Pennsylvania has minimal requirements for creating a will. While these modest requirements were intended to protect consumers, on occasion they have the opposite effect. The law, contained in Title 20 Pennsylvania Code, Section 2502, states that the only requirement for making a will, is that the testator sign at the end of the document. The reason most lawyers have the testator sign before two witnesses is because of different laws governing the steps necessary to have a will accepted for probate by the local Register of Wills.
Section 3132 of Title 20 states that, before the Register of Will will accept the document for probate, all wills must be proved by the oath or affirmation of two witnesses to the testator's signature. Most lawyers figure it is easier to have the two witnesses present at the time the will is signed, rather than delay probate until two witnesses can be found after the death of the testator. If the decedent lives many years past his or her life expectancy there may not be many people around who can vouch for his or her signature. There are many other provisions of the law, not relevant here, dealing with acknowledgments before a notary (self proving wills), what happens if a will is destroyed or lost, and many other intricacies of interest mainly to lawyers. For purposes of our discussion here, we only need to know that a testator signs at the end of the will.
These simple laws made a big difference in the estate of Jeffrey K. Basner, who died on June 7, 2012, while a resident of West Grove, Chester County, Pennsylvania. On July 7, 1995, Mr. Basner drafted a simple document which stated that at the time of his death he left all of his "worldly possessions" to his mother Ellen. But during an inventory of his possessions after his death, another document was found which stated "at the time of my death, the house goes to Sally Munro." That latter document was not even dated. Sally Munro was the maiden name of the decedent's wife. So the question became, who received what from Jeffrey Basner? Did his mother or his wife receive his estate?
This issue went before the Courts in Chester County, PA a few weeks ago.The court recognized that the law does not require even a date on the will, but they were able to prove the document leaving things to his wife was drafted after the original will in 1995. But was that document leaving everything to his wife a second will? After taking testimony and conducting an examination, the court decided that the second document was a codicil (a minor modification to the original will) and that Mr. Basner's mother received all of his estate except for the house he owned on Sunnyside Rd, and the house went to his wife.
It might seem that justice has been served, but Mr. Basner's frugality probably did more harm than good. The cost of filing the court case in Chester County, at the time of this writing in 2014, starts at $173. The hourly fee for an attorney to try the case usually amounts to between $250 and $450. the money the beneficiaries spent in court over his documents came from their bequest, and they may lose even more if one or both parties appeal to the Pennsylvania Superior Court. Our office drafts a simple will, power of attorney and advance medical directive for $480. and dozens other law firms charge around the same. If someone in your family does not have a will, and you might be a beneficiary, you might want to nudge them toward seeing a lawyer to have it done right.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
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