Law of Wills, 2016A

Orders affirmed.
14.3 Execution Errors
Even if the attorney does a flawless job of drafting a will, problems may occur in the
execution process. Courts have to decide whether or not to excuse or correct an obvious execution
defect. Some courts take a hard stance and invalidate wills if the testators have not strictly
conformed to the will statutes. Other courts are motivated by a desire to carry out the testators’
intent, so they read the statutes more liberally. Those courts have relied upon two doctrines to
allowed defective wills to be probate.
14.3.1 Strict Compliance
Some courts have refused to give relief to devisees who are negatively impacted by the
testator’s failure to strictly comply with the requirements set forth in the applicable Wills Act. A
court may take that stance even when it is clear that the will is consistent with the testator’s wishes.
Under this strict compliance approach, a will that does not strictly comply with the formal statutory
requirements is invalid. This rule creates a conclusive presumption of invalidity for an imperfectly
executed will. As a result, if the instrument is not executed in compliance with every statutory
formality, the court will not permit the document to be probated even if there is compelling
evidence that the testator intended the document to be his or her will.
In re Pavlinko’s Estate, 148 A.2d 528 (Pa. 1959)
BELL, Justice.
Vasil Pavlinko died February 8, 1957; his wife, Hellen, died October 15, 1951. A testamentary
writing dated March 9, 1949, which purported to be the will of Hellen Pavlinko, was signed by Vasil
Pavlinko, her husband. The residuary legatee named therein, a brother of Hellen, offered the writing
for probate as the will of Vasil Pavlinko, but probate was refused. The Orphans’ Court, after hearing
and argument, affirmed the decision of the Register of Wills.
The facts are unusual and the result very unfortunate. Vasil Pavlinko and Hellen, his wife, retained a
lawyer to draw their wills and wished to leave their property to each other. By mistake Hellen signed
the will which was prepared for her husband, and Vasil signed the will which was prepared for his
wife, each instrument being signed at the end thereof. The lawyer who drew the will and his
secretary, Dorothy Zinkham, both signed as witnesses. Miss Zinkham admitted that she was unable
to speak the language of Vasil and Hellen, and that no conversation took place between them. The
wills were kept by Vasil and Hellen. For some undisclosed reason, Hellen’s will was never offered
for probate at her death; in this case it was offered merely as an exhibit.
The instrument which was offered for probate was short. It stated:
‘I, Hellen Pavlinko, of * * *, do hereby make, publish and declare this to be my Last Will and
Testament, * * *.’
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