Estate of Brumbaugh, J., Appeal of: McClintock, J., 170 A.3d 541

Background

Decedent John Brumbaugh died Nov. 7, 2015; his longtime partner Judy McClintock produced a photocopy of a March 22, 2015 document she claimed was his will.
Letters of Administration were initially issued to Decedent’s mother, Marjorie Brumbaugh; McClintock sought probate of the photocopy before the Register of Wills, who admitted it based largely on a notary’s affidavit and phone contact.
Marjorie Brumbaugh appealed to the Orphans’ Court, arguing the Register improperly admitted a photocopy without proof the original was not revoked/destroyed and raising evidentiary objections to the notary’s affidavit and ex parte contact.
At the de novo Orphans’ Court hearing the court heard testimony from McClintock, notary Dorothy Lykins, and forensic document examiner Khody Detwiler.
Detwiler testified the body text and signature appeared to be photocopy reproductions, toner particles and localized "trash marks" suggested possible cut‑and‑paste alteration, and certain hand corrections lacked expected physical indicia of original ink.
The Orphans’ Court found the notary not credible, found the document examiner credible, concluded McClintock failed to prove the copy’s contents matched an original, and vacated probate; this appeal followed.

Issues

Issue	McClintock's Argument	Brumbaugh's Argument	Held
Can a photocopy be admitted as a lost will where the original cannot be located?	The photocopy should be probated as a lost will; Decedent kept the copy among important papers (analogizing to Estate of Ervien).	Proponent must overcome presumption of revocation by proving (1) proper execution, (2) copy matches original, and (3) will not revoked; photocopy failed that proof.	Photocopy may be probated only if proponent meets the three‑part test; here proponent failed to prove the copy’s contents matched an original.
Did McClintock overcome the presumption that the testator revoked/destroyed the original will?	The presence of the copy among financial papers shows he would not have revoked the original.	The presumption stands absent positive, clear, satisfactory proof; anomalies in the photocopy undermine that proof.	No—McClintock failed to produce positive, clear, satisfactory evidence that the original’s contents were substantially the same as the copy.
Should the court have given controlling weight to the notary’s affidavit and testimony?	The notary’s affidavit and status supported admission; discrepancies were immaterial.	The notary’s testimony was inconsistent and the court may discredit it; her affidavit and ex parte contact were improperly relied on by the Register.	The Orphans’ Court permissibly found the notary not credible and was not bound to accept her affidavit over other evidence.
Was reliance on the document examiner's testimony improper because his conclusions were "inconclusive"?	Detwiler could not definitively prove doctoring; reliance on inconclusive testimony was erroneous.	Even if not definitive, Detwiler identified anomalies that raised serious authenticity questions; burden rests on proponent.	The court properly relied on Detwiler’s credible observations of anomalies to conclude proponent failed her heavy burden.

Key Cases Cited

In re Estate of Murray, 171 A.2d 171 (Pa. 1961) (presumption arises that a will retained by testator but not found was revoked or destroyed)
In re Estate of Janosky, 827 A.2d 512 (Pa. Super. 2003) (elements required to prove existence of a lost will from a copy)
Estate of Ervien, 233 A.2d 887 (Pa. 1967) (court affirmed probate of copy under facts showing retention and circumstances suggesting nonrevocation)