Monday, June 23, 2008

Colliton on a Cigarette Carton Will Contest

Janet Colliton, Esq., of West Chester, PA, wrote an article published on June 9, 2008, in The Daily Local News (West Chester, PA), entitled "How Formal Must a Will Be?" regarding the decision issued on June 2, 2008, by the PA Superior Court in the case captioned Estate of Norman F. Shelly (PDF, 13 pages), 2008 PA Super 116.

Among other holdings, that Court found that handwriting by a decedent on a cigarette carton was without "testamentary intent", and therefore was not a valid will.

Since I am returning from a week's vacation, I welcome Janet's offer for me to post her article. I have edited it only slightly for posting on this Blog.

Janet Colliton, Esq., of Colliton Law Associates, P.C. (790 East Market St, Ste. 250, West Chester, PA 19382; Ofc: 610-436-6674; E-mail: is a West Chester attorney whose practice is limited to elder law, Medicare, Medicaid, life care, special needs, and retirement planning and estates.

How Formal Must a Will Be?
Copyright © by Janet Colliton, Esq.

Curious inquirers sometimes ask me what is the least formal legal document that will still be considered valid. Must the Power of Attorney be notarized? Will it be accepted without witnesses? What happens if the maker of a Will cannot easily locate someone outside the family to witness the signing of his Will? Can he ask a family member named in the document to sign without having it rejected later? Can one witness be used instead of two? Suppose the Pennsylvania statutorily required Notice and Acknowledgment forms are not attached to a Power of Attorney as in documents that are taken from the Internet?

I discourage this kind of “how low can you go” thinking. If anything, my experience has been that cutting corners at such times can cause major problems later. The expression to use instead of “how low can you go” is “better safe than sorry.”

Because of this belief, a Pennsylvania appellate court case decided last week caught my attention. The Will in that case tested the limits of minimalist thinking.

In the case of In Re: Estate of Norman F. Shelly, the Pennsylvania Superior Court was asked to decide whether a cardboard panel from a cigarette carton that was submitted for probate needed to be accepted as a Will by the Orphans Court of Franklin County.

While the material on which the “Will” was drafted was unorthodox, its deficiencies did not stop here. The maker’s signature failed to be notarized or witnessed and the language of the alleged “Will” was open to interpretation.

At least as to an unclear “Will” written on the side of a cigarette carton that is not notarized or witnessed, Pennsylvania courts will draw a line. The Superior Court rejected the Will.

These are the facts.
Norman Shelly died on July 27, 1999. Following his death, an attorney submitted a cardboard panel of a cigarette carton for probate on August 25, 1999.

The Register of Wills of Franklin County issued letters of administration c.t.a. naming an unrelated person, Michael J. Cook, as administrator. Two people who stated that they recognized Mr. Shelly’s signature signed Oaths of Non-Subscribing Witnesses attesting that the signature was his.

On November 5, 1999, the first of several appeals were filed from the decree of probate by a relative of Norm Shelly who would have been an intestate heir, that is, who would inherit if there is no Will. Eventually a group of would-be intestate heirs (referenced in the opinion as the “Four Heirs”) filed motions for summary judgment asking the Orphans Court to find as a matter of law that the writing on the cigarette carton was not a Will.

When the Orphans’ Court found against the administrator of the cigarette carton “Will” and alleged beneficiaries, they filed an appeal to Superior Court, which also examined the wording.

The carton writing was titled ‘FIRST AND LAST ONLY WILL.” Somewhere on the box, perhaps inside, the word “DRAFT?” appeared.

Items were listed with names of individuals beside them. The word “DEVIDE” appeared used as follows: “MONEY, DEVIDE MICHAEL COOKS SONS.” An arrow ran from that section to another section which read: “FARM MACH + MACHINES AND TOOLS MICHAEL COOK SR LIVING MY AGE”. The Superior Court found the language to be unclear and could not determine whether it meant a split among Michael Cook’s sons or his sons and Michael Cook.

Here are some lessons to take from the case.

  • First, although a person preparing a Will can do so in his or her own handwriting in a document known as a “holographic” Will, I would strongly recommend against this. Handwriting, abbreviations, misspellings, and even location of words can cause the document to be misinterpreted or even rejected.
  • Second, although an issue not covered in Shelly, once a typewritten Will has been properly drafted, signed, witnessed, and notarized, the maker should not write additional changes on the document. He should have another Will prepared or, for small changes, have a Codicil which amends one or more sections of the Will. A small misspelling or missed initial can be corrected and initialed
  • Third, if the maker of a Will believes that going to an attorney or following formalities in executing legal documents might be expensive, she can consider the cost of litigation. The Shelly case required appeals first to Orphans Court and then to Superior Court and a total of eight years and seven months of litigation.
I offer additional suggestions after reading the Court's opinion and Janet's article:
  • Don't write "draft" on a document intended to be enforced legally.
  • Don't rely on graphics in a legal document.
  • Try to spell correctly, whatever you write, wherever you write it.
  • Don't smoke -- it'll kill you.