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Estate of Wilner

Superior Court of Pennsylvania

May 6, 2014


Submitted May 21, 2013.

Appeal from the Order of the Court of Common Pleas, Wyoming County, Civil Division, No. 2011-013. Before SHURTLEFF, J.

James F. Mannion, King of Prussia, for appellant.

Sandra D. Boyle, Nicholson and C.H. Welles, IV, Scranton, for Baker, appellee.

Sean A. Kirkpatrick, Office of Attorney General, Harrisburg, for Charities, appellee.



Page 1202


Appellant, Dana Wilner, comes before us appealing the granting of a petition to probate a copy of a lost will of her aunt, Isabel Wilner, the deceased. Finding that the copy was not supported by sufficient proof to permit probate, we are constrained to reverse.

The procedural and factual summary found in the trial court's opinion accurately reflects the assembled record and we adopt it as our own:

Isabel Wilner (hereinafter " Decedent" ), a resident of Tunkhannock, Wyoming County, died on March 16, 2011, at the age of ninety-one (91). On May 5, 2011 Linda Baker filed a Petition requesting the probate of a conformed copy of a Will dated June 29, 2007, together with an original codicil dated April 26, 2010. Pursuant to the copy of Decedent's June 29, 2007 Will and the original April 26, 2010 Codicil, the Church of Nativity of Baltimore is the primary beneficiary.
The matter was certified by the Wyoming County Register of Wills to this

Page 1203

Court pursuant to 20 Pa.C.S.A. § 907 and the matter proceeded to an evidentiary hearing on June 29, 2011. At the hearing, the Petition was opposed by Dana Wilner, Decedent's niece and an intestate heir who would receive one-half of the estate [Footnote 2] if Ms. Baker's Petition were denied.
At the hearing Charles Welles, Esquire testified that he prepared both the June 29, 2007 Will and April 26, 2010 Codicil for Decedent. (H.T. 6/29/11, p.5). Attorney Welles further testified that his customary practice when presenting wills to his clients is to make three copies, with the client signing one and the other two bearing the names and dates of the people who signed them but not bearing actual signatures. (H.T. 6/29/11, p. 6). The original and one conformed copy are provided to the client with Attorney Welles retaining the other conformed copy. (H.T. 6/29/11, p. 6).
Attorney Welles testified to the content of the Will, which was executed by Decedent on June 29, 2007 at the law offices of Attorney Judd Fitze, Tunkhannock, Wyoming County. (H.T. 6/29/11, pp. 8, 18). Decedent's signing of the Will was witnessed by Andrea Hebda, a secretary in Attorney Fitze's office, Attorney Welles and it was notarized by Attorney Fitze. (H.T. 6/29/11, p. 9). Decedent was provided with the original and one conformed copy. Attorney Welles filed a conformed copy with the Wyoming County Register of Wills and retained a copy for his own records. (H.T. 6/29/11, pp. 9, 19-20).
Several years later, Decedent approached Attorney Welles to prepare a Codicil to her original will. Said Codicil was executed by Decedent on April 26, 2010 for the purpose of changing the executrix named in Decedent's June 29, 2007 Will from Margaret Young to Linda Baker,[Footnote 3] Decedent's caregiver, a cousin by marriage and a close friend. (H.T. 6/29/11, pp. 10, 37). Decedent's signing of the Codicil was witnessed by Attorney Welles and Linda Baker. (H.T. 6/29/11, p. 10). The original and a conformed copy were provided to Decedent with Attorney Welles retaining a conformed copy for his records. (H.T. 6/29/11, p. 11).
At or around the same time that Attorney Welles prepared Decedent's Codicil, Attorney Welles also prepared a Deed reflecting Decedent's desire to transfer her home to St. Peters Church retaining a Life Estate in same. (H.T. 6/29/11, pp. 11-2). Said Deed was executed on April 26, 2010 and recorded in the Wyoming County Recorder of Deeds Office on May 11, 2010 with an instrument number of 2010-411G1. One week prior to her death, Attorney Welles was asked to go to Decedent's home to give her communion [Footnote 4] and at no time did Decedent ever inform Attorney Welles that she wished to revoke her Original June 29, 2007 Will. (H.T. 6/29/11, p. 16).
Attorney Judd Fitze testified that often times out of town counsel utilize his conference room, as was the case with Attorney Welles and his client, Isabel Wilner, on June 29, 2007. (H.T. 6/29/11, p. 27). Attorney Fitze testified that as soon as Isabel Winer [sic] walked into his office, he knew her, as they were neighbors from Attorney Fitze's youth. (H.T. 6/29/11, p. 28). Although Attorney Fitze notarized the Will, he testified that he did not read the Will, rather he simply witnessed the Decedent sign her name to the same. (H.T. 6/29/11, pp. 28, 30-1).
Andrea Hebda, secretary to Attorney Judd Fitze, testified that she could only vaguely remember Attorney Welles bringing the Decedent to the conference room of Attorney Fitze's offices to execute

Page 1204

a will. (H.T. 6/29/11, pp. 33, 35). Ms. Hebda further testified that although she witnessed Isabel Wilner sign the will, she did not read the will, nor could she recall any discussions surrounding the will. (H.T. 6/29/11, p. 35).
Linda Baker, Decedent's caregiver, testified that she resided with Decedent and was present at Decedent's home when she arrived home from her meeting with Attorney Welles on June 29, 2007. (H.T. 6/29/11, p. 37). Upon request of the Decedent, Ms. Baker placed the conformed copy of the will in Decedent's safe under her bed upstairs, locked the safe and placed the key in the bedside stand. (H.T. 6/29/11, pp. 38, 43). The original will was placed in Decedent's unlocked metal box under her desk in the downstairs living room, where Decedent[']s hospital bed was located. (H.T. 6/29/11, p. 38).
Ms. Baker was present when Decedent executed the Codicil on April 26, 2010. (H.T. 6/29/11, p. 39). The original codicil was also placed in the unlocked metal box under Decedent's desk in the downstairs living room and the conformed copy was placed in the locked safe upstairs under Decedent's bed. (H.T. 6/29/11, p. 40). Ms. Baker was with the Decedent at the time of her death and at no time leading up to ...

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