JANUARY 18, 2016 VOLUME 23 NUMBER 3
It might seem odd that interstate problems in probate proceedings arise. After all, we have had 50 states and a handful of other jurisdictions gathered together in the United States for a half-century, and nearly that many for most of the two centuries before that. Shouldn’t differences in probate interpretations been ironed out by now?
Not necessarily. Perhaps it is a result of the fact that Americans are much more mobile today than they were even a few decades ago. Perhaps it is partly because of improvements in communication, letting interstate issues rise to the surface more readily. For whatever reason, a recent case involving Pennsylvania and Connecticut demonstrates that there can still be uncertainty about application of probate principles.
Rose and Mae (we’ll leave their last names out of this explanation), sisters, lived together in a house in Philadelphia for many years. They jointly owned their home, and they also were two of five joint owners of a farm in Connecticut. The farm was an inheritance, still held in the names of Rose, Mae, their brother Stephen, their sister Alyce, and a nephew (John) who had inherited his father’s share.
At Christmas time in 2000, while Rose was recovering from a stroke, Stephen sent a card to his sisters. He urged them to do some estate planning, since if they failed to do so “the lawyers would have a field day” and there estate taxes would be very high. He was wrong about that last assertion, incidentally, but that is not the point of our story.
In any event, Rose responded to her brother’s suggestion by dictating the language of a will to Mae’s son, who lived nearby. He wrote out her will, she made a few changes (adding her middle initial, for instance) and signed the document. She did not have it witnessed, and did not talk to an attorney about improving the quality of her will — she lived another six years, but did not update the document.
After Rose’s death (and after Mae entered a nursing home), Mae’s son initiated a probate proceeding in Pennsylvania, where Rose had lived and died. He sought admission of the handwritten document as a “holographic” will; Pennsylvania law recognizes such documents even if they are not signed by two witnesses. Initially John, Stephen and Alyce (Rose’s nephew and two siblings) objected to the Pennsylvania probate, but then they withdrew their objections. The will was admitted to probate in Pennsylvania.
Then Mae’s son filed an action in Connecticut to have the Pennsylvania probate proceeding recognized there. Such a proceeding is called an “ancillary” probate, meaning that it relies on the validity and rulings of the court in another state (the “domiciliary” state). John, Stephen and Alyce objected, arguing that Connecticut law does not permit holographic wills. They also argued that evidence showed that Rose was unduly influenced, and that Connecticut public policy did not favor wills such as Rose’s.
The Connecticut trial court ruled that the question was not whether Rose’s will would satisfy Connecticut law, but whether it had been found to be valid in Pennsylvania. Since it had, said the judge, the only issue was whether there was sufficient reason to challenge that ruling — finding none, the will was admitted and effectively transferred Rose’s interest in the inherited family farm to Mae’s family.
The Appellate Court of Connecticut agreed with the trial judge, and upheld his ruling (interestingly, only nephew John had appealed, not that it actually matters). The result: Rose’s holographic will, not itself valid in Connecticut, was effective to pass Connecticut property because it was valid in Pennsylvania and admitted to probate there.
The appellate judges noted that the common law rule had been different. Until the 1850s, when Connecticut had expressly adopted a statute recognizing the validity of wills which were valid when and where they were executed, a will would not be effective to pass Connecticut real property unless it met that state’s tests for validity. For the past 150 years, though, Connecticut had expressly approved out-of-state wills that met their local requirements for execution. Goodwin v. Colchester Probate Court, January 19, 2016.
Would Arizona courts reach the same conclusion? From the description, for instance, it appears that Rose’s holographic will would not meet Arizona’s requirements for admission to probate (Arizona is one of the states that, like Pennsylvania, recognizes holographic wills — but they have to meet Arizona’s requirements). If Rose had held real estate in Arizona, would her will have been effective? Although the precise question has not been addressed in Arizona, the result should be the same — though there is one 70-year-old Arizona case that might support an opposing argument.
Another point needs to be made: we are constantly surprised that people might leave their estates in such disorder as to trust handwritten notes which might be subject to dispute. In the six years after her brother suggested she ought to plan her estate, could Rose not find an hour to visit a lawyer to get good advice? For that matter, couldn’t she have undertaken that project sometime in the decades before her brother’s suggestion?
It is perhaps not too surprising that Rose might want to leave the bulk of her estate to her sister (with whom she lived) and her sister’s family. It is only surprising that she left her affairs in a condition that enhanced the likelihood that “the lawyers would have a field day,” and that she would create legal disputes among her family members. It would have been so easy to avoid that result.