Probating a Will

July 5, 2016
Probating a Will

“Probate” is the legal process by which the validity of a will is established. This procedure is done at the county level and involves presenting the will, along with the testimony of two witnesses (whether in the notarized document, sworn affidavit, or in person) to the clerk.  As  long as there are no irregularities and two witnesses are able to testify as to the document’s authenticity, the clerk will almost always agree to probate the will.

That being said, irregularities occur with surprising frequency. All too often, loved ones are left to probate wills that are incomplete, incoherent, or otherwise incompatible with the requirements prescribed by the Commonwealth. Fortunately, the courts have developed standards by which such “nontraditional” wills might still be probated. Today, we will place the focus on two relatively common irregularities: signature by initial and will photocopies.

In Pennsylvania, the law states that “[e]very will shall be in writing and shall be signed by the testator at the end thereof.” 20 Pa.C.S.A. § 2502.  However, a person may sign their will by  using initials (as opposed to a full signature) as long as it is clear that the testator intended their initials to constitute their signature. See In re Shoemaker’s Estate, 47 Pa. D. & C. 337, 341 (Pa. Com. Pl. 1943) (citing In Wilson’s Estate, 88 Pa. Super. 556, 561 (1926)). In such a situation, intent is determined by looking at the habit of the individual. For instance, if someone customarily signs their name using only their initials, those initials can be sufficient to execute a will. Conversely, if someone almost always signs their full signature, the task of proving the necessary intention is far more difficult.

Another will irregularity takes the form of photostatic duplicates. Often times, a testator will make several photocopies of his or her will. While this is a perfectly acceptable (and encouraged) practice, photocopies of a will create a number of problems when it comes to probate. This is because Pennsylvania’s Supreme Court has repeatedly held that “where a [testator] retains the custody and possession of [his] will and, after [his] death, the will cannot be found, a presumption arises, in the absence of proof to the contrary, that the will was revoked  or destroyed by the [testator].” In re Estate of Murray, 171 A.2d 171, 176 (Pa. 1961). To overcome that presumption, the proponent of a photocopy must present evidence that is “positive, clear and satisfactory.” Id. Specifically, they must prove that “1) the testator duly and properly executed  the original will; 2) the contents of the will were substantially as appears on the copy of the will presented for probate; and 3) when the testator died, the will remained undestroyed or revoked  by him.” In re Estate of Janosky, 827 A.2d 512, 519-20 (Pa. 2003). Clearly, this heavy burden is not easily met.

While probating a will in either of the aforementioned circumstances is certainly possible, it is  far from ideal. To avoid facing such difficulties, it is recommended that anyone interested in drafting a will enlist the help of a qualified estates attorney. Beyond drafting a document that meets all of the technical requirements, the attorney will be able to ensure preservation of the original  will  through  use  of  the  firm  safe.  Moreover,  should  a  problem  present  itself,  the attorney, as both drafter and witness, will be in the best position to testify as to the intent of the testator and the contents of will.

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