You may have heard that in Pennsylvania, words written on a napkin can be considered a Will. Crazy, right? Well actually that can be true. In Pennsylvania, the requirements for a document to be a valid Will are pretty limited. First, the testator (the person who is making the Will), must have testamentary capacity. A testator has testamentary capacity if at the time of execution of a will, he was over 18 years of age, he knew who his heirs were, he understood the property he owns, and he knew what he wanted to with his estate, even though his memory may be impaired by age or disease. If the testator has testamentary capacity, then, for the document to be a valid Will, the Will simply must be in writing, have testamentary intent and be signed by the testator at the end. See, 20 Pa. C.S. § 2502.

If the document meets these minimum requirements, then it will be considered to be a valid Will. Or will it?

If a person who would benefit from a prior Will or benefit if there were no Will believes that there is a question about the validity of the document as a Last Will and Testament, they can challenge the document. If the challenge is raised before the Will is accepted for probate, then a hearing will be held before the Register of Wills. However, if the Will has been accepted for probate, then an appeal must be filed with the Orphan's Court.

Standard for challenge of a Will

Once a Will has been accepted for probate, there is a presumption that the Will is valid. The burden then shifts to the contestant (the person challenging the Will) to come forward with evidence to show that the Testator, the person who wrote the Will, suffered from a mental incapacity or was subject to undue influence. 

Standard for proving undue influence

The contestant may prove undue influence by providing evidence of acts which prejudice a testator's mind or destroys his free agency. These circumstances must exist at the time the will is made. This is considered direct evidence. This can be difficult to prove since there is a presumption that the testator was not subject to undue influence.

The contestant may also try to prove undue influence by indirect evidence. This requires the following: a person is in a confidential relationship, and receives a substantial benefit, at or around the time of the signing of the will, and the testator had a weakened intellect. If the Court finds that the contestant has provided this proof, then a presumption of undue influence arises and the burden shifts to the other party to show the absence of undue influence.

If you have questions about whether a Will is valid, please contact L. Theodore Hoppe, Jr., Esquire - Attorney at Law and we will be glad to discuss this with you.