Opinion
C.A. No. 19527
Submitted: July 31, 2003
Decided: September 25, 2003
Thomas Stephen Neuberger, Esquire, THOMAS S. NEUBERGER, P.A., Martin D. Haverly, Esquire, MARTIN D. HAVERLY ATTORNEY AT LAW, Wilmington, Delaware, Attorneys for Plaintiff
Charles Gruver, III, CHARLES GRUVER III, P.A., Hockessin, Delaware, Attorney for Defendants and Third-Party Plaintiffs.
William X. Moore, Jr., ROEBERG MOORE ASSOCIATES, P.A., Wilmington, Delaware, Attorneys for In Rem Defendants.
Michael K. Tighe, Esquire, TIGHE, COTTRELL LOGAN, P.A., Wilmington, Delaware, Attorneys for Third-Party Defendant.
MEMORANDUM OPINION
I.
Hilda Wilson died testate on September 26, 2001, a resident of Bear, Delaware. On October 16, 2001, the New Castle County Register of Wills admitted for probate her Last Will and Testament, dated August 10, 2001 (hereinafter "Will"). The Will replaced an earlier will and contained a substantially revised plan of disposition. The Will has attached to it a self-proving affidavit signed by Hilda and the two persons who served as witnesses.
The plaintiff in this case, Gunnar Molin, is Hilda's brother. Under the Will, he is entitled to a small bequest. Under the prior will, he and his two brothers were to share a 1/6 interest in the residue of the estate; Hilda's step-relations were to receive 4/6 of the residue; and the Grace Baptist Church was to receive the remaining 1/6 share. Under the Will at issue, three of Hilda's step-relations are to receive 70% of the residuary estate and Hilda's nephew (who is also Gunnar's nephew) Gerald Molin and his wife, Catherine, are to take the other 30%. Hilda's other step-relations are either left small bequests (in the case of her stepson, Richard), or nothing at all. Grace Baptist Church was left a small gift by check.
Dissatisfied with the disposition of his sister's estate, Gunnar brought suit on April 3, 2002, alleging that his sister lacked testamentary capacity, that the Will was the product of undue influence, and that there had been a failure to meet the statutory formalities when the Will was signed and witnessed. His complaint also alleges a claim in tort for "intentional interference with inheritance." The principal beneficiaries of Hilda's estate (other than her stepdaughter) are named as defendants. The complaint also names as "in rem respondents" all those persons named in the earlier will who either take nothing or only a small bequest under the Will. On or about December 17, 2002, the plaintiff and those in rem respondents who filed a response to the complaint in support of Gunnar's position abandoned any argument that Hilda lacked testamentary capacity.
Because the complaint challenged the legal sufficiency of the process by which the Will was formally executed, the defendants moved for leave to file a third-party complaint against Beverly Connolly, Esquire, Hilda's attorney, seeking possible indemnification. The court allowed this motion, and Connolly appeared and testified in the case.
This case was tried on March 4 and 6, 2003. At trial, Gunnar asserted a fifth claim — one related to the allegedly improper administration of Hilda's husband Elwood Wilson's estate following his death in 1995. After the conclusion of the trial, the parties tried, unsuccessfully, to reach a settlement. Thereafter, the parties submitted post-trial memoranda, and the court heard argument on July 31, 2003.
The thrust of this claim is that Hilda, as Executrix of Elwood's estate, improperly failed to treat certain jointly-held property as if it were the sole property of Elwood. Under Elwood's will, Hilda was only entitled to a life estate in his solely-held personalty, with the remainder to pass to others, including her brother Gunnar. Because all property that was titled in the joint names of Hilda and Elwood was treated as passing to Hilda outside of probate, the remainder interests created under Elwood's will could have attached only to a small amount of furniture and other personal property listed on the inventory and final account of Elwood's estate.
This opinion contains the court's findings of fact and conclusions of law relating to the issues presented at trial. As will be briefly discussed, the testimony at trial clearly and unambiguously refuted the claim of undue influence. There also was no credible evidence supporting the tort claim alleged. Similarly, there was a failure of proof as to the claim relating to the administration of Elwood Wilson's estate. Finally, the court is satisfied that Gunnar's challenge to the proper execution of the Will is without merit, both legally and factually. In sum, there is no doubt that Hilda acted freely and purposefully in making the Will, that she understood its contents and meant them to be her last will and testament. There is also no doubt that the Will was duly and validly executed by Hilda and properly witnessed by two witnesses. And, there is insufficient evidence in the record from which to conclude that Hilda lacked complete ownership in and dispositive power over any of the property nominally part of her estate.
Because the parties wished to avoid the expense, no transcript has been prepared of the proceedings at trial. The court has relied on the parties and its own notes in making findings of fact.
II.
A. Undue Influence
In Matter of Langemeier, this court recognized that:
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.
466 A.2d 386, 389 (Del.Ch. 1983).
"The essential elements of undue influence 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." Moreover, "Delaware law requires the party alleging undue influence to prove its actual exertion by a preponderance of the evidence."
In re Estate of West, 522 A.2d 1256, 1264 (Del. 1987) (citations omitted).
Id.
In this case, the plaintiff has failed to meet his burden of proof on most of these required elements. To begin with, there is scant evidence of susceptibility. Several witnesses testified that Hilda increasingly exhibited signs of confusion, but there is nothing in this testimony that raises any serious issue about her exercise of free will in setting her final plan of disposition. Moreover, all such testimony is greatly overshadowed by the testimony of Dr. C. Richard Sharbaugh, Hilda's long time family physician, as well as by the trial testimony of Connolly. Dr. Sharbaugh began treating Hilda in 1983 and saw her on a number of occasions between July 31, 2001 and August 16, 2001, a period that brackets the time Hilda consulted with counsel about her estate plans and executed the Will. Dr. Sharbaugh testified that he found no evidence of confusion in Hilda and that she had no problems beyond what anyone in her 80s would have. He clearly expressed the opinion that Hilda would not likely have been influenced by anyone.
The same conclusion is fairly inferred from Connolly's testimony. Connolly knew Hilda from 1995 to 1996 when Connolly acted as Hilda's counsel in her capacity as Executrix of Elwood's estate. When Connolly arrived at Hilda's house on August 9, 2001, Hilda was dressed in street clothes and remained alert and focused throughout their meeting. Although others were present when Connolly interviewed Hilda, Connolly and Hilda did all of the talking. Hilda was familiar with the contents of her estate and was able to instruct Connolly about the disposition of each element thereof. They specifically discussed Hilda's brother Gunnar and Elwood's son Richard, and Hilda told Connolly how each was to be included in the Will. In discussing the residuary clause, Hilda stated that her step-daughter Carol should get the least and that Kenneth Stepp ("Kenny"), Carol's son, should get the most. This was accomplished by leaving 10% to Carol, and 30% to each of Kenny, Kenny's sister Patricia, and Gerald and Katherine, as husband and wife. Hilda also named Kenny as the successor beneficiary to an annuity policy. Connolly's notes reflect that Hilda then reconsidered her bequests to Gunnar and Richard and decided to leave those bequests as they were.
Three of the defendants, Gerald Molin, his wife Katherine, and Kenneth Stepp, were in the dining room while Connolly and Hilda discussed the terms of the Will. Connolly at first asked that they leave but Hilda insisted that they stay. Connolly instructed them not to say anything during the interview.
Kenny, who receives the most (30% of the residual estate plus the annuity) was the most helpful and supportive of anyone toward Hilda during the years after Elwood's death. Hilda "adored" Kenny. His sister Patricia (30%) was the favorite grandchild of Elwood and Hilda. Their mother Carol (10%) took good care of Elwood and her mother, and remained in contact with Hilda after Elwood died. Gerald Molin (30%) was the son of Hilda's favorite brother, Everett. After Everett died in 1996, Gerald (and his wife Katherine) took Everett's place in Hilda's affections.
Hilda also had sensible reasons for treating others less generously. For instance, Elwood's son Richard Wilson receives only $2,500 under the Will, but this is explained by the fact that Hilda had had little or no contact with Richard since Elwood's death. In fact, she did not even want Richard told about her illness. Gunnar receives only $1,500 because Hilda thought he was already "wealthy," despite the fact that Hilda was fond of him and his wife.
Rather than support a showing of susceptibility, the trial evidence, fairly viewed and taken as a whole, leads the court to conclude that Hilda was a strong-willed person who resisted meddling or interference in her affairs by others. Indeed, the evidence leads to a conclusion that Hilda's decision to leave Gunnar only a small bequest was motivated, in part, by resentment of Gunnar and his wife's efforts to involve themselves in Hilda's estate planning.
There is also very little evidence to support a finding of any of the other required elements of undue influence. All of Hilda's relatives had access to her at all times, and all or most of them took the opportunity to visit with Hilda, both before and after she fell ill. Hilda herself chose Connolly to act as her counsel, and Hilda alone gave Connolly instructions about her estate plan. Furthermore, while many of Hilda's family were loving and supportive toward her, she had good reasons to dispose of her property as she did. Gunnar relies heavily upon the fact that Kenny, Gerald and Katherine were present when Hilda met with Connolly. The testimony on this point, however, is clear that when Connolly suggested they leave, they were all willing to do so. They remained in the room only because Hilda insisted. Even so, Connolly instructed them not to say or do anything improper or she would stop, and they abided by that instruction. According to Connolly, nothing improper happened at that meeting — it was Hilda, and no one else, who told Connolly what to do in drafting the Will. In the end, all Gunnar has shown is that the Will leaves more to the defendants than they would have taken under Hilda's prior will and that they had some participation in the events that led up to the creation of the Will. This is wholly inadequate to show undue influence.
For the same reasons, Gunnar has failed to establish the elements of the tort of intentional interference with inheritance, even if that tort is one that is recognized under Delaware law. See Chambers v. Kane, 424 A.2d 311, 314 (Del.Ch. 1980) for a discussion of the presumptive elements of such a tort in those jurisdictions in which it is recognized.
B. The Formalities of Execution
Perhaps realizing the weakness of the claim of undue influence, the focus of Gunnar's challenge to the Will has narrowed down to a single contention that the two witnesses did not sign the Will in Hilda's "presence." To put this claim in context, Gunnar does not contend that Hilda did not sign the Will in the presence of the two witnesses. Nor does he contend that the Will is not the one Hilda discussed with Connolly, knew she was signing and, in fact, signed. That is, there is no suggestion of fraud or forgery. Instead, this entire aspect of Gunnar's case is based on a dispute of fact about what happened after Hilda signed the Will. Gunnar contends that, once Hilda had finished signing the Will and a series of related documents, she arose from the table in the dining room of her home, walked into the adjacent living room and sat down in her favorite chair. He further contends that, from that chair, Hilda could not see what was happening in the dining room, although it is uncontroverted that there is a large doorless opening between the two "rooms." Finally, he argues that, because Hilda was in a different "room" and did not have a clear line of sight from her chair, the Will does not satisfy the formal requirement of execution found in 12 Del. C. § 202(a)(2) that it be "attested and subscribed in testator's presence by 2 or more credible witnesses."
Gunnar's argument fails for several reasons. First, the Will is accompanied by a self-proving affidavit, concededly prepared in compliance with the requirements of 12 Del. C. § 1305. Pursuant to 12 Del. C. § 1310, "[i]f the will is self-proved, compliance with signature requirements for execution is conclusively presumed. . . ." According to the Delaware Supreme Court, "[a] self-proving affidavit eliminates one aspect of proof of a will, namely the personal appearance of the attesting witnesses before the Register of Wills. The affidavit provides verification of witnesses' signatures and attests that the testator executed the will in their presence while appearing to be of sound mind and free from duress."
In the Matter of Will of Carter, 565 A.2d 933, 934 at n. 1 (Del. 1989).
Gunnar argues that the conclusive presumption arising from the selfproving affidavit applies only to the requirement found in 12 Del. C. § 202(a)(1) that Hilda sign the Will in the presence of the two witnesses. According to him, that same presumption does not cover the corollary requirement found in 12 Del. C. § 202(a)(2) that the witnesses sign the Will in Hilda's presence. For this odd proposition, Gunnar relies on the second sentence of the above-quoted language from the Delaware Supreme Court's opinion in Carter, which specifically refers to the first requirement but not the second.
The court will not construe either the statute or Carter so narrowly. The Carter opinion itself relies on In re Estate of Nelson, which emphasized that the effect of 12 Del. C. § 1310 is to make it unnecessary "for the attesting witnesses to appear in person before the Register of Wills in order to verify their role in the creation of the testamentary instrument." This is precisely what the Supreme Court reiterated in Carter in the first sentence block-quoted above. It is hard to believe that the General Assembly meant to excuse those witnesses from having to appear before the Register of Wills for the primary purpose of swearing that the testator signed the will in their presence and, at the same time, to require their presence before the Register of Wills in order to establish the secondary question of whether they were in the testator's "presence" at the moment they signed the Will. Instead, as the statute and both Carter and Nelson recognize, a properly prepared self-proving affidavit results in a conclusive presumption of "compliance with signature requirements for execution." The use of the plural form of "requirements" signifies that the legislature meant to cover both the signature requirement of the testator and the signature requirement of the witnesses.
447 A.2d 438, 439 (Del.Ch. 1982).
Id.
Further, even if the court were to reach a different legal conclusion, Gunnar has not made out his case factually. The court sees no purpose in reciting all of the testimony and all of the arguments made. It is sufficient to say that the court fully credits the testimony of Attorney Connolly as to the formalities she followed in the execution of the Will. She has substantial experience in the preparation of wills and is fully aware of her professional responsibilities in that connection. She testified fully and credibly both about her practice in the execution of wills and also about her specific recollection (supported by contemporaneous notes) of how the Will in this case was prepared and executed. From her testimony, I am satisfied that Hilda was seated at the dining room table when the two witnesses signed the Will.
I recognize that the testimony of the two persons who witnessed the Will was less clear on this subject and that at least one of them contradicted portions of an earlier affidavit given by her to Gunnar's counsel. That affidavit testimony, if read most favorably to Gunnar, might have led the court to conclude that Hilda was seated in the living room when the final step of having the witnesses sign the Will took place. Even if (contrary to the factual finding made by the court above) the court were to accept Gunnar's factual argument about where Hilda was, however, his claim still fails. That is so because the court would conclude from its review of all the evidence that persons seated at the dining table were, in the circumstances, still in Hilda's "presence" when she sat in her favorite chair in the living room. From that chair, Hilda could certainly see into the dining room and, according to the weight of the evidence, either could see persons seated where the witnesses were sitting or could do so with little effort by leaning forward or moving a few feet. This would satisfy the "presence" requirement found in 12 Del. C. § 202. See, W.W. Allen, Annotation, What Constitutes the Presence of the Testator in the Witnessing of his Will, 75 A.L.R.2d 318 (1993) (". . . to be within the testator's presence the attestation must occur where he is able to see it from his actual position at the time, or at most, from such position as slightly altered, where he has the power readily to make the alteration without assistance, and without causing himself pain or incurring a personal risk").
Rash v. Purnel, 2 Del. 448, 458 (1838) does not require a different result. In that case, the court interpreted the statute in question to mean that: "[t]he witnesses also, must sign in the presence of the testator; but this means only that they shall sign in the same room, and where the testator could see it if he choose; not that he did actually see the witnesses sign"). As discussed in the above noted Annotation, "[t]o render a signing by witnesses out of the room good, the testator, by the law of most jurisdictions, must have had substantially an uninterrupted view of it;" and "[i]t is not necessary to establish that the testator looked at and did in fact actually see the signing by the witnesses").
C. The Administration of Elwood's Estate
At the time of Elwood's death, he and Hilda jointly owned a number of bank accounts. Upon his death, those accounts were re-titled in Hilda's sole name, and certain of them are identified on the inventory of her estate as her sole property and are subject to disposition pursuant to the residuary clause of the Will. Gunnar claims that those accounts were Elwood's sole property, held in joint name merely for convenience and to avoid probate expenses. According to him, Hilda was entitled only to a life estate in those accounts and, upon her death, they should pass under the residuary clause of Elwood's will.
Even if this claim is not time barred and was properly asserted in this litigation (issues the court does not reach), Gunnar was required to make a showing at trial that Elwood was the sole owner in equity of one or more of the numerous bank accounts jointly titled with his wife at the time of Elwood's death. Gunnar completely failed to satisfy that burden. He offered no witness with knowledge of which, if any, of the jointly-held accounts represented Elwood's sole property. All Gunnar had to offer is that Hilda occasionally deflected his unwelcome inquiries about her need for a new will by saying that she had Elwood's will.
The evidence at trial showed that Elwood and Hilda both worked during their lives and both brought substantial assets to the marriage. Hilda continued to work after her marriage to Elwood. There also was no evidence from which the court could conclude either that Elwood and Hilda segregated assets during their marriage or that any particular account represented Elwood's sole property.
III.
For all of the foregoing reasons, the court concludes that judgment should be entered in favor of the defendants as to all claims. Consequently, the complaint will be dismissed with prejudice. Judgment shall also be entered in favor of Beverly Connolly on the third-party complaint and that pleading will be dismissed with prejudice. The defendants are directed to submit a form of final judgment on notice within 10 days from the date hereof.