[J-18-2016] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: ESTATE OF ISABEL WILNER, : No. 136 MAP 2014
DECEASED :
: Appeal from the order of the Superior
: Court at No. 1323 MDA 2012 dated May
APPEAL OF: LINDA BAKER : 6, 2014, Reversing and Remanding the
: order of the Wyoming County Court of
: Common Pleas, Civil Division, at No.
: 2011-013 dated June 25, 2012 & filed
: June 26, 2012.
:
: ARGUED: May 6, 2015
: RESUBMITTED: January 20, 2016
CONCURRING OPINION
JUSTICE TODD DECIDED: July 19, 2016
I agree with the majority that the Probate, Estates and Fiduciaries Code does not
mandate application of the rule, set forth in Hodgson's Estate,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 Hodgson's Estate 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 9. As the majority ably demonstrates, Section 3132
provides that a party offering a will for probate must demonstrate its execution as a
testamentary instrument by the testimony of two witnesses. See Majority Opinion at
9-13. Thus, Section 3132's application to lost wills is irrelevant to the issue before the
1
112 A. 778 (Pa. 1921).
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 Hodgson's Estate in
toto. In Hodgson's Estate, the proponent of a lost will sought to demonstrate its
contents by the testimony of its scrivener, and, ultimately, this Court rejected the claim.
Hodgson's Estate, 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 13-14. Its holding in this regard is a necessary
prerequisite to determining whether Appellant must satisfy the rule in Hodgson's Estate
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 Hodgson's Estate,
and, indeed, as noted supra, join its determination that the Code, contrary to Hodgson's
Estate, is inapplicable herein.
However, the Court in Hodgson's Estate went on to reason that:
2
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 9.
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., Meyer v. Cmty. Coll. of Beaver Cnty., 93 A.3d
806, 813 (Pa. 2014) ("[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 Giant Eagle, Inc. v. W.C.A.B. (Givner), 39 A.3d 287, 290
(Pa. 2012)).
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[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
scriveners 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.
Id. at 778-79. 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 Hodgson's Estate in its entirety, and
adopting a clear and convincing evidence standard in its place. See Majority Opinion at
9-15.
Respectfully, I disagree with the majority's decision in this regard, as it ignores
the longstanding nature of the two-witness rule in Hodgson's Estate, 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. Specifically,
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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 Hodgson's Estate, reversed, but indicated its view that "under the narrow
circumstances of this case, an appropriate exception could be carved out." In re Estate
of Wilner, 92 A.3d at 1210. 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.
In re Estate of Wilner, 127 A.3d 1286 (Pa. 2014) (order). Accordingly, Appellant argues
in her brief that her case presents "narrowing circumstances" that "cry out for a narrow
exception to" the rule in Hodgson's Estate, 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 Hodgson's Estate 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 Hodgson's Estate as a general matter, I would take the
course charted for us by the parties and the courts below: determining whether an
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exception to the rule in Hodgson's Estate should be crafted for cases such as the one
herein.
Turning to that task, I would simply hold that the rationale in Hodgson’s Estate 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 Hodgson's Estate under these limited circumstances, and, on that basis,
reverse and remand 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 Hodgson's
Estate's 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 Hodgson's Estate with a clear and
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convincing evidence standard. In arriving at its choice in this regard, the majority notes
that the rule in Hodgson's Estate 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 14. 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 "represents an appropriate standard of proof." Id. at 15.
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 Hodgson's
Estate, 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 15, n.10 (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
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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. § 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 probate 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 Hodgson's Estate by opening the door too wide to potential fraud by
would-be testamentary 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 15
(quoting Commonwealth v. Maldonado, 838 A.2d 71, 715 (Pa. 2003)), it may quizzically
3
Accord Del Rossi's Estate, 23 Pa. D. & C.4th 218 (Ct. Com. Pl. Montgomery Cnty.
1995) (probating a copy of a signed will authenticated by its disinterested drafting
attorney).
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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
Hodgson's Estate give rise to their own significant policy concerns.
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