IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN THE MATTER OF )
THE LAST WILL AND TESTAMENT OF ) C.A. No. 8024-ML
WILMA B. KITTILA )
MASTER‟S REPORT
(Post-Trial)
Date Submitted: October 21, 2014
Draft Report: January 29, 2015
Final Report: February 18, 2015
Scott E. Swenson, Esquire, of CONNOLLY GALLAGHER LLP, Wilmington, Delaware;
Attorney for Petitioners.
Richard H. Cross, Jr., Esquire, of CROSS & SIMON, LLC, Wilmington, Delaware;
Attorney for the Executor.
LEGROW, Master
The family members of an elderly widow became estranged from her during a
series of events that culminated in a guardianship proceeding more than a decade ago in
this Court. After her neighbors were appointed her guardians by order of this Court, the
woman revised her estate plan twice, both times excluding the family members who
petitioned for guardianship and who previously were the primary beneficiaries of her
estate. Those family members now challenge the validity of two wills executed by their
aunt. The challenged wills left the residue of the decedent‟s estate to a combination of
the guardians, two other friends, and charitable organizations. The petitioners contend
that the wills are invalid for one of three reasons: (1) the decedent lacked testamentary
capacity at the time she executed the wills, (2) the decedent was unduly influenced to
dispose of her estate in the manner reflected in the challenged wills, or (3) the terms of
the guardianship order precluded the decedent from making a will, rendering her legally
incapable of revising her estate plan.
The petitioners‟ case is not without merit. Among other things, although it is plain
that the family‟s decision to pursue guardianship drove a irreparable wedge between them
and their aunt, it appears more likely than not that the decedent already intended to revise
her will and exclude the family as beneficiaries before the guardianship petition was
filed. No coherent, definitive explanation for that decision has been offered. Ultimately,
however, I conclude that the absence of an explanation for that decision is not sufficient
to invalidate the decedent‟s will because the petitioners have failed to demonstrate by a
preponderance of the evidence that the decedent lacked testamentary capacity or was
1
unduly influenced at the time she executed her last will. This is my final report after trial
and post-trial briefing.
BACKGROUND
These are the facts as I find them after trial. Wilma B. Kittila (“Wilma” or the
“Decedent”) 1 was married to Richard Kittila (“Dick”) and resided in Hockessin,
Delaware on Mill Creek Road for the majority of the events at issue in this case. Wilma
and Dick had no children. The witnesses at trial described Wilma as independent,
particular, opinionated, and relatively private about her life and her belongings. 2 She
liked things done in a certain way and placed substantial value on her ability to control
her life.
A. The Kittila Family
Allan Kittila (“Allan”) was Dick‟s nephew and therefore was Wilma‟s nephew by
marriage. Allan was married to Karen Kittila (“Karen”), and Allan and Karen had four
children, Christopher Kittila (“Chris”), Theodore Kittila (“Ted”), Kathleen Kittila
Beaulieu (“Kathy”), and Timothy Kittila (“Tim”). Karen and Chris are the petitioners in
this action.
Allan, Karen, and their children enjoyed a close relationship with Wilma and Dick
that dated back to Allan‟s childhood. Wilma and Dick would vacation and celebrate
holidays with Allan, Karen, and their children, and when the Kittila children attended
college at the University of Delaware they regularly visited Wilma and Dick at their
1
I use certain individuals‟ first names for the sake of clarity. No disrespect is intended.
2
In re Will of Wilma B. Kittila, C.A. No. 8024-ML (Apr. 30-May 2, 2014) (TRIAL
TRANSCRIPT) (hereinafter “Tr.”) at 56-58 (Ted), 127-28 (Karen), 421 (C. Leach).
2
home in Hockessin. Until shortly before the events that precipitated the guardianship
proceedings, Wilma expressed great fondness for Allan, Karen, and the Kittila children.3
In March 1994, Wilma named Allan as her alternate attorney-in-fact in the event Dick
was unable to serve in that capacity.4
B. Wilma’s 1994 Will
Dick passed away unexpectedly in a home accident on Labor Day weekend in
1994.5 Wilma never remarried and came to rely on Allan and Karen for help with her
finances and maintaining her home.6 Shortly after Dick‟s death, Wilma revised her estate
plan, executing a new will along with a new durable power of attorney. The power of
attorney (the “1994 POA”) named Allan as Wilma‟s attorney-in-fact and designated
Karen as the alternate agent in the event Allan was unable to serve. 7 Wilma‟s last will
and testament (the “1994 Will”) named Allan, Karen, and their four children as the
residuary beneficiaries of her estate.8 Wilma gave Allan and Karen a copy of the 1994
Will to keep in their safe.9
C. The Guardianship Proceeding
During 2000 and 2001, members of the Kittila family began to notice some
changes in Wilma‟s behavior and demeanor. Wilma became more forgetful, needed
frequent reminders about appointments, and left notes around the house to remind her of
3
Id. at 7-12, 15-16 (Ted).
4
Joint Exhibit (“JX”) 23.
5
Joint Pre-Trial Stipulation and Order (“Pre-Tr. Order”) ¶ II(6).
6
Id. ¶II(4).
7
JX 25.
8
JX 24, Article FOURTH.
9
JX 117 at 5-6.
3
things, including seemingly intuitive items such as “Lock Door” and “Light Switch
On.”10 Wilma also employed a number of “handymen” to assist with various projects
around her home, which was located on a 3-acre wooded property. Wilma told the
Kittilas that one such man was a convicted murderer who had been sent back to prison on
charges of domestic violence. 11 On another occasion, Wilma refused to pay a
landscaping company and was sued for non-payment, which Ted helped her resolve.12
Wilma also made strange accusations that people were stealing her tools and siphoning
gas from her car.13 Perhaps most alarmingly, she became fixated on animals coming into
her garden and on one occasion discharged a gun in her house to get rid of an animal and
ended up shooting her windowsill instead.14
In 2002, Wilma started exhibiting anger and resentment toward Allan for reasons
she never articulated clearly to Allan or the other Kittilas. Seemingly out of nowhere,
Wilma began making vague accusations that Allan had done something and described
him as “evil” and “vindictive.”15 When pressed by Ted about her change of feelings,
Wilma related a story that had happened six or seven years earlier on a trip she took to a
wolf museum in Minnesota with Allan and Karen. Wilma refused to see or speak to
Allan, but she continued to treat the remaining members of the family warmly. 16 Medical
records from the same time period indicate that Wilma expressed anger and frustration
10
Tr. at 15-16, 57 (Ted), 95-96 (Karen).
11
Id. at 17 (Ted).
12
Id. at 18-19 (Ted).
13
Id. at 16, 60 (Ted).
14
Id. at 16-18 (Ted).
15
Id. at 20-22 (Ted), 98-100 (Karen).
16
Id. at 22 (Ted), 100 (Karen).
4
that Allan and his family wanted her belongings and were pressuring her to move to
assisted living in – she believed – an effort to get her possessions.17 In August 2003,
Allan unexpectedly received a letter in the mail, signed by Wilma and indicating that she
was revoking the 1994 POA.18
Around the same time, Wilma began describing with increasing affection a
neighbor named Boyce Fender (“Mr. Fender”), whom she called her “angel without
wings.”19 Wilma told Karen, and later Ted, that Mr. Fender frequently stopped by her
home to check on her and do odd jobs for her without any expectation of payment, that
she had romantic feelings for Mr. Fender, and that she wished she were younger and that
his wife was dead.20 When Ted and his wife visited Wilma, alarmed by the stories they
were hearing from Allan and Karen, Wilma told Ted that Mr. Fender had touched her leg
and kissed her, that she wanted to give him her house, and that Mr. Fender and his wife
had suggested she see Richard Franta, Esquire (“Mr. Franta”), whom Wilma described as
the attorney “[the Fenders] send all their old friends to.”21 Wilma went on to insist that
she needed to change her estate plans and that Mr. Fender‟s wife, Janet Fender (“Mrs.
Fender”), had given her ideas about estate planning.22
Although the Kittilas only were just hearing about these ideas, Wilma already had
consulted Mr. Franta to discuss estate plans. In an initial meeting on August 7, 2003,
17
JX 119 at 10.
18
JX 31 (handwritten letter dated Aug. 13, 2003).
19
Tr. at 106-107 (Karen).
20
Id. at 33 (Ted), 107-08 (Karen).
21
Id. at 26-30 (Ted). Mr. Franta had previously provided legal services to Mr. Fender about
unrelated matters. See id. at 284-85 (Franta).
22
Id. at 30-32 (Ted).
5
Wilma spoke lovingly of all the Kittilas, other than Allan, and indicated that she wanted
to name Karen and the four children as residuary beneficiaries in her will while revoking
the 1994 POA naming Allan as her agent.23 Mr. Franta advised Wilma how to revoke the
power of attorney.24 Wilma told Mr. Franta that she would like to name Mr. Fender as
her new agent under a power of attorney, but she was concerned he would refuse to do so
out of reluctance to interfere in family issues.25 In this initial meeting, Wilma also stated
she wanted her new will to give Mr. Fender a “right of first offer” to purchase Wilma‟s
home from the estate for fair market value.26
Wilma and Mr. Franta met again on August 13, 2003 to exchange additional
information about Wilma‟s estate plans. Although it is not entirely clear from the record,
it appears more likely than not that by the time of this meeting Wilma had decided to
disinherit all of the Kittilas, including the four children. 27 Mr. Franta‟s notes do not
indicate that Wilma expressed any desire or intent to leave any portion of her estate to the
Fenders, other than the right of first offer regarding her home.28 Mr. Franta does recall,
however, that Wilma informed him at or around this meeting that Mr. Fender was willing
to serve as her agent under a power of attorney. 29 Mr. Franta, who met with Wilma on at
least two occasions and who is an experienced estate attorney, had no concerns about
Wilma‟s testamentary capacity, describing her as a “relatively spry” and “spunky”
23
JX 18; Tr. at 266-68 (Franta).
24
Tr. at 273 (Franta).
25
Id. at 287-88 (Franta).
26
JX 18.
27
See JX 19 (crossing out the names of the 4 Kittila children for whom she was instructed to
provide an address); Tr. 271, 276 (Franta).
28
Tr. at 289-90 (Franta).
29
Id. at 269-272 (Franta).
6
woman who found her way to his office without assistance and expressed firmly and
coherently what she wanted to do regarding her estate.30
The Kittila family, however, was alarmed by Wilma‟s statements to Ted and
Karen, which were out-of-character and involved a man they did not know. The family
therefore consulted legal counsel. The day after his meeting with Wilma, Ted also made
an anonymous call to Adult Protective Services (“APS”), raising concerns that Wilma
was being exploited.31 The APS case manager who was assigned to the case conducted a
home visit with Wilma, administered a Folstein Mini-Mental State Examination
(“MMSE”), and posed questions regarding potential exploitation. Wilma flatly denied
that Mr. Fender was exploiting her or that he ever had asked her for money. Wilma
offered her own version of her dispute with Allan and stated that it stemmed from her
revocation of the 1994 POA, Allan‟s requests that Wilma give him her dining room table,
and her perception that – in substance – all Allan cared about was inheriting Wilma‟s
estate.32 Notably, during this visit, which occurred on August 25, 2003, Wilma stated
that she would have designated Karen or Ted as her attorney-in-fact when she revoked
the 1994 POA, but she was afraid that Allan would control their decisions if she did so.33
After interviewing Wilma, the case manager concluded that Wilma was “able to make her
30
Id. at 283-84, 286-88 (Franta). See also JX 45.
31
JX 14 at 4.
32
JX 14.
33
Id.
7
own decisions and self preserve[, and] gave reasonable reasons for revoking her nephew
as [durable power of attorney].”34
The family also contacted Wilma‟s primary care physician, Dr. Parul DeSai, who
examined Wilma on August 22, 2003. Dr. DeSai‟s notes from that examination indicate
that Wilma was “obsessing” about a bruise, “easily agitated, irritable, and hostile,” which
was “similar to past visits.” 35 Wilma also scored a 29/30 on the MMSE Dr. DeSai
administered. 36 After the examination, Dr. DeSai executed a physician‟s affidavit in
which she indicated Wilma was disabled by reason of “probable delusional thought
disorder; history of depression/anxiety; schizoid (paranoid) personality/affect; decreased
reasoning ability.”37 Armed with Dr. DeSai‟s diagnosis, Karen – with the support of the
rest of her family – filed a petition in this Court to be appointed as Wilma‟s guardian.
The guardianship petition was filed on August 27, 2003. 38 The following day,
Vice Chancellor Lamb signed an order appointing Karen as Wilma‟s interim guardian for
a period of 30 days and appointed William Garrett, Esquire as the attorney ad litem
charged with representing Wilma‟s interests.39 Karen called Wilma to notify her, for the
first time, about the petition and the appointment, after which Wilma became irate and
refused to speak further with Karen.40 Karen called Wilma again on September 1, 2003.
Wilma again tried to hang up, but the call did not disconnect and Karen overheard a
34
Id. at 3.
35
JX 33.
36
Id.
37
JX 35.
38
JX 37.
39
JX 38.
40
Tr. at 110-11 (Karen).
8
conversation between Wilma and a man Karen believed was Mr. Fender. 41 Karen
recorded her recollection of the call immediately after it occurred, and having heard
Karen‟s testimony on this point I credit her memory and contemporaneous notes of what
she overheard. In substance, Karen overheard Wilma and Mr. Fender discussing the
guardianship and Mr. Fender advising Wilma to quickly move her funds to new accounts
so Allan, Karen, and their attorneys could not find her money. To Karen, Mr. Fender
seemed gleeful at the thought of tricking the Kittilas. Karen also recalls hearing Wilma
and Mr. Fender exchanging “adoring” comments and agreeing that unnamed persons
should not know that Wilma and Mr. Fender were meeting.42 There is no evidence in the
record, however, that Wilma made any effort to move her accounts as Mr. Fender
suggested.
Wilma strongly opposed the guardianship petition and retained Suzanne Seubert,
Esquire as counsel to represent her in the proceedings. 43 In connection with her
opposition, Wilma also obtained a physician‟s affidavit from Dr. Russell Labowitz, who
began treating Wilma in 2002 and opined that she was not disabled and did not need a
guardian. 44 In October 2003, this Court entered an order for an independent medical
41
See JX 40, Tr. at 114-15 (Karen). Although she had not met Mr. Fender, Karen reasonably
concluded that the man she overheard was Mr. Fender after he twice referenced a woman named
Janet, which is the first name of Mr. Fender‟s wife.
42
JX 40.
43
JX 47.
44
JX 49.
9
examination of Wilma by Dr. Carol A. Tavani.45 That order also permitted Wilma to be
evaluated by a psychiatrist or physician of her own choosing.
Dr. Tavani interviewed Wilma and issued a report to the Court dated November
26, 2003. 46 Dr. Tavani diagnosed Wilma with dementia, probably Alzheimer‟s type.
According to the report, Wilma arrived on time for her appointment with Dr. Tavani, but
exhibited confusion in the waiting room, had difficulty finding the bathroom, and asked
for water while standing next to the water cooler. Dr. Tavani reviewed some of Wilma‟s
medical files that were available to her, though not all were, and noted that Wilma was
given a diagnosis of dementia in 2001 during a stay in a rehabilitation facility after knee
47
surgery. Wilma recounted her personal history to Dr. Tavani, with some
inconsistencies regarding dates, and exhibited deficits in both short term and long term
memory. When pressed about her falling out with Allan, Wilma related two stories: one
about the trip to the wolf museum in Minnesota, and a second about Allan becoming
enraged after Wilma refused to give a toast at Ted‟s wedding. Dr. Tavani concluded that
Wilma‟s cognition was “impaired,” that her judgment was clouded by cognitive deficit,
and that she seemed “rather guarded toward some people but perhaps insufficiently so
and overly trusting toward others.”48 Dr. Tavani did acknowledge that Wilma articulated
a “realistic, logical plan” regarding her living situation and her plan to move to an
45
JX 53.
46
JX 55 (Tavani 2003 Report).
47
Id. at P00260.
48
Id. at P00265.
10
assisted living facility. 49 Dr. Tavani noted the preliminary nature of her report, but
concluded Wilma exhibited “cognitive decline, apparently over time, with some
apparently paranoid ideation, and clearly with reactive depression.”50
In contrast, Wilma and her attorney retained Dr. Barry W. Rovner, who provided
his own report to the Court dated December 12, 2003, and who ordered
neuropsychological testing that was conducted on October 28, 2003.51 In their discussion
of the falling out with Allan, Wilma‟s explanation was similar to what she relayed to Dr.
Tavani, but Wilma elaborated that she felt Allan was motivated by his interests in her
estate, rather than her well-being, and that he was controlling and dominating toward
others. After reviewing the results of Wilma‟s testing, Dr. Rovner concluded that Wilma
showed mild cognitive deficits primarily affecting her memory, but that she did not meet
the criteria for major mental disorder, including dementia, because her deficits were
confined to memory and did not include any other neuropsychological functions or
impair her social or occupational functioning.52 Dr. Rovner concluded Wilma did “not
have a mental disorder []or impaired decision-making capability regarding who should be
her beneficiaries,” reasoning that Wilma had “a factual understanding of the relevant
issues regarding power of attorney and her possessions and an appreciation of how these
49
Id.
50
Id. at P00266.
51
See JX 13 (testing results); JX 57 (Rovner 2003 Report).
52
JX 57 at 7.
11
facts pertain to her,” and that she understood “the motivations that drive her decisions
and their possible outcomes.”53
As an aside, the Kittila family disputes Wilma‟s version of events and the timeline
she recounted to Dr. Tavani, Dr. Rovner, and others about the trip to the wolf museum
and the toast at Ted‟s wedding. Wilma repeatedly alleged that Allan became enraged
when she refused to give a toast at Ted‟s wedding and, to punish Wilma, he made her sit
in the back seat on the way to the museum and intentionally drove a round-about course
so she would not have much time to spend there. In contrast, the Kittilas recall that
Wilma asked to visit the wolf museum, that Allan and Karen took her there and spent
several hours there, and that other facts Wilma recalled about the trip (such as the
presence of Allan‟s mother-in-law or the fact that the trip occurred after Ted‟s wedding)
are demonstrably false. Neither Karen nor Ted had any knowledge of Allan asking
Wilma to make a toast at Ted‟s wedding, much less any tension that arose between Allan
and Wilma when Wilma allegedly refused to do so. Karen recalled that Wilma attended
the wedding and appeared to have a good time at the event and that the wedding occurred
three years after the Minnesota trip. Both events occurred several years before Wilma
began expressing anger toward Allan. Having reviewed the testimony, I believe the
Kittilas‟ recollection of these events is accurate, making one of two things likely: either
Wilma misremembered the sequence and actual facts of these life events, or she
intentionally misconstrued the stories to justify her feelings toward Allan. What remains
53
Id. at 8.
12
to be determined, however, is which is true and whether either possibility serves as a
basis to upend Wilma‟s estate plan.
Returning to the guardianship proceeding, armed with the competing opinions of
their experts, the parties recognized that their options were to work toward a settlement or
litigate the merits of their positions. Eventually, almost six months after the guardianship
petition was filed, the parties stipulated to a final order that appointed Wilma‟s long-time
neighbors, Michael and Carol Leach, as permanent guardians of her person and property
(the “Guardianship Order”).54 The Guardianship Order contained a number of provisions
that do not typically appear in guardianship orders issued by this Court. For example,
paragraph 2 of the order stated that Wilma retained “the right to legal representation and
the right to participate in making decisions which affect her life and property with the
final decision being reserved to the guardians.”55 In addition, Karen Kittila agreed not to
request copies of the inventory, accountings, or any “other pleadings related to finances”
filed with the Court, and Karen and the Kittila family agreed not to initiate contact with
any facility where Wilma lived.56 In return, the guardians agreed to confirm to Karen the
status of Wilma‟s financial condition, convey messages between Karen and Wilma until
Wilma agreed to direct contact, and “provide prompt notice to [Karen] of any significant
changes in Mrs. Kittila‟s medical condition, hospitalizations, medical emergencies, and
non-routine medical appointments.” 57 In connection with the winding up of the
54
Pre-Tr. Order ¶¶ (II)17-18; JX 64.
55
JX 64 ¶ 2.
56
Id. ¶ 7.
57
Id. ¶¶ 7, 10.
13
guardianship proceedings, Wilma submitted an affidavit stating that she did not believe
she needed a guardian, but consented to the appointment of Mr. and Mrs. Leach to bring
the proceedings to a close, minimize the associated expense, and “assist [her] in the
future should [Karen] or her family seek to interfere with me or my life.”58
D. The 2004 Will
Shortly after the Guardianship Order was signed, Wilma executed a new will.
While the guardianship proceedings were continuing, Wilma contacted an estate attorney,
Jerry Hyman, Esquire, to whom Wilma was referred by Ms. Seubert.59 Wilma initially
met with Mr. Hyman for two hours on December 15, 2003.60 At that meeting, Wilma
provided Mr. Hyman approximate figures regarding the value of her assets, although she
was unable to provide exact information at that time.61 During the December meeting,
Wilma told Mr. Hyman that she wanted to specifically exclude Allan from the will and
leave 80% of the residue of her estate to a charity assisting children in Wilmington,
Delaware, with Mr. Fender and Mrs. Fender each receiving 10% of the residue of the
estate.62 Shortly after their meeting, Mr. Hyman mailed a draft will to Wilma for her
review.
Wilma waited for approximately two months, until the Guardianship Order was
signed, before calling Mr. Hyman to discuss the draft will. During two different phone
58
JX 69 ¶¶ 8-9.
59
See JX 60 (intake form with handwritten note at bottom of the page 1 referencing “referral
from Suzanne Seubert … contested guardianship, but seems to have testamentary capacity”).
60
JX 8.
61
Tr. at 576-77, 588 (Hyman).
62
JX 58.
14
calls, one on February 18, 2004 and a second on February 23, 2004, Wilma and Mr.
Hyman spent a total of one hour discussing changes to the draft will.63 Wilma initiated
one if not both of these calls.64 Among the changes Wilma made to the draft will were
adding Mr. and Mrs. Leach as residuary beneficiaries of the estate.65
On February 24, 2004, Wilma went to Mr. Hyman‟s office for the signing
ceremony for her new will (the “2004 Will”). In its final form, the will gave a 10%
interest in the residue of Wilma‟s estate to each of the Fenders and each of the Leaches,
with the remaining 60% going to Child, Inc., a charitable organization in Wilmington,
Delaware.66 The 2004 Will also expressly left nothing to Allan, Karen, or the four Kittila
children.67
Mr. Hyman was aware of the Guardianship Order, but he did not talk to the
Leaches before the 2004 Will was signed and the Leaches were unaware of the will until
after it was executed.68 None of the beneficiaries of the 2004 Will were present during
the signing, and Mr. Hyman conducted his standard “signing ceremony” with Wilma
during which he asked her to identify the document she was signing, explain her
intentions, and state whether she was signing of her own free will.69 During his meetings
and phone calls with Wilma, and at the signing ceremony, Mr. Hyman concluded that
Wilma had testamentary capacity because she was capable of exercising thought,
63
JX 8.
64
Id.
65
JX 65.
66
Id. Article Third.
67
Id.
68
Tr. at 586-87 (Hyman); Pre-Tr. Order ¶ (II)23.
69
Tr. at 566-67.
15
reflection, and judgment, understood the nature of her property, and comprehended the
effect of her actions.70
E. Wilma Moves to Millcroft
Although the terms of the Guardianship Order required the Leaches to update the
Kittilas regarding material changes in Wilma‟s status, and indicated that the Leaches
would convey messages from the Kittilas, the Leaches had almost no contact with the
Kittilas after the Guardianship Order was signed and the Kittilas never saw Wilma again
until a chance meeting in a hospice facility shortly before she died. Mr. Leach testified
that, although he understood the terms of the Guardianship Order, he strove to balance
those terms with Wilma‟s interests and the likelihood she would be upset by contact from
the Kittilas or information about her being provided to the Kittilas.71
After Wilma began to calm down from the stress and anger she felt over the
guardianship proceedings, Wilma and the Leaches settled into a routine where the
Leaches would check on Wilma every couple of weeks.72 Mr. Leach handled most of the
financial aspects of the guardianship, and would spend significant time preparing
accountings, annual updates, and necessary petitions.73 Mr. Leach got into the habit of
preparing initial drafts of these papers, before involving counsel, to minimize costs and
preserve Wilma‟s assets.74 Mr. Leach provided Wilma a copy of the annual accounting
70
Tr. at 574-75 (Hyman).
71
Id. at 474-75, 477 (M. Leach).
72
Id. at 491-92 (M. Leach).
73
Id. at 488-90 (M. Leach).
74
Id. at 489-90 (M. Leach).
16
each year, and she would discuss with him – on a high level – the accounting and her
financial position.75
The Leaches began discussing with Wilma a plan to move her out of her
Hockessin home, but Wilma was very independent and valued her freedom, and the
guardians therefore spent considerable time assisting Wilma with making her own
decisions rather than imposing a decision upon her.76 Wilma and Mrs. Leach toured a
number of senior living facilities before Wilma ultimately selected Millcroft Senior
Living in Newark, Delaware (“Millcroft”). Wilma chose a two-bedroom apartment in
Millcroft‟s independent living section. To qualify for independent living at that time,
prospective residents of the facility would have been required to present a physican‟s
report indicating they were able to perform most activities of daily living independently,
including dressing, bathing, caring for their apartment, getting to meals, and the like. 77
Wilma moved to Millcroft in January 2005 and remained in the independent living
section until May 2012.78 The move and the associated sale of her home and some of her
personal belongings was a time-consuming process for Wilma and her guardians,
particularly because she had lived in the home for 50 years and amassed a large
collection of personal items.79 Although Wilma had difficulty adjusting to Millcroft in
the first few weeks after her move, she eventually organized her apartment and settled
75
Id. at 510-11 (M. Leach).
76
Id. at 492-93 (M. Leach).
77
Id. at 548-49 (Denney).
78
Id. at 552 (Denney).
79
Id. at 496-98 (M. Leach).
17
into a routine, after which the Leaches only visited her once or twice a month.80 Wilma
continued to drive herself to appointments, went shopping, played bingo, and attended
dinner in the Millcroft dining room every night, where she routinely socialized with the
other residents. 81 Wilma enjoyed clipping coupons and considered shopping for a
bargain an “adventure.” 82 Her main difficulties arose when she would misplace
something and ask the guardians to help her find it, which became a relatively common
occurrence in her life.83
Although the Kittilas believed that the guardianship would ensure Mr. Fender
would be “out of the picture,” in fact Mr. and Mrs. Fender continued to socialize with
Wilma,84 including visiting Wilma at Millcroft and inviting her to holidays and social
gatherings at their home.85 Wilma continued to speak highly of Mr. Fender, describing
him as the “greatest thing around.”86
F. The 2009 Will
In 2008, during a visit to Wilma‟s apartment to help her search for a missing item,
Mr. Leach came across a copy of the 2004 Will.87 This was the first time Mr. Leach saw
the will and he was “disappointed” that Wilma had named him and his wife as
beneficiaries because he had asked her not to do so. 88 Mr. Leach also believed Mr.
80
Id. at 499, 501 (M. Leach).
81
Id. at 429-30 (C. Leach), 501 (M. Leach), 553-55 (Denney).
82
Id. at 553-54 (Denney).
83
Id. at 500-01 (M. Leach).
84
Id. at 414-15 (C. Leach).
85
Id. at 335-37 (J. Fender).
86
Id. at 434-35 (M. Leach).
87
Id. at 502-03 (M. Leach).
88
Id. at 503 (M. Leach).
18
Fender was not the best choice as executor, both because that was not Mr. Fender‟s “skill
set” and because Mr. Leach felt his knowledge of Wilma‟s assets would allow him to
administer the estate without incurring substantial costs that might be necessary if
someone unfamiliar with her assets was appointed executor.89
Mr. Leach therefore wrote Wilma a letter – a practice he used when he wanted to
emphasize to Wilma the importance of a topic – suggesting she consider appointing him
as executor of her estate because of the potential cost savings.90 After Wilma agreed with
that idea, Mr. Leach retyped her 2004 Will, changing only the names of the executors,
and gave the revised draft to Wilma. Wilma approached him to discuss the will and
possible beneficiary changes, at which point Mr. Leach suggested she discuss the matter
with Mrs. Leach.91 Wilma and Mrs. Leach discussed Wilma‟s estate plan for “a while,” a
meeting that lasted longer than typical meetings with Wilma. 92 During this meeting,
Wilma and Mrs. Leach discussed the beneficiaries named in the draft will. Wilma asked
Mrs. Leach whether she had knowledge of “any charities that benefited women and
children.” Mrs. Leach mentioned two: the YWCA and the Kennett Education
Foundation, which were two charities of which Mrs. Leach had personal knowledge.93
At the time, Mrs. Leach was the treasurer of the Kennett Education Foundation.94 Mrs.
Leach also researched the charity named in Wilma‟s 2004 Will, Child, Inc., and told
89
Id. at 503-04 (M. Leach).
90
JX 90.
91
Tr. at 460 (M. Leach).
92
Id. at 459-60 (M. Leach).
93
Id. at 417-18 (C. Leach).
94
Id. at 419 (C. Leach).
19
Wilma it was “a very good charity that benefited women and children.” 95 During this
discussion, Wilma also mentioned wanting to increase the percentage of the estate she
left to Mr. and Mrs. Leach, explaining that they had been her guardians for 5 years and
she wanted to do something for them.96
After Wilma and Mrs. Leach finished their meeting, Mr. Leach made the
additional revisions to the draft will and contacted Edmund Lynch, Esquire, who
previously represented the Leaches in an estate matter. 97 Mr. Lynch agreed to assist
Wilma, but inquired about her capacity when he learned about the Guardianship Order.98
Mr. Leach invited Ms. Seubert to comment on Wilma‟s capacity, and Ms. Seubert
responded by e-mail that “Wilma is NOT incompetent, and although I have not talked
with her in almost a year, I suspect she is (sic) has plenty of vinegar left.”99
Mr. Lynch met with Wilma only once, for approximately 30 minutes, when she
came to his office on February 17, 2009 to sign her revised will (the “2009 Will”).100 He
reviewed with her the terms of the revised will and Wilma answered all of Mr. Lynch‟s
questions to the point he concluded she had a sense of who her family was and the assets
that belonged to her, and that she was acting out of her own free will.101 Neither the
Leaches nor the Fenders were present for the signing of the 2009 Will, which was
95
Id. at 418 (C. Leach).
96
Id. at 424 (C. Leach).
97
Id. at 438 (Lynch).
98
See JX 92.
99
Id.
100
Tr. at 439 (Lynch).
101
Id. at 442-43 (Lynch).
20
witnessed by Ms. Seubert and another individual. 102 The 2009 Will left 15% of the
residue of Wilma‟s estate to each of the Leaches and each of the Fenders, with the
remaining 40% divided between three charities: Child, Inc. (15%), YWCA, Inc. of
Wilmington, Delaware (15%), and the Kennett Education Foundation (10%).103 As with
the 2004 Will, the 2009 Will expressly made no provision for Allan, Karen, and their
children.
G. Wilma’s Decline and Passing
According to the Leaches and to Mary Denney, a Millcroft employee who spoke
to and observed Wilma on a regular basis, Wilma did not exhibit substantial deficits in
her mental capacity until early to mid-2011.104 At that time, her failing eyesight aroused
concerns for the Leaches regarding her driving capabilities, and her license ultimately
was revoked when she could not pass a driving test.105 Other evidence indicates that
Wilma was able to manage her affairs with relative autonomy through 2010. For
example, records from 2008 through September 2010 from Wilma‟s primary care
physician, Dr. James Salva, routinely describe Wilma as alert, oriented, cooperative, and
exhibiting normal judgment and with appropriate mood and affect.106 The testimony is
undisputed that until 2011 she managed well in Millcroft‟s independent living section,
was able to drive herself to appointments and social events, shopped for her needs, and
engaged in social conversations with the residents and staff at Millcroft. Although
102
JX 93.
103
Id., Article THIRD.
104
Tr. at 428-30 (C. Leach), 481-84 (M. Leach), 557 (Denney).
105
Id. at 429-30 (C. Leach), 481 (M. Leach).
106
See JX 7 at P002066, 2068, 2073-74, 2093, 2095, 2101, 2017, 2121, 2123.
21
Wilma was not an overly social person, she was not isolated, aside from what appears to
have been a life-long interest in maintaining her privacy. Despite the guardianship,
Wilma largely maintained the independence she valued, relying on the guardians
primarily to oversee her finances and help her locate her (frequently) misplaced
possessions.
By early to mid-2011, however, the Leaches agree that Wilma‟s physical
capabilities and her mental acuity were declining. She began accusing “the man” of
stealing things from her apartment, had difficulty driving, was having trouble managing
her medications, and exhibited poor judgment.107 For example, on one occasion Wilma
used her oven to try to heat her apartment. Wilma also was not able personally to
manage housekeeping tasks, but her paranoia about possible thefts left her unwilling to
accept assistance from hired help. In fall 2011, the Leaches retained a company called
Decisions4Life, which evaluated Wilma and made a series of recommendations.
Decisions4Life recommended that Wilma move to an assisted living facility where she
could be more closely monitored and receive assistance with the activities of daily living
108
she no longer could perform for herself. The Leaches agreed with that
recommendation, but Wilma‟s resistance to moving to an assisted living facility, which
Wilma called “death row,” was an evident and significant hurdle.109
In May 2012, Wilma was hospitalized and never returned to Millcroft, but instead
was placed in hospice, followed by a stay in a dementia unit at an assisted living facility,
107
JX 21; Tr. at 483-84 (M. Leach).
108
JX 101.
109
See Tr. at 508 (M. Leach).
22
followed by another hospitalization, rehabilitation, and a final stay in hospice, where she
passed away on October 19, 2012.110 Wilma‟s cause of death is listed as Alzheimer‟s
dementia on her death certificate.111
In the final months of her life, Wilma coincidentally resided for a time in the same
hospice unit where Allan Kittila was placed at the end of his life. Sadly, Allan had bone
marrow disease, which turned into acute leukemia, and he died on August 23, 2012, less
than two months before Wilma died.112 Although Mr. Leach learned by happenstance
that Allan and Wilma were staying in the same hospice unit, he did not share that
information with the Kittilas, even when Karen called the Leaches to inform them that
Allan was near death.113 Karen, however, discovered that Wilma was in the same hospice
unit less than an hour after Allan died.114 Karen sought and received permission from the
guardians to visit Wilma that day. Wilma did not recognize Karen, so their exchange was
brief but cordial.115 The Kittilas never saw Wilma again and did not learn of her death
until her obituary appeared in the newspaper ten days later.
H. The Guardianship Before and After Wilma’s Death
The Kittilas feel that Mr. and Mrs. Leach did not live up to either the spirit or the
terms of the Guardianship Order, and that belief is not without foundation, although most
of the decisions the Leaches made were reasonable under the circumstances they faced.
110
Id. at 508-09 (M. Leach).
111
Pre-Tr. Order ¶ II(32).
112
Tr. at 121-24 (Karen).
113
Id. at 121 (Karen).
114
Id. at 122-23 (Karen).
115
Id. at 123-24 (Karen).
23
First, the petitioners point out that the Leaches did not provide anything more than
cursory updates regarding Wilma throughout the guardianship, and even then usually did
so only when prompted by inquiries from the Kittilas. I believe this is true, but I also
recognize that Mr. and Mrs. Leach undertook their position as guardians to assist Wilma
and were forced to balance the terms of the Guardianship Order with Wilma‟s strong
antipathy toward the Kittilas and the likelihood that she would become upset if she
learned that information was being passed to the Kittilas. In addition, the Kittilas never
sought to enforce the terms of the guardianship order during Wilma‟s lifetime.
More significant is the Kittilas‟ justified anger that Mr. and Mrs. Leach did not (1)
inform them of Wilma‟s ill health at the end of her life, (2) notify the Kittilas that Wilma
was residing in the same hospice unit as Allan, or (3) notify the Kittilas when Wilma
passed away. Given Wilma‟s advancing dementia, I am doubtful that she would have
been upset – or even known – that information was provided to the Kittilas in the final
months of her life, and there is no justifiable excuse for the failure to inform the Kittilas
of Wilma‟s death. The Leaches are bright people who are not inexperienced with estate
matters, and I believe that they knew the Kittilas might challenge Wilma‟s will and did
not relish that fight, particularly given Mr. Leach‟s position as executor. Ironically, the
Leaches‟ decision to withhold information probably fed the Kittilas‟ concerns about
undue influence and increased the likelihood for litigation. In any event, although I do
not approve of the guardians‟ decision not to be forthcoming, particularly after Wilma‟s
death, I do not believe their actions are indicative – in this case – of undue influence.
24
The Kittilas‟ other criticism of the guardians bears mention. Although the Kittilas
believed that the Leaches would address the family‟s concerns regarding Mr. Fender‟s
influence on Wilma‟s life, the Kittilas were not aware that the Fenders and the Leaches
were friends and did not know that both Mr. and Mrs. Fender continued to socialize with
Wilma after the Guardianship Order was entered. The friendship between the couples
deepened after both Mrs. Leach and Mrs. Fender retired from their respective jobs. The
couples have traveled together to Egypt and St. John, and the Kittilas strongly imply that
the Leaches‟ friendship with the Fenders left them unable to protect Wilma from Mr.
Fender‟s influence on her life.
Although it is not a focus of either party‟s arguments, it bears mention that Mr.
and Mrs. Leach served as Wilma‟s guardians for almost a decade without seeking any
commission for their service. Under this Court‟s rules, the guardians were entitled to
petition for an annual commission based on Wilma‟s income and assets. Mr. and Mrs.
Leach chose not to request any such compensation, even in the years when the
guardianship required a significant outlay of time, such as the years when Wilma moved
and sold her home and the last year of her life, when significant health issues required
additional attention.116
I. Procedural History
The Kittilas learned of Wilma‟s death when her obituary was printed in the paper.
Ted promptly called Mr. Leach. Mr. Leach told Ted, falsely, that Karen had been
notified of Wilma‟s passing. Mr. Leach also gave evasive answers when Ted inquired
116
Tr. at 424 (C. Fender).
25
about Wilma‟s will; Mr. Leach stated that he did not know whether he was named in the
will and implied that Wilma‟s estate was small because her resources had been
exhausted. 117 In fact, Mr. Leach knew he was named in the 2009 Will because he
assisted Wilma with revising the will, and as her guardian he certainly knew the extent of
her estate, which contained approximately $450,000 at the time Wilma died.
On November 9, 2012, Karen and Chris filed a petition contesting Wilma‟s 2009
Will. Mr. Leach, as executor of Wilma‟s estate, moved to dismiss the petition on the
basis that it failed to state a claim on which relief could be granted. I issued a bench
report recommending that the Court deny the motion to dismiss, and Karen and Chris
filed an amended petition on April 17, 2013 challenging both the 2009 Will and the 2004
Will. Trial was held over three days beginning April 30, 2014. After the parties
submitted post-trial briefing and engaged in post-trial argument, I took the case under
advisement.
J. The Parties’ Trial Experts
Both parties introduced at trial competing expert reports regarding Wilma‟s mental
capacity at the time she executed the disputed wills. The petitioners relied on the expert
report and testimony of Dr. Tavani, while Mr. Leach – as executor – introduced the
expert report and testimony of Dr. Rovner. The parties‟ experts disagree regarding the
severity of Wilma‟s mental deficits in 2003 – when each of the doctors examined her –
and the extent those deficits affected her capacity to execute the disputed wills.
117
Id. at 50-53 (Ted).
26
Dr. Tavani is a psychiatrist with a distinguished professional history. She
presently is in private practice as the director of Christiana Psychiatric Services,
providing hospital consultation and outpatient counseling in Delaware. Dr. Tavani also
provides psychiatric consulting services in a drug and alcohol treatment facility, serves as
an expert witness in a variety of matters, and teaches at a number of institutions in
Delaware and Pennsylvania.
Dr. Tavani did not see Wilma again after she performed the independent medical
examination and issued her initial report in connection with the guardianship
proceedings. When called upon to serve as an expert in this matter, Dr. Tavani reviewed
Wilma‟s medical records along with some of the discovery exchanged in this case. 118 Dr.
Tavani‟s 2014 report reviewed the findings of her 2003 report, including her opinion that
Wilma “clearly demonstrated neurocognitive deficits consistent with dementia
presumably of the Alzheimber‟s type, with delusions, and also deficiencies in executive
function, and with depressed mood.” To update and test that conclusion, Dr. Tavani
reviewed all of the available medical records for Wilma beginning in approximately
2000, including the 2003 report issued by Dr. Rovner, noting each occasion in which
Wilma was described as having memory lapses, depression, aggressive or angry affect, or
paranoia. 119 Dr. Tavani discounts as “boilerplate EMR verbiage” Dr. Salva‟s records
describing Wilma as being oriented and having normal judgment. 120 Dr. Tavani also
criticizes Dr. Rovner‟s 2003 expert report as relying only on Wilma‟s self-reporting of
118
JX 119 at 5-6.
119
Id. at 6-18.
120
Id. at 15.
27
her own abilities.121 Based on her review of the record, Dr. Tavani concludes in her 2014
report that Wilma had dementia, likely Alzheimer‟s type, because she exhibited memory
loss, deficiencies in executive function, and a loss of social cognition. According to Dr.
Tavani, Wilma‟s dementia was present by 2003, would not have improved, and as a
result she lacked testamentary capacity and was susceptible to undue influence when she
executed the challenged wills.122
In contrast, Dr. Rovner opined that Wilma possessed testamentary capacity at the
time she executed the disputed wills. Dr. Rovner – like Dr. Tavani – has an impressive
professional history. He currently serves as a tenured professor in the Department of
Psychiatry and Human Behavior at the Jefferson Medical College of Thomas Jefferson
University, as the Director of the Alzheimer‟s Disease and Dementia Center at Thomas
Jefferson Hospital, and the Director of the Division of Geriatric Psychiatry at Jefferson
Medical College. Dr. Rovner reviewed his 2003 examination of Wilma, along with the
depositions and medical records obtained through discovery in this action and the
guardianship action, and disagreed with Dr. Tavani‟s conclusions regarding Wilma‟s
capacity and susceptibility. According to Dr. Rovner, Dr. Tavani reached her
conclusions without objective evidence and without formally assessing Wilma‟s
decision-making abilities or independently evaluating whether Wilma was suffering from
delusions.123 Pointing to Wilma‟s consistent high scores on the MMSE, the conclusions
of APS, an assessment of Wilma conducted at the University of Delaware in 2003, the
121
Id. at 7-8.
122
Id. at 18-21.
123
JX 3 at 4-5.
28
testimony of Mr. Lynch and Mr. Hyman, and Wilma‟s ability to live relatively
independently until a year before her death, Dr. Rovner reasons that, although Wilma had
dementia in later years, the dementia did not strip her of testamentary capacity at the time
she executed the disputed wills, and he contends the evidence shows that she had such
capacity and was not susceptible to influence from the Leaches or the Fenders during that
period.124
ANALYSIS
Delaware law disfavors invalidating a testamentary plan and this Court therefore
presumes that a will is valid, that a testator possessed testamentary capacity at the time
she executed a will, and that the will was not the product of undue influence.125 For that
reason, the party challenging a will ordinarily bears the burden of proof by a
preponderance of the evidence.126 Proof by a preponderance of the evidence “means that
certain evidence, when compared to the evidence opposed to it, has the more convincing
force and makes you believe that something is more likely true than not.”127
I. Wilma had testamentary capacity at the time she executed the 2009
Will.
The Delaware Supreme Court has explained that a person who makes a will must
“be capable of exercising thought, reflection and judgment, and must know what he or
124
Id. at 4, 6.
125
In re Estate of West, 522 A.2d 1256, 1263, 1265 (Del. 1987).
126
Id. at 1263; In re Estate of Justison, 2005 WL 217035, at *6-7 (Del. Ch. Jan. 24, 2005).
127
Mitchell Lane Publishers, Inc. v. Rasemas, 2014 WL 4925150, at *3 (Del. Ch. Sept. 30, 2014)
(quoting Triton Constr. Co. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115, at *6 (Del. Ch.
May 18, 2009)).
29
she is doing and how he or she is disposing of his or her property.” 128 In addition, a
testator must “possess sufficient memory and understanding to comprehend the nature
and character of the act.”129 In other words, a testator must know that he is disposing of
his estate by will and to whom.130 Testamentary capacity is measured at the time a will is
executed.131
The petitioners argue that Wilma lacked testamentary capacity at the time the
Guardianship Order was signed, and that the nature of her impairments were such that
she would not have regained capacity after that time. In making this argument, the
petitioners rely primarily upon their own observations of Wilma before the guardianship
petition was filed, Dr. Tavani‟s diagnosis, and the fact that Wilma‟s explanations of her
decision to remove the Kittilas from the 2004 Will did not comport with reality. The
estate, on the other hand, points to the opinion of Dr. Rovner and the observations of
Wilma‟s primary care physician, attorneys, and friends.
Only a modest level of competence is required to meet the standard for
testamentary capacity in Delaware. 132 Although the petitioners have offered some
evidence to the contrary, I conclude that they have not shown by a preponderance of the
evidence that Wilma – at the time she executed the 2009 Will – did not know she was
disposing of her property by will and to whom. I reach that conclusion for two reasons.
128
In re Estate of West, 522 A.2d at 1263; see also In re Estate of Justison, 2005 WL 217035, at
*7.
129
In re Estate of West, 522 A.2d at 1263.
130
Id.; Sloan v. Segal, 2009 WL 1204494, at *14 (Del. Ch. Apr. 24, 2009).
131
Sloan, 2009 WL 1204494, at *14.
132
In re Estate of West, 522 A.2d at 1263.
30
First, the evidence on which the petitioners rely does not, in my view, make it more likely
than not that Wilma lacked capacity in 2009. Second, the observations of several people
– including a number of disinterested witnesses – show that Wilma met the level of
competence required to execute a will in Delaware.
First, I credit the Kittilas‟ testimony that Wilma was experiencing memory
problems by 2003 and that other stressors in her life had left her unsettled and – at times
– angry without apparent provocation. Wilma‟s medical records indicate that she
exhibited similar symptoms after knee surgery and with Dr. DeSai. Wilma also appeared
somewhat disoriented in Dr. Tavani‟s office. That evidence, however, does not satisfy
the petitioners‟ burden, particularly when all those observations were made five or six
years before the 2009 Will was executed and are inconsistent with more recent evidence.
Dr. Tavani opines that Wilma had dementia and that the progressive nature of the
disease is such that Wilma would not have regained capacity after 2003. It is undisputed
that Alzheimer‟s dementia is a progressive and debilitating disease for which modern
medicine has found no cure. The nature of the disease typically is one of a steady
decline, possibly with plateaus, and in which a person may have periods of lucidity
followed by periods of confusions and disorientation. 133 Significantly, however, a
diagnosis of dementia, including Alzheimer‟s dementia, is not conclusive of a person‟s
testamentary capacity. Rather, this Court repeatedly has recognized that a person
diagnosed with Alzheimer‟s dementia may nevertheless possess testamentary capacity at
133
JX 119 at 20-21.
31
the time a will is executed.134 Rather than placing conclusive weight on the diagnosis of
medical professionals, this Court gives considerable attention to the testator‟s behavior
and condition at or near the time the will was executed.135
In reaching her conclusions about Wilma‟s capacity, however, Dr. Tavani placed
almost exclusive weight on the impressions of people who met with Wilma between 2000
and 2003, while discounting more recent evidence, most of which is inconsistent with her
opinion. For example, Dr. Tavani concluded Wilma had difficulties with executive
function and social cognition, but did not address the observations of Wilma‟s attorneys
and friends and gave no weight to the neuropsychological testing conducted by Dr.
Rovner‟s associate – which appears to be the only objective medical evidence testing
Wilma‟s executive function. Dr. Tavani also gives short shrift to Dr. Salva‟s records,
which are contemporaneous with Wilma‟s execution of the 2009 Will, concluding
without explanation that the indications that Wilma was oriented and exhibited normal
judgment must have been standard entries filled in by electronic medical record software,
rather than the result of Dr. Salva‟s evaluation of Wilma. Although Dr. Tavani‟s
dementia diagnosis may well be accurate, her conclusions regarding testamentary
capacity are not persuasive when weighed against the other record evidence, in part
because she does not seem to consider that evidence.
134
Sloan, 2009 WL 1204494, at *15; In re Estate of Justison, 2005 WL 217035, at *8-9 (Del.
Ch. Jan. 24, 2005); Scholl v. Murphy, 2002 WL 927381, at *2 (Del. Ch. Apr. 17, 2002) (Master‟s
Report).
135
In re Estate of Justison, 2005 WL 217035, at *9; Scholl, 2002 WL 927381, at *2-3.
32
In addition, Dr. Tavani and Dr. DeSai both appeared to conclude that Wilma was
suffering from delusions – namely those regarding Allan – and that those delusions
distorted her thinking at the time she executed the disputed wills.136 Although petitioners
do not directly argue the point, it is possible that delusions may affect a testator‟s
capacity to the point that he is not legally capable of making a will, but mere mistake or
prejudice do not rise to the level of a “delusion.” 137 Although the record shows that
Wilma was mistaken in her recollections about the trip to the wolf museum, the toast at
Ted‟s wedding, and the relation between those events, there is no evidence that she clung
to those beliefs after being presented with compelling evidence to the contrary, which
would be required to elevate Wilma‟s mis-recollection to a delusion. 138 Wilma also
offered other explanations for her falling out with Allan, such as her perception that he
only was interested in her possessions, rather than her well-being. However mistaken
Wilma‟s impression may have been, and I suspect it was mistaken, that fact that she
misinterpreted Allan‟s motivations is not enough to conclude she lacked testamentary
capacity or that delusions so affected her knowledge, memory, and understanding as to
make the challenged wills the result of the delusion.
Importantly, although Wilma indicated an intent to remove the Kittilas from her
will before the guardianship was filed, she did not do so until after the guardianship
proceeding concluded and did not indicate who the replacement beneficiaries would be
136
See e.g., Pet‟rs‟ Post-Trial Opening Br. at 58.
137
See e.g., In re Barnes’ Will, 18 A.2d 433 (Del. Super. 1941); Rodney v. Burton, 86 A.2d 826
(Del. Super. 1912).
138
JX 3 at 5.
33
until that time. The Kittilas acknowledge the devastating effect the guardianship
proceedings had on Wilma‟s feelings for the family. Therefore, however incorrect
Wilma was regarding Allan and the rest of the family before the guardianship
proceedings began, I cannot conclude that it was those mistaken beliefs, rather than her
anger over the guardianship proceedings, that prompted Wilma to sign the 2009 Will.
In summary, although the absence of an understandable explanation for Wilma‟s
change of heart regarding Allan is frustrating, particularly for the Kittilas, I cannot
conclude that it serves as a basis to overturn Wilma‟s testamentary scheme. This is
particularly so given the ample and compelling evidence that Wilma met the standard for
capacity at the time she executed the 2009 Will. First, two attorneys – Mr. Lynch and
Ms. Seubert – observed Wilma on the day she executed that will. Although Mr. Lynch
never had met Wilma before, he did discuss the will with her and had no concerns about
her capacity. Ms. Seubert had known Wilma for years and was well positioned to notice
any significant decline in her functioning. In addition, Wilma‟s primary care physician
described her as oriented and exhibiting normal judgment between 2008 and 2010,
Wilma was able to live independently in that time period, she continued to drive, make
appointments, and socialize with the other Millcroft residents, and she had a general
sense of the extent and character of her assets, even though she was not independently
managing her finances. 139
139
The fact that Wilma may not have known the exact value of her assets at the time she
executed the 2009 Will does not lead me to conclude that she lacked capacity. Rather, Mr.
Leach‟s undisputed testimony, which I found credible, is that Wilma maintained a general sense
of her financial assets, asked questions regarding her financial security, and demonstrated
34
In short, balancing the evidence presented by petitioners against the evidence
presented by the Estate, I believe it is more likely than not that Wilma could exercise
thought, reflection, and judgment and understand the nature of her actions at the time she
executed the 2009 Will. The petitioners argue, however, that the typical presumption of
validity and the allocation of the burden to the party objecting to a will should not apply
in this case. The Delaware Supreme Court‟s decision in In re Will of Melson instructs
that the presumption of validity and the allocation of the burden of proof to the objector
do not apply when
the challenger of the will is able to establish, by clear and convincing
evidence, the following elements: (a) the will was executed by „a testatrix
or testator who was of weakened intellect‟; (b) the will was drafted by a
person in a confidential relationship with the testatrix; and (c) the drafter
received a substantial benefit under the will.140
If the petitioners can make that showing, the burden shifts to Mr. Leach to prove by a
preponderance of the evidence that Wilma possessed testamentary capacity and executed
the challenged wills free from undue influence.141
It is fair to conclude that Mr. Leach received a substantial benefit from the 2009
Will, at least if the increase in his share of the residue is considered in conjunction with
the increase in Mrs. Leach‟s share, and if the Court assumes that the bequest to the
Kennett Education Foundation – on whose board Mrs. Leach served – was a benefit to
Mrs. Leach. The petitioners, however, have not shown by clear and convincing evidence
concern regarding her finances. See Scholl v. Murphy, 2002 WL 927381, at *4 (fact that testator
did not know the balance in his bank accounts was not sufficient to show a lack of testamentary
intent).
140
711 A.2d 783, 788 (Del. 1998).
141
Id.
35
that Wilma was of weakened intellect at the time she executed the 2009 Will or that Mr.
Leach fairly may be characterized as the “drafter” of the 2009 Will.
There is no Delaware case precisely defining the standard for “weakened
intellect,” although it is clear that the standard is less than that required to show a lack of
testamentary capacity. 142 A finding that a testator suffered from a weakened intellect
does not require “an advanced degree of debilitation,” and may be shown where there
was “a sudden change in the testator‟s living habits and emotional disposition.”143
If Wilma had executed the challenged will in 2011, when her faculties began to
slip noticeably and those around her observed changes in her personality and emotional
stability, the petitioners would have a stronger case that Wilma was of weakened
intellect. In 2009, however, Wilma was living independently, scheduling and driving
herself to appointments, regularly attending evening meals and socializing with other
Millcroft residents, and all of the trial witnesses who observed her in this time period
described her as lucid and largely self-sufficient. Dr. Salva‟s records from 2009 are not
indicative of someone exhibiting “weakened intellect.” Although her guardians managed
her finances, and she misplaced personal items not infrequently and required the
guardians‟ assistance to find them, Wilma‟s dementia apparently had not progressed to
the point that she required substantial daily assistance. In addition, the undisputed
testimony showed that she remained opinionated and strong-willed and could not easily
be swayed, even by her guardians.
142
Sloan v. Segal, 2009 WL 1204494, at *13.
143
Id.
36
Although that conclusion is dispositive of the question of whether the petitioners
can meet the Melson test, I also do not believe that Mr. Leach fairly may be described as
the “drafter” of the 2009 Will. Mr. Leach did prompt Wilma to review her 2004 Will,
and he did transcribe the 2004 Will into electronic form and make some changes to the
Will. The only change Mr. Leach initiated, however, was naming himself as executor,
which he reasonably concluded could save Wilma‟s estate money given his familiarity
with Wilma‟s finances. Any other changes were those Wilma chose to make after she
reviewed the will. Mr. Leach then input those changes into the electronic copy of the
2009 Will and forwarded that to an attorney, after which Mr. Leach removed himself
from the process. Although Mr. Leach may fairly be described as a “scribe” for purposes
of the 2009 Will, I do not believe the petitioners have shown by clear and convincing
evidence that he “drafted” the Will, at least as that term was used by the Supreme Court
in Melson.
In Melson and in other cases in which this Court has shifted the burden of proof
under the Melson test, the will in question was drafted by a layperson, without the input
of an attorney and without the testator consulting counsel. 144 In contrast, Mr. Leach
transcribed an earlier will that was the product of Wilma‟s extensive consultation with
144
See In re Will of Melson, 711 A.2d at 785 (substantial beneficiary of will used software
package to draft a will for his hospitalized mother, who signed the will without consulting an
attorney and in the presence of witnesses who did not hear the testatrix speak and who never had
met her before); Sloan, 2009 WL 1204494, at *15 (substantial beneficiary of challenged codicil
drafted codicil and presented it to testatrix, who signed it without consulting counsel and while
residing in a locked wing of a dementia unit); In re Will of Wiltbank, 2005 WL 2810725 (Del.
Ch. Oct. 18, 2005) (beneficiary drafted will using computer program and then drove testator to
bank to have the will notarized and witnessed); In re Estate of Hafer, 2000 WL 1721129 (Del
Ch. Oct. 25, 2000) (will was drafted by the son of the primary beneficiary and without the
testator consulting counsel before executing the will).
37
her attorney, Mr. Hyman. Two other attorneys, Mr. Lynch and Ms. Seubert, were present
when Wilma signed the 2009 Will, at which time she confirmed that she understood its
contents. Taking a pragmatic view of the Melson test, I do not believe that the factors
animating that court‟s decision to shift the burden of proof apply in these circumstances.
Mr. Leach followed his common practice of saving money by preparing a draft of a legal
document for Wilma, but then passed the draft to an attorney who reviewed the
document, met with Wilma, and watched her execute the document in the presence of her
long-time attorney. Even if Mr. Leach “drafted” the will under Melson, however, I do
not believe the burden of proof should shift because Wilma was not suffering from
weakened intellect.
II. The 2009 Will was not the product of undue influence.
The petitioners also contend that the challenged wills were the product of undue
influence, arguing that the Leaches unduly influenced Wilma to make the 2009 Will and
that the Fenders unduly influenced her to make the 2004 Will. Under Delaware law,
undue influence is
an excessive or inordinate influence considering the circumstances of the
particular case. The degree of influence to be exerted over the mind of the
testator, in order to be regarded as undue, must be such as to subjugate his
mind to the will of another, to overcome his free agency and independent
volition, and to compel him to make a will that speaks the mind of another
and not his own. It is immaterial how this is done, whether by solicitation,
importunity, flattery, putting in fear or some other manner. Whatever the
means employed, however, the undue influence must have been in
38
operation upon the mind of the testator at the time of the execution of the
will.145
A party challenging a will must prove the five elements of undue influence by a
preponderance of the evidence. Those elements are: “(1) a susceptible testator; (2) the
opportunity to exert influence; (3) a disposition to do so for an improper purpose; (4) the
actual exertion of such influence; and, (5) a result demonstrating its effect.”146
Although the petitioners can demonstrate (1) that the guardians had the
opportunity to exert influence over Wilma, given their position of authority in her life,
and (2) assuming an exertion of influence, a result demonstrating its effect, the petitioners
have failed to prove the remaining three elements of the claim. First, the evidence does
not, in my view, support a finding that it is more likely than not that Wilma was a
susceptible testator at the time she executed the 2009 Will. Inquiry into susceptibility is
similar to considerations of capacity, although susceptibility is a lower threshold.147 A
finding of susceptibility often is equivalent to a finding that a testator suffered from
weakened intellect under the Melson test.148 Conversely, having concluded that Wilma
did not have weakened intellect when she executed the 2009 Will, I conclude that she
was not a susceptible testator for largely the same reasons. Rather that regurgitate that
reasoning, I note a couple of key facts supporting my conclusion. First, although the
petitioners argue otherwise, Wilma was not socially isolated when she signed the 2009
145
In re Estate of West, 522 A.2d 1256, 1264 (Del. 1987) (quoting In re Will of Langmeier, 466
A.2d 386, 403 (Del. Ch. 1983)).
146
In re Estate of West, 522 A.2d at 1264; In re Will of Cauffiel, 2009 WL 5247495, at *7 (Del.
Ch. Dec. 31, 2009); In re Will of Langmeier, 466 A.2d at 403.
147
In re Will of Cauffiel, 2009 WL 5247495, at *7.
148
Sloan v. Segal, 2009 WL 1204494, at *16; In re Estate of Hafer, 2000 WL 1721129 at *3.
39
Will. 149 She was living in an apartment complex with many other seniors, regularly
attended dinners and socialized with those residents, and had her own car and could drive
herself places. Likewise, although Wilma relied on the guardians to assist her with her
finances and help her locate lost items, she was not dependent on them in her day-to-day
life, and continued to shop for herself, make and drive to her own appointments, and
otherwise self-preserve.150
The petitioners also have not shown that the Leaches had a disposition to influence
Wilma. Although it is undisputed that Mr. Leach suggested Wilma revise her will to
name him as executor and referred her to a family attorney to finalize the will, I do not
find those actions indicative of a disposition to exert influence over Wilma. The
Leaches‟ other conduct also is not consistent with someone disposed to exert influence
over another. For example, in connection with the 2009 Will, the Leaches made sure
Wilma‟s longtime attorney, Ms. Seubert, was involved in the discussion. The petitioners
also have not shown that the Leaches had any particular motive to influence Wilma, other
than a general pecuniary motive that could apply to any beneficiary of a will. If that
pecuniary motive were a particular factor for the Leaches, however, one would have
149
In support of this contention, petitioners cite the Decisions4Life report dated December 5,
2011. The report, issued more than two years after Wilma executed the 2009 Will, was made at
a time when Wilma‟s dementia was impacting her daily life, she had withdrawn socially, and her
driving privileges had been revoked.
150
Compare In re Will of Cauffiel, 2009 WL 5247495 (decedent was physically weakened, frail,
and dependent on third parties for her day to day care and therefore was a susceptible testator).
40
expected them to seek a commission during the course of their service as Wilma‟s
guardians. The Leaches, however, never sought any payment in that regard.151
Finally, the petitioners have not shown that the Leaches actually exerted influence
over Wilma regarding her will. Even if the petitioners had shown that the Leaches had a
motive to influence Wilma, the actual exertion of influence cannot be inferred from
motive and opportunity.152 At best, the possibility Wilma was unduly influenced is no
more than one of two equally plausible explanations, which is not sufficient to show
actual influence under Delaware law. 153 Having reviewed the evidence, I find it more
likely that Wilma chose to increase the portion of the estate bequeathed to the Leaches
out of gratitude for their service as her guardians. I found the Leaches‟ testimony
credible on the issue of whether they influenced any changes to Wilma‟s will other than
naming Mr. Leach as executor. In addition, the fact that Wilma met with two attorneys,
outside the presence of the Leaches, before she signed the 2009 Will lessens the
likelihood that she signed the will under inappropriate influence. The view of those
attorneys that she was not unduly influenced is entitled to considerable weight by this
Court.154
151
By saying this, I am not suggesting that guardians who seek a commission are benefiting
improperly from their fiduciary position, but simply pointing out the Leaches‟ conscious
decision not to take any money from Wilma during her lifetime.
152
In re Estate of West, 522 A.2d 1256, 1264-65 (Del. 1987); In re Will of Cauffiel, 2009 WL
5247495, at *8.
153
In re Estate of West, 522 A.2d at 1265; In re Estate of Justison, 2005 WL 217035, at *9 (Del.
Ch. Jan. 24, 2005) (If the record offers two equally plausible explanations for a change of
beneficiary, one of which does not involve undue influence, the burden of proof has not been
met).
154
In re Will of Cauffiel, 2009 WL 5247495, at *9.
41
III. The Guardianship Order did not deprive Wilma of the legal capacity
to make a will.
The petitioners also argue that, regardless of issues of testamentary capacity or
undue influence, Wilma lacked legal capacity to make a will because the Guardianship
Order deprived her of that right. The petitioners contend that paragraph 2 of the
Guardianship Order, which stated that Wilma retained “the right to legal representation
and the right to participate in making decisions which affect her life and property with the
final decision being reserved to the guardians,” precluded Wilma from executing a will
without the knowledge and consent of her guardians. The petitioners assert that this
incapacity invalidates both the 2004 Will, of which the guardians had no knowledge until
after it was signed, and the 2009 Will, which the guardians did not witness or ratify at the
time it was signed.
In support of their argument, the petitioners point to this Court‟s decision in In re
Will of Langmeier, in which this Court invalidated the will of an elderly woman over
whom a guardianship was imposed two weeks before she executed the challenged will.
Among other things, the Court expressed surprise and dismay that the will was executed
shortly after the guardianship order was entered and without notice to either the guardian
or its counsel.155 Nothing in the Langmeier decision, however, either states or suggests
that a guardianship order deprives a ward of the legal right to make a will. Rather, the
Court in Langmeier invalidated the will on the basis of lack of testamentary capacity and
undue influence.
155
466 A.2d 386, 395 (Del. Ch. 1983).
42
In fairness, however, the petitioners do not appear to argue that a guardianship
order always deprives a ward of the power to make a will, but rather that the
Guardianship Order over Wilma was distinct because of the addition of paragraph 2. The
question, therefore, is whether paragraph 2 can be read as stripping Wilma of the right to
make a will. I conclude it cannot because a fair reading of the guardianship statute
indicates that this Court – and by extension, Court-appointed guardians – may not make a
will on behalf of a disabled person. Specifically, 12 Del. C. § 3901(e) provides that,
once the Court determines that an individual is disabled within the meaning of Section
3901, the Court “shall have the same powers of control over the estate of the person with
a disability which the person with a disability could exercise, if not incapacitated, except
the power to make a will.”156 The Court may tailor any guardianship order by giving a
guardian more limited powers than those enjoyed by the Court, or may expand a
guardian‟s power to some degree, but any power so granted must be a power “which the
Court itself could exercise under [Section] 3901.”157 In other words, the Court does not
have the power to make a will on behalf of a disabled person and therefore could not
have conferred that power on the Leaches. Whatever the import of paragraph 2 of the
Guardianship Order, it did not grant the Leaches “final say” regarding Wilma‟s will,
because Delaware law expressly excludes that power from the powers the Court may
extend to guardians. Because of this statutory language, I do not believe that paragraph 2
156
12 Del. C. § 3901(e) (emphasis added).
157
12 Del. C. § 3923(a).
43
of the Guardianship Order can be read in a manner that eliminated Wilma‟s right to make
a will.
CONCLUSION
This is a difficult case, tried and presented by able counsel who did an admirable
job marshalling the evidence. Regardless of my conclusions, I do not believe the Kittilas
pursued this case for financial reasons. Rather, I believe they did so – at least in part – in
an effort to put right their memories and perception of the relationship they lost with their
beloved aunt. Ultimately, however, the evidence is not sufficient to allow this Court to
overturn the 2009 Will. Because I conclude that the petitioners have not met their burden
to invalidate the 2009 Will, I need not consider the validity of the 2004 Will. 158 For the
foregoing reasons, I recommend that the Court enter judgment in favor of the estate and
against petitioners. This is my final report and exceptions may be taken in accordance
with Rule 144.
/s/ Abigail M. LeGrow
Master in Chancery
158
At oral argument the petitioners asserted that the 2009 Will was based on and therefore
tainted by the 2004 Will, and that the Court therefore must independently determine the validity
of the 2004 Will. I disagree. First, by concluding that Wilma possessed testamentary capacity at
the time she executed the 2009 Will, I implicitly have determined that Wilma also possessed
capacity at the time she executed the 2004 Will, since the petitioners‟ argument regarding her
capacity is based on the same analysis of her mental state, namely the opinions of Dr. Tavani and
Dr. DeSai and Wilma‟s purported delusions regarding Allan, Karen, and their children. Second,
even if the petitioners could prove that the 2004 Will was the product of undue influence – which
I do not believe they could do – there is no evidence that Wilma remained under the alleged
influence of Mr. Fender at the time she executed the 2009 Will. In fact, the Petitioners do not
even argue that Mr. Fender was aware of the 2009 Will, much less influenced its contents. Free
from any possible influence from Mr. Fender, Wilma reviewed the contents of the 2004 Will and
continued to name the Fenders as beneficiaries. For those reasons, I do not believe that I need
separately to review the validity of the 2004 Will.
44
IMO Last Will & Testament of Wilma B. Kittila
Combined Opinion