Estate of: I. Wilner Appeal of: Baker, L.
142 A.3d 796
Pa.
2016
Check Treatment

In re ESTATE OF Isabel WILNER, Deceased.

142 A.3d 796

Supreme Court of Pennsylvania.

Decided July 19, 2016.

Appeal of Linda Baker. Argued May 6, 2015. Resubmitted Jan. 20, 2016.

of attorneys’ fees under section 2503(9) to the jury for its consideration. at 416.

Absent the clear error by the trial court in this case, over the City‘s repeated objections,4 of submitting the issue of bad faith to the jury, the current dilemma over whether the trial court had the discretion to refuse to impose interest penalties and attorneys’ fees never arises. Indeed, I do not read the trial court‘s opinion to relate that it decided not to award statutory remedies even though the City had acted in bad faith. Instead, the trial court declined to impose interest penalties and attorneys’ fees because it disagreed with the jury‘s finding of bad faith, as it did not consider the conflicting evidence to establish that the City had in fact acted arbitrarily or vexatiously. Trial Court Opinion, 2/28/2014, at 33. Section 3935 plainly confers discretion on the trial court, but the discretion conferred is to decide, based upon its review of the evidentiary record, whether the government agency acted in bad faith in withholding payments due and owing. If and when the trial court determines that the government agency acted in bad faith, it must then award interest penalties and attorneys’ fees as specified in section 3935, as the statute identifies no other factors to be considered before doing so.

For these reasons, I respectfully dissent.

Sandra D. Boyle, Wyoming County Human Services, Inc. (Children & Youth), Mary Elizabeth Kohart, Colin J. O‘Boyle, Dean Richard Phillips, Deborah Hart Simon, Gregory Scott Voshell, Elliott Greenleaf & Siedzikowski, P.C., Blue Bell, C.H. Welles IV, Law Offices of C.H. Welles IV, Scranton, for Linda Baker, Appellant.

Bruce Richard Beemer, Sean Andrew Kirkpatrick, John G. Knorr III, Office of the Attorney General, for Charities, Appellee.

James Francis Mannion, Mannion Prior, L.L.P., King of Prussia, for Dana Wilner, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

OPINION

Chief Justice SAYLOR.1

In this appeal by allowance, we consider the meaning and proper application of the statutory two-witness rule for proving a will where the original, executed will is lost.

This disрute arises from an attempt to enter a copy of a lost will into probate. According to the credited testimony and other evidence presented in the orphans’ court, Isabel Wilner (“Decedent“), born in 1920, died at age 91 in March 2011. She was a lifelong Episcopalian and, during her career as a librarian and author of children‘s books, she lived in or near Baltimore, Maryland, where she attended the Church of the Nativity (the “Maryland church“). She also spent time in Tunkhannock, Pennsylvania, where she ultimately decided to live during her retirement. While residing in Tunkhannock, Decedent attended Saint Peter‘s Episcopal Church (the “Pennsylvania church“). She remained on good terms with both churches throughout her life.

Decedent never married. Her intestate heirs were her niece Dana Wilner (“Appellee“) and her nephew David Wilner, who is not involved in this litigation.

Charles Welles, Esq., a lawyer in Tunkhannock, drafted a will for Decedent, nominating Decedent‘s friend Margaret Young as executrix and naming the Maryland church as the primary beneficiary. Decedent executed the will in June 2007. Testamentary formalities took place at the office of another Tunkhannock attorney, Judd Fitze, Esq. The subscribing witnesses were Attorney Welles and Attorney Fitze‘s secretary. Attorney Fitze was present for the execution and notarized the signatures. Attorney Welles made two conformed copies of the will.2 He kept one such copy for his files and gave the other copy and the original will to Decedent.

When the will was executed, Decedent, then 87 years old, was suffering from physical limitations which prevented her from ascending the stairs in her home. Additionally, her eyesight was failing. She therefore lived in a first-floor bedroom. Decedent‘s live-in caregiver was Linda Baker (appellant herein), a close friend and a cousin by marriage. At Decedent‘s request, Baker put the original will in an unlocked metal box near Decedent‘s first-floor bedroom. Baker placed the conformed copy in a locked safe in an upstairs bedroom. The key to the safe was kept in the drawer of a nearby night table.

In April 2010, Attorney Welles prepared two additional documents for Decedent: a codicil which specifically referenced the June 2007 will and changed the executrix from Young to Baker, and a deed transferring ownership of Decedent‘s Tunkhannock home to the Pennsylvania church while retaining a life estate. The executed deed was recorded with the county recorder of deeds. As for the codicil, Attorney Welles followed the same procedure as with the will: he made conformed copies, kept one copy for his files, and gave the original and a conformed copy to Decedent. Again, Baker put the executed codicil in the downstаirs metal box and placed Decedent‘s conformed copy in the upstairs safe.3

Later that year, in November 2010, several family members visited Decedent at her house. Among them was Appellee, whom Decedent had not invited.4 During the visit, Appellee told Decedent that if anything were to happen to Decedent, Appellee wanted to have certain family documents and other items in Decedent‘s possession. Appellee also advised Decedent that she should move out of her house and live in a nursing home. Appellee‘s presence and remarks caused Decedent to become visibly distressed to the point where Decedent asked not to be left alone with Appellee.5 Subsequent phone calls from Appellee were also upsetting to Decedent and made it difficult for Baker calm her down or keep her calm. As a result, Baker eventually refused to give thе phone to Decedent when Appellee called, and Attorney Welles wrote to Appellee requesting that all future communications with Decedent be directed through him.

One week prior to Decedent‘s death, Attorney Welles met with Decedent at her home. Decedent did not tell him that she wished to revoke her will, either at this meeting or at any other time, although Decedent and Welles had been in regular contact. Likewise, Decedent never informed Baker that she wished to revoke her will.

Decedent died on March 16, 2011. Shortly thereafter, Baker went to Decedent‘s house to retrieve the will. She discovered that the will had been removed from the downstairs metal box, although other items—including the two original codicils and the envelope that had contained the will—were still there. When Baker checked the upstairs safe, she found that all papers had been removed, including the conformed copy of the will. Baker conducted a thorough search of the home but was unable to locate any of the missing items.

Without the original will, Baker sought to have Attorney Welles’ conformed copy of the will, together with the original codicils, entered into probate.6 When Appellee objected, the register of wills certified the matter to the orphans’ court, see 20 Pa.C.S. § 907 (relating to the certification of records when a dispute arises), whereupon the Office of Attorney General, in its capacity as parens patriae, joined the litigation in view of the charitable bequest to the Maryland church. See 71 P.S. § 732-204(c) (authorizing the Attorney General to intervene in actions involving charitable bequests).

The court held two evidentiary hearings to determine whether the conformed copy of the will, as produced by Attorney Welles from his files, should be accepted into probate. During the hearings, Attorneys Fitze and Wеlles testified that they saw Decedent execute the will. However, only the latter was able to testify to the will‘s contents, stating that the terms appearing in the conformed copy accurately reflected the contents of the original will.

By opinion and order dated June 25, 2012, the court granted Baker‘s petition, directing that the conformed copy of the will and the original codicils be admitted to probate and that letters testamentary be issued to Baker. In its opinion, the court initially acknowledged that, when an original will in the testator‘s possession cannot be located, a rebuttable presumption arises that the testator destroyed it with the intent to revoke it. See (citing ). Here, however, the court found the proofs sufficient to rebut the presumption. The court noted that the codicils referenced the will, and it generally credited the testimony of Baker and her witnesses. See id. at 10-13.7

Second, and relevant to this appeal, the court stated that, to probate a copy of a lost will, the will‘s proponent must adduce proof by two witnesses of its execution and contents. See id. at 9 (quoting ). Although only one witness (Attorney Welles) was able to testify to the contents of the original will, the court nonetheless determined that this was sufficient under the “unique” circumstances of the case. Id. at 10.

In a published opinion, the Superior Court reversed, concluding that the orphans’ court erred in accepting the conformed copy on the testimony of a single witness. See . Suggesting preliminarily that there was no reason to doubt Attorney Welles’ representation that the copy accurately reflected the original will‘s contents, the court stated it was bound by the two-witness rule as articulated in . In that matter, this Court expressed that, to probate a lost will, there must be proof by two witnesses ‍​​‌​​‌‌​‌​‌‌​​​‌‌‌​‌‌​​​‌‌​​​​‌​‌‌​​​‌‌​‌‌​‌​‌​​‍of due execution and “of the contents, substantially as sеt forth in the copy offered for probate.” , 112 A. at 778, quoted in . In spite of its holding, the intermediate court noted the apparent inequity of the result and suggested that the two-witness rule as applied presently ran counter to its original purpose of honoring the decedent‘s wishes and preventing fraud. See (quoting , 112 A. at 779). Thus, the intermediate court urged this Court to grant review and “revisit” the rule to ascertain whether a “narrow exception” should apply here. Id.

We granted further review to consider the continuing vitality of the two-witness rule and, in particular, whether it properly applies to a will‘s contents, as opposed to its execution. See (per curiam).

Baker argues that the governing statute—the Probate, Estates and Fiduciaries Code (the “Code“)8—is silent as to the treatment of lost wills, thus suggesting that the General Assembly intended for the judiciary to determine the adequacy of proof relative to such documents. She contends, moreоver, that the two-witness rule as applied to a will‘s contents is best able to serve its underlying purposes when there is another, earlier will, and the law seeks to prevent individuals from falsely claiming that a later will, benefiting them and now conveniently missing (in its original form, at least), supersedes the existing will. As that situation did not arise here, Baker proffers that application of the two-witness rule in the present circumstances would not promote its objectives.

More particularly, Baker argues that woodenly applying the rule to benefit Appellee would be especially inequitable because, in Baker‘s view, Appellee may have caused the will to become missing. Thus, according to Baker, even if the two-witness rule is ultimately retained as a general precept, this Court should recognize an exception applicable where (as here) various factors are present such as: the attorney who drafted the will—and who has no financial stake under the will—is able to produce a conformed copy from his files; he is available to testify regarding the authenticity of the copy and the will‘s execution; there is no suggestion that the testator may have altered the will; codicils are available which reaffirm the will; and there is evidence of estrangement between the testator and the intestate beneficiary. Overall, Baker argues that she presented compelling evidence of the will‘s contents to the orphans’ court. As such, she maintains that the decision of that tribunal, which observed the evidence first-hand, should be sustained.

Appellee responds by noting that the Code specifies that “[a]ll wills” must be “proved by the oaths or affirmations of two competent witnesses,” 20 Pa.C.S. § 3132, thus refuting Baker‘s suggestion that it is silent with respect to lost wills. Appellee observes, more generally, that this legislative directive is substantially similar to Section 2 of the Wills Act of 1917, which this Court construed to require proof by two witnesses as to both the execution and the contents of a lost will. See , 112 A. at 778 (“Under the [1917] act, to establish a lost will, there must be proof by two witnesses, not only of due execution, but of the contents, substantially as set forth in the copy offered for probate.“); , 173 A. at 408 (same). In this respect, Appellee‘s core position is that, since this particular legislative mandate was not changed with the promulgation of the Code, its interpretation cannot properly be altered at this juncture absent further guidance from the Legislature.

Appellee additionally criticizes the orphans’ court for acknowledging the two-witness rule but failing to apply it. She likewise takes issue with the Superior Court‘s decision to invite this Court to consider an exception to what, in her view, is a legislative command and not a principle of common law. Finally, Appellee rejects Baker‘s argument to the extent Baker implies that Appellee was involved in the loss of the will, stating that such a suggestion lacks evidentiary support and any issue predicated on an accusation along those lines is waived.

The Commonwealth takes no position on whether the two-witness rule for a lost will‘s contents should apply here. It does, however, maintain that any exception to the rule which we adopt to account for the equities of this case will be difficult to “cabin” to the present circumstances, Brief for Commonwealth at 14, and will tend to expand over time. See id. at 21. Accordingly, the Commonwealth urges us to “proceed with caution” so as to ensure clarity and predictability as to future applications. Id. at 25.

We agree with Appellee that the issue before this Court centers on the proper interpretation of stаtutory law—namely, the Code. Whether the Code requires that two witnesses testify to the contents of a lost will is an issue of statutory interpretation over which our review is plenary and de novo. See .

The portion of the Code most centrally implicated in this dispute is Section 3132, which provides, in full:

All wills shall be proved by the oaths or affirmations of two competent witnesses and

(1) Will signed by testator.—In the case of a will to which the testator signed his name, proof by subscribing witnesses, if there are such, shall be preferred to the extent that they are readily available, and proof of the signature of the testator shall be preferred to proof of the signature of a subscribing witness.

(2) Will signed by mark or by another.—In the case of a will signed by mark or by another in behalf of the testator, the proof must be by subscribing witnesses, except to the extent that the register is satisfied that such proof cannot be adduced by the exercise of reasonable diligence. In that event other proof of the executiоn of the will, including proof of the subscribers’ signatures, may be accepted, and proof of the signature of a witness who has subscribed to an attestation clause shall be prima facie proof that the facts recited in the attestation clause are true.

20 Pa.C.S. § 3132.

In considering the above, we initially agree with Appellee that Section 3132 applies to lost wills, as it states that “[a]ll wills shall be proved by the oaths or affirmations of two competent witnesses[.]” Id. The phrase “all wills” logically subsumes lost wills given the ordinary meaning of the word “all.” See 1 Pa.C.S. § 1903(a) (directing that words and phrases should generally be construed according to common usage). The concurrence would apparently interpret “all wills” to mean “all wills except lost wills” because, in its view, “the remaining provisions of the Code ... do not address lost wills[.]” Concurring Opinion, at 295 n. 2, 142 A.3d at 807 n. 2. This Court has explained, however, that universal, all-inclusive statutory terms, stated without any еxceptions, encompass every category of the item in view. See . Here, the Code‘s repeated use of such terms, see, e.g., 20 Pa.C.S. § 2502 (specifying that “[e]very will shall be in writing“); id. § 2506 (relating to the manner of revival of “any will” that was previously revoked); id. § 2515 (governing the means by which a bequest in “a will” may be made to a trust), suggests that it was intended to govern all types of wills, including lost ones. See generally (explaining that, when statutory language is clear, it is dispositive and there is no need for further interpretation).

By the concurrence‘s reasoning, even where the contents of a lost will are adequately proved in court, the Code‘s chapter governing wills—with all of its regulatory provisions—would have no application solely because the will had been lost. Such provisions cover matters pertaining to, inter alia, revocation, modification, rules of interpretation, bequests to trusts, the abolition of devices of estates in fee tail, the alienage of the testator, testamentary guardians, and clauses imposing a penalty for contesting a will. We find it unlikely that the General Assembly intended for all of these measures to have no governance over duly established lost wills. Finally, and as set forth above, the Code also includes the two-witness proof mandate, and it would seem especially incongruous to read the statute as subjecting available wills to this rule while imposing no requirement at all in relation to the proof of lost wills.

Thus, given that all wills, including lost ones, must be proved by two competent witnesses, the next question is what the Legislature meant by “proved.” A review of paragraphs (1) and (2) above—which elaborate upon the preceding directive that all wills must be proved by two witness—reveals that they are principally concerned with signature requirements and evidence that the signature (or mark) at the end of the will is genuine. They do not appear to contemplate the contents of a will, lost or othеrwise. As well, such focus upon the validity of the signatures is consistent with the specialized term, to “prove” a will, as applied in the probate context.

By way of background, wills can transfer property using a variety of words and phrases, including informal or colloquial ones. See, e.g., . By contrast, and for several reasons, formal testamentary procedures must be followed in the execution of a will. As one commentator has observed, for example, individuals are often careless in conversation and informal writings about the disposition of their property, and, as such, testamentary formalities serve a “ritual function” which “precludes the possibility that the testator was acting in a casual or haphazard fashion.” Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 Yale L.J. 1, 3, 5-6 (1941). Another adds that conformance with such formalities also serves a “channeling function” because courts are “seldom left to puzzle whether the documеnt was meant to be a will,” and hence, they can more efficiently handle a large number of estates. John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L.Rev. 489, 494 (1975).

In light of considerations such as these, and in the specialized context of probate, the phrase, to “prove a will,” is a term of art which broadly addresses the need to verify that the writing ‍​​‌​​‌‌​‌​‌‌​​​‌‌‌​‌‌​​​‌‌​​​​‌​‌‌​​​‌‌​‌‌​‌​‌​​‍in question is, in fact, a valid testamentary instrument. The requirement that two witnesses attest to the validity of the testator‘s signature arises from this broader objective. See (applying Section 2 of the Wills Act of 1917 in this manner). See generally Brief for Commonwealth at 16-17 (tracing the historical roots of the requirement that wills be signed and that two witnesses verify the testamentary character of the document). Moreover, such proof—i.e., that the proffered will is a lawful testamentary writing—is a necessary prerequisite for the will‘s entrance into probate, see, e.g., , and it is independent of any dispute that may arise concerning the will‘s specific bequests and other terms.

Indeed, outside the context of a will that has been lost, stolen, or accidentally destroyed, there is no need to prove a will‘s terms, as the court is in possession of the original document. See generally AM. BAR ASS‘N, GUIDE TO WILLS & ESTATES 315 (2d ed.2004). Additionally, in many cases it will be unlikely that anyone besides the testator and the drafting attorney is aware of the contents of the will. In this regard, it is notable that at the time of execution, subscribing witnesses need not read a will, see ; JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, & ESTATES 225 (5th ed. 1995) (“It is neither necessary nor customary for the witnesses to know the terms of the will.“), and more, they need not even know that the document is a will. See . This is true for multiple reasons, including that: there is no need for such knowledge by the witnesses for them to fulfill their role in confirming the validity of the testator‘s signature; and prior to death, the testator may not wish to divulge the terms of the will to anyone other than his or her attorney. Finally, it is unlikely that a disinterested witness—such as an attorney‘s secretary or paralegal—would be able to recall the document‘s contents in any event given the amount of time which may pass between execution and death and the large number of wills such persons may witness over time.

The above particularized and limited meaning of “proving” a will is evident in the statutes of other jurisdictions. In California, for example, a will may be “proved” by the testimony of a subscribing witness that the will “was executed” in accordance with law, CAL. PROB.CODE § 8220(a), or, if no subscribing witness is available, by proof of the handwriting of the testator and the handwriting of any one subscribing witness. See id. § 8221(a). Likewise, Washington State‘s statute relating to the “proof of wills,” see WASH. REV.CODE § 11.20.020; cf. id. § 11.20.040, has been confirmed as pertaining only to the proof of the validity of a will‘s execution, and not to its contents. See . Further, some state legislatures, in an effort to provide guidance in cases of lost wills, have set forth rules directed to that circumstance. See, e.g., CAL. PROB.CODE § 8223; N.Y. SURR. CT. PROC. ACT § 1407; OHIO REV.CODE § 2107.26; TEX. ESTATES CODE § 256.156; WASH. REV.CODE § 11.20.070; WYO. STAT. § 2-6-207.

Even to the extent the word, “prove,” as used in Section 3132, may be ambiguous, application of statutory-construction precepts suggests that the more limited, technical meaning of the term outlined above was intended by the General Assembly. For example, we assume that the Legislature does not intend an unreasonable result. See 1 Pa.C.S. § 1922(1); . Because the statutory text does not distinguish between lost wills and original wills which are available for probate, our interpretation of the scope of the two-witness rule will apply equally to lost wills and original, executed wills. Therefore, if we were to conclude that the statute requires proof by two witnesses of the contents of lost wills, the statute would necessarily also require proof by two witnesses of the contents of available wills. This, in turn, would mean that, whenever two witnesses familiar with a will‘s contents cannot be found, the testator‘s wishes would be defeated notwithstanding that the original, еxecuted will is available for probate and two witnesses are present who can testify to its validity. This would constitute an unreasonable result. Notably, as well, there was nothing in the 1917 act which suggested that the two-witness rule applied to a will‘s contents only when it was lost. Thus, the same concern with regard to unreasonable results would have pertained in that context, albeit the Court in —a decision by which the Superior Court considered itself bound and on which Appellee heavily relies—did not appear to recognize the difficulty. Accordingly, we now disapprove suggestion that the two-witness rule was intended by the Legislature to apply to a lost will‘s contents.9

Another principle of statutory construction is that legislative words are to be read in their context and not in isolation. See . In this respect, it is notable that the Code‘s provision governing proof of a will is immediately followed by a section relating to “self-proved” wills. See 20 Pa.C.S. § 3132.1. Under that provisiоn, an attested will is made self-proved through the attachment of a testator‘s acknowledgement and witness affidavits confirming that each witness signed the will freely and voluntarily. See 20 Pa.C.S. § 3132.1(b). As explained, these witnesses are not assumed to know anything about the will‘s terms. That their affidavits can nonetheless render a will “self-proved” thus supports the concept that the General Assembly did not contemplate the contents of a will when it set out requirements for “proving” a will within Section 3132.

We acknowledge another, countervailing principle of statutory construction: that when this Court has construed legislative language, “the General Assembly in subsequent statutes on the same subject matter [is presumed to] intend[] the same construction to be placed upon such language.” 1 Pa.C.S.§ 1922(4). As applied here, this would suggest that, in enacting Section 3132 of the Code, the Legislature intended to incorporate the meaning given to similar language appearing in the earlier wills statutes—and, in particular, it intended for the application of the two-witness rule set forth in to carry over into the Code. However, we find that the factors developed above pertaining to the clarification offered by Section 3132.1 of the Code and the avoidance of unreasonable results outweigh, or rebut, any such presumption.

Accordingly, we hold that, while Section 3132 of the Code applies to lost wills, it only governs the “proving” of a will in the narrow, technical sense of proving its validity as a testamentary document, and not to proving its contents.

Still, if a will has been lost, its contents must be proved in some way. In view of the foregoing, the General Assembly has, by design or inadvertence, left it to the judiciary to address proof of a lost will‘s contents through its own evidentiary requirements. As this case demonstrates, requiring the testimony of two witnesses relative to the terms of a lost will—or otherwise imposing overly burdensome proof requirements—can unnecessarily frustrate the decedent‘s wishes, particularly where a photocopy or a conformed copy is available. See Charles M. Davis, Comment, A Lost Will, A Photocopy of the Original, and Two “Snakes in the Grass“: Is it Time to Update Section 85 of the Texas Probate Code?, 40 TEX. TECH. L.REV. 89, 91 (2007) (suggesting that failure to admit a photocopy of a lost will could “go against the [testator‘s] last wishes” and “potential[ly] reward nefarious behavior“); cf. Brief for Appellant at 19 (“The sound judgment of an Orphans’ Court judge weighing the evidence offers more protection against fraud than a bright line presumption that creates an incentive for [disappointed heirs] to cause that will to go missing.“).10

Overall, then, and in light of the varying ways in which the terms of a lost will may be susceptible of proof, we believe that flexibility is required, and hence, that it is appropriate for this Court to establish an evidentiary standard rather than mandating a particular manner of proof—at least until the General Assembly speaks to the topic. A review of the requirements embodied in lost-will statutes enacted in other jurisdictions reflects that some such jurisdictions allow the terms of a lost will to be established in any lawful manner by clear and convincing evidence. See, e.g., KAN. STAT. § 59-2228; OHIO REV.CODE § 2107.26; WASH. REV.CODE § 11.20.070(2).11

We believe this represents an appropriate standard of proof. See generally (explaining that the clear-and-convincing standard “requires evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue” (internal quotation marks, citations, and brackets omitted)).12 As applied here, a fair reading of the orphans’ court‘s opinion reveals that it found this standard to be met by the proofs adduced in court in relation to the contents of Decedent‘s 2007 will, as it credited the testimony of Attorney Welles who indicated that the conformed copy offered for probate was a photocopy of the original will in all respects except the signatures.

Accordingly, the order of the Superior Court is reversed and the case is remanded for reinstatement of the orphans’ court‘s order.

Justices BAER, DONOHUE, DOUGHERTY and WECHT join the opinion.

Justice TODD files a concurring opinion.

Justice TODD, concurring.

I agree with the majority that the Probate, Estates and Fiduciaries ‍​​‌​​‌‌​‌​‌‌​​​‌‌‌​‌‌​​​‌‌​​​​‌​‌‌​​​‌‌​‌‌​‌​‌​​‍Code does not mandate application of the rule, set forth in ,¹ that a party offering a lost will for probate must demonstrate its contents by the testimony of two witnesses. Yet, I would decline, at this juncture, to overrule in full, but, rather, would adopt a narrow exception thereto under the circumstances of this case. On that basis, I concur in the majority‘s ultimate decision to remand for reinstatement of the orphans’ court‘s order. My disagreements with the majority‘s analysis follow.

First, I would decline to decide whether Section 3132 of the Code applies to lost wills. See Majority Opinion at 286-87, 142 A.3d at 801. As the majority ably demonstrates, Section 3132 provides that a party offеring a will for probate must demonstrate its execution as a testamentary instrument by the testimony of two witnesses. See Majority Opinion at 286-

91, 142 A.3d at 801-05. Thus, Section 3132‘s application to lost wills is irrelevant to the issue before the Court: whether a party offering a lost will for probate must demonstrate its contents by the testimony of two witnesses, or whether the facts herein warrant an exception to that rule.2

Second, I would decline, at least at this juncture, to overrule in toto. In , the proponent of a lost will sought to demonstrate its contents by the testimony of its scrivener, and, ultimately, this Court rejected the claim. , 112 A. at 778. First, the Court interpreted a predecessor statute to Section 3132 as mandating that a party offering a lost will for probate must demonstrate its contents by the testimony of two witnesses. Id. In the instant case, the majority holds that the Code does not mandate as much, and instead leaves the issue to the judiciary. See Majority Opinion at 290-91, 142 A.3d at 804-05. Its holding in this regard is a necessary prerequisite to determining whether Appellant must satisfy the rule in or whether the facts herein warrant dispensation from the same. Accordingly, I take no exception to the majority‘s decision to address this first holding of , and, indeed, as noted supra, join its determination that the Code, contrary to , is inapplicable herein.

However, the Court in went on to reason that:

[t]he two-witness rule is sound. By permitting one witness to establish the contents of a lost will, the door would be

opened to intriguing and designing persons, after which misfortune must necessarily follow; and while, by such latter rule, a disappointed heir may be discouraged from destroying a will, dishonesty, fraud, and criminal wrong would be greatly encouraged. If a will, properly executed, is lost, and the one-witness rule should prevail, it would permit a scrivener to write the will after his own fashion, diverting the estate into channels never dreamed of by the testator, disinheriting heirs, and denying to those close to him throughout his life the benefit of his bounty. Where two witnesses to the contents are required, the opportunity for ingrafting bogus wills on estates, or for dishonesty in scrivеners who write wills, or other fraud in connection therewith, if not made impossible, is greatly lessened.

*

*

*

Under this rule, when the disappointed heir destroys a will and two witnesses to prove contents are not available, the law, in such cases, writes an excellent will for the decedent, giving the estate to those by nature and by presumption nearest and dearest to the decedent. No instrument coming before the court for determination is guarded more jealously than the will of one who is no longer able to voice his wishes.

. In my view, the Court‘s analysis in this regard constitutes an independent judicial sanction of the rule as a legislatively-recognized and especially reliable mechanism for preventing fraud in the area of testamentary instruments. The majority implicitly dispenses with that sanction, overruling in its entirety, and adopting a clear and convincing evidence standard in its place. See Majority Opinion at 286-92, 142 A.3d at 801-05.

Respectfully, I disagree with the majority‘s decision in this rеgard, as it ignores the longstanding nature of the two-witness rule in , and the history of the instant case, the issue framed to this Court at the allocatur stage, and the arguments posed to this Court, which focus not on whether this Court should abandon that rule, but, rather, whether it should adopt a narrow exception thereto. Specifi-cally, Appellant offered Decedent‘s lost will for probate and sought to demonstrate its contents by introducing a contemporaneously made, unsigned, copy of the will, authenticated by a disinterested attorney who drafted its terms. After the orphans’ court admitted the copy of the lost will for probate, Appellee appealed to the Superior Court, which, citing the rule in , reversed, but indicated its view that “under the narrow circumstances of this case, an appropriate exception could be carved out.” . Appellant then sought, and this Court granted, allowance of appeal to consider:

Whether this Court should ... overrule the rigid application of the irrebuttable “two[-]witness” rule, particularly in cases where a disinterested scrivener, an officer of the [c]ourt, testifies credibly concerning the contents of the [w]ill and where based on the overwhelming evidence in the case as determined by the trier of fact application of the rule would create the very injustice that it was intended to avoid.

(order). Accordingly, Appellant argues in her brief that her case presents “narrowing circumstances” that “cry out for a narrow exception to” the rule in , Brief of Appellant at 17-18, and, notably, never requests that we overrule that decision in its entirety. Likewise, Appellee merely argues that the rule is a creature of statute and is mandatory, and does not address whether it is wise to abandon it, even in part. Finally, and perhaps most disquieting, the Commonwealth as parens patriae takes no official position on whether an exception to the rule in should be adopted, but urges this Court to proceed with the utmost caution if it chooses to adopt one, as the rule is longstanding and any exception thereto might easily engulf the rule in time. Given its longstanding character, the Commonwealth‘s concerns, and, particularly in the absence of arguments vis-à-vis the continued vitality of the rule in as a general matter, I would take the course charted for us by the parties and the courts below: determining whether an exception to the rule in should be crafted for cases such as the one herein.

Turning to that task, I would simply hold that the rationale in is inapplicable where, as here, the will‘s execution is proved by two witnesses and an alleged conformed copy of the will is authenticated by a disinterested attorney who drafted the will. Indeed, the role of a disinterested attorney who himself drafted the will is a critical element not contemplated in our prior opinions addressing lost wills. Keeping in mind an attorney‘s duty of loyalty to his client, his duty as an officer of the court to be candid in its proceedings, as well as the ethical rules governing attorneys drafting wills benefiting themselves or their family members, see Pa. R. Prof‘l Conduct 1.7 (prohibiting conflicts of interest); Pa. R. Prof‘l Conduct 3.3 (requiring candor to the courts); Pa. R. Prof‘l Conduct 1.8 (prohibiting an attorney from “prepar[ing] on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client“), I believe the special circumstances attendant in this case—the existence of a contemporaneously-made conformed copy, as well as the special reliability of such a witness—together with the traditional credibility-determining function of the orphans’ court, to be sufficient to reasonably dispel concerns of fraud. As such, I would simply adopt an exception to the rule in under these limited circumstances, and, on that basis, reverse and rеmand to the Superior Court for reinstatement of the orphans’ court‘s order admitting Decedent‘s will to probate. I would thus leave the question of continued vitality for another day, when it has been fairly raised by the parties, passed upon by the courts below, and adequately briefed before this Court.

Third, and finally, assuming arguendo that we should reach the issue, I disagree with the majority‘s replacement of the rule in with a clear and convincing evidence standard. In arriving at its ‍​​‌​​‌‌​‌​‌‌​​​‌‌‌​‌‌​​​‌‌​​​​‌​‌‌​​​‌‌​‌‌​‌​‌​​‍choice in this regard, the majority notes that the rule in runs the risk of frustrating a testator‘s wishes, and, in its view, unnecessarily so, because the orphans’ court can appropriately weigh testimony and avoid rewarding fraud. See Majority Opinion at 291, 142 A.3d at 804-05. The majority then notes that other jurisdictions have adopted statutes permitting a party offering a lost will for probate to demonstrate its contents by clear and convincing evidence, and concludes the same “rеpresents an appropriate standard of proof.” Id. at 292, 142 A.3d at 805.

As an initial matter, I am unpersuaded by the majority‘s rationale for adopting this standard. Although the majority correctly points out that the decision in , in an effort to avoid fraud, gave insufficient weight to the risk that the testator‘s wishes will not be fulfilled, it does not follow that the mere credibility function of an orphans’ court is sufficient to avoid such fraud. Moreover, although the majority notes that other jurisdictions have legislatively abandoned the two-witness rule in favor of a clear and convincing evidence standard, it nonetheless cites to jurisdictions which have adopted other, more solicitous rules, see Majority Opinion at 293, n. 11, 142 A.3d at 806, n. 11 (noting that other jurisdictions have required “either two witnesses or one witness plus a copy of the will” and that yet others “allow a copy of the will to be introduced and either provide that the copy suffices so long as it is proved to be complete“), and does not explain why its clear and convincing evidence standard is chief among these listed rivals.

Furthermore, in my view, the majority‘s adoption of the clear and convincing evidence standard gives insufficient weight to longstanding and compelling legislative judgments that especially reliable types of evidence are necessary to provide certainty and prevent fraud in the area of testamentary bequests. Since long before the American Revolution, this Commonwealth has required that a will be written, providing proof-positive evidence of its terms. See Wills Act of 1705, 1 Sm.L. 33 § 1 (providing that all wills that are “in writing” and otherwise formally sufficient “shall be good and available in law“); Wills Act of 1833, P.L. 249, § 6 (providing that “every will shall be in writing ... otherwise such will shall be of no effect“); Wills Act of 1917, P.L. 405, § 2; Wills Act of 1947, P.L. 472, § 2; 20 Pa.C.S. § 2502 (“Every will shall be in writing ... subject to ... rules and exceptions [not implicated herein].“). Although we obviously cannot require a party offering a lost will for prоbate to demonstrate its contents by providing the will itself, we can respect the foregoing legislative judgments in large measure by requiring a copy of the substance of the will authenticated by a disinterested attorney who drafted its terms, or under similarly especially reliable circumstances. Doing so would be as consistent as possible, in the context of lost wills, with the longstanding writing requirement for wills, as it would rely in part on the existence of a writing representing the best evidence available as to the will‘s terms, authenticated by a person with a professional duty to be truthful on the matter. Indeed, given the aforementioned duties of an attorney, his testimony would appear sufficient to ameliorate the risk of fraud caused by the loss of an original will.3

In addition, I fear the majority‘s decision today runs the risk of overcorrecting the possible errors of by opening the door too wide to potential fraud by would-be testаmentary beneficiaries. Although the majority rightly explains that the clear and convincing evidence standard “requires evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue,” Majority Opinion at 805 (quoting ), it may quizzically permit probate on the basis of significantly weaker evidence than the legislature has cognized for more reliable, available wills. Put simply, a single witness (or even a single hearsay statement), persuasive to a finder of fact, might well be sufficient to dispose of a decedent‘s property, and be shielded by our deferential standard of review. In light of the foregoing, I believe the majority‘s efforts to ameliorate the ills caused by the rule in give rise to their own significant policy concerns.

Notes

1
This matter was reassigned to this author. 270 Pa. 210, 112 A. 778 (1921).
2
The conformed copies were photocopies of the will before it was signed. On each signature line for the testatrix and the two subscribing witnesses, Attorney Welles hand-printed the name of the person who signed on that line. Moreover, I find the majority‘s analysis on this point to be unpersuasive. It reasons that the General Assembly intended Section 3132 to apply to lost wills because the phrase “all wills,” as used therein, “logically subsumes lost wills.” Majority Opinion at 286-87, 142 A.3d at 802. In my view, the majority‘s view that “all wills” must necessarily include lost wills does not acknowledge that the phrase must be viewed in context with the remaining provisions of the Code, which do not address lost wills, and, thus, may denote a narrower meaning excluding them from its reach. See, e.g., (“[I]n giving effect to the words of the legislature, we should not interpret statutory words in ‍​​‌​​‌‌​‌​‌‌​​​‌‌‌​‌‌​​​‌‌​​​​‌​‌‌​​​‌‌​‌‌​‌​‌​​‍isolation, but must read them with reference to the context in which they appear.“) (quoting ).
3
There is no issue before this Court relating to the validity of the codicil or its entry into probate. As discussed below, the codicil is relevant as an evidentiary matter because it references the will. Accord (probating a copy of a signed will authenticated by its disinterested drafting attorney).
4
See, e.g., N.T., 1/22/2013, 879, 883, 1302-13; City‘s Reply Brief at 2-3. It appears that Decedent and Appellee had a strained relationship. For example, at one point Appellee stayed at Decedent‘s home while Decedent was away and removed and copied Decedent‘s private financial records without her permission. This upset Decedent, who retained Attorney Welles to write to Appellee requesting the return of the records.
5
After this incident, Baker and her granddaughter helped Decedent prepare a second codicil relating to the distribution of Decedent‘s pеrsonal effects and specifying that any tangible personal property that remained should be sold at auction and the proceeds given to the Maryland church. There is no dispute before this Court concerning the validity of this second codicil or its entry into probate.
6
Baker is not a beneficiary under the will or the first codicil. Under the second codicil, see supra note 5, Baker is given permission to select several items of personal property and she is instructed to have Decedent‘s final manuscript published.
7
Appellee questioned this holding in her concise statement of matters complained of on appeal. However, she expressly abandoned the issue during the course of her appeal to the Superior Court. See Brief for Appellant, .
8
Act of June 30, 1972, P.L. 508, No. 164 (as amended 20 Pa.C.S. §§ 101-8815).
9
Although there is language in suggesting reasons why the two-witness rule as to a lost will‘s contents may be salutary in terms of preventing fraud, see Concurring Opinion, at 295-96, 142 A.3d at 807-08 (quoting the relevant passage), the holding itself was grounded on the Court‘s understanding of the requirements contained in the 1917 act. See , 112 A. at 779 (“[W]hen offered for probate, the will, or its substance, must measure up to the requirements fixed by laws; and here the Legislature has laid its hand on the subject and directed the judicial course.“). In this regard, although the concurrence criticizes us for not considering such language binding for purposes of the present dispute, its own position—that Section 3132 does not apply to lost wills—represents at least as great a departure from since the Court determined that Section 2 of the Wills Act of 1917, a materially identical provision, was applicable to the copy of the lost will offered for probate in that dispute.
10
We offer no opinion on whether Appellee may have caused the loss of the will. That question is not before us, and there is nothing in thе record tending to show how the will became lost. With that said, we do acknowledge that the potential for fraud is an appropriate concern in developing legal rules applicable to lost wills.
11
Some other jurisdictions require either two witnesses or one witness plus a copy of the will. See, e.g., ARK.CODE § 28-40-302(1); ARIZ.REV. STAT. § 14-3415(B), (C); FLA. STAT. § 733.207. Still others allow a copy of the will to be introduced and either provide that the copy suffices so long as it is proved to be complete, see N.Y. SURR. CT. PROC. ACT § 1407(3), or state more generally that “the court shall determine what probative value, if any, is to be assigned to such copy.” OKLA. STAT. tit. 58, § 82.
12
Arguing that we have failed to clarify why the clear-and-convincing standard should be deemed “chief among [the listed legislative] rivals,” Concurring Opinion, at 299, 142 A.3d at 809; see supra note 11, the concurrence overlooks the explanation given above. As to any implication that the standard is unduly weak, see Concurring Opinion, at 300, 142 A.3d at 810, we note that in the civil arena, rights and obligations are ordinarily determined based on a fair preponderance of the evidence—at least insofar as monetary interests are concerned—and, as such, the clear-and-convincing requirement is elevated over and above that which would ordinarily pertain in relation to the disposition of property. Moreover, the Supreme Court has clarified that, outside of the criminal context, the requirement of clear and convincing evidence is constitutionally adequate in proceedings involving important individual interests, such as where the government seeks to terminate parental rights involuntarily. See ; see also (expressing that the clear-and-convincing standard is appropriate even when interests “more substantial than the mere loss of money” are involved (internal quotation marks and citations omitted)). We view this elevated standard as sufficient to satisfy the concurrence‘s legitimate concerns regarding the need for substantial reliability relative to testamentary bequests. See generally Concurring Opinion, at 299-300, 142 A.3d at 800-01.
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