Opinion
C.A. No. 17969-NC.
Date Submitted: January 27, 2003.
Date Decided: April 24, 2003.
Gordon L. McLaughlin, Esquire of LAW OFFICE OF GORDON MCLAUGHLIN, Wilmington, Delaware; Attorney for Petitioners.
Thomas Herlihy, Esquire of HERLIHY HARKER KAVANAUGH, Wilmington, Delaware; Attorney for Respondent.
MEMORANDUM OPINION
Pending is a petition challenging the validity of a will (the "1998 Will") executed by the decedent, Harold Boyd ("Boyd"), on September 23, 1998. The petitioners are Betty Vanderwerff ("Betty") and Kenneth Swain ("Swain"), who are Boyd's niece and nephew. The petitioners claim that the respondent, Steven Sokol ("Sokol"), a convicted felon who knew Boyd for only a short time, manipulated their elderly, senile uncle to revoke his previous will (the "1988 Will") and to execute a new will that made Sokol a one-third residuary beneficiary, and also the executor, of Boyd's estate. The petitioners seek to invalidate the 1998 Will on the grounds that Boyd lacked testamentary capacity, and that the 1998 Will was the product of undue influence. The petitioners also ask the Court to reinstate the 1988 Will.
JX 48. The exhibits were labeled as "Petitioner's Exhibits," but because the petitioners and respondents stipulated to them, they will be treated as joint exhibits and cited to as "JX" for ease of reference.
JX 49.
This is the Opinion of the Court, after trial, on the merits of the petitioners' claims. For the reasons next discussed, I conclude that although Boyd, the testator, did possess testamentary capacity, the 1998 Will is nonetheless invalid because it was the product of undue influence. As a consequence, the 1988 Will must be reinstated.
FACTS
What follows are the facts as found by the Court. The decedent, Harold A. Boyd, was born in February 1914 and died on December 29, 1999 at the age of eighty-five. In May 1997, two years before his death, Boyd's wife died, and thereafter Boyd began deteriorating, both physically and mentally. Boyd lost the ability to manage simple common tasks associated with daily life, he no longer maintained his personal hygiene, and began to smell and look disheveled. Although formerly his home had been kept immaculate, it now became filthy. Boyd would throw open bags of garbage down his basement steps, and would leave food to rot in his kitchen. He lost regard for his health and safety, and he constantly left newspapers on the oven and mail on the stove. His clothes were riddled with cigarette burns. Boyd also had several automobile accidents, one of which "totaled" his car.
Other facts, where necessary to establish the elements of the legal claims in this case are included in the Analysis section of this Opinion.
Trial Tr. I at 12-13, 73; II at 206-07.
Id. I at 13; 11 at 203, 223.
Id. II at 204-06.
Id. I at 2O, 72; II at 2O2.
Id. II at 207, 220.
Id. I at 13-14, 43.
Boyd's mental faculties also became noticeably impaired. He would forget the name of his nephew's wife, whom he knew well, and he would often drift off to sleep during conversations. Boyd became extremely depressed and lonely, and on occasions would say that he wanted to die. He also became increasingly childlike in his desire to please those around him and to make friends.
Id. I at 12, 32.
Id. I at 12.
Id. I at 66-67; II at 209.
In this vulnerable state, Boyd became unable to manage his financial affairs. Repeatedly, he was victimized by foreign lottery scams in which he lost thousands of dollars. He would lose cash in the supermarket, and could no longer manage his checkbook or pay his bills without assistance. The problem became so noticeable that Michael Ferguson ("Ferguson"), the manager of the branch of the Wilmington Trust Company ("Wilmington Trust") where Boyd did his banking, contacted Boyd's grandniece, Hilda Vanderwerff ("Hilda"). Ferguson asked Hilda if she would help Boyd with his bank transactions, and she agreed.
Id. I at 14-15, 33, 74, 78; II at 221.
Id. I at 24.
Id. I at 79-80.
Id. I at 126-28, 138.
In April 1997, Boyd became acquainted with Sokol, a thirty-four years old administrator at Temple University, whom Boyd had met through a common friend, Marie Grant. Sokol had a criminal record that included federal convictions for conspiracy to commit credit card fraud and computer fraud, and state convictions for forgery in the third degree and theft. There is no evidence that Sokol ever informed Boyd of his criminal record.
On Sept. 18, 2002, Marie Grant died at the age of 90. The Court took judicial notice of the fact that her Will, dated Dec. 29, 1996, left her entire residuary estate to Sokol.
JX 45; JX 46 (Sokol was charged with forgery in the second degree, but pled guilty to forgery in the third degree); Trial Tr. III at 104-06.
Soon after he met Boyd, Sokol began visiting and telephoning Boyd quite frequently. Sokol also became intimately involved in Boyd's personal and financial affairs. After their visits, Sokol would bring some of Boyd's financial papers home with him, and he also kept a special journal dedicated specifically and entirely to his dealings with Boyd.
Sokol first met Boyd on April 5, 1997 when Boyd was 83. Sokol visited Boyd fifteen times in 1997, thirty-six times in 1998, and twenty-eight times in 1999. They also spoke on the telephone on numerous occasions. They met forty-six times between the date they first were introduced, and September 23, 1998, when the 1998 Will was executed. Trial Tr. III at 109-15.
Sokol testified that he kept detailed journals of his activities. Sokol carried several notebooks and tape recorders with him in a briefcase. He would tape record observations and comments that he made throughout the day, and would later transcribe these recordings into his journals. Sokol claims that he did this as part of his treatment for adult-based attention deficit hyperactive disorder (ADHD) a condition that (Sokol claims) contributed to his criminal activities in the past. Sokol testified that he became so deeply involved with Boyd that Marie Grant encouraged him to dedicate a journal solely to his dealings with Boyd. Trial Tr. III at 185-86.
At some point, Hilda became extremely concerned about her uncle's finances and his relationship with Sokol. In December 1997, after her conversation with Ferguson, Hilda added her name as a signatory on some of Boyd's bank accounts and on his safety deposit box account. She did that to help her uncle manage his finances, and to protect him from falling victim to scams and predators that were taking advantage of him.
JX 29, 33, 35, 37-40, 89; Trial Tr. I at 79, 82, 87-88.
Now, Boyd's mental condition worsened throughout the summer and the autumn of 1998. Wilmington Trust's manager, Ferguson, again discussed with Hilda ways to protect Boyd and his assets. Thereafter, Hilda spoke to Boyd and other family members about Hilda becoming Boyd's legal guardian. At that point, Boyd was very receptive to the idea. Accordingly, Hilda retained Thomas Ferry, Esquire ("Ferry") as her counsel to take the necessary legal steps to set up the guardianship.
Trial Tr. I at 126-28, 138.
To determine whether a guardianship would be appropriate, Ferry asked Hilda to have Boyd tested by a family physician, Dr. Gary Beste, M.D. Having been Boyd's doctor for about fifteen years, Dr. Seste was familiar with Boyd's medical history and his deteriorating condition since his wife died. On August 4, 1998, Dr. Beste performed a "mini-mental examination" on Boyd to evaluate his competency. Boyd scored a "19" on the exam, indicating moderate impairment. Dr. Beste diagnosed Boyd with "dementia of the Alzheimer's type," and on August 20, 1998, he executed an affidavit attesting to that diagnosis, and to his opinion that Boyd was unlikely to recover and was unable to manage his affairs.
Dr. Beste is board certified in geriatric medicine. JX 4.
When Dr. Beste first tested Boyd, Boyd was not wearing his hearing aid, and Dr. Beste repeated the questions loudly several times so that Boyd could hear them. Hilda, who brought Boyd to that meeting, claims that she did not know that Boyd wore a hearing aid. Boyd's score and Dr. Beste's diagnosis could not have been dramatically affected by Boyd's hearing difficulty, as evidenced by the fact that Boyd received practically the same score in December 1998 when he was administered another mini-mental by Dr. Peter Zorach.
Beste Aff. at 9-10, 17-18.
JX 7.
Sokol opposed Hilda's attempt to become Boyd's guardian. After Dr. Beste examined Boyd, Sokol took Boyd to Wilmington Trust to inspect Boyd's safety deposit box. Sokol accompanied Boyd into a private room where Boyd removed his 1988 Will from the safety box. While Boyd read the Will, Sokol read it over his shoulder. According to Sokol, Boyd then destroyed his 1988 Will, because (Sokol claims) Boyd no longer knew who some of the beneficiaries were or where they could be found.
Sokol next contacted Terrance Kline, Esquire ("Kline"), an estate-planning attorney at a Philadelphia, Pennsylvania law firm, to discuss Boyd's estate and his need to draft a new will. Sokol arranged an appointment for Boyd to meet with Kline on September 14, 1998, and he drove Boyd to that meeting. Sokol was not present during the meeting between Boyd and Kline, and Sokol did not disclose to Kline any information about his criminal record or Boyd's earlier meeting with Dr. Beste.
JX 50.
The 1998 Will, which Kline drafted, made Sokol the executor and a one-third beneficiary of Boyd's residuary estate. Sokol testified that he did not know that Boyd was going to make him a beneficiary until he read the draft of the 1998 Will. Sokol further testified that he expressed to Boyd his appreciation of that generous gesture, and told Boyd that it was not necessary. According to Sokol, Boyd, nonetheless, insisted on giving Sokol the money so that he (Sokol) could help take care of Boyd's sister, Gladys DeRose. Nothing in the 1998 Will conditioned the devise to Sokol upon Sokol doing this, however.
JX 48 at ¶¶ 1, 6.
Trial Tr. III at 73-74.
Kline had serious concerns about Boyd's competence and Sokol's possible influence over him. Accordingly, Kline addressed this issue in an internal firm memorandum. Kline also discussed this concern with David Eagle, Esquire ("Eagle"), one of Kline's law partners in his firm's Delaware office. Kline asked Eagle to examine Boyd when Boyd came to their office on September 23, 1998 to execute the will.
JX 5O.
Trial Tr. II at 115-16.
Eagle, who does not specialize in estate planning, did not read Kline's memorandum until after Eagle himself had met with Boyd. Nor was Eagle aware of Boyd's earlier examination by Dr. Beste. Although Eagle did not perform a detailed examination of Boyd's competency, he did speak to Boyd, while Wendy Gale, a legal secretary at his law firm, looked on. During that time, Sokol was not present in the room. Satisfied after his conversation with Boyd, Eagle then asked Ms. Gale and another secretary, Maria Wells, to sign the witnessing affidavits. Both witnesses did that.
The affidavits of the 1998 Will that Ms. Gale and Ms. Wells signed, "declare . . . that [Boyd], in the presence of witnesses, signed and executed the instrument as his Last Will, that he signed willingly, that he executed it as his free and voluntary act for the purposes therein expressed . . . [and] that to the best knowledge of each witness . . . [Boyd] was of sound mind and under no constraint or undue influence" JX 48 at Witnessing Aff.
That same day, after Boyd executed his 1998 Will, Sokol took Boyd to a notary, before whom Boyd executed a power-of-attorney making Sokol his attorney-in-fact. Sokol testified that Boyd had tried to execute the power-of-attorney a few days earlier, but the power turned out to be ineffective because it had been improperly signed. Sokol offered no explanation of why he did not have the power-of-attorney notarized at Eagle's office while he and Boyd were together with Eagle.
JX 79; Trial Tr. III at 81, 161.
On September 25, 1998, after returning home from a trip to Canada, Hilda checked on Boyd and found that he was extremely upset. The reason, Boyd told her, was that he had made a mistake by executing a new will that included Sokol as a beneficiary. Boyd told Hilda that he was afraid of Sokol, and that he had felt pressured to include Sokol in his will. Boyd also told Hilda that he wanted to include her in his will. Hilda declined that offer. On September 30, 1998, Hilda filed a Petition for Guardianship, seeking to be appointed as Boyd's guardian. Sokol contested that petition.
Eventually, this Court appointed a group known as Senior Partners as Boyd's guardian.
In December 7, 1998, Sokol brought Boyd to office of Dr. Peter Zorach, M.D., who administered another mini-mental exam to test Boyd's competency. Boyd scored a "20" on the exam, which was statistically similar to the "19" score he received when tested by Dr. Beste several months before. Dr. Zorach, who did not know Boyd and who had met with him only once in his office, testified that Boyd's score was indicative of moderate dementia. About one year later, on December 29, 1999, Boyd died, and this dispute over his 1998 will began soon afterward.
II. THE CONTENTIONS AND GOVERNING LAW
The petitioners contend that the 1998 Will must be invalidated because (i) Boyd lacked the requisite testamentary capacity to execute a will and (ii) the 1998 Will was the product of Sokol's undue influence. As a result, they contend, the 1988 Will was not validly revoked and must therefore be reinstated.
Sokol responds that Boyd had testamentary capacity, because he knew what his assets and who his relatives and friends were. Sokol argues that Boyd realized that Hilda and her mother, Betty Vanderwerff ("Betty"), were trying to take away his money and his home, which is why Boyd sought Sokol's help. Sokol claims that his motives were selfless, and that it was Hilda, not he, who had tried to unduly influence her uncle.
Two major issues are presented. The first is whether Boyd had the requisite testamentary capacity to execute the 1998 Will on September 23, 1998. The second issue is whether Sokol unduly influenced Boyd to make Sokol a one-third beneficiary, and the executor of his estate, in that Will. The petitioners, who seek to have the 1998 Will invalidated, have the burden of proving their claims by a preponderance of the evidence.
In re Estate of West, 522 A.2d 1256, 1263 (Del. 1987).
III. ANALYSIS
A. Testamentary CapacityThe Court first addresses whether Boyd had testamentary capacity when he executed his Will on September 23, 1998. The legal standard used to evaluate a claim of lack of testamentary capacity is as follows:
[T]he standard is that one who makes a will must, at the time of execution, be capable of exercising thought, reflection and judgment, and must know what he or she is doing and how he or she is disposing of his or her property. The person must also possess sufficient memory and understanding to comprehend the nature and character of the act. Thus, the law requires [the testator] to have known that [he or] she was disposing of [his or] her estate by will, and to whom.
In re Estate of West, 522 A.2d at 1263. Title 12, section 201 of the Delaware Code merely requires that a testator be at least eighteen years old and of sound and disposing mind and memory. Courts have long held the view that there is low standard for testamentary capacity. 1 William J. Bowe Douglas H. Parker, Page on Wills §§ 12.17, 12.21, 12.22, 12.24, 12.27, 12.42 (4th ed. 1960).
The law presumes that a testator had testamentary capacity when he executed his will, and the party who challenges testamentary capacity has the burden of overturning that presumption by a preponderance of the evidence.
In re Will of Langmeier, 466 A.2d at 389.
Having considered the evidence on this issue, the Court finds that the petitioners have not overcome the presumption that Boyd had testamentary capacity when he executed the 1998 Will on September 23, 1998. Although Boyd had been diagnosed with dementia of the Alzheimer's type, and although that affliction impaired his mental capacity, the evidence shows that on September 23, 1998 Boyd understood that he was disposing of his estate to the beneficiaries named in the 1998 Will.
The evidence satisfies me that Boyd understood that he had assets and bank accounts. Boyd went to the bank frequently during 1997 and withdrew large amounts of money from his accounts. Indeed, that is what caused the bank's employees and its manager to become concerned, and prompted Ferguson to speak to Hilda about setting up a joint account with Boyd, so that his checks would require two signatures. Although Hilda testified that she did not believe that Boyd understood precisely what types of accounts he had, she conceded that Boyd knew that he had bank accounts, including a checking account from which his bills were being paid. Hilda also testified that when she transferred Boyd's accounts from Wilmington Trust to joint accounts with the PNC Bank, Boyd knew that he had assets located at a bank, and that he understood what Hilda was doing to protect those assets.
Trial Tr. I at 83-84.
Id. I at 83-84; II at 164.
Id. I at 130, 155-60, 167.
Also relevant is the testimony of Dr, Zorach, who tested Boyd's mental capacity on December 7, 1998, less than three months after Boyd executed the 1998 Will. Dr. Zorach's opined that, although Boyd was not exactly sure of what accounts he had or their value, Boyd did know (i) that he had bank accounts, a house, and a car, (ii) the identity of the persons whom he had designated as beneficiaries in his 1998 Will, and (iii) that by that Will he was giving his money away.
Id. II at 7-8, 30, 33.
Dr. Zorach testified that although Boyd's performance on the mini-mental exam was indicative of moderate dementia, patients who score a "20" may still be able to manage their affairs and possess testamentary capacity. Dr. Zorach also testified that a person's score on the exam and his or her testamentary capacity are only loosely correlated, and that even patients who receive perfect scores may be so delusional that they would not understand who they were or the nature of their assets.
Id. II at 9. Dr. Zorach described dementia as a permanent compromise of one's mental abilities. Id. II at 39. Alzheimer's disease, which is a common cause of dementia, does not in itself bar a finding that a testator had testamentary capacity if the person understands his assets, the objects of his bounty, and the purpose of the will. See generally Sarah Moore, Alzheimer's Disease as Affecting Testamentary Capacity, 47 A.L.R. 5th 523 (1997).
Trial Tr. II at 41.
Although Dr. Zorach expressed doubts about Boyd's ability to manage his personal and financial affairs, and opined that Boyd might need a guardian, he nonetheless concluded that Boyd could still possess testamentary capacity. Dr. Zorach's opinion was that Boyd had testamentary capacity at the time he (Zorach) examined Boyd on December 7, 1998, and therefore, also had testamentary capacity on September 23, 1998, when Boyd executed his 1998 Will.
Id. II at 29, 35.
Id. II at 9.
Other evidence on this issue deserves mention. Kline expressed concern about Boyd's testamentary capacity, and his partner Eagle, noted that Boyd took a long time to read a relatively short will, and also that Boyd did not remember his sister's name. But, taking a long time to read a will may be due to a layman's difficulty in reading unfamiliar terminology in a legal document. Moreover, Boyd commonly referred to his sister as "Sis," and kept in his pocket a series of file cards to help him remember the names of those people who were close to him.
The 1998 Will did not devise specific assets. Rather, it simply divided Boyd's estate into equal shares. And even if Boyd could not specifically identify all of his accounts, he knew that he had an estate. JX 48 at ¶ 1.
JX 52; Trial Tr. II at 117, 120-21.
Trial Tr. III at 135.
At trial, Mr. Eagle testified that if he had known that Boyd had previously been examined for guardianship purposes, he would have asked Boyd more follow-up questions. But, after his short conversation with Boyd, Eagle was satisfied that Boyd had sufficiently identified his assets and his intended beneficiaries. The legal secretaries who witnessed the 1998 Will also signed affidavits attesting that Boyd was not of unsound mind when he signed. Ms. Gale testified credibly at trial that when she witnessed the Will, she had no reason to believe otherwise.
Finally, telling evidence of Boyd's testamentary capacity was his emotional distress after he executed his 1998 Will. As Hilda testified, Boyd was practically in tears when he told her that he had made a mistake by executing a new will that included Sokol but not her. This episode shows that Boyd knew the effect of the 1998 Will, that he had assets to distribute, and that he knew the objects of his bounty.
Id. I at 117.
For all these reasons, the Court concludes that the petitioners have failed to carry their burden of proving that Boyd lacked testamentary capacity.
B. Undue Influence
The Court reaches the opposite conclusion on the second issue whether Sokol unduly influenced Boyd to make Sokol a one-third beneficiary and the executor of his September 23, 1998 Will. The standard for evaluating an undue influence claim has been articulated by the Delaware Supreme Court as follows:
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 operation upon the mind of the testator at the time of the execution of the will. . . .
Estate of West, 522 A.2d at 1263-64 (quoting Langmeier, 466 A.2d at 403).
Thus, 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 assertion of such influence; and, (5) a result demonstrating its effect.
Id. at 1264.
The Court is satisfied that four of the five undue influence criteria are established by a preponderance of the evidence. First, the Court has previously found, based on substantial evidence, that Boyd suffered from a debilitating mental condition, Boyd's diminished capacity to take care of basic daily tasks, and his need to rely on the help of family members and Sokol, made him susceptible to undue influence.
Second, Sokol had ample opportunity to exert undue influence on Boyd. Although Hilda cared for her enfeebled uncle, she did not constantly supervise him. During the time that Hilda was caring for Boyd, she was also going through a divorce, attending nursing school, raising two children, and working as a nurse at the emergency room at Christiana Care Hospital. Indeed, Hilda did not become aware of the degree of Boyd's relationship with Sokol until January 1998, almost nine months after Boyd and Sokol had first met.
Trial Tr. I at 59-60.
Id. I at 68.
After his wife's death, Boyd became extremely depressed and lonely, and was eager to please people in order to make friends. Sokol visited Boyd at least forty six times in the seventeen months before the 1998 Will was executed on September 23, 1998. Sokol was alone with Boyd when Boyd allegedly destroyed his 1988 Will, before Boyd met with Kline to discuss the provisions of 1998 Will, and before Boyd executed that will.
Id. III at 111-15. This information was gleaned from Sokol's personal journal. JX 54.
Trial Tr. III at 51-56, 65, 75.
Third, the evidence shows that Sokol had a disposition to influence Sokol for an improper purpose. Sokol — a stranger — became intimately involved in Boyd's affairs after having met him only a very short time before. Sokol was aware of Boyd's assets and expenses because he often took many of Boyd's papers and bills home with him. He also helped Boyd transfer his bank accounts and assets from Wilmington Trust to PNC Bank. Moreover, when Hilda told him to leave Boyd alone, Sokol became extremely defensive.
Id. I at 123-24.
Fourth, if undue influence was actually exerted, then making Sokol — a stranger — the executor of Boyd's estate and the beneficiary of one third of Boyd's residuary estate is clearly sufficient to demonstrate the effect of such influence.
The critical issue thus becomes whether the evidence establishes the fifth element — that Sokol actually exerted undue influence upon Boyd. The law does not require that the actual exertion of undue influence be proved solely by direct (i.e. non-circumstantial) evidence. Persons who unduly influence a testator to change a will normally do that surreptitiously. It is rare that such persons confess or perform such acts in front of witnesses. By its nature, undue influence is subtle and covert. Therefore, in most cases, the proof of undue influence will necessarily be circumstantial, that is, based upon inferences from other objective facts. To prove that Sokol exerted undue influence on Boyd, the evidence must show that undue influence is the more probable and plausible explanation for the testator's acts, and conversely, that any alternative explanations are improbable and implausible.
In re Estate of Konopka, 1988 Del. Ch. LEXIS 83, at *16 (Del.Ch. June 23, 1988).
The evidence here is of that character. Hilda testified that Boyd told her that he felt pulled and pressured by Sokol, and that Boyd was often flustered and agitated after Sokol would leave him. She testified that when she was not around, Sokol would often try to undo the work that she did to help Boyd. Indeed, after Sokol became close with Boyd, Boyd wrote a letter accusing Hilda of trying to steal his money and property. It also contained a threat that "[s]he is liable to get killed" if she continued to bother Boyd.
Trial Tr. I at 7O.
After speaking with Ferguson, Hilda moved Boyd's banks accounts from Wilmington Trust to PNC Bank because Ferguson was concerned that Wilmington Trust might be held liable for Boyd's frequent and large withdrawals. Trial Tr. I at 126-28, 138. Sokol admits that shortly thereafter, he helped Boyd put certain accounts and assets back solely in his name. JX 54 at 22 (referring to journal entry 8/14/1998), Trial Tr. III at 47-48. Hilda also changed Boyd's telephone number to prevent lottery scam artists from harassing Boyd. Trial Tr. I at 143-44 Shortly thereafter, Boyd's telephone number was changed back. Hilda testified that Boyd would not have had the capacity to do that by himself. Trial Tr. I at 146.
As Hilda credibly testified, the letter (JX 11), contains words that Boyd could not spell and the thoughts were expressed in a manner that Boyd would not be capable of forming without help. It is also uncharacteristic that Boyd would think to have a letter like this notarized.
JX 11. Swain testified that they did not think that Boyd would ever say something like that. Trial Tr. I at 17-18. Hilda also said that when she asked Boyd about making a threat he denied it and begged her never to leave him. Trial Tr. I at 62-63
Sokol was the only person present when Boyd allegedly "revoked" his 1988 Will. Moreover, Sokol spoke to Kline about Boyd's estate plan before Boyd and Kline had even met to discuss the 1998 Will. It was Sokol who brought Boyd to that meeting to have the will drafted and executed, Sokol, who was unrelated to Boyd and who had known him for only seventeen months, suddenly became both a significant beneficiary and the executor of the 1998 Will.
Sokol's behavior was also highly suspicious. He kept a detailed journal dedicated to his dealings with Boyd, and he referred to Boyd as "Uncle Boydie" — a term of endearment used only by Boyd's family. Sokol also helped Boyd execute a power-of-attorney making Sokol the attorney-in-fact immediately after the two had left Eagle's office where the 1998 Will had just been executed.
JX 54; Trial Tr. III at 187.
Trial Tr. III at 81, 161.
Sokol portrays himself as a good friend to an elderly man during his time of need. To credit Sokol's self-portrait, however, means that Boyd's family and all of the petitioners' witnesses who gave contrary testimony, must be found to have been mistaken or dishonest, and that Boyd's family was conspiring to steal his money. There is no credible basis to make any such finding. The petitioners and their witnesses were entirely credible and have nothing to gain from the lawsuit. Although Hilda's mother Betty stands to receive money under the 1988 Will, Hilda stands to receive nothing under either the 1988 Will or the 1998 Will. The other petitioner, Swain, would be entitled to more under the 1998 Will than under the 1988 Will, yet both Hilda and Swain claim that the 1998 Will should be found invalid.
The petitioners have established all five of the elements of undue influence by a preponderance of the evidence. Therefore, the 1998 Will is determined to be invalid.
C. Probating the 1988 Will
The original 1988 Will that the petitioners seek to probate cannot be found. When a will that was last in the testator's possession is missing at the time of probate, it is presumed that the testator discarded or intentionally destroyed it with the intent that it be revoked. That presumption can be overcome, however, if the party attempting to establish the validity of the missing original demonstrates: (i) that a valid will was executed by the decedent, (ii) the terms of that will, (iii) that the will was lost or unintentionally destroyed, and (iv) that the decedent's testamentary intent was not altered before his death.
In re Wilson Estate, 1999 Del. Ch. LEXIS 137, at *2-*3 (Del.Ch. July 13, 1999).
The validity of the 1988 Will has not been challenged, and there is no evidence that Boyd was laboring under any mental infirmity in 1988. The terms of the 1988 Will are known, because Hilda photocopied the document before the original was alleged destroyed. Because the remnants of the "destroyed" will cannot be found and were never seen by anyone other than Sokol, the will is presumed to be lost. Even if Boyd did destroy that will, his action cannot be considered as intentional, because of Sokol's undue influence. Finally, aside from the invalid 1998 Will, there is no evidence that Boyd ever repudiated his testamentary intent as disclosed in his 1988 Will. Accordingly, the 1988 Will shall be admitted to probate in place of the invalid 1998 Will.
There is insufficient evidence to prove that the 1988 Will was destroyed or properly revoked by Boyd. Sokol was the only witness to the "revocation," and I find his testimony that Boyd revoked his 1988 Will entirely lacking in credibility.
Conner v. Brown, 3 A.2d 64, 74 (Del.Super. 1938) (holding that where a will is found to be void on the ground of undue influence, which is a species of fraud, it cannot revoke a prior will.)
IV. CONCLUSION
For the above reasons, the Court will enter an order granting petitioners' the relief they seek. Counsel shall confer and submit a form of implementing order.