In Re: Estate of: Kittler, S. ( 2023 )

J-A20028-23
2023 PA Super 180IN RE: ESTATE OF: SUSAN L. : IN THE SUPERIOR COURT OF
KITTLER, DECEASED : PENNSYLVANIA
:
:
APPEAL OF: KARL E. KITTLER :
:
:
:
: No. 1636 MDA 2022
Appeal from the Order Entered October 11, 2022
In the Court of Common Pleas of Lancaster County
Orphans’ Court at 2022-00236
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED SEPTEMBER 25, 2023
Karl E. Kittler (Appellant) appeals from the order denying his petition for
citation sur appeal from the register’s decree refusing to probate the will of
Susan L. Kittler, Deceased (Decedent). We affirm.
Decedent died on October 17, 2021. She was survived by her two
children: Appellant and Keith A. Kittler (Keith). On January 27, 2022,
Appellant filed a petition for probate and grant of letters testamentary.
Appellant attached a document purporting to be Decedent’s will. On January
31, 2022, the register of wills issued a decree denying Appellant’s petition and
refusing to probate the purported will.
On February 28, 2022, Appellant filed a notice of intention to appeal.
On April 28, 2022, Appellant filed a petition for citation sur appeal. A citation
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* Former Justice specially assigned to the Superior Court.
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was issued and returned to the orphans’ court on June 8, 2022. Keith joined
Appellant’s appeal on June 10, 2022. No one opposed the petition for citation
sur appeal.
At a July 18, 2022, hearing, Appellant presented the testimony of John
Porter, Esquire (Attorney Porter), the scrivener of Decedent’s will, and Janelle
Black Makowski (Ms. Makowski), the notary public who notarized the will.
Attorney Porter testified that on October 26, 2020, he met with
[Appellant], Keith [], and Keith’ s wife, Heather Kittler, to discuss
the medical condition of [Decedent]. At the time, [Decedent] had
been hospitalized related to a fall she suffered[, and also had] a
cancer biopsy, the results of which were pending. It was assumed
that the biopsy would exhibit unfavorable results.
At the initial conference, Attorney Porter was provided contact
information for Decedent, and on November 12, 2020, he was
eventually able to [contact] her to discuss her estate planning. At
the time, [] Decedent was in a nursing home during the height of
the COVID-19 pandemic and visitors were prohibited. During that
initial conversation between Attorney Porter and the Decedent, []
Decedent expressed that she wanted to create a last will and
testament as well as a power of attorney. [] Decedent and
Attorney Porter had a detailed and candid discussion about
Decedent’s wishes for administration of her estate and the
responsibilities of the person selected to follow her health care
directives.
Orphans’ Court Opinion, 10/11/21, at 2-3 (citations omitted).
Attorney Porter testified that his next conversation with Decedent
occurred on November 18, 2020, at which time [] Decedent had
learned that her cancer was in her bone. [] Decedent wished to
include her financial planner, Adam Hartzell, in the discussion of
her estate planning[,] and he was included in the conference call
on November 18, 2020. [] Decedent, Attorney Porter[,] and Mr.
Hartzell worked together to ensure that all participants in the
telephonic conference understood [] Decedent’s assets and that
both the probate and non-probate assets would flow to the
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beneficiaries in accordance with [] Decedent’s intent. Attorney
Porter testified that [] Decedent was clear about her wishes to
draft a Will to ensure that all parties knew her intent and desires
when it came to distribution of her assets.
Attorney Porter drafted a will in accordance with [] Decedent’s
wishes. He secured the services of [Ms.] Makowski, a notary who
was qualified to conduct a remote notarization of a document.
Attorney Porter had two witnesses join him at his office, namely,
Vicki Sealover and Karmin Smith (witnesses).
Id. at 3-4 (citations omitted, emphasis added).
On November 24, 2020, a video conference took place. Attorney Porter
and his two witnesses attended the video conference from his office; Decedent
attended from her nursing home; and Ms. Makowski attended from her
residence. Id. at 4 (citations omitted). The orphans’ court explained,
[Ms.] Makowski … was employed by the York County Bar
Association at the time. Ms. Makowski utilized DocVerify, an
online software vendor that met the Pennsylvania Department of
State’s requirements to serve as a secure electronic method for
affixing a digital signature which may be acknowledged through
the remote participation of a notary public. Ms. Makowski testified
extensively about the DocVerify procedure.
In order to utilize the DocVerify software, the signer must go
through an independent verification process to confirm the
signer’s identity, including the signer’s address and social security
number. While establishing an account, DocVerify collects an
electronic signature from the signer. This “collected” signature
can then be applied to the document uploaded onto DocVerify for
purposes of notarization.
Id. at 4-5 (citations omitted). Ms. Makowski also required a signer to present
state-issued identification at the time of signing. Id. at 5. Ms. Makowski
confirmed that Decedent verified her identity during the video conference. Id.
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The purported will included, at its end, a signature line followed by a red
box containing the word “Seal.” Id. at 6. The orphans’ court relayed:
On the line for [] Decedent’s signature is a red box that contains
the number 587B93E4B8EA at the top of the box in red and
“Signed on 2020/11/24 10:59:15-8:00” in black at the bottom of
the box. Inside the box is the script name (not a font generated
by a computer) appearing to be the signature of [Decedent]. This
signatory box also appears on the bottom of each of the prior
pages, not directly above the blank line and the initials SLK, but
to the left of the line.
Id. (citations omitted)
The orphans’ court ultimately concluded that Decedent’s electronic
signature failed to meet Pennsylvania’s legal standard for signing a will. Id.
at 8. Taking as true the facts most favorable to Appellant, the orphans’ court
concluded “the Purported Will is not a will executed pursuant to Pennsylvania’s
long-standing statute and is not subject to probate as such.” Id. Therefore,
the orphans’ court denied Appellant’s petition for citation sur appeal. Orphans’
Court Order, 10/11/20. Appellant timely filed a notice of appeal. Appellant
and the orphans’ court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue:
Did the Orphans’ Court err by concluding the electronic signature
affixed to [] Decedent’s will is insufficient to satisfy the
requirement that her will be signed at the end thereof?
Appellant’s Brief at 5.
Appellant emphasizes that Decedent’s will undisputedly “bears her
signature – and not a computer-generated font – at the end thereof.” Id. at
18. Appellant claims the orphans’ court cites no statute or case to support its
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conclusion that an electronic signature is not a “signature” under 20 Pa.C.S.A.
§ 2502. Id. at 19. According to Appellant, the Probate, Estates and
Fiduciaries Code (Probate Code)1 does not define “sign” and “signature.” Id.
at 20. Appellant relies on the definition in Black’s Law Dictionary:
Black’s La[w] dictionary defines the noun “signature” in two ways:
(1) a person’s name or mark written by that person or at the
person’s direction; and (2) any name, mark or writing used with
the intention of authenticating a document.
Id. at 20 (citing BLACK’S LAW DICTIONARY (11TH ed. 2019)). Appellant
additionally relies on the definition in the Pennsylvania Rules of Civil
Procedure:
The Pennsylvania Rules of Civil Procedure define[] “signature” to
include a computer-generated signature created, transmitted,
received, or stored by electronic means….
Id. (citing Pa.R.C.P. 76). Appellant acknowledges, “Neither of these
definitions is specific to the execution of estate planning documents….” Id.
Appellant asserts “the lack of legislative authority on what constitutes a
signature in the context of testamentary rights has required judicial
intervention for more than one hundred years[.]” Id. at 22. Appellant directs
our attention to the Pennsylvania Supreme Court’s decisions in In re
Brennan’s Estate, 91 A. 220 (Pa. 2014), Appeal of Knox, 18 A. 1021(1890), and In re Kimmel’s Estate, 123 A. 405 (Pa. 1924). Appellant’s Brief
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1 See 20 Pa.C.S.A. §§ 101-8815.
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at 22-24. Appellant argues that in Kimmel, which interpreted Knox and
Brennan’s Estate, the Supreme Court applied an “intent-based” approach to
determine whether the decedent’s handwritten “Father”, at the end of his will,
met the signature requirements for a will. Id. at 24-25.
Appellant additionally cites the Cumberland County Orphans’ Court’s
decision in In Re Estate of Joyce A. Waltman, 21-21-0045 (Cumberland
O.C. 2021). Appellant’s Brief at 25. In substantially similar circumstances,
the orphans’ court accepted for probate a document with an electronic
signature. See id. at 25, 28. In Waltman, Appellant asserts, the orphans’
court details
the Pennsylvania Department of State’s communications provided
to attorney on April 02/2020, which indicated that self-proving
wills could be executed using remote online notarization.
Waltman concludes: “In the case before this court, a reading of
the [Probate] Code, legislative rules, definitions and case law
show this e-will complies with the statutory requirements in that
it is in ‘writing’ and ‘signed at the end thereof.’” Waltman at 12.
Waltman explains:
“The remote ceremony served the same evidentiary functions as
much as an in-person ceremony. The use of webcams provides
an opportunity to photograph the decedent and witnesses as well
as recording the entire transactions. The specialized state
approved software required to be used in [Electronic/Remote
Notarization (RON)], provides security technology beyond
anything existing in hard copy wills.
….
As an alternative to using RON during the Covid restrictions,
[D]ecedent could have signed her will without witnesses or a
notary and it would have been acceptable for probate. Admitting
such a document with little proof as to its veracity, while refusing
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an e-will executed with formality and an abundance of safeguards
would be absurd, unreasonable, and against legislative intent.
Id. at 12.
Appellant’s Brief at 28-29 (emphasis omitted).
Finally, Appellant claims the orphans’ court improperly imposed new
requirements for executing a will, “while ignoring the advancements in
technology.” Id. at 32 (capitalization modified). Appellant argues the
orphans’ court now requires that a will be signed using pen and paper. Id.
Appellant challenges the orphans’ court’s interpretation of Probate Code
Section 2502. As with all questions of law, our standard of review is de novo,
and our scope of review is plenary. In re Estate of Wilner, 142 A.3d 796,
801 (Pa. 2016).
This case presents an issue of statutory interpretation.
“The best indication of legislative intent is the plain language of
the statute.” Roverano v. John Crane, Inc., 226 A.3d 526, 535
(Pa. 2020), citing Matter of Private Sale of Prop. By Millcreek
Twp. Sch. Dist., 646 Pa. 339, 185 A.3d 282, 290-91 (Pa.
2018). … When the words of a statute are clear and free from
ambiguity, the letter of the statute is not to be disregarded under
the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). “‘Only if
the statute is ambiguous, and not explicit, do we resort to other
means of discerning legislative intent.’” Roverano, 226 A.3d at
535, quoting Millcreek Twp. Sch. Dist., 185 A.3d at 291; 1
Pa.C.S. § 1921(c).
… “The [Statutory Construction] Act provides that ‘[w]ords and
phrases shall be construed according to the rules of grammar and
according to their common and approved usage’; and that
‘technical words and phrases and such others as have acquired a
peculiar and appropriate meaning … shall be construed according
to such peculiar and appropriate meaning or definition.’” Id.,
quoting 1 Pa.C.S. § 1903(a). “Further, if the General Assembly
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defines words that are used in a statute, those definitions are
binding.” Id., citing Commonwealth v. Kimmel, 523 Pa. 107,
565 A.2d 426, 428 (Pa. 1989). The Act allows a court to presume
that the General Assembly does not intend a result that is absurd,
impossible of execution or unreasonable; that the General
Assembly intends the entire statute to be certain and effective,
and intends to favor the public interest as against any private
interest. 1 Pa.C.S. § 1922(1), (2), (5)….
Raynor v. D’Annunzio, 243 A.3d 41, 53-54 (Pa. 2020). When the words
of a statute are not explicit,
the intention of the General Assembly may be ascertained by
considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the
same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such
statute.
1 Pa.C.S.A. § 1921(c).
Mindful of the foregoing, we review the Probate Code’s requirements for
executing a will.
Section 102 of the Probate Code defines a “will” as “a written will, codicil
or other testamentary writing.” 20 Pa.C.S.A. § 102. Section 2502 provides:
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Every will shall be in writing and shall be signed by the testator
at the end thereof, subject to the following rules and exceptions:
(1) Words following signature. — The presence of any writing
after the signature to a will, whether written before or after its
execution, shall not invalidate that which precedes the signature.
(2) Signature by mark. — If the testator is unable to sign his
name for any reason, a will to which he makes his mark and to
which his name is subscribed before or after he makes his mark
shall be as valid as though he had signed his name thereto:
Provided, [t]hat he makes his mark in the presence of two
witnesses who sign their names to the will in his presence.
(3) Signature by another. — If the testator is unable to sign his
name or to make his mark for any reason, a will to which his name
is subscribed in his presence and by his express direction shall be
as valid as though he had signed his name thereto: Provided,
[t]hat he declares the instrument to be his will in the presence of
two witnesses who sign their names to it in his presence.
Id. § 2502 (emphasis added).
Our Supreme Court has long recognized that a testamentary instrument
must be signed, as required by statute, to be valid. In re Sciutti’s Estate,
92 A.2d 188, 189 (Pa. 1952) (“an unsigned document in the form of a will
cannot be probated as a will. A will in order to be valid must be signed.”)
(emphasis omitted). In Brown’s Estate, 32 A.2d 22 (Pa. 1943), the Court
explained that a will must be signed because
(1) [I]t shall appear from the face of the instrument itself that
the testator’s intent was consummated and that the instrument
was complete and (2) to prevent fraudulent or unauthorized
alterations or additions to the will.
Id. at 23.
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The Probate Code does not define the terms “signed” or “signature.”
Accordingly, these words “shall be construed according to the rules of
grammar and according to their common and approved usage[.]” 1 Pa.C.S.A.
§ 1903(a). The dictionary defines “signature,” as “the act of signing one’s
name to something[;]” and “the name of a person written with his or her
own hand[.]” “Signature.” Merriam-Webster.com. August 19, 2023.
https://www.merriam-webster.com/dictionary/signature (accessed August
25, 2023) (emphasis added).
The verb “sign” is defined “to affix a signature to[;]” “ratify or attest by
hand or seal[;]” to write down (one’s name)[;]” and “to affix one’s name to[.]”
“Sign.” Merriam-Webster.com. August 19, 2023. https://www.merriam-
webster.com/dictionary/sign (accessed August 25, 2023). The dictionary also
includes a “legal definition” for “sign” as “to affix a signature to[.]” See id.
The definitions do not expressly include computer generated signatures.
Our legislature has approved the use of electronic signatures in
Pennsylvania’s Electronic Transactions Act (PETA).2 In PETA, the General
Assembly declared, “A record or signature may not be denied legal effect or
enforceability solely because it is in electronic form.” 73 P.S. § 2260.303(a).
However, the scope of PETA is limited to transactions:
(a) GENERAL RULE.— Except as provided in subsection (b), this
act applies to electronic records and electronic signatures relating
to a transaction.
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2 See 73 P.S. §§ 2250.101–2260.5101.
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(b) EXCEPTION.— Subject to subsection (c), this act does not
apply to a transaction to the extent it is governed by any of the
following:
(1) A law governing the creation and execution of
wills, codicils or testamentary trusts.
73 P.S. § 2260.104(a)-(b)(1) (bold and underline added). Thus, PETA’s
provisions do not apply in this case, where the Probate Code dictates the
“creation and execution” of wills. See id. § (b)(1).
Appellant argues the Pennsylvania Rules of Civil Procedure have adopted
the use of electronic signatures. Appellant’s Brief at 20. Rule 76 provides:
The following words and phrases when used in the Rules of Civil
Procedure shall have the following meanings, respectively, unless
the context clearly indicates otherwise or the particular word or
phrase is expressly defined in the chapter in which the particular
rule is included:
….
“[S]ignature,” includes
….
(2) when used in reference to documents produced by a court of
the Unified Judicial System, a handwritten signature, a copy of a
handwritten signature, a computer generated signature or a
signature created, transmitted, received, or stored by
electronic means, by the signer or by someone with the signer’s
authorization unless otherwise provided in these rules[.]
Pa.R.C.P. 76 (emphasis added).
The Orphans’ Court Rules include no similar provision. However,
Pennsylvania Rule of Judicial Administration 510, adopted by our Supreme
Court, permits electronic filing of guardianship reports and accountings:
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The submission and acceptance of an electronic filing shall satisfy
the reporting requirements of Pa.O.C. Rule 14.8. An electronic
filing shall be considered filed with the Clerk upon the date and
time of the filer’s electronic submission, if the Clerk determines
the requirements for filing are met. If the Clerk determines the
requirements for filing are not met, the Clerk may take any action
as permitted by law, including, but not limited to, returning the
submission for correction.
Pa.R.J.A. 510(c)(6).
Rule 510 expressly provides for electronic signatures:
(d) Signature.
(1) The electronic signature of the guardian, as required
on the reports and inventories, shall be in the following
form: /s/ Chris L. Smith.
(2) The use of an electronic signature on electronically
filed reports and inventories shall constitute the guardian’s
acknowledgement of, and agreement with, the verification
statements contained therein.
Pa.R.J.A. 510(d). The Supreme Court permitted the use of an electronic
signature to meet the requirements of Pa.O.C.R. 14.8 (Guardianship
Reporting, Monitoring, Review, and Compliance), but adopted no similar rule
regarding the execution of wills.
Clearly, Pennsylvania’s definition of a valid will has contemplated the
technology available to testators and their counsel. Neither our General
Assembly nor our Supreme Court have approved the use of DocVerify, or any
other software, in executing a valid will. In the absence of any authority
governing electronic wills, our orphans’ courts have issued conflicting
decisions regarding their validity. Compare Estate of Nadim R. Baker, No.
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36-20-0446 (Lancaster O.C. 2021) (refusing to probate an electronically
signed will); with In Re Estate of Joyce A. Waltman, 21-21-0045
(Cumberland O.C. 2021) (accepting for probate an electronically signed will).
We recognize the need for guidance on this issue because policy decisions rest
with our General Assembly, not this Court.
We further acknowledge that various states have adopted versions of
the Uniform Law Commission’s3 Uniform Electronic Wills Act (UEWA),4 while
Pennsylvania has not. Again, “as an appellate court, we are charged to
interpret the law as it is now, not what we want it to be, or what it might be
in the future.” Commonwealth v. Stone, 273 A.3d 1163, 1174 (Pa. Super.
2022). We are thus constrained to await a pronouncement from our Supreme
Court or General Assembly regarding electronic technology in the execution
of wills.
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3 “[T]he National Conference of Commissioners on Uniform State Laws,
established in 1892, provides states with non-partisan, well-conceived and
well-drafted legislation that brings clarity and stability to critical areas of state
statutory law.” https://www.uniformlaws.org/aboutulc/overview (last
accessed Aug. 31, 2023).
4 See https://higherlogicdownload.s3-external-1.amazonaws.com
/UNIFORMLAWS/d895e3bb-c273-fff3-0ec9-
9fb89b151f16_file.pdf?AWSAccessKeyId=AKIAVRDO7IEREB57R7MT&Expires
=1693496891&Signature=ONEaWfBd%2F9UXx61jbmH8UnGUiRU%3D
(accessed August 31, 2023).
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The orphans’ court recognized the limits of its authority in denying
Appellant’s citation sur appeal:
The requirements to make a will in Pennsylvania are
straightforward. A will must be in writing, a will must be made by
a person over the age of 18 years who is of sound mind, and a
will must be signed by the testator at the end of the writing. 20
Pa.C.S. § 2501 and § 2502. Statutory authority exists for the
execution of a will by a decedent’s mark, but the mark must be
made on the testamentary document in the presence of two
witnesses5 who sign their names to the will[,] and that the
witnesses [indicate] that the will was executed by mark rather
than by the testator’s signature. Id.
The Decedent’s Purported Will bears her name in script writing
near the end of the document. However, this script writing is an
image which is sometimes referred to as a “digital signature” that
was placed upon the document electronically through the
DocVerify software. The Decedent never put ink to the copy of
the Purported Will offered for probate. The [orphans’ c]ourt will
not exceed its authority by expanding the statutory requirement
that a will must be signed at the end to encompass the placement
of an image towards the end of the document in lieu of the
testator’s manual signature on the document.
Orphans’ Court Opinion, 10/11/21, at 9 (emphasis and footnote added).
As we agree with the orphans’ court’s reasoning and discern no error,
we are constrained to affirm the order denying Appellant’s petition for citation
sur appeal.
Order affirmed.
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5 The statute does not indicate that the presence of the two witnesses, via
video conference, is acceptable.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/25/2023
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