Estate of Wilner
92 A.3d 1201
Pa. Super. Ct.2014Background
- Isabel Wilner died in 2011; petitioner Linda Baker sought probate of a conformed copy of a June 29, 2007 will and an original April 26, 2010 codicil that purportedly left the residue to Church of the Nativity.
- The original 2007 will was missing after death; a conformed photocopy (unsigned on signature page) and a later codicil(s) were offered. Scrivener Charles Welles testified about contents.
- Appellant Dana Wilner (niece and intestate heir) contested probate; she and others had a strained relationship and there was evidence of earlier removal of documents from the decedent’s home.
- Only one witness (the scrivener) testified as to the contents of the lost 2007 will; the later January 15, 2011 codicil was presented but lacked testimony from two witnesses to validate it for probate.
- The Orphans’ Court admitted the conformed copy and second codicil; the Superior Court reviewed whether the statutory two-witness rule for proving a lost will was satisfied.
Issues
| Issue | Plaintiff's Argument (Wilner/Baker) | Defendant's Argument (Dana Wilner) | Held |
|---|---|---|---|
| Whether the two‑witness rule required two witnesses to prove contents of a lost will | The conformed photocopy and scrivener’s testimony suffice to prove contents; photocopy makes proof reliable | Two‑witness rule requires testimony of two competent witnesses to prove contents of a lost will | Court held the two‑witness rule applies and was not satisfied; single witness insufficient |
| Whether Pennsylvania statutory changes eliminated the two‑witness requirement for lost wills | Statutory reduction of execution formalities obviates old common‑law two‑witness proof rule | Statutory changes do not affect separate statutory requirement that proof of a lost will’s contents requires two witnesses | Court held statutory changes to execution do not eliminate the separate two‑witness proof requirement |
| Whether the January 15, 2011 codicil could substitute for a second witness or otherwise prove contents | The 2011 codicil mirrors the lost will and corroborates contents, effectively supplementing proof | The codicil itself was not proven by two witnesses and thus cannot be admitted to probate as evidence of the lost will’s contents | Court held the 2011 codicil was not properly proven (only one witness) and cannot stand in for the two‑witness rule |
| Whether reopening the record and admission of the codicil cured deficiencies in proof | Reopened record and additional evidence (codicil, correspondence) justify admitting the will copy | Reopened record did not produce the statutorily required second witness for contents or for the codicil | Court held reopening did not save probate because statutory two‑witness proof remained unmet |
Key Cases Cited
- In re Hodgson’s Estate, 270 Pa. 210 (Pa. 1921) (establishes rule that contents of a lost will must be proved by oath or affirmation of two or more competent witnesses)
- In re Estate of Mammana, 388 Pa. Super. 12 (Pa. Super. Ct. 1989) (reiterates requirement that both rebuttal of revocation presumption and proof of execution and contents by two witnesses are necessary for probate of a lost will)
- In re Estate of Miller, 18 A.3d 1163 (Pa. Super. Ct. 2011) (standard of review for Orphans’ Court factual findings and legal conclusions)
- In re Harrison’s Estate, 316 Pa. 15 (Pa. 1934) (discusses proof of execution versus proof of contents in will cases)