It’s a basic principle of estate planning that every will must be in writing and signed at the end by the testator. Upon the testator’s death, the original will must be presented to the register of wills for probate. The original, rather than a signed copy, is preferred to avoid challenge to the will’s validity. What, then, are your options when the original can’t be found? Since the Pennsylvania Supreme Court’s 2016 In re Estate of Wilner decision, potential intended beneficiaries may have broader means of avoiding intestacy. You’re no longer strictly limited to admitting a copy of the lost will which has the testator’s signature. In other words, you may be able to probate a completely unsigned copy of the will so long as you meet certain proofs.
A signed copy of the will may be admitted for probate; however, this increases the likelihood that an unnamed intestate beneficiary will contest the document’s validity. The chances of challenge increase because when a will is known to have been executed by the decedent and cannot be located after her death and no other will is found, a presumption arises that the testator destroyed the will. In this case, the proponent of the document will argue that the original was lost or inadvertently destroyed. To have the copy probated, the proponent must (1) overcome the presumption that the testator revoked the lost instrument, and (2) give proof as to the execution and the contents of the missing document.
Where the will is lost or inadvertently destroyed, many practitioners believe that only a copy of the document, with signatures, will satisfy the requirements for probate. However, the Pennsylvania Supreme Court confirmed a broader field of possibilities with In re Estate of Wilner.
In the context of lost wills, Wilner reaffirmed an old rule and established a new one. Wilner restated the rule that all wills, including lost wills, must be “proved” by two competent witnesses. This means that two witnesses must testify that the testator signed the lost instrument. Wilner then clarified the burden of proving the contents of the lost instrument. Under Wilner, the contents of the lost will may be proved in any lawful manner by clear and convincing evidence. Thus, the Court clarified that two witnesses are only required to prove that the testator signed the lost will. There is no bright line rule regarding how many witnesses or what kind of evidence is necessary to prove the will’s contents.
As stated, Wilner clarified the rules controlling probate of a lost will. However, Wilner is also instructive because the copy of the will admitted to probate did not contain the testator’s signature. In Wilner, the document admitted to probate was a conformed copy of the will, i.e. the drafting attorney hand printed the names of the testator and witnesses on the signature lines. This may be surprising considering the requirement that every will be “signed” at the end by the testator. Wilner therefore stands for the proposition that physical evidence of the testator’s signature—a photocopy of the signed will—is not required so long as there are two individuals who can testify that they witnessed the testator sign the original will.
So, next time a client walks in with nothing but an unsigned will, think twice before concluding that the decedent’s estate will pass under the laws of intestacy.
If you have any questions regarding probating an unsigned will, or will probate in general, please feel free to contact Paul Fellman at
(610) 565-1708
ext. 24, or by email at pfellman@gibperk.com.
