Opinion
C.A. No. 17597
Date Submitted: February 21, 2000
Date Decided: April 26, 2001 Date Revised: May 9, 2001
David J. Ferry, Jr. and Richard S. Miller, Esquires, of FERRY JOSEPH, P.A., Attorneys for Petitioner.
Francis J. Trzuskowski, Esquire, of TRZUSKOWSKI, KIPP, KELLEHER PEARCE, P.A., Attorney for Intervenors.
John J. O'Brien, Esquire, Attorney for Respondents.
MEMORANDUM OPINION
At issue in this action is the validity of the Last Will and Testament, dated July 19, 1998, of John S. Szewczyk ("Mr. Szewczyk" or "the decedent"). The Petitioner, Mary Ann Parker ("Mary Ann"), who is the decedent's daughter, brought this lawsuit claiming that her father lacked the requisite testamentary capacity to execute a valid will. She further claims that her brother, Robert Szewczyk ("Robert"), who drafted the will, had unduly influenced their father. Robert contends that the will is valid and should be upheld. Alternatively, he claims that if the will is found invalid, then Mr. Szewczyk's previous will, executed in 1997, is also invalid for similar reasons. In this post-trial Opinion, the Court upholds the position of the Petitioners, and rejects that of the Respondents on the merits.
Trial took place on December 4 and 5, 2000.
I. FACTS
At the time of his death on October 23, 1999, Mr. Szewczyk left an Estate valued at $173,766.03. The assets of his Estate consisted of his residence (which was valued at $90,000), $40,000 on deposit in a bank account, and a plot of land and attached trailer in Lewes, Delaware (the "Sussex property", which was valued at $40,000).During his lifetime the decedent executed four wills. The first, which he executed on March 26, 1990, left his entire estate to Mr. Szewczyk's then-living wife, Jean. In the event Jean predeceased her husband, then their son, Robert, would inherit the Sussex property, and the residue would be divided among their four then-living children. The second will ("the 1996 will") was executed after Jean died on December 9, 1996. The 1996 will devised the Sussex property to Robert, divided the residue of the estate among the decedent's three then-living children, and named John as the primary executor. The remaining two wills, which were executed in 1997 and 1998, are discussed more fully at pages 4-5, infra.
Apart from these matters in dispute, Mr. Szewczyk's wills otherwise observed the requisite legal formalities and were validly executed.
The children were Robert, Mary Ann, and John Szewczyk ("John"). The fourth child, Ronald Szewczyk ("Ronald") died in 1992, leaving four surviving children (the "Intervenors").
The 1996 will omits the Intervenors as beneficiaries.
During most of his life Mr. Szewczyk enjoyed a close relationship with his family. He gave parcels of land in Sussex County to each of his children except Robert. Each parcel was valued at $6,000. According to Robert and John, at some time before Mr. Szewczyk executed his 1998 will, he gave Robert the exclusive use of his Sussex property.
After his son (Ronald) died in 1992, and his wife (Jean) died in 1993, Mr. Szewczyk's close familial relationships began to deteriorate. Those deaths, plus his many physical maladies, including a minor stroke and the effects of a hyperthyroid condition, took their toll on Mr. Szewczyk's physical and mental well-being. During 1997, Mr. Szewczyk began to experience memory lapses and to appear increasingly disoriented. Mr. Szewczyk's neighbors and friends noticed that he was becoming unable to hold a coherent conversation or to recognize his friends and family, and also that he tended to become lost while driving in his own neighborhood. In June or July 1997, Mr. Szewczyk's advancing dementia led him to make groundless accusations — which he confided to Robert — against his other two children, Mary Ann and John. Mr. Szewczyk accused John of stealing his social security check. Then, only days before he executed his fourth will (the "1998 will"), the subject of this proceeding, he accused Mary Ann of stealing his money and everything from his home, even though from the onset of her father's dementia she had been his caretaker.
During 1997, Mary Ann and her family visited the decedent at home on a daily basis. In the summer of 1997, Mary Ann became a signatory on her father's bank account. As a result, any withdrawal from that account required both of their signatures. At the same time, Mr. Szewczyk (i) authorized that his social security checks be directly deposited into that bank account, (ii) signed a Power of Attorney in favor of Mary Ann, and (iii) authorized the United States Post Office to deliver his mail to Mary Ann's home address.
See Pankowski Dep. at 8. The Intervenors also "stayed in touch with" Mr. Szewczyk on a regular basis. Id. at 9.
During this period, Mr. Szewczyk executed his third will ("the 1997 will") on September 2, 1997. On that date, Mary Ann accompanied her father to an attorney's office to assure that the will would be properly drafted. In a discussion with his attorney, Mr. Szewczyk expressed his wish to leave his entire estate to Mary Ann. Despite this, Mary Ann prevailed upon her father to divide his estate equally among his four children, with the Intervenors taking their deceased father, Ronald's, one-fourth share per stirpes. Thus, under the 1997 will, the testamentary scheme contemplated an equal distribution of the estate among the decedent's children.
After Mr. Szewczyk's cognitive health continued to decline, Mary Ann had her father examined by his long-time family physician, Dr. Kim Carpenter. On the basis of Mr. Szewczyk's deteriorating abilities and his poor performance on a short-term memory test, Dr. Carpenter diagnosed his patient's condition as Alzheimer's disease on August 25, 1998. Dr. Carpenter concluded, based on Mr. Szewczyk's past behavior and his present ability level, that the onset of the disease had occurred at some point between January and August 1998.
See Pankowski Dep. at 9, 41 (dating Mr. Szewczyk's memory loss back to the end of 1997); Carpenter Dep. at 32 (stating that Mr. Szewczyk was diagnosed with Alzheimer' s Disease in August 1998).
See Carpenter Dep. at 34.
Only one month before his father was diagnosed with Alzheimer's Disease, Robert prepared Mr. Szewczyk's fourth and final will, which the decedent executed on July 19, 1998. The 1998 will was literally a photocopy of the 1996 will, except that (i) certain of the 1996 provisions had been deleted and typed over, and (ii) Robert was named the executor, and John, the alternate executor.
It is noteworthy that Robert took no interest in his father's affairs until Mr. Szewczyk's mental health began to deteriorate. In contrast to Mary Ann's caretaking role, Robert and John rarely visited their father after their mother died in October 1993. Not until the summer of 1998 did Robert begin, on a regular basis, to dispatch his son to bring his grandfather, Mr. Szewczyk, to their house for dinner. It was in the context of this rekindled relationship that the 1998 will was executed.
See Pankowski Dep. at 56-57.
Despite his cognitive deterioration and Alzheimer's disease, Mr. Szewczyk continued living independently in his own home and to hold a driver's license until the fall of 1998. In October 1998, Mr. Szewczyk caused a severe car accident and suffered serious injuries for which he was hospitalized. From that point on, Mr. Szewczyk was no longer able to live on his own. In the fall of 1998, he moved into Mary Ann's home where he continued to live until May 1999. During that time his dementia progressively worsened.
In February 1999, Dr. Carpenter administered a mini-medical status examination to Mr. Szewczyk, whose score indicated a severe cognitive impairment. That examination occurred seven months after the execution of the 1998 will and after the onset of Mr. Szewczyk's Alzheimer's disease.
Mr. Szewczyk scored higher on a mini-mental State examination administered by Adult Protective Services on October 14, 1998, but even on that examination his score indicated a "severe deficit." Respondents' Reply Brief at 7.
Mr. Szewczyk died on October 23, 1999. In response to Robert's submission of the 1998 will for probate, Mary Ann commenced this action.
II. THE PARTIES' CONTENTIONS
Mary Ann and the Intervenors (collectively the "Petitioners") challenge the validity of the 1998 will on two grounds. The first is that Mr. Szewczyk lacked the requisite testamentary capacity at the time the 1998 will was executed. The second is that the 1998 will was the product of Robert's undue influence over his father. Accordingly, the Petitioners urge that the 1998 will must be declared invalid and that Mr. Szewczyk's 1997 will should be admitted to probate.
In response, Robert and John (collectively, the "Respondents") contend that the 1998 will is valid and must be upheld. Alternatively, they argue that if the 1998 will is found invalid, then the 1997 will must be invalidated on the same grounds. More specifically, the Respondents urge that if Mr. Szewczyk's dementia negated his testamentary capacity to validate the 1998 will, that dementia also existed at the time he executed the 1997 will; and moreover, the 1997 will was the product of Mary Ann's undue influence. Accordingly, the Respondents conclude that if the 1998 will is invalidated, then the only will that can be admitted to probate is the 1996 will.
Besides disputing the validity of the 1998 and 1997 wills, the parties also dispute the Petitioners' entitlement to attorney's fees and costs payable from the Estate. The parties disagree over whether Mary Ann is entitled to a portion of the finds currently on deposit with the Wilmington Savings Fund Society ("WSFS") in a checking account held jointly in Mr. Szewczyk's and Mary Ann's names.
III. THE APPLICABLE STANDARD
The law presumes that a duly executed will is valid and that the testator had the requisite testamentary capacity to execute it. Thus, a party who challenges the validity of a duly-executed will has the burden to show by a preponderance of evidence that the testator either lacked the requisite testamentary capacity, or was unduly influenced, at the time of the will's execution. That is the analytical standard applicable to the 1997 will.
See In re Melson, Del. Supr., 711 A.2d 783, 786 (1998).
See id. (citing Matter of Langmeier, Del. Ch., 466 A.2d 386, 389, 405 (1983)); see also In re West, Del. Supr., 522 A.2d 1256, 1263 (1987).
A different standard, however, applies in determining the validity of the 1998 will. Where the drafter of a will is himself a beneficiary under that will, "the proponent[-drafter] no longer enjoys the full benefit of the usual presumption of testamentary capacity" because the safeguards of the attorney-client relationship implicit in an attorney-drafted will are not present. For this reason, the Delaware Supreme Court has held that:
Melson, 711 A.2d at 788.
. . . the presumption of testamentary capacity does not apply and the burden on claims of undue influence shifts to the proponent where 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.
Id., at 788 (1998) (quoting Estate of Reichel, 400 A.2d 1268 (Pa., 1979)).
If that initial burden is met, then the ultimate burden of persuasion shifts to the will proponent to show "by a preponderance of the evidence that the testator . . . [:(1)] possessed the requisite testamentary capacity" and (2) was not unduly influenced in the execution of the will. Because the 1998 and 1997 wills are analyzed under different standards, the Court addresses each separately, beginning with the 1998 will. Thereafter, the Court considers the Petitioners' fee application and lastly, addresses the dispute over the ownership of funds on deposit in Mr. Szewczyk's WSFS checking account.
Id.
IV. ANALYSIS
A. Validity of the 1998 Will
1. Preliminary Analysis
As earlier discussed, one who challenges a beneficiary-drafted will for lack of testamentary capacity must prove three factors by clear and convincing evidence. The Court concludes, for the following reasons, that the Petitioners have carried their burden on all three factors.
a. Did Mr. Szewczyk Possess a "Weakened Intellect"?
To be deemed to be "of weakened intellect," a testator need not have manifested an advanced degree of debilitation. The Court need only find that such "weakened intellect" existed, taking into account factors such as a sudden change in the testator's living habits and emotional disposition.
In In re Hafer, Chancellor Chandler affirmed the Master's finding that a testator was "of weakened intellect" under Melson's "clear and convincing evidence" standard. Del. Ch., C.A. No 1436-K, Chandler, C., Mem. Op. at 2-3 (Oct. 25, 2000). This weakened intellect was evidenced by the testator's grief over his wife's death, his change in living habits, his concern over "the uncertain course of his [new] romance," and his request that two people help him execute two very different wills in quick succession just before his suicide. Id.
Id., at 2-3, 5 n. 9.
In this case it is undisputed that the decedent was ailing, both physically and mentally, during his final years of life. What is disputed is the extent to which Mr. Szewczyk's ailments had weakened his intellect by the time he executed the 1998 will.
The Petitioners argue that Mr. Szewczyk was incapacitated both physically and mentally at the time that he executed the 1998 will. His physical ailments included dementia, later diagnosed as Alzheimer's disease, as well as the effects of a minor stroke and a hyperthyroid condition. These maladies, combined with the trauma and grief of losing his wife and child, weakened Mr. Szewczyk's awareness of what he was doing and his ability to resist influence by others.
The Respondents contend that the Petitioners have not met their initial burden, because Mr. Szewczyk's dementia was not severe enough to deprive him of testamentary capacity. I cannot agree. The clear and convincing evidence shows that Mr. Szewczyk was "of weakened intellect" at the time he executed the 1998 will. Although he was diagnosed with Alzheimer's disease one month after, the onset of Mr. Szewczyk's dementia was observed by his family and friends as early as late 1997. Mr. Szewczyk's long-time family physician, who made the Alzheimer's disease diagnosis, estimated that the actual onset of the disease had occurred between January and August of 1998. Indeed, the two mental status examinations administered both during and after this period showed that Mr. Szewczyk's mental capabilities were severely debilitated. Mr. Szewczyk also suffered from physical maladies, and was grief-stricken over the deaths of his wife and son. In these circumstances, the Petitioners have satisfied their initial burden to show by clear and convincing evidence that Mr. Szewczyk was "of weakened intellect" at the time he executed the 1998 will.
b. Was Mr. Szewczyk in a Confidential Relationship with Robert?
A confidential relationship is more than a relationship of blood or marriage, and it must be established by clear and convincing evidence. A confidential relationship has been found to exist where "circumstances make it certain the parties do not deal on equal terms but on one side there is an overmastering influence or on the other weakness, dependence or trust, justifiably reposed."
See In re Thompson, 126 A.2d 740, 744 (Pa., 1956) (emphasis in original).
Id.
The Petitioners argue that Mr. Szewczyk's reliance on Robert during the final months of his life satisfies this test. They point to Mr. Szewczyk's sudden reliance on Robert's legal and financial advice at the time Mr. Szewczyk executed the 1998 will — advice that coincided with Mr. Szewczyk's delusions that his other two children had been stealing from him.
The Respondents contend that the Petitioners have not shown that Robert's relationship with his father was of a confidential nature. They assert that throughout the course of Robert's relationship with his father, Mr. Szewczyk refused to listen to Robert's advice. They point out that even though Mr. Szewczyk had granted Robert a Power of Attorney in July 1998, within one month the Power of Attorney had been revoked and given to Mary Ann. Indeed, Respondents argue, if Mr. Szewczyk had a confidential relationship with anyone in July 1998, it was with Mary Ann, not Robert.
But the facts show otherwise. At the time Mr. Szewczyk executed the 1998 will, his relationship with all of his children except Robert was strained. Mr. Szewczyk falsely accused John and Mary Ann of stealing from him, yet he trusted Robert enough to confide those accusations in him. Mr. Szewczyk also appointed Robert as his attorney-in-fact in that time period, which further evidences the close nature of their relationship. That the Power of Attorney in Robert was later revoked is immaterial, because what is relevant is the confidentiality of the relationship at the time of the execution of the will. I find that the Petitioners have established, by clear and convincing evidence, that Robert and his father had a confidential relationship at the time the 1998 will was executed.
c. Was Robert Substantially Benefited Under the 1998 Will?
The Petitioners contend that Robert was substantially benefited under the 1998 will, because besides being named executor, he received the Sussex property together with a one-third share of the residuary estate. In contrast, under the 1997 will Robert's surviving siblings each received only a one-third share of the residuary estate, and the Intervenors (the children of the deceased sibling) inherited nothing. Moreover, the Petitioners urge, there is a significant discrepancy in the value of the Sussex County lots that Mr. Szewczyk gave his children during his lifetime ($6,000), and the value of the Sussex property to which Robert would be entitled under the 1998 will ($40,000).
The Respondents portray the situation quite differently. They first argue that the grant of Mr. Szewczyk's Sussex property to Robert under the 1998 will did not constitute a substantial benefit, because the decedent had already granted Robert the exclusive use of that property for three to four years before his death. Moreover, the Respondents insist, the Sussex County lots given to Robert's siblings were of substantially similar value to the Sussex property that Robert would receive under the 1998 will.
The Respondents also compare the 1998 will to the 1996 and 1990 wills, arguing that the 1998 will was no more favorable to Robert's interests than were the two earlier wills. Moreover, Respondents claim, when Robert prepared the 1998 will he had never seen the 1997 will, and therefore could not fairly be accused of preparing the 1998 will to improve his own fortunes. Finally, the Respondents contend that the 1998 will would effect a fair disposition of Mr. Szewczyk's property, because each of Mr. Szewczyk's children would receive a plot of land in Sussex County of equal value, and each would share equally in the remainder of the estate.
Again, the facts show otherwise. Under the 1998 will, Robert is the sole beneficiary of a $40,000 Sussex property and a one-third beneficiary of the remainder of the Estate. Because the remainder was worth approximately $90,000, under the 1998 will Robert would receive property worth about $70,000. By contrast, under the 1997 will Robert would receive only a one-quarter residuary interest of the Estate, worth substantially less. Further, the Respondents have not shown that the lots Mr. Szewczyk gave his other children were of comparable value to the Sussex property being claimed by Robert.
Accordingly, the Petitioners have succeeded in establishing Robert's substantial benefit under the 1998 will.
As Robert's substantial benefit under the 1998 has been established by clear and convincing evidence, it becomes immaterial whether at the time he prepared the 1998 will, Robert was aware of this benefit compared to his inheritance under the 1997 will. The facts indicate that Robert was aware, at least to some extent, of the property disposition under the 1997 will. Indeed, the Respondents' contention that Robert prepared the 1998 will because Mr. Szewczyk wanted to disinherit the Intervenors, suggests that Robert was aware that the 1997 will provided for the Intervenors, and would potentially dilute his share.
* * *
The Petitioners have met their initial burden, to show by clear and convincing evidence that Mr. Szewczyk (1) possessed a weakened intellect, (2) had a confidential relationship with Robert, and (3) received a substantial benefit under the 1998 will. Accordingly, "the burden shifts to the proponent of the will [here the Respondents] to prove by a preponderance of the evidence that the testator . . . [:(1)] possessed the requisite testamentary capacity" and (2) was not unduly influenced in the execution of the will. For the reasons next discussed, the Court concludes that the Respondents have failed to carry that burden.2. Did the Proponents of the 1998 Will Carry Their Burden?
a. Mr. Szewczyk Did Not Possess the Requisite Testamentary Capacity Upon the Drafting of the 1998 Will.
To possess testamentary capacity, a testator 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 [a testator] to have known that [he] was disposing of [his] estate by will, and to whom.
West, 522 A.2d at 1263 (citing Langmeier, 466 A.2d at 402).
The evidence presented by the Respondents at trial falls far short of meeting this standard. The Respondents did not present any medical opinion testimony to support their claims. The only medical expert testimony that was presented was that of Dr. Carpenter. That testimony favors the Petitioners and deserves significant weight. Dr. Carpenter was Mr. Szewczyk's long-time family doctor. He had professional experience treating Alzheimer's disease before he diagnosed Mr. Szewczyk as having the disease. Dr. Carpenter made that diagnosis less than one month after the decedent executed the 1998 will, and he did this for purposes of treatment, not litigation. Dr. Carpenter's opinion, within a reasonable degree of medical probability, was that Mr. Szewczyk did not have the requisite testamentary capacity at the time he executed the 1998 will. I credit that testimony.
The Respondents' efforts to discredit Dr. Carpenter's testimony lack persuasive force. The Respondents insist that Dr. Carpenter based his August 1998 Alzheimer's diagnosis entirely on a conversation with Mary Ann about Mr. Szewczyk, which was hearsay. To the contrary, that diagnosis rested upon a far more solid foundation. Dr. Carpenter had been Mr. Szewczyk's treating physician for many years before he made the diagnosis. During that time he had ample opportunities to observe and meet with his patient personally. Dr. Carpenter also based his diagnosis on Mr. Szewczyk's low score on a competence test that he (Dr. Carpenter) had personally administered. The Respondents attempt to rebut this evidence by pointing to Mr. Szewczyk's higher score on a similar mini-mental examination administered by Adult Protective Services. The effort is unavailing, because even that test score indicated a "severe deficit" in competence. Finally, the Respondents question Dr. Carpenter's credentials as an expert medical witness on the basis that he was a general practitioner rather than a specialist. But, the Respondents have shown no reason why a general practitioner such as Dr. Carpenter 15 not competent to opine as to a patient's testamentary capacity. Indeed, treating physicians of all types routinely testify in guardianship and estate proceedings that involve the mental capacities of the elderly.
The Respondents also failed to produce any convincing lay witness testimony to support their position. The testimony of both Robert and John was self-serving. The Respondents produced only one disinterested witness, Virginia Crow, the person who notarized the 1998 will. Ms. Crow testified that in her presence: (1) the 1998 will was not read to Mr. Szewczyk; (2) there was no discussion of what documents would be notarized; and (3) Mr. Szewczyk did not formally acknowledge that those documents constituted his will. Ms. Crow also testified that she did not speak with Mr. Szewczyk during the period that he was executing the 1998 will. Ms. Crow's testimony falls far short of establishing that Mr. Szewczyk possessed the requisite testamentary capacity at the time he signed the 1998 will.
The Respondents also offer two arguments based on circumstantial evidence. First, the Respondents argue that testamentary capacity should be determined by inquiring whether the testamentary scheme of the challenged will is natural and reasonable and in harmony with the familial relationships. Employing that analysis, the Respondents point out that the testamentary scheme of the 1998 will is substantially identical to the scheme of the 1996 will. That is, the devise of the Sussex property to Robert under that scheme was in keeping with Mr. Szewczyk's grant of Sussex plots to Robert's siblings and also with Robert's exclusive use of the disputed Sussex property. Therefore, the Respondents conclude, Mr. Szewczyk's consistent disposition of his property under the 1998 and the 1996 wills evidences that he possessed the requisite testamentary capacity at the time he executed the 1998 will.
These arguments, in my view, are unpersuasive. Even when taken into account, these circumstances cannot counter the great weight of the trial evidence showing that Mr. Szewczyk was not competent to execute the 1998 will. That is, even if the 1998 and 1996 testamentary schemes had some consistency, that does not countervail the overwhelming evidence of Mr. Szewczyk's incompetence in July 1998.
The Respondents' second circumstantial argument relies on the fact that Mr. Szewczyk maintained a valid driver's license and was able to live independently at the time the 1998 will was executed. But, the fact that Mr. Szewczyk continued to hold a driver's license does not establish that he was competent to drive an automobile. In fact, only three months after he executed 1998 will, Mr. Szewczyk caused a serious car accident, and after that he was unable to live alone. The evidence suggests that Mr. Szewczyk was an accident waiting to happen" for some time before the inevitable finally occurred.
The weight of the credible evidence persuades me that Mr. Szewczyk lacked the requisite testamentary capacity to execute the 1998 will.
As earlier discussed, the Respondents have the burden to prove that the decedent had the requisite testamentary capacity and that he was not unduly influenced. Because the Respondents have failed to prove the first of these elements, the 1998 will is invalid on that basis alone. It therefore becomes unnecessary for the Court to decide whether Robert unduly influenced Mr. Szewczyk, and accordingly, I do not reach that issue.
B. Validity of the 1997 Will
The Respondents argue that, if the 1998 will is invalidated, the 1996 will should be admitted to probate because the 1997 will is also invalid. The basis for this argument is two-fold: (1) Mr. Szewczyk lacked the requisite testamentary capacity to execute the 1997 will and (2) Mary Ann unduly influenced Mr. Szewczyk's execution of the 1997 will.
These arguments are addressed.
1. The Respondent Failed to Establish that Mr. Szewczyk Lacked Testamentary Capacity in 1997
The Respondents' first contention is easily disposed of, because no evidence was presented at trial to support it. The fact that Mr. Szewczyk lacked testamentary competence in 1998, does not require the Court to conclude, as the Respondents urge, that he was similarly incompetent in 1997. Nor did the Respondents present affirmative evidence of Mr. Szewczyk's lack of testamentary competence sufficient to overcome the presumption of validity that attached to the 1997 will. What the evidence does show is that Mr. Szewczyk knew that his September 1997 meeting with an attorney was for the purpose of drafting a will. At that time Mr. Szewczyk actively participated in a discussion at the attorney's office about his intended testamentary scheme. The Respondents have failed to show that the decedent lacked testamentary competence in September 1997.
The Respondents' argument regarding inadequacies in the drafting attorney's attempt to ascertain Mr. Szewczyk's competence upon the execution of the 1997 will is immaterial to the question of Mr. Szewczyk's testamentary capacity and, thus, is not addressed in this opinion.
See Melson, 711 A.2d at 786.
2. Mary Ann Parker Did Not Unduly Influence the Execution of the 1997 Will
Also unfounded is the Respondents' claim that the 1997 will was the result of Mary Ann's undue influence over her father. The Respondents point out that despite the decedent's expressed wish that his estate be left solely to Mary Ann, she prevailed upon her father to provide for an equal distribution that ultimately became the testamentary scheme under the 1997 will.
Mary Ann admits that she influenced her father regarding the disposition of his property under the 1997 will, but she claims that her influence was not "undue." Specifically, Mary Ann argues that she became involved only to persuade her father to honor her late mother's wish that he provide for his grandchildren, the Intervenors. The Respondents argue, however, that the exclusion of the Intervenors under the 1996 will shows that Mr. Szewczyk had an intent that differed from that of his late wife. According to Respondents, Mr. Szewczyk refused to involve an attorney in preparing the 1998 will precisely because the attorney-drafted 1997 will did not reflect his true wishes.
To establish a claim of undue influence, all essential elements of undue influence must be proved. Here, the Respondents have failed to prove that (1) any exerted influence by Mary Ann was "for an improper purpose;" and, that (2) there was a "result demonstrating the effect" of the alleged undue influence. Mary Ann did not take any additional benefit for herself under the 1997 will. Indeed, that will reduced Mary Ann's share of the estate from one-third to one-fourth. Mary Ann refused to take unfair advantage, insisting — despite her father's offer to make her the sole beneficiary of the 1997 will — that the estate be split evenly among his then living children, and that the Intervenors inherit their deceased father's share. Moreover, Mary Ann saw to it that Mr. Szewczyk had independent counsel to draft and execute the 1997 will — a step she would likely have avoided if her purposes were nefarious. Finally, the result of Mary Ann's influence, namely, the equal disposition of Mr. Szewczyk's estate under the 1997 will, fails to demonstrate any improper purpose that would establish that her influence was "undue."
Under the 1997 will, the Intervenors enjoyed the primary gain, and there is no evidence that they were involved in any way with the creation or execution of the 1997 will.
See Matter of Greene, Del. Ch., C.M. No. 987, Jacobs, V.C., Mem. Op. at 13-14 (July 11, 1986) (holding that benign influence where a challenged will treats the testator's heirs fairly is not improper).
Being unsupported by the facts established at trial, the Respondents' petition to invalidate the 1997 will must be rejected.
C. The Fee Application
The Petitioners request that the Court award them the costs and attorney's fees and expenses they incurred by reason of their successful challenge to the 1998 will. They also request that those costs be charged against the Estate. Costs are routinely awarded to successful litigants in estate matters. There is no reason why taxable costs in favor of the Petitioners, here the successful litigants, should not be awarded and assessed against the Estate in this case.
See Ch. Ct. R. 54(d).
The Court notes that the award of fees so justified by "probable cause plus exceptional circumstance" should be "reasonable" so as not to "virtually dissipate the estate." Ableman v. Katz, Del. Supr., 481 A.2d 1114, 1118, 1120 (1984), overruled on other grounds by Melson, 711 A.2d at 788.
The facts amply support that relief. Even an unsuccessful challenge to a will's validity will merit an award of attorney's fees if the challenger is able to demonstrate "probable cause plus exceptional circumstances." "Probable cause" means that the challenger has shown reasonable cause for bringing the suit. Where, as here, a challenger establishes a prima facie case that overcomes the presumption of a will's validity, probable cause is shown. And where (again as here) a beneficiary-drafted will is contested, a challenger who establishes the three Melson prongs satisfies this standard. Having established Mr. Szewczyk's testamentary incapacity under Melson, these Petitioners satisfied the probable cause requirement.
Id., at 1122.
Id., at 1118.
See id.
The second prong of the test, the "exceptional circumstance" analysis, has been defined as a challenge to the will that, whether won or lost, benefits the estate. A benefit to the estate can be the "[the] resol[ution, by virtue of the challenger's suit, of] the identity of those who are rightfully entitled to administer and receive it." Although "exceptional circumstances" is determined on a case-by-case basis, the Delaware Supreme Court has found "exceptional circumstances" to exist where "a blood relative [is disinherited] in favor of a stranger, . . . [where the testator] materially alter[s] a prior testamentary scheme," or where the testator lacked independent legal advice.
See id. at 1120, citations omitted; In re Melson, Del. Ch., C.A. No. 13781, Lamb, V.C., Mem. Op. at 15 (March 10, 1999).
Ableman, 481 A.2d at 1120.
Id. at 1120-21.
Here, the Petitioners' successful challenge of the 1998 will constituted an "exceptional circumstance" because it resolved the disposition of Mr. Szewczyk's estate. The Petitioners' challenge also averted a grave injustice, namely the circumvention of Mr. Szewczyk's testamentary scheme. That is because under the 1998 will, (1) the Intervenors would have been disinherited in favor of the Respondents, whose relationship with Mr. Szewczyk had been comparatively estranged; (2) the 1998 will materially altered the testamentary scheme under the 1997 will; and, (3) Robert, the beneficiary-drafter of the 1998 will, failed to provide his father with independent legal advice.
For these reasons, the Petitioners will be awarded reasonable costs and attorney's fees, to be charged against the Estate.
D. Ownership of the WSFS Account
During the summer of 1997, Mr. Szewczyk made Mary Ann an additional signatory on his WSFS checking account. The parties dispute to whom the funds presently in that account belong. The Respondents argue that the decedent placed Mary Ann's name on the account for convenience purposes only, and did not intend to make a gift of the account to her, because the law "presumes that the party who supplies the consideration for the property intended to retain beneficial ownership."
Procek v. Hudav, Del. Ch., C.A. No. 15276, Steele, V.C. (June 18, 1998).
The Petitioners contend that the Respondents have failed to show that Mary Ann's name was placed on the WSFS account solely for convenience purposes. The Petitioners also contend that the authority cited to support the Respondents' legal theory (Procek v. Huday) is a decision that was reversed by the Delaware Supreme Court, and that the law presumes that where the recipient of property is the child of the donor, the transaction is a gift. Accordingly, Petitioners conclude, because Mary Ann was the decedent's child, the Respondents have the burden to rebut the presumption that the decedent placed the WSFS account in Mary Ann's name with the intent of making a gift to her, which they have not done.
Procek v. Hudav, Del. Supr., 727 A.2d 841, 843 (1999).
Mary Ann concedes that she held the account with the decedent as tenants-in-common and not as joint tenants with the right of survivorship. Accordingly, she contends that she is entitled to retain one-half of the value of the account as her sole property, while the other half is estate property.
I agree. There is a presumption, in the case of a parent-child relationship, that the transaction at issue was intended as a gift. Because the Respondents have failed to rebut that presumption, the presumption enlarges into an adjudicated fact. Because Mary Ann and her father held the account as tenants-in-common, she is entitled to one-half of the account balance as of the date of her father's death, with the remaining half being an asset of the Estate.
IV. CONCLUSION
For the foregoing reasons, (i) the petition to invalidate the 1998 will is granted, (ii) the 1997 will shall be admitted to probate, (iii) Mary Ann is entitled to one-half of the WSFS account balance with the remaining one-half being Estate property, and (iv) reasonable attorney's fees and costs, chargeable to the Estate, are awarded in favor of the Petitioners. Counsel shall submit an implementing form of Order.