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The Two-Witness Rule to Lost Wills

Pennsylvania has long required the oath or affirmation of two witnesses to prove both the execution and the contents of a lost Will. The reasoning behind the “two witness” rule has always been to preserve the intent of the testator, or drafter of the will. But what happens when the two-witness rule works against the intent of the testator? The Pennsylvania Supreme Court is currently grappling with this issue on appeal. The case, In Re: Estate of Wilner, 92 A.3d 1201 (Pa. Super. 2014), urged the Supreme Court to accept appeal and revisit the two-witness rule when the evidence at trial suggested that the intestate heir, who was not named in the will, destroyed the will to her benefit.

Specifically, the facts are as follows: In 2007, an attorney prepared a will for Isabel Wilner (“Decedent”) that gave her entire estate to a local church. In 2010, Decedent made a slight revision merely changing the name of the executrix to her friend and caretaker, Linda Baker. Linda Baker indicated that after the Will and the amendment (codicil) were signed that she placed the originals under Decedent’s desk while the copies were placed in a locked box under her bed. If Decedent had no will, her niece, Dana, would inherit half of her estate. At trial, Linda Baker testified that she had several negative experiences with Dana. When Decedent was hospitalized, Dana stole objects from her home. Immediately before her death, Dana visited her to ask what she would get when Decedent died and told her she belonged in a nursing home. In fact, Decedent and Dana’s interactions were so negative that Decedent instructed Dana to communicate through her attorney. When Decedent died, Dana did not attend her funeral. Decedent’s Will and other personal items were again missing.

Linda Baker then went to the attorney who drafted the will and could only obtain an unsigned version of the will. Linda filed a Petition requesting probate of the will and the attorney testified at trial to the contents of the will. Two other witnesses testified that they witnessed Decedent sign the will but could not attest to the contents. The Trial Court granted the petition, but the Superior Court reversed on appeal finding that the will could not be probated based on the testimony of only one witness of its content. To avoid the obvious injustice that would occur from an application of the law, the Superior Court urged the Pennsylvania Supreme Court to accept appeal and to carve out an exception.

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