AUGUST 15, 2016 VOLUME 23 NUMBER 30
You’ve signed your will. We’ve given you the original in a fancy envelope, and a copy showing your signatures. What should you do with it?
For most people, most of the time, it is sufficient to just keep the original will in a convenient place at home. What to do with the copy? Put it in a different, but also safe, place. Include a note telling your family where to look for the original.
What happens if we can’t find your will after you die? It may not mean that your estate plan is frustrated, but consider what happened to estate planning documents signed by Irene Wilson (not her real name).
Irene was a librarian and an author of children’s books, and she lived in Maryland. She never married, and had no children. She did have a niece and a nephew — her closest relatives — but she was not particularly close to them.
After her retirement, Irene moved to rural Pennsylvania. By age 87 she was still living at home but unable to easily get up her stairs; she set up a first-floor bedroom for herself. She also had a cousin who lived upstairs and helped take care of her.
In 2007 Irene contacted a local Pennsylvania lawyer about updating her will. She named a long-time friend as executrix (what we in Arizona would call personal representative) and left most of her estate to her church back in Maryland. Three years later she updated the will with a new codicil, naming her live-in caretaker as execturix; at the same time she transferred her home to the church she attended in Pennsylvania, reserving a life estate for herself.
Both the original will and the original codicil were carefully placed in an unlocked metal box near her bedroom on the first floor; “conformed” copies of both were in a locked safe in an upstairs bedroom. The attorney who prepared both documents also kept a “conformed” copy.
Pause a moment for explanation: what is a “conformed” copy? In modern usage, it is a photocopy of the original, unsigned document, with a notation like “/s/” placed on the signature blocks. Sometimes a stamped representation of the signer’s name is placed on the signature block. In either case, it indicates that the original was signed — though the signature itself is not usually copied.
Six months after Irene signed her will and placed her conformed copies near her downstairs bedroom, her niece came for a visit. It did not go well. The niece told Irene that there were important family documents and heirlooms that she wanted to receive on Irene’s death. She also told Irene that she should move out of her house and into a nursing home. Irene was upset by the visit, and by the follow-up phone calls from her niece.
A few months after the niece’s visit, Irene’s lawyer called on her at home. She did not say anything about wanting to change or revoke her will, or about any changes in her plans.
Irene died a week after the lawyer’s home visit. When her caretaker went to the house to retrieve the original will, she found an empty envelope in the downstairs box, and all of the papers missing from the safe upstairs. Oddly, the original codicil and some other papers were still in the downstairs box; the copies of those documents were missing from the safe.
Let’s stop here for a moment for reflection. Did Irene have a valid will? Can the copy of her will from her lawyer’s file be admitted to probate?
Ready to proceed? Do you have your answer?
There is a presumption under Pennsylvania law (which governed Irene’s probate case, since she lived and died in that state) that when an original will was in the decedent’s possession before death but can’t be found. The presumption makes sense: it is that the decedent must have destroyed the original with the intent to revoke it. The same presumption, by the way, exists under Arizona law (and, probably, under the probate laws of most or all of the U.S. states).
The Pennsylvania probate court (it’s actually called orphan’s court, but no matter) ruled that the evidence suggested that Irene had not intended to revoke her will, and the lawyer’s conformed copy was admitted to probate. The next level of review, however, resulted in the opposite outcome: the Pennsylvania Superior court reversed, ruling that two witnesses would have had to testify that they actually saw Irene sign the original document. That meant the will was invalid, though the codicil (which was still intact in the metal box) would be effective. Irene’s caretaker would be in charge of her estate, but her niece and nephew would inherit most of her wealth.
Was that your prediction? If not, then you might take comfort in the next step. The Pennsylvania Supreme Court reversed the intermediate ruling, returning the outcome to the probate court’s finding: the copy of Irene’s will was, after all, admitted to probate. The Supreme Court found that the lawyer’s testimony about witnesses to the original will was sufficient — there was no need to produce the actual witnesses to testify about the signing. In re Estate of Wilner, July 24, 2016.
Would the same thing happen in Arizona? Yes, almost certainly. Given how easy it is to make photocopies, most lawyers today would have copied the will after signature rather than making conforming marks on a copy, but the outcome would not be different in most cases. The key is whether there is a legitimate explanation about why the original might be missing, more than whether specific technical requirements have been met.
So what should people do with their original wills? Put them in a safe place. Tell someone — the person named as personal representative, close family members, or someone — where the originals are located. Keep track of originals over the years (do you know where your original will is right now?). But what happened to Irene is unlikely to happen if you are leaving your entire estate to your children in equal shares (or to your only niece and nephew).