Effect of Unrecorded Deed; Appeal from Probate of Photocopy of Will

The Orphans’ Court properly found that the burden of proof was on the surviving wife, as the surviving owner of property conveyed to her and the decedent by the decedent in a 2006 deed, as to whether the deeds to the same property executed and acknowledged by the decedent in 2004, but never recorded, were intended to be delivered and presently effective.  Because the decedent was both the grantor and the grantee (as trustee), the usual presumption of delivery upon execution did not apply, but the presumption of delivery upon acknowledgment still applied.  However, the circumstances (including the later recorded conveyance to the decedent and his wife) showed that the decedent never intended the 2004 deeds to be effective.

The surviving spouse’s claim that the decedent had revoked his will, and a copy should not have been allowed into probate by the Orphans’ Court, survived the waiver provisions of Pa.R.A.P. 342(c), even though the order was immediately appealable, because the issue was never raised in the courts below.  Because the order was part of proceedings relating to the administration of the estate and those proceedings were not completed, the order was not a “final order” and so the doctrines of res judicata and collateral estoppel did not bar her claim.

In re: Estate of Alfred E. Plance, Jr., 25 WAP 2016 (Pa. 12/19/2017).

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