In re Kittler

303 A.3d 463

IN RE: ESTATE OF: Susan L. KITTLER, Deceased

Appeal of: Karl E. Kittler

No. 1636 MDA 2022

Superior Court of Pennsylvania.

Argued August 30, 2023

Filed September 25, 2023

Erik D. Spurlin, York, for appellant.

John H. May, Lancaster, for appellee.

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E. ^*

OPINION BY MURRAY, J.:

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 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 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.

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 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 (11 ^TH 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 , 244 Pa. 574, 91 A. 220 (1914), Appeal of Knox , 131 Pa. 220, 18 A. 1021 (1890), and In re Kimmel's Estate , 278 Pa. 435, 123 A. 405 (1924). Appellant's Brief 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

...