject to these rules”.

3.

The definition of the “unified judicial system” under the Judicial Code does not include the Register of Wills.

D. Therefore, although the Register of Wills is a judicial officer and makes judicial decisions, discovery is not available to litigants in proceedings before the Register of Wills.8 V.

Proceedings Before the Register of Wills Pending the Will Contest

A. If the will contest is to proceed before the Register of Wills, it may be necessary to appoint someone to administer the estate until the will contest is concluded.

B. The Register of Wills has the power to appoint an administrator pendente lite to collect the assets of the estate, preserve and protect the assets, pay any debts and taxes, and otherwise preserve the estate until the conclusion of the will contest.

VI.

Discretion of the Register of Wills to Hear a Will Contest

A. Pennsylvania law provides that when a caveat has been filed the Register of Wills may certify the entire record of the proceedings pending before the Register to the Orphans’ Court.

1.

The Act also provides that the Orphans’ Court, upon petition of any party in interest, may direct the Register at any stage of the proceedings to certify the entire record to the Orphans’ Court.

2.

Once the record has been certified to the Orphans’ Court, either on the motion of the Register of Wills or on the motion of any interested party, the Orphans’ court then has exclusive jurisdiction to proceed to a determination of the issues in dispute.

B. If the record is not certified to the Orphans’ Court, then an actual trial is held before the Register of Wills and the Register of Wills, acting as a judicial officer, will actually decide the outcome of the will contest.

VII.

Appeal from Probate

7 James F. Mannion, Will Contests, 2006 8 Id

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A. The second way in which a will contest may be initiated is to appeal the Register of Wills decree of probate to the Orphans’ Court.

B. Any party in interest seeking to challenge the probate of a will or who is otherwise aggrieved by a decree of the register, or a fiduciary whose estate or trust is so aggrieved, may appeal to the Orphan’s Court within one year of the decree.

C. The Orphan’s Court, upon petition of any party interest, may limit the time of appeal to three (3) months instead of one(1) year.9 VIII.

Discovery of a Later Will or Codicil A.

PEF Sec. 3138 –

1.

Section 3138 of the Probate Code provides that if a later will or codicil is submitted to the Register of Wills for probate within three (3) months of the testator’s death.

2.

After the Register has probated an earlier instrument, the Register, after such notice as the Register deems advisable, but with at least ten (10) days’ notice to the petitioner who presented the probated instrument, shall have the power to open the probate record and receive proof of the later instrument, be it a will or a codicil, and to amend the probate record based upon the newly discovered will or codicil.

3. necessary.

In this particular case, a hearing before the Register of Wills is absolutely

B. Note - Please note that this section gives authority to the Register of Wills to reopen the decree of probate only for a period of three (3) months after probate.

1.

Once three (3) months from the date of probate has passed, the jurisdiction of the Register of Wills ceases.

2.

Once three (3) months from probate has passed, the only way to deal with an after discovered testamentary writing is to appeal from probate and ask the Orphans’ Court to authorize the Register of Wills to open the probate decree and to consider whether or not to probate the later document. This period of time for appeal is one (1) year from the date of probate.10 IX.

The Mechanics of an Appeal from Probate

A. Appeal to the Orphan’s Court - Appealing the decision of the Register of Wills to the Orphans’ Court is a two (2) step procedure.

1.

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A notice of appeal is filed by the contestant with the Register of Wills.

Petrille, Basic Principles &Outline of a Will Contest Id.

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2.

This is followed by filling a petition with the Orphans’ Court asking that a citation issue upon all interested parties to show cause why the decree of Probate by the Register of Wills should not be revoked.

B. The Role of the Register - The Register of Wills has really nothing to do in this particular instance except to file the notice of appeal with the estate documents.

1.

This Notice of Appeal now becomes a part of the record of the probate proceedings which will then be certified by the Register of Wills to the Orphans’ Court.

2.

There is no set requirement that a bond be filed upon filing an appeal from the Register’s decree of probate.

3.

The bond, if any, is fixed by the Orphans’ Court in its discretion.

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CONTESTING THE WILL I.

Evidentiary Rules A.

B.

The Evidentiary Issues 1.

What do you have to prove?

2.

Which party has the burden of proof?

3.

What is the standard or measure of proof required?

4.

What type of evidence is admissible?

The Rules of Evidence apply 1.

In General

Extrinsic evidence when considered by the court to provide insight into the testator’s intent is still subject to the rules of evidence, such as the hearsay rule, the attorney-client privilege, and the Dead-Man's Act to determine its admissibility.

2.

The Applicability of the Hearsay Rule

a.

If the document at issue is ambiguous on its face documentary evidence, as well as oral and written testimony concerning the testator’s declarations of intention should be held admissible under exceptions to the hearsay rule. b.

Pennsylvania Rule of Evidence 801(c) defines hearsay as "a statement that (i) the declarant does not make while testifying at the current trial or hearing, and (ii) a party offers in evidence to prove the truth of the matter asserted in the statement." c.

However, the Rules at 803(3), provide an exception to the hearsay rule:

“(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.”

3.

Attorney-Client Privilege

a.

The purpose of the attorney-client privilege is to protect the client’s communications with his or her attorney, generally in the context of estates when defending adverse claims against the estate. b.

In dealing with such claims, the attorney-client privilege should not apply.

In this context, application of the rule does not protect the decedent’s estate but rather protects the claimant. c.

The privilege should also not apply in the context of resolving an ambiguity in a will. Such proceedings should not be viewed as adverse to the estate, but 6

rather should be viewed as a resolution of two or more different constructions of the testamentary document. d.

Therefore, the introduction of documentary evidence in the hands of the donor's attorney, nor the use of the attorney's oral or written testimony should not be barred by the privilege.

4.

The Dead Man’s Act

a.

The Dead Man’s Act protects parties who have civil claims prosecuted or defended by a decedent.

(1) The Act bars the testimony of a party to a transaction or event with the decedent who has an interest adverse to the decedent in a civil action brought or defended by the decedent’s executor.

(2) In Pennsylvania, under the Dead Man's Act found at 42 Pa. Cons.

Stat. Ann. § 5930, surviving parties who have an interest which is adverse to a decedent's estate are disqualified from testifying as to any transaction or event which occurred before decedent's death.

(3) For example, in the context of determining whether an inter vivos gift was made or intended, a court may not admit statements of decedent absent independent testimony and establishing prima facie evidence of donative intent.

(4) If the alleged donee fails to establish prima facie evidence of a gift or transfer, by independent testimony before he or she takes the stand, he or she is not competent to testify. b.

On the other hand, the Dead-Man Act should not be construed to interfere with the introduction of evidence, documentary or testimony by a witness regarding the donor's statements about the content of his or her will, even if the documentary evidence or the testimony stems from a witness who is a devisee, beneficiary, nominee, or appointee or claims to be a devisee, beneficiary, nominee, or appointee of the donative provision in question. c.

As discussed previously in regard to attorney-client privilege, such a proceeding is not a matter "adverse" to the decedent's estate.

C.

The Burden of Proof 1.

2. be incorrect.

The burden of proof is of great significance in the trial of a case.

It is the method by which the law allocates the risk that the ultimate decision may

3.

Nevertheless, considerable confusion exists in Orphans' Court litigation both as to who bears the burden, and as to the standard or measure of proof required.

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4.

When the Register of Wills has a will contest litigated before the Register, the Register must keep in mind the burden of proof.

5.

If the person with the burden of proof does not carry their burden, then the Register of Wills cannot find in their favor 6.

A nonsuit may be entered against a contestant in will contest whenever the contestant has the burden of overcoming the presumption of validity arising from due proof of execution as required by law and the contestant has failed to satisfy that burden.11 D.

Standard or Measure of Proof

1.

Overview - Generally, in contesting wills there are two measures of proof:(1) preponderance of the evidence, and (2) clear and convincing evidence 2.

Preponderance of the Evidence - When the standard of proof is the preponderance of the evidence, the plaintiff’s burden is to convince the factfinder, upon all the evidence before it, that the facts asserted by the plaintiff are more probably true than false.12— 3.

Clear and Convincing Evidence – Clear and convincing evidence is the highest burden in civil trials, requiring the witnesses to be credible, the facts distinctly remembered, the details narrated exactly and in due order, so as to be clear, direct and convincing, enabling a jury to come to a clear conviction, without hesitancy, of the truth of the precise facts at issue.13 E.

Presumptions of Law

1.

When proof of a basic fact gives rise to a presumed fact, procedurally, two distinct theories concerning burden of proof have been espoused a.

The burden of persuasion remains in place, however, the burden of going forward with evidence to rebut the presumed fact shifts (the so-called “Thayer Rule"). b.

The burden of persuasion shifts carrying with it, of course, the burden of going forward with the evidence (the so-called “Pennsylvania Rule").14 2.

The Honorable Robert W. Tredinnick, Judge of the Orphans' Court Division of the Court of Common Pleas of Montgomery County in his classic paper Presumptions and the Burden of Proof in Orphans' Court Litigation15 advocated the adoption of the Pennsylvania Rule. As discussed below this is particularly relevant in undue influence cases.

II.

Grounds for Contesting a Will

11

Robert W. Tredinnick, Judge of the Orphans' Court Division of the Court of Common Pleas of Montgomery County, Presumptions and the Burden of Proof in Orphans' Court Litigation, 1986 12 Estate of Harris v. Dawley (In re Dawley), 312 B.R. 765 (Bankr. E.D. Pa. 2004).

13 LaRocca Trust, 411 Pa. 633, 640, 192 A.2d409, 413 (1963).

14 Id. 15 This paper was prepared by Judge Tredinnick, and delivered at the Pennsylvania Conference of State Judges at its Mid-Winter meeting in February, 1986.

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A.

Proving the Will 1.

Definition

a.

As defined by the Pennsylvania Estate and Fiduciary Code (the “PEF Code”) a will is “a written will, codicil or other testamentary writing.” b.

Pennsylvania law favors testamentary dispositions of a decedent's assets, and if it is possible to do so, a last will and testament will be construed by the courts to avoid intestacy.

2.

Requirements –

a.

However, there are certain requirements which must be met in order to create a valid will testament in Pennsylvania. b.

B.

They are the following: (1)

A written document;

(2)

An intent of the testator to dispose of property at death;

(3)

Proper execution of the document; and

(4)

A testator with the requisite capacity;

(5)

Not subject to “undue influence”;

(6)

Fraud;

(7)

Forgery;

(8)

Mistake; or

(9)

Insane delusion

Proper Execution 1.

Statutory Requirements

Every will shall be in writing and shall be signed by the testator at the end thereof, subject to the following rules and exceptions: (1) Words following signature. — The presence of any writing after the signature to a will, whether written before or after its execution, shall not invalidate that which precedes the signature.

(2) Signature by mark. — If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed before or after he makes his mark shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence.

(3) Signature by another. — If the testator is unable to sign his name or to make his mark for any reason, a will to which his name is subscribed in his presence and by his express 9

direction shall be as valid as though he had signed his name thereto: Provided, That he declares the instrument to be his will in the presence of two witnesses who sign their names to it in his presence.16 2.

The Determination of Proper Execution a.

Burden of Proof (1)

Initial Burden –

(a) At inception of trial the burden of proof is on the proponent to “prove the will”.17 (b) The initial burden of proof is upon the propounder of the will to prove due execution of the will.

(2) If the Will Has Been Probated - If will has been probated by the register, proponent merely offers in evidence the register's record of probate.18 (a) Therefore, the testimony of subscribing witnesses must be produced or if they are not available, testimony of two (2) witnesses who were familiar with the testator and his or her signature and will testify as to the genuiness of the signature of the will. (b) Lacking either of these two (2) types of witnesses, the law does permit testimony of persons who will verify the genuiness of the signatures of subscribing witnesses, however, can only be established by the testimony of two (2) competent persons who can testify to the genuiness of the testator’s signature.

(3)

If Probate has Been Refused –

(a) The Two Witness Rule - All wills must be proven by the oaths or affirmations of two competent witnesses. (i) The statutes do not require the formality of an attestation, or that there be subscribing witnesses. (ii) The purpose of the "two witness rule" is to establish that the testator actually executed the will. (iii) In a will contest, you cannot use a self-proving clause to prove proper execution.19

16 20 Pa.C.S. § 2502 17 Tredinnick, Presumptions and the Burden of Proof in Orphans' 18 Aker, Law of Wills in Pa., 1983, §9.2c. (c) 19 20 Pa.C.S. § 3154(6).

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(iv) It is patently clear that the "proving" of a will is simply the process by which the authenticity of testator's signature is established. (v) The measure of proof is presumably by a preponderance although the case law is unclear.

Note: The fact that the will is self-proven does not relieve the proponent of proving the will by two witnesses. (vi) Thus, it is not essential, to establish the validity of a will, that two persons be present at its execution, and, except when a will is signed by mark or by another, no witnesses are required until it is sought to probate the instrument. (vii) Any two witnesses who can, under oath or affirmation, identify the testator’s signature will qualify the will for probate, and even where there are no subscribing witnesses, a will may be sufficiently proved by two witnesses who are acquainted with the handwriting of the testator. (viii) No error for court at conclusion of petitioner's case to direct petitioner to present testimony of second witness; two witness rule met by testimony of notary who recognized her signature but had no specific recollection of signing and testified as to procedure always followed:20 "In Pennsylvania it has always been the rule, that after a nonprofessional witness has stated the facts upon which his opinion is founded, he is permitted to state his opinion as to the sanity or insanity of the testator": 21 Whether the witness "has testified to such facts as entitle his opinion to go to the jury is always a question for the court":22 (ix) Although the Will must be proved for probate by two witnesses, and each witness must separately depose to all facts necessary so that the will would be fully proved by the testimony of either alone 23there is no requirement that evidence on behalf of contestant must be established by two witnesses; testimony of only one if believed is sufficient.24 If probate has 20

Seixas Est., 12 Fiduc. Rep.2d 1.

Pidcock v. Potter, 68 Pa. 342, 351; Weir v. Ciao, 364 Pa. Super. 490.

22 Wilson v. Mitchell, 101 Pa. 495, 503.

23 James Est., 329 Pa. 273.

24 Lewis v. Lewis, 6 S. & R. 489.

21

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been refused by the register, proponent proves execution by producing witnesses to its execution. (b)

No Attest to Capacity –

(i) The "two witness rule" of Probate, Estates and Fiduciaries Code§ 3132, does not require that subscribing witnesses attest to testatrix' testamentary capacity. (ii)

It is sufficient that they prove execution of the

will.25 (c)

Burden Shifts –

(i) Thereafter the burden of proof shifts to the contestant to prove the testator did not have capacity to make the will in question. (ii) Once the execution of the will is proved, the mental capacity of a testator is presumed. (iii) This presumption arises from proof of the testator's signature and not from any express or implied verification of testator's mental capacity by the attesting witnesses.

(4)

Once the Will has Been Proven

(a) Once due execution has been proven, a presumption of validity of the will and a presumption of testamentary capacity, and lack of undue influence arises. (b) Thereafter, the contestants must produce compelling evidence to overturn the will, since the law favors the validity of wills. b.

Initial Burden when Later Will is Offered within 3 Months.

In the case of a later will offered within three (3) months of probate, because the will has already been probated, the proponent merely offers in evidence the record of the Register of Wills record of probate without the production of witnesses, and the burden of proof then shifts to the contestant.

C.

A Written Document

1.

A will can take almost any form of writing (e.g. a letter, a deed, promissory note, etc.), and the will may be in any language - including one that the testator does not understand.

25

Brantlinger Will, 418 Pa. 236.

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2.

The form of the instrument is immaterial, so long as in substance it is a gift intended to take effect at the testator’s death, the important incidents of a testamentary document being that it vests no present interest, becomes effective only at the maker’s death, and until then is ambulatory in character and revocable.

3.

In addition, the will may be written in pencil or on any other material or surfaces, subject only to the limitation that the material used has a degree of permanence, which reasonably negates the possibility of fraud.

D.

An Intent to Dispose of Property at Death (“Testamentary Intent”) 1.

Overview

a.

In order to establish that a particular writing constitutes a valid will or codicil, testamentary intent must be proven; i.e., the writing must be dispositive in character, and the disposition must be intended to take effect after the testator's death.

(1) The writing alleged to be a will was intended by the alleged testator to be the complete and final expression of his or her testamentary intent; a mere signification of an intention to do a future act is insufficient.

(2) If a further or additional act or writing is contemplated by the testator in order to make a written document his or her will or codicil, the writing is non-testamentary in nature. b.

Intent does not depend on the testator’s knowledge or realization that he or she is making a will, since if the writing is in legal effect a will, the understanding of the testator to the contrary is immaterial. c.

Conversely, where a writing by its terms clearly does not constitute a testamentary disposition, testamentary intent is not relevant. For example, where a letter contains no dispositive provisions, even though it pertains to matters to be considered following the scrivener’s death, the letter is not a will.

2.

Determining Testamentary Intent

a.

Overview – Where a paper is proposed for probate and its testamentary character is denied, it is the duty of the court in the first instance to examine the paper, its form and language, and therefrom determine as a matter of law whether or not testamentary intent is shown with reasonable certainty. b.

Evidence Considered

(1) Where a writing by its terms clearly constitutes a testamentary disposition, evidence of a contrary intent is inadmissible.

(2) Conversely, where a writing is obviously not a will, evidence of testamentary intent is not admissible.

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(3) On the other hand, if after such an examination the court determines that a real doubt or a real ambiguity exists, so that the paper offered for probate might or might not be testamentary, depending upon the circumstances, the document presents an ambiguity which will permit the use of extrinsic evidence in aid of resolving the uncertain character of the instrument. c.

Extrinsic Evidence Considered by the Pennsylvania Courts - Extrinsic evidence is permitted only where testamentary intent is doubtful or equivocal. The following are the types of extrinsic evidence that have been considered relevant by the courts in Pennsylvania: (1)

The Circumstances Surrounding the Making of the Document –

(a) Where there is a question as to the intention of the testator as set forth by the document, extrinsic evidence has been permitted to show circumstances surrounding the testator at time of execution of the document (this is referred to the “Arm Chair Rule”). (b) Testimony of third parties have been deemed proper where such testimony did not impermissibly intrude into the subjective intent of the testator but, rather, referred only to circumstances attendant to the execution of the document.

(2) The Declarations of the Testator - If the document at issue is ambiguous on its face documentary evidence, as well as oral and written testimony concerning the testator’s declarations of intention should be held admissible under the Rule 803(3), exception to the hearsay rule see above.

3.

What is a Signature?

a.

The purpose for requiring a signature is to authenticate the instrument, identify the testator, and establish testamentary purpose (1) The sole test as to whether or not a purported signing is a valid signature is whether it was made with the intent that it actually be a signature.

(2) Extrinsic evidence is admissible to aid in determining whether the testator intended such to be his or her signature.

(3) Initials, unintelligible scribble, nicknames, maiden names, and even fingerprints have all been accepted as valid signatures. b.

A “mark,” such a cross or an X, is allowable only if signed in the presence of two witnesses, who also sign the will.

(1) A signature by another is permitted provided that the testator is unable to sign, and the testator’s name is subscribed in his or her presence and by his or her direction.

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(2) This must be coupled with a declaration by the testator made in the presence of two subscribing witnesses that the instrument is his or her will, who then also sign in the testator’s presence. c.

Two or More Instruments

(1) A person may have more than one will provided that the last document in time does not expressly or by implication revoke the prior wills. A valid will may be written on separate, not physically united, sheets of paper, only the last of which is signed.

(2) Good practice requires stapling of the pages, although this type of physical connection is not required. Integration may be inferred by internal coherence of the pages. As referenced earlier, signing of each page on the side, not the bottom, of the page will insure against fraud. d.

At the End Thereof

(1) Every will shall be in writing and shall be signed by the testator at the end thereof any words following the signature are invalid.

(2) The end contemplated by the Pennsylvania Probate Estates and Fiduciaries Code, 20 Pa. C.S. § 2502, is the sequential logical end of the language used by the decedent to express his or her testamentary purpose.

(3) Thus, signing at the top or side of a page or 3the back of a printed form does not fulfill the requirement that the document be signed at the end. The question must be determined from the document itself, without the benefit of parol evidence.

4.

Forgery a.

Overview (1)

Forgery is the unauthorized signing of a will by another.

(2) In addition to false signing it can take the form of adding unauthorized interlineations or “slip paging” one page of a will with another.26 (3) The testimony of experts, as well as any person acquainted with the handwriting of the supposed writer, is admissible to prove handwriting. b.

Use of Experts - The most common method attacking the validity of the testator’s signature is by use of handwriting experts.

26 Mannion, Will Contests.

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(1) However, Pennsylvania Courts have ruled that it is a general rule that opinion evidence is of little weight as against the direct, factual evidence of a scrivener and subscribing witnesses to a will. 27 (2) In other words, if the testimony of the subscribing witnesses to the will is uncontradicted, unimpeached, and the Register of Wills finds their testimony entirely credible, then this evidence takes precedence over the testimony of handwriting experts.

(3) However, if the evidence of due execution by the testator is not credible, then a handwriting expert’s testimony will be sufficient to establish forgery and set aside the will. c.

Other Types of Evidence

(1) The opinions of any person acquainted with the handwriting of the supposed writer is as relevant as the opinions of those who have had special experience with, or have pursued special studies relating to, documents, handwriting, and alteration thereof.

(2) Further, it shall be competent for experts to make comparisons of disputed handwriting with other documents of writing admitted to be genuine.

(3) The Pennsylvania Rules of Evidence provide that a nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation satisfies the requirement of authentication and identification.

(4) In the case of signatures, it is competent for experts to place the genuine and disputed signatures or writings in juxtaposition, and to draw the attention of the jury thereto, and counsel may require an expert to state the principles on which the expert has based his or her work, the details of his or her work, and his or her opinion that the results are important to the points at issue, or the reasoning, analysis, and investigation by which he or she has arrived at his or her opinion.

(5) On the final question as to whether any particular handwriting is genuine or simulated, the jury is the ultimate arbiter.

(6) If parties do not arrange for expert examination, court may order original of questioned document to be made available for same.

(7) Comparison should be made to examples of decedent's handwriting which can be positively identified as such and which were made as close in time as possible to the date of the questioned document.

27 In re Masciantonio Will, 392 Pa. 362

16

(8)

d.

Other matters to be considered include: (a)

Differences in typing.

(b)

Extra staple marks.

(c)

Differences and similarities in signature.

(d)

Differences in paper.

(e)

Differences in ink.

(f)

Whether there are valid signatures of witnesses.

(g)

Delay in presentation and explanation for delay.

When the allegation was that of fraud evidence may take a “wide range”28 (1)

Extraneous documents may be admissible.29

(2) “Matters to be considered include comparisons of the typewriting, typing style, and linguistic characteristics of the questioned page(s) with other documents”.30 5.

Notarization

a. an affidavit of the witnesses must be accepted by the Register of Wills as proof of the facts stated as if it had been made under oath before the Register at the time of probate unless there is a contest with respect to the validity of the will or unless the will is signed by mark or by another, b.

An attested will may at the time of its execution or at any subsequent date be made self-proven by the acknowledgment thereof by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths under the laws of this Commonwealth, i.e., a notary public. In Pennsylvania, a document can also be notarized based on the affidavit of an attorney actually present at the signing.

6.

Dated

In Pennsylvania there is no requirement that the will be dated, but it is good practice to do so. The date of execution may have a material bearing on the rights of the beneficiaries, and will be the date on which the intention of the testator is determined.

E.

Lack of Testamentary Capacity 1.

Overview

28

Mannion, Will Contests, also see Lappe v. Gfeller, 208,Pa. 48.

Kane's Estate, 312 Pa. 531, 168 A. 681(1933).

30 Mannion, Will Contests.

29

17

a. capacity.

A testator must be at least 18 years of age in order to have testamentary

b.

A testator over the age of 18 then must be of “sound mind� in order to execute a valid will. c.

The test is whether or not the testator appreciates, in the general way,

(1) possession);

The nature and extent of his or her estate (property in

(2) Appreciates who his or her natural and close relations are (those close relatives that would be the natural objects of his or her bounty); and (3) Indicates an intelligent understanding of the disposition he or she desires to make of his or her estate. d.

As long as these three (3) elements exist at the time of the execution of the will, a testator has testamentary capacity, even though his or her memory has been impaired by age or disease. e.

One may be old, infirm, suffer from physical and mental debility, have loss of memory, inability to recognize acquaintances and incoherent speech, yet have a mind sufficiently sound to make a will; the test being whether testator had sufficient intelligence remaining to make a will.

2.

Presumptions

a.

A will properly executed by decedent is presumed valid. i.e., testamentary capacity is presumed. b.

Where a person is adjudicated an incompetent and thereafter during the pendency of such adjudication, executes a will, a presumption of incapacity arises.31 c.

When witnesses of equal intelligence, equal opportunities of judging and equal credibility differ in their judgment of the testamentary capacity of a testator; in other words, where the testimony upon that point is equally balanced, then the presumption in favor of sanity should prevail. d.

Where a testator for some time prior to the execution of his will has been mentally incapable of transacting business, a presumption of invalidity arises. (of doubtful validity -see comment below).

3.

Burden of Proof a.

Initial Burden –

31

Lanning Will) 414 Pa. 313, 322) 200 A.2d 392 (1964). Cohen Will, 445 Pa. 549, 551, 284 A.2d 754 (1971). Allison's Estate, 210 Pa. 22, 28; 59 A. 318 (1904)

18

(1) At inception of trial the burden of proof is on the proponent to prove the execution of the will.

(2) If probate has been refused by the register, proponent proves execution by producing witnesses to its execution.

(3) If will has been probated by the register, proponent merely offers in evidence the register's record of probate; if probate has been refused see discussion above.

(4) evidence. b.

The measure of proof is presumably by the preponderance of the

Shifting of Burden.

(1) Thereafter the burden of proof shifts to the contestant to prove the testator did not have capacity to make the will in question by evidence that is strong, clear, and compelling.

(2) When testamentary incapacity has been proved to exist prior to the execution of the will, the burden is shifted to the proponent of the will to prove testamentary capacity at the time of the execution of the will, either by proving a general restoration of mental faculties or that the will was executed during a lucid interval when the testator was temporarily possessed of sufficient understanding and capacity 4.

Evidence In General a.

In General –

(1) Evidence is admissible which will aid in determining whether the testator had testamentary capacity at the time he or she executed the will.

(2) Evidence in a will contested for testamentary incapacity must meet the standards of competency and relevancy.

(3) The weight to be accorded evidence varies with its bearing upon the question of testamentary capacity at the exact time of the execution of the will b.

Testator’s Knowledge of the Content of the Will: It is necessary that the testator know the contents of a will at the time it is executed in order that the will be valid.

However, proof that a testator executed a will creates a presumption that he or she knew the contents c.

Transaction of Business - In determining testamentary capacity, a greater degree of proof of mental incapacity is required than would be necessary to show the inability to conduct one's business affairs. Therefore, the transaction of business may be evidence of testamentary capacity.

19

d.

Old Age

(1) Old age in itself does not deprive a person of the right to dispose of his own property.

(2) Where, however, the aged testator is only old, weak and ill, capacity may be found to exist where the changes are only those average in a person of decedent's age.32 .

(3) In Angle Will, 21 Fiduc. Rep.2d 83, the court upheld as valid a Will against claims of lack of capacity and weakened intellect, saying "There is no support in the law for the idea that a person in the mild or even moderate stages of Alzheimer's disease per se lacks testamentary capacity."

(4) This finding was made over the testimony of decedent's treating physician who testified that decedent suffered from Alzheimer's disease for several years before his death; that he was mentally incompetent in April1997 (the month the will was signed) "and could not have had instances of lucidity during that month".

(5)

On appeal, Superior Court affirmed, 777 A.2d 114, saying

There is no doubt that Mr. Angle suffered from Alzheimer's disease; however, the existence of that disease, in itself, does not establish incompetency to execute a legal instrument: Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556A.2d 819 (1989). Since there are periods of lucidity with the disease, the relevant inquiry is whether at the time of the execution of the document, the decedent was lucid and competent: !d. A doctor's opinion on medical incompetence is not given particular weight especially when other disinterested witnesses establish that a person with Alzheimer's disease was competent and not suffering from a weakened intellect at the relevant time: !d. e.

Other Conditions of the Testator

(1) Physical debility or weakness, to the text of the note sickness, or other physical infirmity of the note does not affect capacity to make a will if sufficient intelligence remains (2) Untidy habits, partial loss of memory, inability to recognize acquaintances, and incoherent speech, do not looked at alone deprive a person of the right to dispose of his own property. In determining testamentary capacity, a greater degree of proof of mental incapacity is required than would be necessary to show the inability to conduct one's business affairs. Finally, testamentary

32

Farmer Will, 385 Pa. 486; Higbee Will, 365 Pa. 381; Wilson v. Mitchell, 101 Pa. 495

20

capacity is to be ascertained as of the date of execution of the contested document.

(3) The fact that a person used alcohol or drugs does not create an inference of incapacity, particularly if there is evidence that he or she was not intoxicated at the time and had full knowledge of the testamentary act in which he was then engaged are clearly shown.

(4) Testamentary incapacity cannot be established by testimony on the part of the contestants regarding eccentric behavior such as trifling peculiarities of action, such as increasing irritability, not answering questions, and what some of the witnesses thought was a lack of attention to what he was doing f.

Unnatural Disposition of Property - While a testator may dispose of his or her estate as he or she pleases, the testator’s spouse and children are the natural objects of the testator’s affections and when they are disinherited the reasons for such act may be considered in determining testamentary capacity, particularly when there is other evidence of insanity or of an insane delusion. g.

Adjudication of incompetency or insanity. An adjudication of incompetency or insanity is not conclusive of testamentary incapacity. As to a subsequent will, such an adjudication is prima facie evidence of testamentary incapacity, and casts the burden of proving mental capacity upon the proponents of the will. h.

Time of Execution

(1) The only actual, real mental unsoundness at the time of the testamentary act is the important subject of inquiry, and unless the proof establishes that it actually did exist at the important moment the proof that it may have existed or did exist at some other time is of no practical value.

(2) All evidence of capacity or lack of capacity must relate reasonably to the time of execution of the Will.33 i.

Subscribing Witnesses (1)

In General -

(a) As long as the subscribing witnesses identify their signatures, they need have no recollection of actually attesting the instrument or of the circumstances surrounding its execution (b) The evidentiary value of subscribing witnesses is succinctly stated in Whitehouse Est., 6 Fiduc. Rep. 11.

33

Thomas v. Carter, 170 Pa. 272

21

The court stated on page 24, "... generally, where the proponent of a will produces witnesses who testify to its execution, such proof is strong, positive evidence of the will's validity" and "witnesses by attaching their signatures to a will in effect directly assert that the testator is competent to understand and did execute the will: (c) Subscribing witness can "be called, examined and crossexamined by contestant as well as by proponents, because subscribing witnesses are not regarded as ordinary witnesses, but rather as witnesses of the court": (2)

Opinion of the Subscribing Witness

(a) A subscribing witness may state his opinion as to capacity without stating the facts upon which such opinion is based:34 (b) A subscribing or attesting witness may testify that the essentials needed for probate were lacking.35 (3) Such a witness may even contradict his own prior testimony, but such testimony is viewed with suspicion and great caution:36 "Generally, if a litigant fails to call a witness who presumably would support his allegations, the opposing party is entitled to have the jury instructed that it may infer that the witness, if called, would testify adversely to the party who failed to call him.... But this rule is inapplicable if such witness is equally available to both sides of the litigation.... In other words, the inference is permitted only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties":37 (4) Where proponent did not call as her witness an independent subscribing witness to the Will, Court may presume his testimony would not help her case:38 Failure to produce as a witness any person present during the critical time involved in the contest may be occasion for an unfavorable inference and should be drawn to the attention of the court:39 j.

The Scrivener’s Testimony

34

Keen's Est.,299 Pa. 430; Titlow v. Titlow, 54 Pa. 216.

Charles v. Huber, 78 Pa. 448; Derr v. Greenawalt, 76 Pa. 239; Snyder v. Bull, 17 Pa. 54; Barr v. Graybill,13 Pa. 396; Barone Est., 2 Fiduc. Rep. 149; Nowalis Est., 1 Fiduc. Rep. 303; Maganuco Est., 1 Fiduc. Rep. 188.

36 Fisher Will, 10 Fiduc. Rep. 577, 403 Pa. 612; see Rice's Est., 173 Pa. 298.

37 Bentivoglio v. Ralston, 447 Pa. 24, 29.

38 Wells Will, 14 Fiduc. Rep.2d 383.

39 Masciantonio Will, 392 Pa. 362, 381.

35

22

The draftsman of a will is always an important and usually the most important witness in a contested will case. k.

Observations of Third Parties

(1) Ordinary witnesses may state their opinions as to the mental condition or capacity of the testator, providing such opinion is based upon the witnesses’ own knowledge of the testator’s condition or of significant facts bearing thereon.

(2) Generally, a witness is required to state first the facts upon which his or her opinion is based, so that it may be made to appear whether the supporting testimony is relevant and of sufficient significance to warrant the formation of an opinion.

(3) Unlike an expert witness, a lay witness, on the other hand, may not base his or her opinion on a hypothetical state of facts.

5.

Medical Testimony a.

Overview

(1) Medical testimony may fall into two categories: (a) direct testimony where the witness was in attendance upon the testator and can therefore testify from his own knowledge, in which case the only attack would go to the weight to be accorded his testimony; and (b) expert opinion evidence based on listening to the facts related by other witnesses and the other evidence in the case, such as hospital records, etc., or based on hypothetical questions.

(2) In the latter category it is, of course, important that the witness first be qualified as an expert entitled to give opinion evidence.

(3) It is believed proper to question any general practitioner as to his competence and experience with respect to matters dealing with mental capacity resulting from causes other than physical in nature.40 b.

Treating Medical Personnel

(1) The testimony of testator’s personal physician and the will’s scrivener that testator possessed testamentary capacity was more persuasive than that of a medical expert who had never met the testator and who was relying on medical records for his opinion41 .

(2) Following the decisions in Masciantonio Will, 392 Pa. 362 and 396 Pa. 16, there should be little doubt that medical testimony by treating

40 41

Commonwealth v. Cavalier, 284 Pa. 311.

Bosley Estate, 1 Fiduciary 3d 185 (2010).

23

physicians in contests involving testamentary capacity will be given significant weight42.

(3) In Commonwealth v. Thomas the court said 'where the information is that of an attending nurse or physician having personal observation and an interest in learning and describing accurately, there seems to be every reason for admitting testimony based in part on this.' 43 (4) The "testimony of the nurse and scrivener is more credible and possesses greater probative weight regarding the testator's capacity than that of his heart specialist and [a person] who were not present at the execution of the will and also that of [cardiologists] who never saw" testator:44 c.

Expert Medical Opinion

(1) In General - As in all cases of expert opinion testimony, unless there is a statute or rule of court forbidding testimony by certain persons as experts, the allowance of such testimony, and the weight to be accorded it, is pretty much in the discretion of the Trial Court. The only real guideline is what will assist the court in deciding the issue at hand. (a) A psychologist, who is not a physician, is competent to testify as an expert on organic brain malfunctions: Simmons v. Mullen, 231 Pa. Super. 199. (b) Experts in one area of medicine may be found to be qualified to address other areas of specialization; no error in genetics expert relying on certified copies of hospital records as to blood type of alleged father, now deceased, based on tests in 1987.45 (c) Pennsylvania authorities permit a treating physician to testify in reliance upon entries in hospital records made by persons not called to testify. The same rule was applied as to an expert non-treating medical witness in Commonwealth v. Daniels, 480 Pa. 340, where forensic pathologists testified in a voluntary manslaughter case.

(2) Hearsay Objection - In dismissing appellant's argument that the Commonwealth's forensic pathologist was permitted to base his opinion on hearsay, the Pennsylvania Supreme Court said: “In addition, it should be observed that all expert opinion is based on 'hearsay' to some extent. As the Fifth Circuit has noted: '[T]he opinion[s] of expert 42 Mannion, Will Contests.

43 444 Pa. at 445, 282 A.2d at 699.

44 Cohen Will, 21 Fiduc. Rep. 186, 190. See also Campo Est., 23 D. & C. 2d 1, 14.

45 Pew Est., 409 Pa. Super. 417, annotated in Fiduciary Review, Jan. 1992, aff'g 10 Fiduc. Rep.2d 360.

24

witnesses must invariably rest, at least in part, upon sources that can never be proven in court. An expert's opinion is derived not only from records and data, but from education and a lifetime of experience. Thus, when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.' 46 McCormick Evidence§ 15, at 35, has noted a 'strong trend' in recent cases towards permitting an expert medical witness to base his opinion on reports by others on which the expert customarily relies in the practice of his profession, including, in part, observations of behavior and symptoms by lay persons. Our own decisions have been part of this trend. 47 d.

Medical Records

(1) Hospital Records - Hospital records are admissible under the Uniform Business Records as Evidence Act 42 Pa.C.S. § 6108 to show the fact of hospitalization, treatments prescribed, and symptoms given, but opinions, diagnoses and conclusions contained in such records are not admissible48;. but see (2) below.

(2)

Authentication.

(a) Even if Uniform Business Records Act applied to medical records and physician’s report, requirements of Act were not met so as to make records and report admissible where custodian or other qualified witness did not properly authenticate records as to their identity or mode of preparation.49 (b) 42 Pa. C.S. §§ 6151-6159 provides that “certified copies of medical records” of “any health care facility licensed under the laws" of the Commonwealth without necessity of calling an authenticating witness: (c)

Under 42 Pa. C.S. § 6151 – Certified Copies

“Medical charts or records of any health care facility licensed under the laws of this Commonwealth that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony, by use of legible and durable copies, 46

United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971)(en bane), cert. denied, 405 U.S 594, 92 S. Ct. 1168, 31 L.Ed.2d 231 (1972).

47 See Commonwealth v. Thomas, 444 Pa. 436,444-45,282 A.2d 693, 698 (1971); 48 Columbia Gas Transmission Corp. v. Piper, 150 Pa. Commw. 404, 615 A.2d 979, 1992 Pa. Commw. LEXIS 591 (Pa. Commw. Ct. 1992), 49 23 Pa.C.S. §§ 6301–6385; 42 Pa.C.S. § 6108. Also see J.K. v. Department of Pub. Welfare, 721 A.2d 1127 (Pa. Commw. Ct. 1998).

25

certified in the manner provided in this subchapter by the employee of the health care facility charged with the responsibility of being custodian of the originals thereof.

These copies may be used in any trial, hearing, deposition or other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original charts or records which, however, the health care facility shall hold available during the pendency of the action or proceeding for inspection and comparison by the court, tribunal or hearing officer and by the parties and their attorneys of record. This subchapter does not apply to an X-ray film or any other portion of a medical record which is not susceptible to photostatic reproduction.” (d) Under 42 Pa. C.S. § 6152(d) - Certification. In order to certify the record: “The certification shall be signed before a notary public by the employee of the health care facility charged with the responsibility of being custodian of the records and shall include the full name of the patient, the patient’s medical record number, the number of pages in the medical records and a legend substantially to the following effect: “The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed medical records which are housed in (name of health care facility). The original records were made in the regular course of business at or near the time of the matter recorded. This certification is given pursuant to 42 Pa.C.S. Ch. 61 Subch. E (relating to medical records) by the custodian of the records in lieu of his personal appearance.”

Copies shall be separately enclosed and sealed in an inner envelope or wrapper bearing the legend “Copies of Medical Records.

(3)

Physician’s Records – (a)

Physician's records are admissible the same as hospital

records. (b) The facts that are recorded by a prescribing physician at the time he or she makes an examination for the purpose of giving medical treatment in the course of his or her professional business are admissible as documentary evidence. (c) The records of a physician have a separate status as documentary evidence, even though the physician testifies as to the facts appearing therein and uses the records to refresh his or her memory.

26

(d) A treating physician may testify from hospital records and rely upon entries in those records made by hospital personnel not called to testify.50 (4)

Competency and Opinions

(a) If the testimony of the person whose medical records are in question would, even if personally testifying, be incompetent in regard to the subject-matter contained in the records, the records will ordinarily be incompetent. (b) This rule applies where the medical witness is not properly qualified or where his or her knowledge is mere hearsay. (c) Thus, when the existence or truth of facts stated in a hospital record depends upon the application of scientific principles to observed conditions, the statements in the record must be the opinions of a person qualified as an expert before the record will be admissible in evidence.

(5) Pa. R.C.P. 1305(b)(1)(iii) - Pa. R.C.P. 1305(b)(1)(iii) provides that with at least 20 days' notice, a party may offer in evidence, without further proof, the records and reports of health care providers. e.

Death Certificates

(1) There is some conflict and confusion in Pennsylvania and elsewhere on whether death certificates are admissible on the cause of death, as distinguished from merely the date and fact of death. (a) The weight of authority in Pennsylvania, however, is that a properly authenticated death certificate is generally admissible as proof, albeit not conclusive, of both the fact and the cause of death. (b) If, however, there is some reason to suspect the trustworthiness of facts asserted in the certificate or the competency of its author, the certificate is not competent evidence of the facts in question."

(2) "Although the Vital Statistics Law, Act of June 29, 1953, P.L. 304, art. VIII,ยง 810, 35 P.S. ยง 450.810, and its predecessors, provide that a death certificate 'shall constitute prima facie evidence of its contents,' courts have recognized that certain information recited on the death certificate is hearsay.

50

Commonwealth v. Thomas, 444 Pa. 436 and Jumper v. Jumper, 240 Pa. Super. 99.

27

(3) Therefore, the contents of the certificate are admissible only insofar as they would be admissible if the official preparing the same had been called as a witness.51 (4) Where the attesting doctor had no personal knowledge of the circumstances of the death, i.e. whether it was accidental or suicidal; and therefore, it has been held that the certificate should have been excluded. (a) The court concluded that in spite of the language 'prima facie evidence,' the statute did not authorize the admission of evidence which would otherwise be hearsay and inadmissible opinion.52 (b) See also: Meyers v. Metropolitan Insurance Co., 36 D. & C. 2d 479 (1964), which held that the statute makes the certificate admissible only insofar as it conforms to established rules of admissibility." f.

Applicability of the Mental Health Procedures Act

(1) The Mental Health Procedures Act has confidentiality provisions that provide that all documents concerning persons in treatment shall be kept confidential and may not be released without the patient’s written consent.

(2) Frequently, people trying to contest a decedent’s will try to obtain the decedent’s mental health records. Pennsylvania Courts have ruled that the confidentiality provisions are not affected by the decedent’s death.

(3) The Superior Court has ruled that an heir cannot waive the confidentiality provisions of the Mental Health Procedures Act in order to secure documents which might assist in contesting the validity of the decedent’s will.

(4) Psychological records may be reviewed by contestant after court makes in camera review to delete anything irrelevant or blackening to decedent's character.53 6.

Lucid Interval Doctrine

a.

When a testator is suffering from a mental illness which ebbs and flows in terms of its effect on the testator's mental competence, it is presumed that the testator was mentally fit when the will was executed. This is commonly referred to as the lucid interval doctrine.

51

Kubacki v. Metropolitan Life Insurance Co., 193 Pa. Super. 138, 164 A.2d 48 (1960); Heffron v. Prudential Insurance Co., 137 Pa. Super. 69, 8 A.2d 491 (1939).

52 Heffron v. Prudential Insurance Co., 137 Pa. Super. 69, 8 A.2d 491 (1939).

53 Musser Est., 10 Fiduc.Rep.2d 246, annotated in Fiduciary Review, Nov. 1990.

28

b.

Alzheimer's is a disease that is variable in its effect on a person over time.

It is precisely this type of illness with which the lucid interval doctrine was designed to deal.

By employing this doctrine, individuals who suffer from a debilitating mental condition are still able to dispose of their property. c.

The lucid interval doctrine is only implicated when there is evidence that a testator is suffering from a mental illness; otherwise the normal presumption in favor of testamentary capacity is operating.

F.

Undue Influence 1.

Overview

a.

Undue influence is not a precise concept and the question of what constitutes undue influence depends on the circumstances of the individual case.

(1) Undue influence has been defined in subtle, fluid terms. It is generally accomplished by a gradual, progressive inculpation of a receptive mind and the fruits of the undue influence may not appear until after the weakened intellect of the testator has been played upon.

(2) Because the occurrence of undue influence is so often obscured by both circumstance and design, courts have recognized that its existence is best measured by its ultimate effect. b.

Undue influence involves intentional interference with the testator’s making of the will. c.

Undue influence exists wherever, through weakness, ignorance, dependence or implicit reliance of one on the good faith of another, the latter obtains an ascendency which prevents the former from exercising an unbiased judgment.

2.

Ways to Prove - Undue influence may be proven in one of two (2) distinct different

ways: a.

Direct Proof - By direct evidence of acts on the part of an individual which destroys a testator’s free mind or free agency and forces the testator to do something that he or she does not want to do; b.

Indirect Proof – The burden of proving undue influence is normally on the contestant or the party asserting its existence. However, once the contestant proceeds with his or her proof of undue influence by proving (1) a person in a confidential relationship (2) receives the bulk of the testator’s property (3) from a testator of weakened intellect, the burden of proof of going forward with evidence shifts to the proponent.54 3.

54

Presumptions

Estate of Clark, 461 Pa. 52 (1975).

29

a.

Where a will has been properly executed by a person possessed of the necessary testamentary capacity, and is otherwise valid, a lack of undue influence is presumed.

(1) At inception of trial the burden of proof is on the proponent to prove the execution of the will. If probate has been refused by the register, proponent proves execution by producing witnesses to its execution.

(2) If will has been probated by the register, proponent merely offers in evidence the register's record of probate. b.

Once the proponent of a will proves that the formalities of execution have been followed, a presumption of a lack of undue influence arises, and a contestant who claims that there has been undue influence has the burden of proof.55 4.

Direct Proof a.

Overview -

The general rule is that to set aside a will on the ground of undue influence, there must be imprisonment of the body or mind, fraud, threats, misrepresentations, circumvention, inordinate flattery, or physical or moral coercion, which destroys the testator’s free agency and operates as a restraint of the making of the will. b.

What You have to Prove –

(1) Once the proponent has proven execution, the burden of proof shifts to the contestant to prove direct undue influence by clear and convincing evidence.

(2)

The contestant must prove undue influence:

(a) Such as to constitute the presence of threats, inordinate flattery, or physical or moral coercion to such a degree as to prejudice the mind of the testator and destroy his or her free agency to make a will and operate as a present restraint upon the testator in making the will; (b)

Which influence existed at the time the Will was made,

and (c) Must be connected with and directly affect the testamentary act. c.

Admissibility of Evidence (1)

55

Overview

Tredinnick, Presumptions and the Burden of Proof in Orphans' Court Litigation.

30

(a) Undue influence in the execution of a will is rarely susceptible of direct proof. (b) Where the grounds of objection to the validity of a will are fraud and undue influence, the evidence is permitted to take a wide range, and it has been declared that every fact and circumstance, no matter how little its probative value, which throws light on these issues, is admissible, and that the courts should incline toward the admission of evidence.

(2)

Testator’s Declarations

(a) Declarations of a testator, made at the time of the execution of his or her will or at a time so connected with the testamentary act as to justify an inference that they indicate the state of the testator’s mind when the will was executed are admissible on the issue of undue influence. (b) Declarations of the testator that the testator did not execute his will freely, that he never intended to have made such a will, and never should, but for the influence of those persons in whose favor it is made, and similar declarations, which are very common in the testimony elicited in testamentary causes, can be of no force whatever as testimony tending to establish the truth of the declarations. (c) In that light, such declarations are mere hearsay, depending for their force upon our confidence in the veracity of the person making them, and in most cases easily explained, without regard to the question of their truth, and have always been rejected as evidence. (d) Declarations of a testator tending to show undue influence must be supported by other testimony of the fact.

Note: Does Rule 803(3) provide an exception allowing this testimony ? “(3) …unless it relates to the validity or terms of the declarant's will.”

(3) Contents of Prior Wills - Evidence of the contents of wills executed by the testator prior to the time the alleged undue influence was brought to bear upon him or her is admissible on the issue of undue influence, either in support of the will or in support of those contesting a will where the prior provisions tend to show a change of purpose.

(4)

Influence at the Time of Execution

(a) Testimony as to the presence of undue influence as of the time the will was executed, as well as for a reasonable period of time prior to and after the execution of the will, is admissible.

31

(b) Evidence is also admissible as to the mental and physical condition of the testator, as is evidence of unpleasant relations as tending to show a possible motive for discrimination other than that caused by undue influence. (c) It is proper to admit evidence as to whether the disposition made by a will was a natural and reasonable disposition in harmony with family background. (d) On the other hand, evidence which throws no light whatever on the question whether fraud or undue influence was exerted, and which is wholly immaterial and irrelevant, should be excluded. (e) Thus, a mere change of purpose, by which the testator makes one person instead of another the beneficiary under his or her will, is not of itself undue influence, and it is only when a basis of evidence of undue influence is laid that the change becomes relevant.

(5)

Witnesses.

(a) Ordinary witnesses may state their opinions as to the mental condition or capacity of the testator, providing such opinion is based upon the witnesses’ own knowledge of the testator’s condition or of significant facts bearing thereon. (b) Generally, a witness is required to state first the facts upon which his or her opinion is based, so that it may be made to appear whether the supporting testimony is relevant and of sufficient significance to warrant the formation of an opinion. In the case of subscribing witnesses, however, it is said that the attestation amounted to an assertion of the testator’s soundness of mind, and hence that subscribing witnesses may give their opinion as to the testator’s mental condition or capacity, without having previously testified to any facts comprising the basis for such opinion. (c) Subscribing witnesses are, on the other hand, subject to examination at length. (d) Declarations by a subscribing witness that the testator was insane, the subscribing witness being out of the state and the handwriting of the witness not proved, and there being two other witnesses, have been held to be inadmissible. (e) The draftsman of a will is always an important and usually the most important witness in a contested will case.

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d.

Other Factors to Consider - Factors to be considered with regard to existence of undue influence: (1)

A physically weak and mentally impaired testator;

(2)

Procurement of the scrivener by the person receiving “substantial

benefit”; (3) Physical presence of the person receiving “substantial benefit” at the execution pf the will; (4) a recently developed and comparatively short period of close relationship between the testator and principal beneficiary; (5)

The opportunity to later to revoke the suspect will:

(6)

Participation by the principal beneficiary in the making of the will;

(7)

Safekeeping of the will by the principal beneficiary;

(8) Efforts by the principal beneficiary to restrict contacts between the testator and the natural objects of his or her bounty; and (9) “Unreasonable or unnatural disposition, with other evidence, may be used to prove incapacity, but standing alone, it is insufficient.” In re Lawrence’s Estate, 132 A. 786, 789 (Pa. 1926). A presumption of mental weakness arises only “where the disposition is so gross or ridiculous as (to) give rise to a presumption of insanity.” Id. 5.

Indirect Proof a.

Overview

(1) In Estate of Clark. 161 Pa. 52, 334 A.2d 628 (1975), Pa. 52, 334 A.2d 628 (1975), the Pennsylvania Supreme Court that where: (a) a person who is in a confidential relationship with the testator, (b) receives a substantial benefit under the proposed Will, and (c) at or around the time the Will was executed the testator had a weakened mental intellect, a presumption of undue influence arises and the burden of proof shifts to the proponent to prove the absence of undue influence.

(2) b.

The burden must be sustained by clear and convincing evidence.

Confidential relationship.

(1) "A confidential relation exists whenever the relative position of the parties is such that the one has power and means to take advantage of, or exercise undue influence over, the other."56 56

Wilson Will, 364 Pa. 488, 493, 72 A.2d 561 (1950).

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(2) "Such a relation may be found inferentially from circumstances as well as from direct proof."57 (3) Testimony as to the relationship between the testator and the proponent must pertain to the point in time when the Will was executed to be relevant, as the contestant must prove by clear and convincing evidence that the confidential relationship existed at that time.58 (a) A power of attorney executed ten months after disputed transaction "is not sufficient evidence to establish a preexisting confidential relation.");59 (evidence of proponent's restricting testatrix's access to outside world 15 months after the execution of the contested Will is "too remote in time to bear on his relationship with the testatrix at the time the Will was drafted.")60; (b) "Unless such testimony [of the relationship between proponent and testator] pertains to the point in time when the will was executed, we fail to see how such was relevant.") (emphasis in original).

(4) In Basile v. H & R Block, Inc., 777 A.2d 95 (Pa. Super. 2001), the Superior Court issued a very significant case addressing the standard for confidential relationship. In addition to correcting a conflict among appellate cases regarding whether one needed to prove both overmastering influence and "weakness, dependence or trust, justifiably reposed", the Basile expressly confirmed that it is a subjective analysis of the relationship between the parties on a "sliding scale": “Our Supreme Court has acknowledged that "[t]he concept of a confidential relationship cannot be reduced to a catalogue of specific circumstances, invariably falling to the left or right of a definitional line�

The Court has recognized, nonetheless, that "[t]he essence of such a relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other." 61 (5) Confidential relationship presumed to exist as a matter of law between the following parties: (a) Trustee and cestui que trust, guardian and ward, attorney and client, and principal and agent.

57

Stewart Will, 354 Pa. 288, 296, 47 A.2d 204 (1946).

Hera v. McCormick, 425 Pa. Super. 432,447 (1993); see also Leedom v. Palmer, 274 Pa. 22,27 (1922) 59 Estate of Jackiella, 353 Pa. Super. at 587 60 Estate of Kirkander, 326 Pa. Super. 380, 387 (1984) 61 .In re Estate of Scott, 455 Pa. 429,316 A.2d 883, 885 (1974).

58

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(b)

Attorney/scrivener and testator.

(6) Other associations which may give rise to confidential relationship depending on facts include: (a)

Kinship or marriage;

(b)

Physician;

(c)

Banker;

(d)

Nurse;

(e)

Attorney-in-fact;

(f)

Agent under a Power of Attorney; and

(g)

Accountant.

(7) Attempting to isolate the testator from others is a factor which can be considered in determining the existence of a confidential relationship.

(8) relationship.

Mutual friendship does not rise to level of a confidential

(9) “Unreasonable or unnatural disposition, with other evidence, may be used to prove incapacity, but standing alone, it is insufficient.” A presumption of mental weakness arises only “where the disposition is so gross or ridiculous as (to) give rise to a presumption of insanity.”62 c.

Weakened Mental Intellect (1)

Definition - A "weakened mental intellect" has been defined as

follows: "The closest that we can come, therefore, to a definition of weakened intellect is that it is a mind which, in all the circumstances of a particular situation, is inferior to normal minds in reasoning power, factual knowledge, freedom of thought and decision, and other characteristics of a fully competent mentality. It should be viewed essentially as a relative state as the .term is applied to cases of undue influence, as these always involve the effect of one intellect upon another; if the intellect of the testator is substantially impaired in comparison to that of the proponent or beneficiary it must be regarded as weakened since there could be no equal dealings between the two parties." 63 (2)

62 63

Evidence of Weakened Intellect

In re Lawrence’s Estate, 132 A. 786, 789 (Pa. 1926).

Paolini Will, 13 Fiduc. Rep,

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(a) Because undue influence is generally exerted over a period of time, evidence of the testator's mental condition for the period prior to the execution of the Will is directly relevant. (b) As compared to the issue of testamentary capacity since undue influence is generally accomplished by a gradual. Progressive inclusion of a receptive mind such that the “fruits” of undue of the undue influence. (c)

Physical infirmities weakened intellect.

(d) Simply not being able to speak English is not sufficient to establish weakened mental intellect.64 d.

Substantial Benefit:

(1) There is no definition of “substantial benefit” in Pennsylvania caselaw. Instead, substantial benefit must be determined by the “circumstances of each particular case.”65 (2) However, “there is a finding of a ‘substantial benefit’ where a proponent holds the position of executor and trustee, has control over the entire estate and has a possible residuary interest in the whole estate “‘Absolute discretion’ to terminate the trust and distribute the assets to whomever it selected (is equal to) distributive powers (which embraces) the ‘bulk’ of the estate. Coupled with fees paid, the powers reserved to (executor) endowed it with ‘collateral benefits’ bringing it within the sphere of ‘substantial beneficiary.’”66 Id. (3) “In order to shift the burden of proof, the benefit derived from the will must be a large, or considerable, or substantial interest.”67 (4) The reason for the “substantial benefit” prong of the Clarke test is to ensure that the “person acting as a confidential advisor to a testator, bodily infirmed and mentally weak … act in the utmost good faith.” 68 (5) Comparing a probated will with a prior will to determine whether a substantial benefit was received is permitted. In re Estate of Smaling, the will gave proponent $35,000; 2008 will gave entire estate worth approximately $200,000 to proponent; substantial benefit prong was thereby satisfied).69

64 Mannion, Will Contests.

65 In re Estate of Smaling, 80 A.3d 485 (Pa. Super. 2013).

66 In re Estate of Levin, 615 A.2d 38 (Pa. Super. 1992).

67 In re Adams’ Estate, 69 A. 989 (Pa. 1908).

68 Id. 69 In re Estate of Smaling, 80 A.3d 485 (Pa. Super. 2013).

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(6) “Merely being named as executor or trustee in another’s will would not be sufficient, in and of itself, to make a ‘substantial beneficiary.’” In re Estate of Levin, supra. e.

Burden of proof (1)

In General

(a) After proof of due execution of the will or admission of the probate record the burden to contestant and raises a presumption of the absence of undue influence.70 (b) However once the contestant meets the tripartite requirements set forth in Estate of Clark by clear and convincing evidence, the burden of proof shifts back to the proponent to produce clear and convincing evidence which demonstrates affirmatively the absence of undue influence. 71 (2)

Clear and Convincing Evidence

(a) The Pennsylvania Supreme Court has defined "clear and convincing" as follows: "the witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." 72 (3)

Shifting the Burden

(a) "The shifting of the burden of proof in cases of this sort is a critical factor. Sustaining a burden to prove a negative fact (i.e., absence of undue influence) is always difficult. Here, if the burden of proof shifts, the beneficiary of a will is not simply required to prove a positive fact or event, but to show, in a real sense, something which virtually no positive fact bears out. In short, a beneficiary who is in a confidential relationship with a person whose intellect is weak would seldom be in a position to sustain anything like the burden of proof which this rule imposes upon him." 73

70

Taylor Will, 423 Pa. 276, 223, A.2d 708 (1966); Burns v. Kabboul, supra.

Estate of Clark, supra; Estate ofWiehel,184 Pa. 610, 400 A.2d 1268 (1979).

72 LaRocca Trust, 411 Pa. 633, 192 A.2d 409 (1963); Estate of Fickert, 461 Pa. 653, 337 A.2d 592 (1975); Estate of Jakiella, 353 Pa. Super. 581, 510 A.2d 815 (1986).

73 Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979) (Manderino, J. dissenting).

71

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(b) Note that Estate of Clark requires proof of all three elements, and the burden will not shift to proponent if any one element is lacking. f.

Final Word to Tredinnick, J - Judge Tredinnick stated his approach in undue influence cases as follows: “I .. intend to proceed in undue influence cases bottomed on benefit; weakened intellect and confidential relationship as follows.

1.

Hear proponent's evidence re execution. (i.e., receive probate record or proof of execution of will).

2.

Shift the burden of persuasion to the contestant. Hear his evidence on benefit, weakened intellect and confidential relationship.

3.

Proponent normally moves for non-suit. If he does, decide whether on contestant's evidence alone (which is all you have at that point) he has established benefit, weakened intellect and confidential relationship by clear and convincing evidence. (a)

If the answer¡ is no - enter a non-suit.

(b)

If the answer is yes, move to next step.

4.

Hear proponent's evidence contra. benefit weakened intellect and confidential relationship. (This is a shift of the burden of going forward to proponent. It is also, in effect a deferral of a ruling on the motion for a non-suit pending receipt of proponent's evidence on the issue of benefit, weakened intellect and confidential :relationship.)

5.

Decide whether, upon all the evidence bearing on benefit, intellect and confidential relationship contestant has established the trilogy by clear and convincing evidence.

6.

If he has not, enter a non-suit.

7. lf he has, shift the burden of persuasion to proponent to establish no undue influence. Hear his evidence on that subject.

8.

Hear any rebuttal that contestant has to offer.

9.

Decide on basis of evidence taken in steps 7 and 8 whether proponent has carried his burden of proof by clear and convincing evidence.�74 G.

Fraud 1.

74

Overview

Tredinnick, Presumptions and the Burden of Proof in Orphans' Court Litigation.

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a.

“Fraud is separate and distinct from undue influence;” whereas fraud exists when the “testator acts as a free agent but is deceived into acting by false data,” undue influence occurs when “the mind of the testator is so overmastered that another will is substituted for his own.”75 b.

A will procured by misrepresentation or fraud of any kind may be set aside. An attempt at fraud is not enough to void a will. c.

There must have been actual fraud that induced the person to dispose of his or her estate in a manner contrary to his or her wishes. d.

Fraud is some type of a trick or a representation of false facts that induces the testator to dispose of his property contrary to his wishes or in such a way as he would not do except for the fraud. f.

The fraud could also constitute a mistake that allows the testator to execute the will by mistake.

2.

Fraud Compared to Undue Influence

a. identical.

"Although undue influence is very much like fraud, the two are not

b.

Theoretically, fraud is separate and distinct from undue influence, since, when the former is exercised the testator acts as a free agent but is deceived into acting by false data, and when the latter is exercised the mind of the testator is so overmastered that another will is substituted for his own."76 3.

What Do You Have to Prove?

a.

“Before a contestant can establish that the execution of a will was fraudulently induced, the contestant must prove that (1) the testatrix had no knowledge of the concealed or misstated fact, and (2) the testatrix would not have made the same bequest had she known the truth.” 77 b.

“A contestant asserting ‘fraud or forgery [of a will] has the burden of proving the facts upon which the alleged fraud or forgery is based and these facts must be proved by evidence which is clear, direct, precise and convincing’ to state a cause of action.”78 c.

When a party withholds information in order to lead a testatrix into committing a course of action she would not otherwise have taken, then this withholding of

75

In re Estate of Glover, 669 A.2d 1011 (Pa. Super. 1996).

Estate of Glover, 447 Pa. Super. 509 (1996). Annotated in Fiduciary Review, May 1996. Appeal denied. 689 A.2d 233, 547 Pa. 728.

77 In re Estate of Glover, 669 A.2d 1011 (Pa. Super. 1996) (quoting In re Paul’s Estate, 180 A.2d 254 (1962)).

78 In re Estate of Luongo, 823 A.2d 942 (Pa. Super. 2003) (quoting In re Elias’ Estate, 239 A.2d 393 (Pa. 1927)).

76

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information is considered to be fraud and the beneficiary of the fraud is barred from claiming the benefit of the will.79 4.

Burden of Proof

a.

At inception of trial the burden of proof is on the proponent to prove proper execution of the will. The measure of proof is presumably a prima facie case. b.

Thereafter, the burden of proof (persuasion) shifts to the contestant to prove fraud by clear and convincing evidence.80 c.

5.

Proof only of opportunity to exercise fraud is insufficient.

What Type of Evidence is Admissible?

a.

“A contestant asserting ‘fraud or forgery [of a will] has the burden of proving the facts upon which the alleged fraud or forgery is based and these facts must be proved by evidence which is clear, direct, precise and convincing’ to state a cause of action.” 81 b.

“Evidence is relevant if it tends to establish facts or in some measure advances the inquiry and thus has probative value.” 82 c.

“While it is true that suspicion and conjecture do not take the place of evidence, suspicious or unusual conduct of an interested party or otherwise surrounding a will may, when viewed in conjunction with other evidence, raise a question as to the validity of a will.” 83 H.

Two Additional Grounds for Bringing a Will Contest 1.

Overview

a.

The grounds discussed above constitute the classic grounds generally used to attack a will in a will contest. b.

However, there are two (2) additional grounds that may be used: (1) mistake, and (2) insane delusion.

2.

Mistake. - There are two (2) types of mistakes.

a.

One occurs when the testator executes a document under the mistaken belief it is his or her last will and testament when in fact it is something else, or executed a document which is offered as a last will and testament when the testator believed he was signing something other than a will.

79

In re Stirk’s Estate, 81 A. 187 (Pa. 1911).

Kadilak Will, 405 Pa. 238, 174 A.2d 870 (1961). Elias Will) 429 Pa. 314, 239 A.2d 393 (1968 81 In re Estate of Luongo, 823 A.2d 942 (Pa. Super. 2003) (quoting In re Elias’ Estate, 239 A.2d 393 (Pa. 1927)).

82 In re Estate of Luongo, supra.

83 Id. 80

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(1) In the first instance, the document meets the requirements of a will, it may very well be admitted to probate, there being no requirement that the testator be aware that a document is an actual will, if it meets the requirements of the PEF Code, including evidencing testamentary intent.

(2) In the second case the document is a nullity by reason of the lack of testamentary intent. b.

The second type of mistake occurs when there is a mistake as to a fact which acts as an the material inducement to the execution of the will; e.g., X executes a will which benefits Y, who he mistakenly believes is his daughter. c.

The quality of proof required to establish the existence of the mistake is the same; that proof of the mistake must be established by evidence that is ‘clear, precise, convincing and of the most satisfactory character. La Rocca, supra.

3.

Insane Delusion.

a.

If it can be shown that the testator suffered from an insane disillusion a will can be set aside. b.

The initial burden is on the proponent to prove the will, thereafter the burden is on the contestant. c.

The contest must prove by clear and convincing evidence that: (1)

Testator must have believed the alleged delusional thought to be

(2)

The belief must be in existence of something which does not

true; exist; (3) Even though the belief was of something which does not exist; it must be established that no rational person would believe that it did exist; (4) The will must have been executed as a direct result of the delusional process.84

84

Duross Will, 395 Pa. Super 233 (1983), also see Tredinnick, Presumptions and the Burden of Proof in Orphans' Court Litigation.

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PART TWO INTERPRETING THE WILL I.

In General

A. The principles discussed in this Part Two are applied in resolving an ambiguity with the interpretation of language already in the will instrument.85 Interpretation and construction must at the outset be distinguished from reformation.

B. Reformation may involve the addition of language not originally in the instrument, or the deletion of language originally included by mistake, if that is necessary, in order to conform the instrument to the settlor’s intent.

C. In this Part Two we will review the principles of interpreting and constructing the language of will documents when it is ambiguous.

D. The law and the legal principles governing the interpretation of wills are well settled, but their application to poorly or ambiguously drawn testamentary wills is often difficult.86 The pertinent principles may be briefly summarized: −

When interpreting the provisions of a will, “the polestar in every will is the settlor's intent unless it is unconstitutional, unlawful, or against public policy and that intent must prevail.”87

−

A document which, as written, is clear and unambiguous is not subject to being construed by consideration of external evidence tending to impute an intent to settlor different from that appearing on the face of the document. This is the so-called "four corners rule" or “plain-meaning rule”.88

−

If and when a court feels that the will language does not provide sufficient clarity as to the intention of the settlor, it may consider it necessary to inquire into the circumstances surrounding the execution of the document and other evidence which bears on intent. This examination of the surrounding circumstances is sometimes referred to as the "armchair rule.”

85 Id. 86Griffith v. Kirsch, 2005 PA Super 361, 886 A.2d 249 (2005); Hennessey v. Hennessey, 2005 PA Super 313, 883 A.2d 649 (2005); In re Estate of Flagg, 501 Pa. 38, 459 A.2d 740 (1983); Estate of Reynolds, 494 Pa. 616, 432 A.2d 158 (1981); Estate of Houston, 491 Pa. 339, 421 A.2d 166 (1980); In re Estate of Patrick, 487 Pa. 355, 409 A.2d 388 (1979); Estate of Taylor, 480 Pa. 488, 391 A.2d 991 (1978); McDowell Nat. Bank of Sharon v. Applegate, 479 Pa. 300, 388 A.2d 666 (1978); In Re Estate of Blough, 474 Pa. 177, 378 A.2d 276 (1977); Estate of Schwarzbarth, 320 Pa. Super. 191, 466 A.2d 1382 (1983).

87Inter vivos trusts: Scholler Trust, 403 Pa. 97, 169 A.2d 554; Wolters Estate, 359 Pa. 520, 59 A.2d 147; testamentary trusts: Walton Estate, 409 Pa., supra; Althouse Estate, 404 Pa. 412, 172 A.2d 146; Woodward Estate, supra; Britt Estate, supra; Newlin Estate, 367 Pa. 527, 80 A.2d 819, also see .In re Estate of Janney, 498 Pa. 398, 446 A.2d 1265 (1982).

88Id.

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II.

−

Rules of interpretation and construction are to be considered only if the language of the document is ambiguous or conflicting or the settlor's intent is for any reason uncertain after a consideration of the language contained in the four corners of the instrument, and the circumstances surrounding the settlor or settlor at the time the will was created.89

−

An exception to the general rule precluding extrinsic evidence when the document appears unambiguous on its face is the presence of a “latent ambiguity” in the document.90

Intent - The Polestar

A. When interpreting the provisions of a will, “the polestar in every will is the settlor's intent unless it is unconstitutional, unlawful, or against public policy and that intent must prevail.” 91 B. If a settlor’s or testator’s intent cannot be ascertained first from a consideration of the language of the document and then from extrinsic evidence, a court may resort to the so-called canons or rules of interpretation and construction.

III.

Manifestation of Intent A.

The “Four Corners” Rule

In Pennsylvania, when a court can, with reasonable certainty, ascertain the intent of a testator through examination of the document, consideration of matters external to that document is generally not proper.92 As a result courts are not permitted to determine what they think a testator would have desired under the existing circumstances, or even what they think a testator meant to say. Instead, the court must focus on the meaning of the testator’s or settlor's words within the four corners of the document.93 As a result, a document which, as written, is clear and unambiguous is not subject to being construed by consideration of external evidence tending to impute an intent to a testator different from that appearing on the face of the document. This is the so-called "four corners rule" or “plain-meaning rule”.94 B.

Extrinsic Evidence – The “Arm Chair Rule”

When a will as written is clear and unambiguous, the court should not consider external evidence which imputes an intent different from that appearing on the face of the document.95 However, if and when a court feels that the document language does not provide sufficient clarity as to the intention of a testator, it may consider it necessary to inquire into the circumstances surrounding the execution of the document and other evidence which bears on intent.96 This examination of the surrounding circumstances is 89 In Earle Estate, 369 Pa. 52, 56, 85 A.2d 90 (1951).

90 Hennessey v. Hennessey, 2005 PA Super 313, 883 A.2d 649 (2005).

91In re Shoemaker, 115 A.3d 347 (2015); in re: inter vivos trusts: Scholler Trust, 403 Pa. 97, 169 A.2d 554; Wolters Estate, 359 Pa. 520, 59 A.2d 147; in re: testamentary trusts: Newlin Estate, 367 Pa. 527, 80 A.2d 819, also see .In re Estate of Janney, 498 Pa. 398, 446 A.2d 1265 (1982).

92 In re Wilton, 2007 PA Super 72, 921 A.2d 509 (2007).

93Id. 94Id. 95 Kelly Estate, 473 Pa. 48, 52-55, 373 A.2d 744, 746-748 (1977).

96 Sykes Estate, supra; Kay Estate, 456 Pa. 43, 317 A.2d 193 (1974); Chambers Estate, 438 Pa. 22, 263 A.2d 746 (1970).

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sometimes referred to as the "armchair rule.” 97 This does not mean that the court may ignore the text of the document to rewrite the document.98 It should be pointed out that an ambiguity must be found without reliance on extrinsic evidence; and extrinsic evidence is only admissible to resolve, not to create, an ambiguity.99 Note: The Restatement Third, Property (Wills and Other Donative Transfers), takes a more liberal approach. Under the Restatement, the sources from which the donor's actual intention may be established include both "the text of the donative document and . . . extrinsic evidence", 100 and that circumstances surrounding the execution of a donative document are always admissible. 101 C.

Latent Ambiguity

1.

An exception to the general rule precluding extrinsic evidence when the document appears unambiguous on its face is the presence of a “latent ambiguity” in the document.102 A latent ambiguity exists when extrinsic evidence renders a written document uncertain, even though the plain meaning of the document seems unambiguous. For example, “I give $1,000 to my cousin, Tom Smith” when the settlor has two cousins named Tom Smith. Where a latent ambiguity exists in a will, the court may resort to extrinsic evidence, such as the testimony of the scrivener, to determine the testator’s or settlor's true intent. When such evidence is allowed, it must only relate to the meaning of ambiguous words of the will and cannot be received as evidence of the testator’s or settlor's intention independent of the written words employed.

2.

On the other hand, if the ambiguity is “patent” the court will attempt first to determine a testator's intent solely from the language of the document itself.103 A patent ambiguity appears on the face of the document and is a result of defective or obscure language. For example, “I give $1,000, to the University of Pennsylvania State.” The question is whether this gift to the University of Pennsylvania or the Pennsylvania State University? The Pennsylvania Supreme Court has held that where a beneficiary is misidentified the mistake will not void the gift if it is possible by means of the name used, or by admissible extrinsic evidence, to identify the intended beneficiary with sufficient certainty.104 The court, however, may also conclude if the wording of the document cannot be made intelligible that the provision is entirely void.105 IV.

What Evidence is Considered?

A.

In General

97 See Estate of McKenna, 340 Pa. Super. 105, 489 A.2d 862 (1985); Estate of Taylor, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978).

98 See In re Estate of Macfarlane, 313 Pa. Super. 397, 459 A.2d 1289 (1983).

99 In re Estate of Harper, 2009 PA Super 104, 975 A.2d 1155 (2009).

100 Restatement 3d, Property (Wills and Other Donative Transfers) § 10.2.

101 Id, § 10.2, Comments d and e.

102 Hennessey v. Hennessey, 2005 PA Super 313, 883 A.2d 649 (2005).

103 Thomas Estate, 457 Pa. 546, 327 A.2d 31 (1974).

104 Black Estate, 398 Pa. 390, 158 A.2d 133 (1960).

105 Thomas Estate, 457 Pa. 546, 327 A.2d 31 (1974); also Kelley v. Kelley, 25 Pa. 460 (1854).

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1.

Courts and commentators often refer to extrinsic evidence as "admissible" or "inadmissible" in considering the relevance of such evidence in interpreting the meaning of a will.

When the courts and commentators use these terms, they are generally referring to whether such evidence will be considered by the court as relevant in interpreting a will as a matter of substantive law, not under the rules of evidence.106 2.

Once the evidence is considered relevant, it must still pass muster under the rules of evidence. The application of the law of evidence to extrinsic evidence is a separate question and will be discussed below. In the following section, we will consider what types of extrinsic evidence will be considered relevant by the courts in the first instance.

B.

What Type of Evidence is Relevant

1.

Overview

Consideration of extrinsic evidence to show the intent of the settlor is the exception and not the rule. This is for the basic reason that the writing itself must be considered the best and controlling evidence of the testator’s or settlor's intent.107 When extrinsic evidence is considered, it should only be considered relevant to provide the court with insight into the intent of the settlor. Such evidence should not be allowed to contradict the plain meaning of the words of the document.108 2.

Extrinsic Evidence Considered by the Pennsylvania Courts

The following are the types of extrinsic evidence that have been considered relevant by the courts in Pennsylvania: a.

The Circumstances Surrounding the Making of the Document

Where there is a question as to the intention of the testator as set forth in words of the document, extrinsic evidence has been permitted to show circumstances surrounding the testator at time of execution of the document such as: −

The conditions of the family;109

−

The nature and objects of the testator’s bounty;

−

The nature of his or her property;110

−

The ages, station in life, and relationship to the testator or the settlor of the various donees or legatees;111

−

The names, descriptions, and designations of beneficiaries named in the will;

106 Restatement 3d Property: Wills and Other Donative Transfers, § 10.2 COMMENTS & ILLUSTRATIONS, Illustration C. 107 See Sowers Estate, 383 Pa. 566, 119 A. 2d 60 (1956).

108 Logan v. Wiley, 357 Pa. 547, 55 A.2d 366 (1947).

109 Pickering Estate, 16 Pa. D. & C.2d 319 (1958).

110 Brownfield v. Brownfield, 12 Pa. 136 (1849).

111 Speakman Estate, 20 Pa. D. & C.2d 587 (1959)

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b.

−

Whether the testator or the settlor was married or single;

−

The state of the testator’s property when the will was made;

−

When the testator died, and

−

Other circumstances surrounding the testator at the time he or she executed the document; Writings and Declarations of the Settlor

1.

In interpreting a will, a fundamental distinction exists between two types of oral declarations made by a testator.

2.

First, there are those declarations which contradict or vary the written devise or bequest. In this case, the oral testimony competes with and overthrows the written words.

3.

Admission of this type of evidence would permit the parol testimony to constitute the will. Second, there are those declarations which, when the written words are equivocal or ambiguous, merely identify the gift and reveal the testator’s intent with respect to gift.

4.

Where, the words are unimpeached, but are equivocal or ambiguous, declarations of intent by testator are admissible for the purpose of the interpretation of the equivocal or ambiguous language.

5.

As a result, declarations are inadmissible which contradict or vary the written words, to the text of the note but declarations of intent are admissible where the writing is equivocal or ambiguous.112 c.

Testimony of the Scrivener 1.

In General –

a.

The testimony of the scrivener as to declarations of the testator’s or settlor's intent may be properly admitted for purpose of interpretation when the language of the testator or the settlor is unimpeached but equivocal or ambiguous.113 b.

However, a testator’s statement to the scrivener who drew a testator’s will or a settlor’s trust is not admissible in evidence for altering or adding to the terms of the document.114

112 Id. 113 Id. 114 In re Estate of Kelly, 473 Pa. 48, 373 A.2d 744 (1977).

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(1) The scrivener's testimony as to his understanding of what the testator intended is inadmissible.115 (2) So also, evidence of testator's instructions to the scrivener which would alter or add to the terms of the will has been held inadmissible.116 2.

Written Communications – An important area not closed by such decisions are written communications between the scrivener and the testator. a.

For example, testamentary writings not properly executed were probated to throw light on the testator's intention in the Will itself. If this is permissible, why not allow in evidence all written communications between the scrivener and the testator which preceded and culminated in and explained the will or any of its provisions?117 b.

Guardian of incapacitated person petitioned to have ward's codicil declared null and void for lack of capacity after attorney-scrivener and notary testified as to the incapacitated person’s mental capacity to form a will.118 d.

Testimony of Third Parties

Testimony of testator’s or settlor's lawyer, secretary, doctor, banker, and accountant have been deemed proper where such testimony did not impermissibly intrude into the subjective intent of the testator but, rather, referred only to circumstances attendant to the execution of the document.119 C.

Evidence to Correct Mistake

1.

It is well settled that extrinsic evidence to correct a mistake is inadmissible when offered to support the allegation of a mistake in the will and to prove that the testator intended to dispose of the property in a manner not apparent on the face of the will.120 2.

Where there is a complete and plain will in writing it cannot be altered or influenced by parol evidence as to the intention. Evidence as to matters dehors the will to show the mistake is insufficient.

115: Dembinski's Est., 316 Pa. 61.

116 Penrose's Est., 317 Pa. 444; Sauer v. Mallinger, 138 Pa. 338; Hoffman Will, 8 Fiduc. Rep. 609, affd 394 Pa. 391; cf., however, Brownfield v. Brownfield, 12 Pa. 136, and Hamsher Est., 11 Fiduc. Rep. 117 In Galli's Est., 250 Pa. 120, 118 Burt, Incapacitated Person, 19 Fiduc. Rep.2d 231, annotated in Fiduciary Review, Aug. 1999, p. 3.

119: Matter of Estate of Rudy, 329 Pa. Super 458, 478 A.2d 879 (1984).

120: Wallize v. Wallize, 55 Pa. 242 (1867).

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3.

Even the instructions for the will are inadmissible to show a mistake. In addition, parol evidence is not admissible to explain an unintelligible devise; such a devise will be void for uncertainty.121 D.

Rules of Evidence 1.

In General

Extrinsic evidence when considered by the court to provide insight into the testator’s intent is still subject to the rules of evidence, such as the hearsay rule, the attorney-client privilege, and the Dead-Man's Act to determine its admissibility.

2.

The Applicability of the Hearsay Rule

a.

If the document at issue is ambiguous on its face documentary evidence, as well as oral and written testimony concerning the testator’s declarations of intention should be held admissible under exceptions to the hearsay rule.122 b.

Pennsylvania Rule of Evidence 801(c) defines hearsay as "a statement that (i) the declarant does not make while testifying at the current trial or hearing, and (ii) a party offers in evidence to prove the truth of the matter asserted in the statement."123 c.

However, the Rules at 803(3), provide an exception to the hearsay rule:

“(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.”

3.

Attorney-Client Privilege

a.

The purpose of the attorney-client privilege is to protect the client’s communications with his or her attorney, generally in the context of estates when defending adverse claims against the estate.124 In dealing with such claims, the attorneyclient privilege should not apply. 125 b.

In this context, application of the rule does not protect the decedent’s estate but rather protects the claimant. The privilege should also not apply in the context of resolving an ambiguity in a will. Such proceedings should not be viewed as adverse to 121 Kelley v. Kelley, 25 Pa. 460 (1854); Huss v. Stephens, 51 Pa. 282, 1866 Pa. LEXIS 34 (1866).

122 Restatement 3d Property: Wills and Other Donative Transfers, § 10.2, Comments and Illustrations, Illustration h.

123 Pa.R.E. 801(c) 124 See id. § 68, Comment c.

125 See Restatement Third, The Law Governing Lawyers § 81 "The attorney-client privilege does not apply to a communication from or to a decedent relevant to an issue between parties who claim an interest through the same deceased client, either by testate or intestate succession or by an inter vivos transaction."

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the estate, but rather should be viewed as a resolution of two or more different constructions of the testamentary document. c.

Therefore, the introduction of documentary evidence in the hands of the donor's attorney, nor the use of the attorney's oral or written testimony should not be barred by the privilege.126 4.

The Dead Man’s Act

a.

The Dead Man’s Act protects parties who have civil claims prosecuted or defended by a decedent.

(1) The Act bars the testimony of a party to a transaction or event with the decedent who has an interest adverse to the decedent in a civil action brought or defended by the decedent’s executor.127 (2) In Pennsylvania, under the Dead Man's Act found at 42 Pa. Cons.

Stat. Ann. § 5930, surviving parties who have an interest which is adverse to a decedent's estate are disqualified from testifying as to any transaction or event which occurred before decedent's death.

(3) For example, in the context of determining whether an inter vivos gift was made or intended, a court may not admit statements of decedent absent independent testimony and establishing prima facie evidence of donative intent.

(4) If the alleged donee fails to establish prima facie evidence of a gift or transfer, by independent testimony before he or she takes the stand, he or she is not competent to testify.128 b.

On the other hand, the Dead-Man Act should not be construed to interfere with the introduction of evidence, documentary or testimony by a witness regarding the donor's statements about the content of his or her will, even if the documentary evidence or the testimony stems from a witness who is a devisee, beneficiary, nominee, or appointee or claims to be a devisee, beneficiary, nominee, or appointee of the donative provision in question.129 As discussed previously in regard to attorney-client privilege, such a proceeding is not a matter "adverse" to the decedent's estate.

V.

Rules of Interpretation and Construction A.

In General

126 Id. 127 42 Pa.C.S. § 5930, also see 1 Ohlbaum on the Pennsylvania Rules of Evidence § 601.14[1].

128 Zigmantanis v. Zigmantanis, 2002 PA Super 124.

129 Thomas Estate, 457 Pa. 546 (1974); see also Restatement 3d Property: Wills and Other Donative Transfers, § 10.2, Comments and Illustrations, Illustration h.

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1.

If a testator’s intent cannot be ascertained first from a consideration of the language of the document and then from extrinsic evidence, a court may resort to the so-called canons or rules of interpretation and construction.

2.

Rules of interpretation are rules of disposition cased on statutory and judicial assumptions as to how property would be disposed of by a typical donor when the document is silent. They often address unforeseen events not addressed by the documents, such as the predecease of an heir or beneficiary, or property which is the subject a specific gift not being held by an estate or trust at the time of disposition.

3.

Unlike “constructional preferences” discussed below, which are more general in nature, rules of interpretation, when applicable, dictate a single result.130 In Pennsylvania, the statutory rules of construction are primarily found in 20 Pa.C.S. § 2514 but are also provided in 20 Pa.C.S. §§ 2507, and 2517.

4.

While these rules are framed in terms of dispositions under a will it is well settled that the rules for determining intent are the same for a testamentary trust as for a will. 131 In addition, 20 Pa.C.S. § 7710.2 now provides that the rules of construction that apply to testamentary trusts also apply as “appropriate” to the provisions of inter vivos trusts.132 B.

20 Pa.C.S. § 2514 - Statutory Rules of Interpretation

1.

Overview

20 Pa.C.S. § 2514 sets forth the following relevant statutory of interpretation, which absent a contrary intent appearing in the document will be applied.

2.

The Anti-Lapse Provisions – What if the Beneficiary Doesn’t Exist

a.

At common law, in absence of a contrary provision, a gift to an individual who dies within the lifetime of the testator lapses.133 To overcome the perceived hardship arising from the application of this rule, the PEF Code includes anti-lapse provisions that in certain limited situations act to prevent a gift from lapsing. 20 Pa.C.S. § 2514(9) provides that: − A devise or bequest to: ‒

a child or other issue of the testator, or

‒

his or her brother or sister, or

130 20 Pa.C.S. § 7710.2, ULC (citing Restatement (Third) of Property: Donative Transfers § 11.3 & cmt. b (Tentative Draft No. [**30] 1, approved 1996) (proposing a distinction between constructional preferences and rules of construction)).

131 In re Scheidmantel, 2005 PA Super 6, 868 A2d 464 (2005).

132 20 Pa.C.S. § 7710.2; by adding the qualifier “as appropriate”, the section recognizes that not all rules of interpretation are readily applicable to dispositions under a trust. For example, a disposition under a will be considered a present interest, but a distribution under a revocable trust is considered a future interest, see English and Whitman, Fiduciary Accounting and Trust Administration Guide, (3rd ed., ALI-ABA 2004), p 113.

133 See In re Estate of Bickert, 447 Pa. 469, 290 A.2d 925 (1972).

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‒

a child of his or her brother or sister, whether designated by name or as one of a class,

− Shall not lapse when the named beneficiary fails to survive the testator but leaves issue surviving the testator, − But shall pass to such surviving issue, who shall take per stirpes the share which the deceased ancestor would have taken had he or she survived the testator, − Provided that such a devise or bequest to such a brother or sister or child of a brother or sister shall lapse to the extent that it would pass to testator’s spouse or issue as part of the residuary estate or under intestate law. b.

The anti-lapse statute does not apply if the decedent expresses a contrary intent, however. By making the gift subject to the condition that the beneficiary survives the testator, the gift will not be subject to the statute.134 3.

What if the Property Doesn’t Exist? – Ademption

a.

Under the doctrine of ademption, if the subject matter of a specific legacy or devise is not in existence or does not belong to the testator at the time of his or her death, the gift is extinguished.

(1) The testator’s intention is not relevant where the property devised or bequeathed in his or her will is not part of his or her estate at death. The rule of ademption is equally applicable where the specifically devised or bequeathed property is removed from the testator’s estate during his or her lifetime by an involuntary act or by operation of law.

Thus, where it is established that the gift was specific, and the item was nonexistent in the testator's estate at the time of death, an ademption results.

(2) Under Pennsylvania law, a "specific devise" or "specific bequest" is a "gift by will of a specific article or other property, real or personal, which is identified and distinguished from all other things of the same kind." General and demonstrative testamentary gifts are not subject to ademption. b.

The PEF Code provides certain specific circumstances where gifts will not adeem: − 20 Pa.C.S. § 2514(16.1) provides that if specifically devised or bequeathed property of an adjudicated incapacitated person is sold or exchanged or if a condemnation award or insurance proceeds are paid to the estate of an incapacitated person as a result of condemnation, fire or casualty, the specific legatee or devisee has the right to the net sale price, the property received in exchange, the condemnation award or the insurance proceeds. − 20 Pa.C.S. § 2514(16.2) provides that if an agent under a power of attorney, during the time that his or her principal is an incapacitated person, sells or

134 Kunkel v Kunkel, 267 Pa. 163, 110 A. 73 (1920).

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exchanges property of the principal which is specifically devised or bequeathed, the specific legatee or devisee has the right to the net sale price or the property received in exchange. − 20 Pa.C.S. § 2514(17) provides that if the testator intended a specific bequest of securities owned by him or her at the time of the execution of his or her will, rather than the equivalent value thereof, the legatee is entitled only to: −

As much of those securities as formed a part of the testator's estate at the time of his or her death;

−

Any additional or other securities issued by the same entity thereon and owned by the testator by reason of a stock dividend, stock split or other action by the entity, excluding any acquired by exercise of purchase options for more than a fractional share; and

−

Securities of another entity received thereon or in exchange therefor and owned by the testator as a result of a merger, consolidation or reorganization of the entity or other similar change.

− 20 Pa.C.S. § 2514(18), provides that a devisee or legatee of property specifically devised or bequeathed has the right to any of that property which the testator still owned at his or her death and:

4.

−

Any balance of the purchase price or balance of property to be received in exchange, together with any security interest, owing from a purchaser to the testator at his or her death by reason of a sale or exchange of the property by the testator;

−

Any amount due for the condemnation of the property and unpaid at the testator's death;

−

Any proceeds unpaid at the testator's death on fire or casualty insurance on the property; and

−

Property owned by the testator at his or her death as a result of foreclosure or obtained in lieu of foreclosure, of the security for a specifically bequeathed obligation.

Devises of Real Estate.

All gifts of real estate will be interpreted to pass the whole estate of in the gifted premises, although there be no words of inheritance or of perpetuity.135 5.

Meaning of "Heirs" and "Next of kin," etc.

135 20 Pa.C.S. § 2514(3).

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A gift whether directly or in trust, to "heirs" or "next of kin" or "relatives" or "family" or to "the persons thereunto entitled under the intestate laws" or to persons described by words of similar import, shall mean those persons, including the spouse, who would take under the intestate laws if the settlor or other designated person were to die intestate at the time when such class is to be ascertained, a resident of the Commonwealth, and owning the estate so devised or bequeathed. Provided, however, that the share of a spouse, other than the spouse of the settlor, shall not include the allowance under the intestate laws. 136 6.

Time for Ascertaining a Class.

In construing a gift to a class other than a class described in section 2514(4), the class shall be ascertained at the time the devise or bequest is to take effect in enjoyment, except that the issue then living of any member of the class who is then dead shall take per stirpes the share which their deceased ancestor would have taken if he or she had then been living.137 7.

Meaning of "Die without Issue" and Similar Phrases.

In any devise or bequest of real or personal estate, the words "die without issue," "die without leaving issue," "have no issue," or other words importing either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in his lifetime or at his death, and not an indefinite failure of his issue.138 8.

Adopted Children.

In construing paragraphs relating to lapsed and void devises and legacies, and in construing a will making a devise or bequest to a person or persons described by relationship to the testator to another, any adopted person shall be considered the child of his or her adopting parent or parents, except that, in construing the will of a settlor who is not the adopting parent, an adopted person shall not be considered the child of his or her adopting parent or parents unless the adoption occurred during the adopted person's minority or reflected an earlier parent-child relationship that existed during the child's minority. An adopted person who is considered the child of his or her adopting parent or parents under this paragraph shall not be considered as continuing to be the child of his or her natural parents except in construing the will of a natural kin, other than the natural parent, who has maintained a family relationship with the adopted person. If a natural parent shall have married the adopting parent, the adopted person shall also be considered the child of such natural parent.139 9.

Persons Born out of Wedlock.

In construing paragraphs relating to lapsed and void devises and legacies, and in construing a will making a devise or bequest to a person or persons described by relationship to the settlor or to another, a person born out of wedlock shall be considered the child of the natural mother and also of the natural father

136 20 Pa.C.S. ยง 2514(4).

137 20 Pa.C.S. ยง 2514(5).

138 20 Pa.C.S. ยง 2514(6).

139 20 Pa.C.S. ยง 2514(7).

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if paternity of the natural father has been determined pursuant to the provisions of section 2107 (relating to persons born out of wedlock).140 10.

Property Subject to a Security Interest.

A specific devise or bequest of real or personal property passes that property subject to any security interest therein existing at the date of the settlor's death, without any right of exoneration out of any other estate of the settlor regardless of whether the security interest was created by the settlor or by a previous owner and any general directive in the will to pay debts.141 11.

Cemetery Lots.

If in a will no express disposition or other mention is made of a cemetery lot owned by the settlor at his or her decease and wherein he or she or any member of his or her family is buried, the ownership of the lot shall not pass from his or her lawful heirs by a residuary or other general clause of the will but shall descend to his or her heirs as if he or she had died intestate.142 12.

Corporate Fiduciaries.

Provisions authorizing or restricting investment in the securities or common trust funds of a corporate fiduciary or the exercise of voting rights in its securities shall also apply to the securities or common trust funds of any corporation which is an affiliate of the corporate fiduciary within the meaning of section 1504 of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 1504).143 C.

20 Pa.C.S. § 2507 - Automatic Modification by Circumstances 1.

Overview

a.

The occurrence of certain changes in circumstances or the occurrence of certain events will automatically act to modify a will without the further act of the testator.

Under 20 Pa.C.S. § 2507, there are four circumstances which create a statutory modification: −

Divorce;

−

Marriage;

−

Birth or adoption of a child; and

−

Murder of the testator.

b.

It is well settled that the provisions of 20 Pa.C.S. § 2507, apply to trust created under a will. 20 Pa.C.S. § 7710.2, by making the rules of construction of

140 20 Pa.C.S. § 2514(8).

141 20 Pa.C.S. § 2514(12.1).

142 20 Pa.C.S. § 2514(14).

143 20 Pa.C.S. § 2514(20).

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testamentary trusts applicable to inter vivos trusts, has made applicable to inter vivos trusts the provisions of 20 Pa.C.S. § 2507.144 2.

Divorce or Pending Divorce

a.

Under 20 Pa.C.S.§ 2507(2), any provision in a testator's will in favor of or relating to the testator's spouse becomes ineffective for all purposes unless it appears from the will that the provision was intended to survive a divorce, if the testator: (i) is divorced from such spouse after making the will; or (ii) dies domiciled in Pennsylvania during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established.145 b.

Similarly, any provision in a conveyance that was revocable by the conveyor at the time of death, such as a revocable trust, and that was to take effect at or after death in favor of or relating to the conveyor’s spouse becomes ineffective for all purposes unless it appears in the governing instrument that the provision was intended to survive a divorce, if the conveyor (i) is divorced from his or her spouse after making the conveyance; or (ii) dies while domiciled in Pennsylvania during the course of divorce proceedings if the grounds for divorce were established even though no decree of divorce had been entered.146 3

Marriage

If the testator marries after making a will, 20 Pa.C.S. § 2507(3) provides that the surviving spouse will receive the share of the estate to which he or she would have been entitled if the testator had died intestate, unless the will and trust provide a greater share or it appears from the will that the will was made in contemplation of marriage to the surviving spouse.147 It has been held that the pretermitted share under 20 Pa.C.S. § 2507(3) applies only to the intestate estate "not effectively disposed of … or otherwise". This phrase has been interpreted to include dispositions

144 The question of whether 20 Pa.C.S. § 2507, also applies to revocable trusts was addressed by the Pennsylvania Superior Court, in In re Trust Under Deed of Kulig dated January 12, 2001, 131 A.3d 494 (2015). In that case the court found that 20 Pa.C.S. § 7710.2, which provides that the rules of construction that apply to the provisions of testamentary trusts also apply as appropriate to the provisions of inter vivos trusts, and in effect in the eyes of the court imports the statutory rules of construction found in 20 Pa.C.S. §§ 2507, and 2514 and 2517 and other statutory and judicial rules of interpretation that apply to trusts under wills. The court stated that a revocable trust is used primarily as a will substitute, with its key provision being the determination of the persons to receive the trust property upon the settlor's death. Given the functional equivalence between the revocable trust and a will, the court determined that the rules for interpreting the disposition of property at death should be the same whether the individual has chosen a will or revocable trust as the individual's primary estate planning instrument. The Pennsylvania Supreme Court, In re Trust Under Deed of Kulig, 175 A.3d 222 (2017), reversed on other grounds, specifically on the question of whether 20 Pa.C.S. § 7710.2, extended the language of 20 Pa.C.S. § 2507(3), to include in the pretermitted share, property passing under trust.

145 20 Pa.C.S. § 2507(2).

146 20 Pa.C.S. § 6111.1; see 23 Pa.C.S. § 3323(g).

147 20 Pa.C.S. § 2507(3).

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made pursuant to a trust.148 Thus, precluding inclusion of such property in the pretermitted share.149 4.

Birth or Adoption

20 Pa.C.S. 2507(4) provides that if the testator fails to provide in his or her will for a child born or adopted after making the will that child is entitled to receive out of the testator’s property not passing to a surviving spouse, the share as the child would have received if the testator had died unmarried and intestate owning only that portion of the estate not passing to a surviving spouse.150 This is provided that it appears from the will that the failure was intentional, 5.

Slaying

Any person who participates either as a principal or as an accessory before the fact in the willful and unlawful killing of any person is barred under 20 Pa.C.S.§2507(5) from acquiring property or receiving any benefits as the result of the willful and unlawful killing.151 D.

20 Pa.C.S.§ 2517 – The Rule in Shelly’s Case and the Doctrine of Worthier Title

1.

20 Pa.C.S. 2517(a) provides that the rule in Shelley’s case152 and its corollaries do not be apply in Pennsylvania. As a result, a devise or bequest directly or in trust which expresses an intent to create an estate for life with a remainder interest passing to the heirs or the heirs of the life tenant does not operate to give such life tenant an estate in fee in real estate or an absolute estate in personality.

2.

20 Pa.C.S. 2517(b) goes on to provide that the “doctrine of worthier title” 153 also does not apply in Pennsylvania either as a rule of law or as a rule of construction. Further, the section provides that language in a will describing the beneficiaries of a disposition as the transferor’s heirs, heirs at law, next of kin, distributees, relatives or family or language of similar import does not create a reversionary interest in the transferor.

VIII.

Constructional Preferences

In examining the language of a will, the Pennsylvania courts will generally follow the interpretive guidelines below, sometimes referred to as “constructional preferences” which provide general guidance for resolving a wide variety of ambiguities. An example is a preference for a construction that results in a complete disposition and avoids illegality.154 Such preferences are created by the courts and are more

148 See 20 Pa.C.S. § 2101(a).

149 In re Trust Under Deed of Kulig,638 Pa. 749 (2017).

150 20 Pa.C.S. § 2507(4).

151 20 Pa.C.S. § 2507(5).

152 The rule is a rule of limitation providing essentially that a gift or conveyance of real estate of a life estate with remainder to the heirs of the life tenant, conveys an absolute fee interest to the life tenant.

153 The “doctrine of worthier title” was a legal doctrine that essentially provides that a remainder cannot be created in the grantor's heirs, at least not by those words.

154 20 Pa.C.S. § 7710.2, Commentary.

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general in nature than the rules of interpretation or construction discussed in the previous section, and as a rule carry less weight.155 1.

Construction in Favor of Natural Result and Against Disinheritance

In determining the intention of the testator, the courts will favor a construction which is consistent with the natural intentions of the testator and tends to avoid unreasonable, improbable, or unlawful results.156 2.

Ordinary and Grammatical Sense

In interpreting wills and trusts, words and phrases are generally given their ordinary meaning unless the testator has indicated a contrary intent.157 3.

Words Interpreted According to their Usual Meaning

Words contained in a will or deed of trust are to be interpreted according to their usual and generally accepted meaning in the absence of a clear intention to the contrary. However, where the intent of the testator or the settlor is clear from the provisions of the trust instrument, resorting to technical canons of construction is unnecessary.158 4.

Technical Words

Unless it will defeat the obvious intention of the settlor, technical words will be given their generally accepted definition.159 5.

Repeated or Related Words and Phrases

Words or phrases which are used more than once in the document will be interpreted to have a consistent definition unless it is apparent that a different definition was intended.160 6.

Transposition of Words

Clauses of the document may be transposed by the courts only when it is absolutely necessary to fulfill the apparent intent of the settlor.161 7.

Substitution and Addition of Words

As a general rule, words will not be substituted or added unless it is necessary to carry out the intended design of the will.162 Courts are generally always reluctant to supply words of material import to a

155 Restatement 3d of Trusts, ยง 4, General Notes on Comments a through d.

156 In re Estate of McFadden,100 A.3d 645, 2014 PA Super 203 (2014); In re Estate of Clarke, 460 Pa. 41, 331 A.2d 408 (1975).

157 Ferber v. American Lamp Corp. 503 Pa. 489, 469 A.2d 1046 (1983).

158 Id. 159 In re Estate of Elkins 888 A.2d 815, 2005 PA Super 375 (2005).

160 In re Hamilton's Estate, 454 Pa. 495, 312 A.2d 273 (1973).

161 In re Farrington's Estate, 422 Pa. 164, 220 A.2d 790 (1966).

162 In re Hill's Estate, 432 Pa. 269, 247 A.2d 606 (1968).

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will,163 however, word or words may be supplied where there is a clear inference from the whole document that the words were omitted by mistake.164 8.

Punctuation

As a rule, punctuation will be ignored as having little impact on the will construction. However, if the will was drafted by an attorney the punctuation will be assumed to have been intended as used. 165 9.

Precatory or Explanatory Words

Precatory words will, in most cases, be considered as advisory and non-binding on the executor or trustee. However, if it is apparent that the words at issue were used with the intent to control the action of the executor or trustee, they will be so interpreted.166 10.

Document Read in its Entirety

The text of a donative document must be read in its entirety. 167 Each portion, whether it be a word, phrase, clause, sentence, paragraph, article, or some other portion, is connected to the whole. The donor is presumed to intend that the various portions complement or modify each other.168 The case may arise, for instance, in which two portions, read in isolation, appear contradictory. However, when construction of the document as a consistent whole would be facilitated by reading one portion as modifying the other or reading both as mutually modifying each other, that construction prevails.

11.

Conflicting Provisions

When provisions of a will instrument conflict, they should be read in a way so as to give effect to both and/or fulfill the intent of the testator.169 Nevertheless, courts cannot rewrite a will or distort its language or the language of a statute in order to attain what is believed to be a beneficial or wise result.

This is true even when the court believes that the testator would or should have provided such a result if he or she had possessed a knowledge of all presently existing circumstances.170 12.

Construing Instruments Together

Where there are two or more instruments relating to a will they should be construed together to effectuate the testator’s or settlor's intent.171 13.

No Preference Presumed

163 Sowers Estate, 383 Pa. 566 (1955).

164 Hellerman's Appeal, 115 Pa. 120, 8 A. 768; Jacobs' Estate, 343 Pa. 387, 22 A.2d 744; Wittmer's Estate, 151 Pa. Superior Ct. 274, 30 A.2d 197.

165 In re Young's Estate, 181 Pa.Super. 468, 124 A.2d 453 (1956).

166 In re Estate of Mumma, 2015 PA Super 209,125 A.3d 1205 (2015).

167 In re Estate of Warden, 2010 PA Super 121, 2 A.3d 565 (2010) 168 Estate of McKenna, 340 Pa. Super. 105, 489 A.2d 862 (1985); Estate of Tower, 323 Pa. Super. 235, 470 A.2d 568 (1983), decree aff'd by, 506 Pa. 642, 487 A.2d 820 (1985); Fink v. Stein, 158 Pa. Super. 464, 45 A.2d 249 (1946).

169 In re Estate of O’Brien, 381 Pa. 322, 112 A.2d 178 (1955).

170 Kelsey Estate, 393 Pa. 513, 143 A.2d 42 (1958).

171 Glant Will, 48 Pa. D. & C.2d 791, 1969 WL 7892 (C.P. 1969); Holt Estate, 405 Pa. 244, 174 A.2d 874 (1961); Crooks Estate, 388 Pa. 125, 130 A.2d 185 (1957); Spangenberg Estate, 359 Pa. 353, 59 A.2d 103 (1948).

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It is presumed that in the distribution of a probate or trust estate no preference in favor of one beneficiary over another is intended. The one claiming a preference has the burden of sustaining his or her claim by a clear demonstration from the will, and ambiguities and uncertain statements in the document are insufficient to overcome the presumption.172 14.

When is the Donor’s Intent is Determined

The testator’s or settlor's intent must be determined as of the date of creation of the purported will document.173

172 In re Petty’s Estate, 311 Pa. 362, 166 A. 857 (1933).

173 In re Irrevocable Inter Vivos Trust Agreement of Hanley, 307 Pa. Super. 153, 452 A.2d 1360 (1982), aff’d, 503 Pa. 119, 468 A.2d 1093 (1983).

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