A few weeks ago, the Superior Court of Pennsylvania handed down an opinion in Estate of: Isabel Wilner, Deceased[i] that invoked the two witness rule for the proving of a lost will. I’m not sure I’ve ever seen a court opinion so apologetic over applying a well-established rule of law.

There’s a saying amongst lawyers, law professors, and law students that “bad facts make bad law.” The saying, sometimes considered a bit trite, describes the fact that judges are human beings and sometimes they are presented with fact patterns where applying the law seems unjust. When you hear this saying, it ordinarily refers to a case where a court uses tortured reasoning to seemingly achieve the result they want. For courts whose decisions create precedent, this can be problematic because application of the law in cases in the future may pose unforeseen issues.

The court did not hesitate to apply the law in this case and so I think we can say bad facts did not make for bad law. There were, however, still bad facts.

The decedent, Isabel Wilner, had drafted a will leaving almost her entire estate to charity. When the documents were signed, it was her attorney’s practice to give the client the original document and retain an unsigned copy for his records. Ms. Wilner took the original document home with her and placed it in an unlocked metal box at her home.

After Ms. Wilner’s death, her caregiver, Linda Baker checked the unlocked box where Ms. Wilner had put the original will after it was signed and the document was missing.

The court opinion details a strained relationship between Ms. Wilner and her niece, Dana Wilner, who was in line to inherit from her through the law of intestacy. Although the facts are unclear, there is also speculation in testimony the court recited in its opinion that the will may have gone missing around the time Dana paid a visit to her aunt as an uninvited guest.

The court was tasked with determining whether Ms. Wilner’s will or any of her subsequent writings should have been admitted to probate, or if an estate should be opened for her as though she did not have a will. Despite the testimony of the attorney who wrote the will for Ms. Wilner and others who had knowledge of the document’s existence and no knowledge of her desire to change them, the court ruled the documents could not be admitted.

The court based its decision on a rule of law in Pennsylvania called the “two witness rule.” This rule applies to cases where there is a lost will. The two witness rule requires two witnesses to testify to not only the execution, but also the contents of the will. In this case, only the attorney was able to testify as to the contents of the will and therefore the document could not be admitted to probate.

Previously, I had written an article about whether witnesses were required to execute a will in Pennsylvania. The answer to that was no.[ii] You can view that article here.

You may be asking – what’s the difference? As I wrote in the previous article, there’s a difference between whether you need witnesses to the execution (signing) of the will, and whether you need witnesses in some capacity during the probate process. During probate, you need witnesses to the will to at least testify as to the validity of the signature. If the will is lost, you need them to also testify as to the contents of the document.

These issues can usually be avoided by taking some precautions. First, Pennsylvania law allows wills to be “self-proving.”[iii] This means that if certain procedures are followed when the will is signed, witnesses are not necessary when the will is to be admitted to probate. The procedures required to make a will self-proving are simple; the document has to be signed and witnessed before a notary or attorney and simple forms need to be signed by the parties.

Secondly, it is common practice for attorneys to offer to keep the original will at their office. Allowing your attorney to keep the original and taking a copy home with you is a good idea. Although I understand that some clients may be hesitant to allow someone else to hold onto such an important document, I think that if you trust the attorney enough to have them draft the document, you should be able to trust them to hang onto it for you as well and then release it if you choose not to retain them for estate administration.

Although the court recognized that justice was not done in this case by applying the law, this case is an example of the opposite of the old saying: “bad facts make bad law.”