December 2024: 

The MLO Minute: “The Importance of Subscribing Witnesses to a Will” 

By Dennis McAndrews, Esq., and Alison Kahney, Esq. — 

When Dorothy Grigg died in 2022, she was survived by her husband, Charles, and six children. Four of Dorothy’s children filed a petition claiming that their mother died without a will (“intestate”) and requested to be appointed as administrators of the estate. Charles filed an objection, contending that Dorothy had a will and requesting that their son, Ronald Grigg, be appointed executor as stated in her purported will. Ronald filed a similar petition. The probate court held an evidentiary hearing at which both sides presented qualified handwriting experts. Three of Dorothy’s children testified regarding the state of Dorothy’s health prior to her death. Ronald testified that, as a former attorney, he drafted the will for his mother and saw her sign it, but no subscribing witnesses verified Dorothy’s signature when the will was allegedly executed, and even Ronald did not sign it as a subscribing witness.

The probate court found credible the testimony of the four children’s expert witness that Dorothy’s signature on the will was forged and further found Ronald to not be a credible witness. The probate court ordered that the four children be appointed the administrators of Dorothy’s estate. Ronald appealed to the Pennsylvania Superior Court, alleging that the probate court erred by giving weight to the handwriting expert’s opinion when there was evidence that he witnessed Dorothy execute her will. The Superior Court first stated that when determining the validity of a purportedly forged will, “the opinion evidence of experts in cases of forgery is of little weight and cannot prevail against ‘positive evidence of actual facts by witnesses whom the Chancellor considers credible’” (emphasis added). Ronald was the only one who testified about his alleged drafting and Dorothy’s signing of the will, and there were no subscribing witnesses to the signing. However, the probate court had not found Ronald to be credible, and therefore without credible testimony of a fact witness regarding the execution by Dorothy of her purported will, the probate court could afford the expert witness testimony whatever weight it deemed appropriate. The Superior Court affirmed the probate court’s ruling. Estate of Grigg, filed September 16, 2024.

The importance of this ruling is manifest. Every will should have at least two subscribing witnesses who are adult, competent, and able to observe the signing of the will by the testator. One of the dangers of utilizing Internet-based documents is that they do not always discuss the importance of subscribing witnesses, and sometimes when those documents are printed, lines/spaces for subscribing witnesses are eliminated and no subscribing witness appears. Naturally, there are many reasons to use competent, experienced counsel in preparing your will and related documents as part of a complete estate plan, such as proper appointments of personal representatives, guardians, healthcare representatives, tax issues, disability issues etc., and this case again reflects the importance of proper execution of these documents.