Pennsylvania Superior Court Denies Will Executed Virtually During COVID-19 Pandemic

In re Estate of Susan L. Kittler, No. J-A20028-23, 2023 PA Super 180 (Pa. Super. Sept. 25, 2023)

This case focuses on a will that was prepared and executed during the peak of the COVID-19 pandemic.  The Lancaster County Register of Wills denied the will for probate, determining that the document was not executed properly in accordance with Pennsylvania law.  The proponent of the document unsuccessfully appealed this decision to the Lancaster Court of Common Pleas, Orphan’s Court (hereafter referred to as “Orphan’s Court”) and then again in this challenge to the Superior Court.

Susan L. Kittler (“Decedent”) died on October 17, 2021 after an illness.  In November 2020, the Decedent sought the assistance of an attorney and a financial planner, primarily so that her assets would flow to her beneficiaries in accordance with her wishes.  On November 24, 2020, a videoconference took place among the Decedent, her attorney, and two witnesses.  The Decedent’s attorney utilized DocuVerify to facilitate the remote notarization of the document.  The attorney testified to the Orphan’s Court that DocuVerify requires users to complete an independent verification process and that she also required the Decedent to present identification while on the videoconference.  The Orphan’s Court opinion described Decedent’s signature as follows:

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.

Orphans’ Court Opinion, 10/11/21, at 2-3 (citations omitted).

When the will was submitted for probate, the Decedent’s electronic signature was deemed to not meet Pennsylvania’s requirements for signing a will and was rejected.  The Decedent’s son (“Appellant”) appealed this decision unsuccessfully to the Orphan’s Court.

Appellant filed this appeal with the Superior Court, arguing that the Decedent’s signature at the end of the document (as described above) complied with Pennsylvania law.

Specifically, Appellant argued that the signature accords with Pennsylvania’s Electronic Transactions Act (“PETA”), which states that, “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, PETA identifies exceptions to this general rule, including “a law governing the creation and execution of wills, codicils or testamentary trusts.”  73 P.S. § 2260.104(a)-(b)(1).

The court agreed that, while the Pennsylvania Rules of Civil Procedure have adopted the use of electronic signatures, the Orphans’ Court Rules include no comparable provision.  The Court also reasoned that neither the Assembly nor the Supreme Court have approved the use of DocuVerify or other comparable software for executing a will.  While other states have changed their rules to allow for electronic signatures, Pennsylvania had not done so.  Accordingly, the decision to reject the will for probate was affirmed.