Saturday, October 21, 2017

Standards for Probate of Copy of Lost Will Eased in PA

[This article was written by  Casey Sauerwine a lawyer with my law firm, Marshall, Parker and Weber}
In 2014 a colleague wrote about a PA Superior Court decision where the court’s application of the two witness rule led to a less than favorable result. The decision was given in the case of in re the Estate of Isabel Wilner. My colleague wrote that he was not sure he had ever seen a court opinion so apologetic over applying a well-established rule of law.
Now, two years later the court no longer needs to be apologetic.
The issue in the Wilner case dealt with a “lost” will and the appropriate interpretation of the two witness rule. I wrote about Pennsylvania’s law regarding witnesses for wills in a prior blog article: Does a Will Need Witnesses to be Valid? The two witness rule, as applied by the Superior Court in Wilner, makes it very difficult to probate a copy of a will when the original cannot be found.
Here are the facts in the Wilner case. Ms. Isabel Wilner had a will drafted by an attorney in June 2007. She signed it in front of the drafting attorney, another attorney acting as notary and a secretary. Ms. Winder’s lawyer followed his customary practice and gave his client the signed original will; he also prepared and conformed two unsigned photocopies (one for the client and one for the attorney’s file). Ms. Wilner had the original will placed in an unlocked lock box in her bedroom and had the copy placed in an upstairs safe.
In 2010 Ms. Wilner signed two codicils (amendments) to the 2007 will. The codicils were prepared by the same attorney who drafted the 2007 will. Again the signed original codicils were placed in the unlocked lock box in her bedroom and the copies were placed in the upstairs safe.
Later in 2010 family members came to visit Ms. Wilner at her home. The visitors included a niece who had not been invited. This niece created a lot of distress for Ms. Wilner.
Ms. Wilner passed away on March, 16, 2011 and her caregiver/executrix went to collect the original will and codicils from Ms. Wilner’s lockbox. She found that the original will had been removed but the original codicils remained. The executrix then went to the upstairs safe to retrieve the conformed copy only to find that it had also been removed.
The executrix went to the original drafting attorney to get his conformed copy of the will. She then filed that copy along with the codicils for probate with the Register of Wills. But the niece filed an objection to the probate of the copy of the will.
Ms. Wilner had never married and had no children. Her intestate heirs were the niece and a nephew. If the copy of the will and codicils were rejected  the niece would inherit a large portion of Ms. Wilner’s estate.On the other hand, iIf the copies were accepted the entire estate would go to charity as Ms Wilner had specified in the lost original will.
The dispute went to the Orphans Court which held two hearings. The drafting attorney testified that the contents set out in the copy of the will were the same as the contents of the lost original will. But no one else testified regarding the contents. The Orphans Court entered a decision allowing the copy of the will to be admitted for probate. The niece appealed.
On appeal the Superior Court (a lower appeals court) reversed the decision of the Orphans’ Court. The Superior Court held that to probate a lost will there must be proof by two witnesses of both due execution and “of the contents substantially as set forth in the copy offered for probate.” Since only one witness testified to the contents of the will the Superior Court held that the copy could not be probated.  It ruled, apologetically, for the niece.
The executrix appealed this decision to the Pennsylvania Supreme Court. The question was whether the two witness rule applies to proving both a will’s proper execution and it’s contents. In re Estate of Isabel Wilner,
A very old Supreme Court case had required proof by two witnesses as to both the will’s proper execution and its contents  before a copy could be admitted for probate   Hodgson’s Estate, 270 Pa. at 213. But after Hodgson the relevant statute was changed. In the Supreme Court’s analysis the current statute leaves the question of the evidentiary standards for proof of the contents of a lost will to the courts to decide. In the Supreme Court’s view the relevant sections of the statute (20 Pa.C.S. § 3132)
 are principally concerned with signature requirements and evidence that the signature (or mark) at the end of the will is genuine. They do not appear to contemplate the contents of a will, lost or otherwise. As well, such focus upon the validity of the signatures is consistent with the specialized term, to “prove” a will, as applied in the probate context.
The court says that as a matter of common sense in many cases it will be unlikely that anyone besides the testator and the drafting attorney would be aware of the contents of the will since the subscribing witnesses are not required to read the will.
As a result of this reasoning, the Supreme Court ultimately reversed the Superior Court and reinstated the Orphans’ Court order. The will is admitted to probate and the estate  goes to charity not to the niece.
This is just one example of how legislation and statute interpretation can be so complicated. My colleague wrote an article in 2014 stating that although the Superior Court ruling was unfavorable and maybe unjust, it was the right and clear interpretation of the law.
Two years later the Supreme Court decides that the statute was not so clear after all. The Wilner case has now set the bright line rule that the “Two Witness Rule” only applies to determining if a will was properly executed and does not apply to the contents. The contents are to be proven through clear and convincing evidence at a judicial proceeding.

Tuesday, October 17, 2017

Elder Abuse Target of New Federal Law

[The following article was written by Matthew Parker, attorney with my Pennsylvania law firm Marshall, Parker and Weber]
 Elder abuse is one of the most under reported crimes in our country. Even the reported cases are difficult to prosecute. Older adults are financially exploited through telemarketing, e-mail scams and by those who are supposed to look after the senior’s affairs, such as court appointed guardians. 
 A court appointed guardian is named by a judge in the court of common pleas where the incapacitated person resides. The guardian is often a family member who agrees to represent an incapacitated person who can no longer make decisions about their personal and financial affairs. After a court hearing, the court appointed guardian is given considerable control over the finances and personal decisions of the incapacitated person. The oversight of the guardian is limited to annual reports that generally report the status of the finances and physical condition of the incapacitated person.
 There are many honorable guardians who faithfully carry out their duties and act in the best interest of the person they are appointed to represent. Unfortunately, of the estimated 1.3 million guardians in our country, there are unscrupulous guardians who are financially exploiting the elderly. There are stories of abuse involving close family members, such as the case of decorated World War II Veteran Robert Matava, whose own son financially exploited him. Part of the new legislation mentioned below is named after the late Robert Matava. 
 Under the bi-partisan “Elder Abuse Prevention & Protection Act” (Senate Bill S. 178), the Department of Justice will assign an Assistant United States Attorney to each federal judicial district to investigate reports of wrongdoing by guardians. These attorneys will be empowered to bring in specially trained FBI agents to help investigate the complaints. There will also be a system of information sharing between federal prosecutors in each state, facilitated by the Department of Justice. 
While the Act does not change the current system of guardianship in Pennsylvania, it does expand Federal involvement in prosecution of guardians. The legislation also requires the Department of Justice to publish best practices for improving state guardianship proceedings, specifically as it relates to elder abuse.  This may lead to changes in the oversight of guardians in Pennsylvania. 
 Additional provisions in the Act target telemarketing and e-mail marketing to seniors by increasing criminal penalties for related marketing crimes committed against those over age 55. Those enhanced penalties also apply to health care fraud.
The Elder Abuse Prevention & Protection Act” was signed into law by the President on October 18, 2017 (Public Law No 115-70).

Monday, October 9, 2017

Update Your Will if your Spouse needs Long Term Care

You should consider updating your will if your spouse is receiving long term care either at home or in a facility. Here is why:
Many married couples have simple "I love you wills” that leave everything outright to the surviving spouse. This is logical for a healthy couple whose primary goal is to provide for each other for the remainder of their lives. But a problem arises if one of the spouses needs long term care.
Few couples have long term care insurance. Instead they initially rely on private funds to pay for care. If they deplete their funds, the government Medicaid program can be there to help pay the bills. Most individuals who receive nursing home care are on Medicaid. And Medicaid can help pay for care at home as well. But to qualify for Medicaid you have to have limited available resources. And protections that exist for married couples will no longer apply if one spouse dies.
By leaving everything to your spouse, you may make it very difficult for them to qualify (or continue to qualify) for Medicaid
Suppose your wife needs long term care. To qualify for Medicaid government benefits she can own only very limited funds. Virtually all the financial resources have to be held in your (the healthy spouse's) sole ownership. Once your wife meets the Medicaid qualification requirements the government program will help pay for her care. Let's assume she is now on Medicaid and that under Medicaid’s spousal protection rules, you (the “community spouse”) have been allowed to keep $100,000 in savings. You are using those savings to provide not only for yourself but to get your wife things she needs that are not covered by Medicaid.
If you die with a simple "I love you will” the entire $100,000 will go to your wife and cause her to lose her Medicaid benefits. She will have to spend down those funds before she will qualify again for Medicaid. Tens of thousands of dollars can be lost to pay for care which could have otherwise been covered by Medicaid.
If you want to avoid this result you could update your will to limit the amount of resources your wife will receive outright if you predecease her. For example, you might sign an “elective share will” that leaves your wife the minimum amount required by law (typically 1/3rd) outright, and places the rest of the inheritance in a protected trust. The funds held in trust won’t disqualify her from Medicaid and can be used to supplement your wife’s needs during her remaining lifetime. Anything left at her death can pass to your children or other heirs.

Bottom line: by updating your will if your spouse needs long term care, you can better ensure that money will always be available to supplement your spouse's care. Talk to an experienced elder law attorney to get your will, beneficiary designations and other planning updated.