IMO Vincent J. Tigani, Jr. Estate

• Court: Court of Chancery of Delaware
• Decided: February 12, 2016
• Docket: CA 7339-ML
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IMO: ) ) The ESTATE OF JAMES VINCENT ) C.A. No. 7339-ML TIGANI, JR., deceased, and ) the J. VINCENT TIGANI, JR., ) a/k/a JAMES VINCENT TIGANI, JR. ) REVOCABLE TRUST, U/A dtd. ) APRIL 10, 1995. )

MASTER‟S REPORT

Draft Report: September 30, 2015 Exceptions Submitted: January 22, 2016 Final Report: February 12, 2016

Neil Lapinski, Esquire and Phillip A. Giordano, Esquire, of GORDON FOURNARIS & MAMMARELLA, P.A., Wilmington, Delaware; Attorneys for Mrs. Tigani.

Michael A. Weidinger, Esquire and Alessandra C. Phillips, Esquire, of PINCKNEY, WEIDINGER, URBAN & JOYCE LLC, Wilmington, Delaware; Attorneys for Bruce W. Tigani.

LEGROW, Master This case began as Bruce Tigani‟s bid to remove his mother, Josephine

Tigani, as executrix of Bruce‟s father‟s estate and as trustee of Bruce‟s father‟s

trust. The relationship between Bruce and Josephine was strained to its breaking

point in the 18 months leading up to the death of Bruce‟s father, J. Vincent Tigani,

Jr. Many years before his death, Mr. Tigani executed a pour-over will and

revocable trust that, among other things, designated Bruce and his siblings as

residuary beneficiaries of Mr. Tigani‟s substantial estate. That residual interest,

however, was subject to a limited testamentary power of appointment that allowed

Mrs. Tigani to designate different beneficiaries by her last will and testament.

Seizing upon that power of appointment, Mrs. Tigani attempted quickly to end this

litigation by revising her own will and trust to remove Bruce as a beneficiary of his

father‟s trust. As a result of Mrs. Tigani‟s efforts, this case became side-tracked by

issues of standing and testamentary capacity: namely, whether Mrs. Tigani‟s

revisions to her estate plan effectively divest Bruce of standing to maintain this

action and, if so, whether Mrs. Tigani had the requisite capacity to execute those

documents.

The short answers to those questions are “no” and “yes,” respectively. The

longer answers, as described below, involve novel legal issues and complicated

factual disputes. This case has been hard fought, at times ugly, and – in my view –

has little to do with the substantial funds at stake and much more to do with each

1 side attempting to vindicate their own negative opinion and characterization of the

other. Although it unfortunately means this difficult case will continue, I conclude

that Bruce has standing to pursue this action and that Mrs. Tigani had the capacity

to execute the challenged estate documents.

BACKGROUND

These are the facts as I find them after trial. Trial took place over four days

and covered decades of family history. The following factual recitation includes

only those facts I view as relevant to the issues of standing and capacity.

A. The Tigani family

Josephine C. Tigani (“Mrs. Tigani”), who is the respondent in this action,

was married to James Vincent Tigani, Jr. (“Mr. Tigani”) for more than 60 years.

The couple resided in Delaware for most of their marriage and had three children:

James V. Tigani, III (“Jim”), 1 Diane A. Tigani (“Diane”), and Bruce W. Tigani

(“Bruce”). Jim is married to Mary Anne Tigani (“Mary Anne”), and they have

four children: Jennifer, Allison, Kristin, and James V. Tigani, IV (“Jimmy”). Jim

is a dentist in Wilmington. Diane never married and was a school teacher for more

than thirty years, until she retired to help her mother and father as they confronted

a number of health issues in their later years. Diane lives with Mrs. Tigani, as she

did for a number of years before Mr. Tigani‟s death. Bruce, who is the petitioner

1 Because many of the parties and witnesses share the same last name, I use their first names as necessary for clarity. No disrespect is intended. 2 in this action, was married to his first wife, Janice, until approximately 2008.

Bruce and Janice had two children together, Jessica Tigani (“Jessica”) and Bruce

Tigani, Jr. (“B.J.”). Bruce is a lawyer who practices in Wilmington. He is now

married to Jennifer Brockett Tigani (“Jennifer”).

Although not without their differences and problems over the years, Mr. and

Mrs. Tigani and their children shared a generally warm relationship as the children

grew up. Once the children were adults, however, rifts began to develop. One

significant disagreement between Mrs. Tigani and Jim lasted for more than ten

years, during which time Mr. and Mrs. Tigani executed an estate plan disinheriting

Jim. The precise origins of this falling out are unclear, but may have involved

tensions between Mrs. Tigani and Jim‟s wife, Mary Anne. With the assistance of

Bruce and Mr. Tigani, Mrs. Tigani and Jim ultimately resolved their differences.

Her ten year schism with Jim was not Mrs. Tigani‟s only family division.

She also has not spoken to her sister, Madeline, for several decades, and had, at

best, a very distant relationship with her other sister, Virginia. Mr. and Mrs. Tigani

also had their differences and disagreements over the years. At times, Mrs. Tigani

was very dominating of Mr. Tigani. 2 With all due respect to Mrs. Tigani, the

testimony at trial established that she is stubborn, quick-tempered, and controlling 2 Deposition of James V. Tigani, IV (hereinafter “Jimmy Dep.”) at 45-46; Trial Transcript (hereinafter, “Tr.”) at 360-61 (Jessica) (testifying Mrs. Tigani was controlling of Mr. Tigani and at times belittled him); id. at 1079-80 (Jim) (testifying that he was concerned that his mother was placing undue pressure on his father and therefore directly asked his father whether that was the case). 3 of her family members, at times.3 Some, though not all, of her behavior may be

attributable to Mrs. Tigani‟s efforts to protect Mr. Tigani‟s health and mental state,

which sometimes led her to attempt to control those interacting with him. 4

Notwithstanding these traits, Mrs. Tigani maintained a fairly warm relationship

with Bruce until around 2008, at which point tensions began to develop in their

relationship. Those tensions and the associated fall out form the basis of this

action.

B. Bruce’s personal and professional relationship with his father

At trial, all three of Mr. and Mrs. Tigani‟s children expressed a great deal of

love and respect for their father. It is understandable, and plain from these

proceedings, that Bruce places tremendous value on the memories he has of his

father and their relationship. The witnesses at trial largely were in agreement that

Mr. Tigani was close with all three of his children, including Bruce. Bruce‟s

relationship with his father had an additional dynamic, however, because Bruce

served as his father‟s attorney for most of Bruce‟s legal career.

Shortly after Bruce graduated from law school, he began representing his

father in connection with Mr. Tigani‟s position as a director and stockholder of

several family-owned businesses, including Standard Distributing, Wesley Realty,

3 Jimmy Dep. at 16, 22-24, 28-29, 38; Tr. at 371-73 (Jessica); Tr. at 401-04 (B.J.); Tr. at 1083 (Jim) (testifying his mother instructed him not to tell Bruce that Mr. Tigani was in the hospital). 4 Tr. at 1078-79 (Jim). 4 Tigani Associates, and Tigani Ventures. 5 Bruce and Mr. Tigani discussed his

business interests frequently, particularly later in Mr. Tigani‟s life when issues

arose regarding various attempts to buy Mr. Tigani out of the businesses.6 Mr.

Tigani certainly valued Bruce‟s counsel and was adamant that Bruce remain as his

attorney.7 Even Mrs. Tigani grudgingly concedes that Bruce‟s advice was more

valuable to Mr. Tigani than that of other attorneys whom Mr. Tigani retained late

in his life.8

C. The 1995 estate planning documents

After Jim and Mrs. Tigani reconciled their decade-long disagreement, Mr.

and Mrs. Tigani executed new estate planning documents. On April 10, 1995, Mr.

Tigani executed a will (“Mr. Tigani‟s Will”) that made certain bequests of tangible

personal property and otherwise left the residue of his estate to a simultaneously

executed revocable trust called the James Vincent Tigani, Jr. Revocable Trust (the

“Trust”).9 Mrs. Tigani executed a largely identical will leaving the residue of her

estate to the Josephine C. Tigani Revocable Trust (“Mrs. Tigani‟s Trust”).10 Mr.

Tigani designated Mrs. Tigani as executrix of his estate and trustee of the Trust.

Mrs. Tigani made similar, reciprocal provisions in her will and the agreement

5 Tr. at 13-14 (Bruce). 6 Id. at 32-35 (Bruce). 7 Id. at 1074-75, 1077 (Jim). 8 Id. at 664-65, 669-70 (Mrs. Tigani). 9 Petitioner‟s Exhibit (“PX”) 8. 10 PX 9. 5 governing her trust. According to the agreement governing Mr. Tigani‟s Trust (the

“Trust Agreement”), the residue of the Trust was to be divided into a marital

deduction trust, a marital deduction generation skipping trust, and a residuary

trust.11 Mrs. Tigani was named as the beneficiary of all those separate trusts during

her lifetime. As explained in further detail below, the Trust Agreement gave Mrs.

Tigani a limited testamentary power of appointment over the assets held in trust. 12

Any property not so appointed was to be divided into three equal shares for Diane,

Jim, and Bruce.13 Mrs. Tigani made similar reciprocal provisions in her trust. In

other words, the spouses‟ collective estate plan established in 1995 left their estates

to the surviving spouse for their lifetime, with the residue to be distributed

relatively evenly among their children unless the surviving spouse directed

otherwise through the exercise of their testamentary power of appointment. The

significance of this power of appointment is discussed below.

D. Mr. Tigani’s health begins to fail

Mr. Tigani suffered from various health problems over the course of his

lifetime, but in early 2009 he was diagnosed with non-Hodgkin‟s lymphoma,

which successfully was treated with chemotherapy. At the time, Bruce was

11 PX 1 at Article FIRST, Sections B, C. Although technically divided into three trusts, those distinctions are not relevant for purposes of this report. A reference to the “Trust” refers to all three trusts, unless otherwise indicated. 12 Id. at Article FIRST, Section C(2)(d), Section C(3)(c), Section D(3). 13 Id. at Article FIRST, Section E(2). The Trust left Mr. and Mrs. Tigani‟s home to Diane for her lifetime, subject to certain exceptions. Id. Article FIRST, Section E(1). 6 attentive to his father‟s medical problems, while also attempting to assist his

mother with her own medical appointments.14 In April 2010, however, Mr. Tigani

suffered a blockage in his carotid artery, which triggered a stroke.15 On April 14,

2010, Mr. Tigani had surgery that successfully removed the blockage.

The following day, Bruce went to visit Mr. Tigani in the hospital‟s

“cardiovascular step-down unit.”16 Bruce insists this visit occurred at Christiana

Hospital, while Mrs. Tigani testified it occurred at Wilmington Hospital, and Diane

expressed some confusion about where it occurred.17 Nonetheless, Bruce assisted

his father with eating lunch and accompanied him to a physical therapy

appointment. When they returned to Mr. Tigani‟s room, Diane and Mrs. Tigani

were waiting there.

Mrs. Tigani testified it was an unseasonably warm day that day, she had to

take a circuitous route to Mr. Tigani‟s room due to hospital construction, and she

was tired and in pain by the time she arrived, having recently had a procedure on

her spine. 18 There is no other testimony or documentation substantiating Mrs.

Tigani‟s testimony regarding the weather, although Diane testified that Mrs. Tigani

14 Tr. at 22-23, 25-27 (Bruce). 15 Id. at 23-24 (Bruce). 16 Id. at 37-38 (Bruce). 17 Id. at 626, 864 (Mrs. Tigani); Dep. of Diane Tigani at 161-62. 18 Tr. at 615-18 (Mrs. Tigani). 7 did have to walk a fair distance and was in pain. 19 When they arrived, Bruce

retreated to the back of the room to tend to some work, leaving Diane and Mrs.

Tigani to visit with Mr. Tigani. The witnesses agree that Mr. Tigani was falling

asleep during this visit and that Mrs. Tigani told him that, if he was going to sleep,

she might not visit every day because it was hard to get there and caused her

substantial pain to walk so far.20 Mrs. Tigani testified that she said this gently and

without anger, largely teasing Mr. Tigani.21 Diane testified similarly, explaining

that Mrs. Tigani was in pain and simply told Mr. Tigani something to the effect of

“[I]t was hard for her to come up there, and, you know, if he was going to be

sleeping, that he wouldn‟t even know she was there, you know, she was in a lot of

pain and that she might not be able to make it.”22

Bruce, however, viewed Mrs. Tigani‟s statements as angry and pestering,

and understood Mrs. Tigani to be threatening to leave the hospital and not return

because Mr. Tigani could not stay awake while she visited. 23 Bruce therefore

“stepped in,” telling his mother “[i]f you are going to leave, get the … out,” using

19 Dep. of Diane Tigani at 165-66. Mrs. Tigani insists the weather was in the upper 90s, even though records indicate it was in the 70s. Tr. at 801-02. She also insists the last episode of As The World Turns was on that day, and she missed it to visit Mr. Tigani, even though records indicate the last episode was not aired that day. Tr. at 803. 20 Dep. of Diane Tigani at 165-66; Tr. at 39-42 (Bruce); id. at 622 (Mrs. Tigani). 21 Tr. at 621-22. 22 Dep. of Diane Tigani at 165. 23 Tr. at 39-40 (Bruce). 8 an expletive for emphasis. 24 Bruce acknowledges saying this, but viewed it as

necessary because his father was “defenseless” at the time. 25 He denies coming

toward his mother at all, and certainly not in a threatening way.26

E. Tensions escalate between Bruce and Mrs. Tigani

Although the relationship between Bruce and Mrs. Tigani already was

strained by other factors before April 2010, the confrontation at the hospital was

the “turning point,” leading to a drastic deterioration of their relationship. 27 A

number of other incidents in the months after April 2010 only served to deepen the

divide.

A few weeks after the April 2010 hospital confrontation, Mrs. Tigani hosted

a Mother‟s Day celebration at her home. Bruce did not attend, believing he was

not welcome, but his daughter, Jessica, and most other members of the family

attended. Jessica felt unwelcome when she arrived.28 She soon joined Jim, Jimmy,

and others in the family room. When someone in the group inquired about the

score of the Phillies‟ game, Jessica put the game on the television. 29 Shortly

thereafter, Mrs. Tigani entered the room and asked who had changed the channel.

When Jessica took responsibility, Mrs. Tigani angrily told her she was

24 Id. at 41 (Bruce); Dep. of Diane Tigani at 169-70. 25 Tr. at 41-42 (Bruce). 26 Id. at 42. (Bruce). 27 Tr. at 1067 (Jim); Dep. of Diane Tigani at 169. 28 Tr. at 371 (Jessica). 29 Id. at 372 (Jessica); Jimmy Dep. at 14. 9 disrespectful and, if she wanted to watch TV, she could leave.30 When no one

came to her defense, Jessica left the house.31 Jimmy testified that this was not

particularly unusual behavior for Mrs. Tigani, who not infrequently becomes

confrontational at family gatherings.32 Before this occasion, however, Jessica and

Mrs. Tigani had enjoyed a particularly close relationship.33

The following month, the Tigani family again gathered at Mr. and Mrs.

Tigani‟s home to celebrate Father‟s Day. This time, Bruce, Jessica, and B.J.

attended, along with Diane, Jim, and most of Jim‟s children. Bruce and Mrs.

Tigani largely kept their distance at the beginning of the celebration, but Jessica

attempted to ease the tension with Mrs. Tigani by offering her a glass of water

when she came in from the garden looking flushed.34 Mrs. Tigani responded by

calling Jessica a “brat.”35 Shortly thereafter, Bruce confronted Jim and Jimmy,

asking why they had not defended Jessica on Mother‟s Day.36

At this point, most of the family was gathered in the same room, including

Mr. and Mrs. Tigani. In the midst of the confrontation, Mrs. Tigani raised an issue

about which she and Bruce previously had clashed: whether he would come over

early on Sunday mornings to assist his father with bathing so Mrs. Tigani and

30 Tr. at 372-73 (Jessica); Jimmy Dep. at 14-15. 31 Tr. at 372-73 (Jessica). 32 Jimmy Dep. at 15-16. 33 Tr. at 28; (Bruce); id. at 360 (Jessica). 34 Id. at 374-75 (Jessica). 35 Id. at 375 (Jessica); id. at 641-42 (Mrs. Tigani); id. at 1146-47 (Diane). 36 Id. at 53-54 (Bruce); id. at 377-78 (Jessica); Tr. at 1071 (Jim); Jimmy Deposition at 20-21. 10 Diane could attend Mass.37 For understandable reasons, Mr. Tigani did not want

his daughter or granddaughters to help him with bathing. 38 Bruce previously had

indicated Sundays were the only day he had an opportunity to sleep in and had

suggested he help his father later in the day. 39 Mrs. Tigani insisted that was not an

option. What is unclear to an outside observer – and largely irrelevant to the case –

is why neither Mrs. Tigani nor Bruce was willing to alter their typical schedules to

accommodate the other‟s needs. There also is nothing I found in the record to

suggest why Jim could not assist with this task. Each of the parties tries to paint

the other as unreasonable and unyielding, when in fact they each fit the description,

at least as to this issue.

Already upset by his mother‟s treatment of Jessica, Bruce was frustrated by

his mother raising the Sunday morning issue, which he interpreted as Mrs. Tigani

implying that he did not love his father and would not participate in his care.40

What came next is the subject of some dispute. Bruce contends that he largely did

not speak to his mother during the Father‟s Day confrontation and that he was

focused on asking Jim and Diane why they had not defended Jessica from Mrs.

Tigani‟s attacks. 41 Bruce vehemently denies that he physically threatened his

37 Tr. at 49-51 (Bruce); id. at 645-47 (Mrs. Tigani). 38 Id. at 645-46 (Mrs. Tigani). 39 Id. at 50-51 (Bruce). 40 Id. at 51 (Bruce). 41 Id. at 53-55 (Bruce). 11 mother in any way.42 Jessica, B.J., and Jimmy agree with this account, although

Jimmy does recall Bruce yelling at Mrs. Tigani and Diane.43

Mrs. Tigani, on the other hand, testified that Bruce was yelling profanities at

her, came toward her with his fists, and was “within inches of [her] head.”44 Mrs.

Tigani claims she ducked out of the way just as Jim grabbed Bruce to restrain

him.45 According to Mrs. Tigani, Bruce then turned to Diane and told her that

when Mr. and Mrs. Tigani passed away, he (Bruce) would not help or assist Diane

in any way.46 Mrs. Tigani testified Mr. Tigani witnessed, and was distraught and

angered by, Bruce‟s treatment of both Mrs. Tigani and Diane.47 Jim‟s and Diane‟s

trial testimony largely agreed with Mrs. Tigani‟s account, particularly on the

disputed issues of what Mrs. Tigani said to Bruce, whether Bruce moved toward

Mrs. Tigani when he became angry with her, whether he raised his hand toward

her, and what Mr. Tigani witnessed.48 Jim‟s deposition testimony on those topics

was not entirely consistent: during his deposition, Jim did not recall Mrs. Tigani‟s

request and could not recall whether his father was in the room during the

confrontation,49 while at trial Jim was certain about Mrs. Tigani asking Bruce to

42 Tr. at 55-57 (Bruce). 43 Tr. at 379-80 (Jessica); id. at 401-04 (B.J.); Jimmy Dep. at 50-52, 54-57. 44 Tr. at 647-48 (Mrs. Tigani). 45 Id. at 648 (Mrs. Tigani). 46 Id.at 650-51 (Mrs. Tigani). 47 Id. at 650-652 (Mrs. Tigani). See id. at 1070-71 (Jim), 1149-50 (Diane). 48 Id. at 1069-71 (Jim); id. at 1148-50 (Diane). 49 Dep. of James V. Tigani, III at 60-62. 12 come over on Sunday mornings and recalled his father responding with disbelief

and fear to Bruce‟s reaction to his mother.50

It is not necessarily material to the outcome of the case to determine beyond

a shadow of a doubt what happened that day. What is more notable is that Bruce

and Mrs. Tigani have very different stories about the confrontation and

precipitating events, and there are witnesses that agree with the key points in both

versions. Having heard live testimony from all the witnesses, other than Jimmy,

who only testified by deposition, I find it more likely than not that: (1) Bruce

became upset with his brother and sister for not standing up for Jessica, (2) Mrs.

Tigani inserted herself into the argument and raised an issue she likely knew would

only further provoke Bruce, (3) Bruce yelled profanities at his mother and also

spoke harshly to his sister, and (4) Mr. Tigani was present to witness all of these

interactions. I am doubtful that Bruce raised his hand as though to hit his mother.

That incident, which I refer to herein as the “Father‟s Day Incident,” was one of

the key moments in the deterioration of Bruce‟s relationship with the rest of the

family.

Later that summer, events involving Mr. Tigani‟s various business interests

necessitated a meeting between Bruce and Mr. Tigani. Mrs. Tigani insisted that,

50 Tr. at 1069-72. 13 Jim attend as well for her protection.51 The need for Jim‟s presence delayed the

meeting until evening, by which time Mr. Tigani was tired.52 Bruce also felt Mrs.

Tigani interfered with the meeting by injecting her views, which further

complicated matters.53 In the end, Mr. Tigani and Bruce were unable to reach a

final decision, which hampered Bruce‟s efforts representing Mr. Tigani‟s interests

at a business meeting the next day.54

Because Bruce felt Mrs. Tigani was restricting his access to his father – by

virtue of her near-constant presence with Mr. Tigani and her refusal to be in the

same place with Bruce without someone to protect her from him – Bruce

concluded he no longer could represent his father effectively. Bruce therefore

wrote his father a letter explaining his decision to withdraw as counsel. 55 Mr.

Tigani was angry about Bruce‟s decision and insisted that Bruce continue to

represent him. Jim tried to serve as intermediary between Bruce and Mr. Tigani,

and, for a time, it appeared that Bruce might resume representing Mr. Tigani. The

attempted reconciliation went nowhere, however, because Mrs. Tigani continued to

insert herself into the process, and the strained relationship between Bruce and

Mrs. Tigani made being together unworkable. Mr. Tigani ultimately retained

51 Id. at 654 (Mrs. Tigani). 52 Id. at 58-60 (Bruce). 53 Id. at 60-63 (Bruce). 54 Id. at 63-64 (Bruce). 55 PX 43. 14 Emmanuel Fournaris, Esquire, to represent Mr. Tigani in connection with his

business interests.

F. The Tiganis reconsider their estate plans

In connection with that representation, Mr. Fournaris suggested that one of

his partners, Peter Gordon, Esquire, meet with Mr. and Mrs. Tigani to review their

estate plans. The suggestion was not wholly surprising. In 1995, Mr. Gordon

assisted the Tiganis with their estate plans, and in 2009 Mr. Gordon and Bruce had

discussed the need for Mr. and Mrs. Tigani to revisit their planning.56 Mr. and

Mrs. Tigani met with Mr. Gordon on September 30, 2010. Diane also was present,

although she did not participate aside from responding to Mr. Gordon‟s questions.

In a file memorandum recording the salient points of their discussion, Mr. Gordon

indicated that both Mr. and Mrs. Tigani stated unequivocally that they wanted to

remove Bruce from the will.57 Mrs. Tigani dilated at length on her reasons for

disinheriting Bruce. During the meeting, Mrs. Tigani criticized Bruce for not

helping his parents after Mr. Tigani‟s illness and explained that she believed his

personal choices – particularly relating to his divorce and his relationship with

Jennifer – were immoral and harmful to his children.58 Mr. Tigani did not explain

56 PX 12. 57 Respondent‟s Exhibit (“RX 6”). 58 Id. 15 his reasons, perhaps because he had difficulty talking due to his health issues,59 but

Mr. Gordon‟s memo indicates Mr. Tigani was decisive about disinheriting Bruce.60

At the conclusion of the meeting, Mr. and Mrs. Tigani instructed Mr.

Gordon to leave the bulk of their estate to Diane and Jim, with ten percent to be

held in trust for Jessica and B.J.61 The following day, however, Mrs. Tigani called

Mr. Gordon and indicated that they changed their mind about leaving anything to

Jessica and B.J.62 Mr. Gordon prepared the requested documents, but Mr. and Mrs.

Tigani did not receive them until March 2011, at least in part because Mr. Tigani

fell ill again in or around October 2010, and Mrs. Tigani told Mr. Gordon‟s office

that they would address the documents “later.”63

Mr. Tigani was hospitalized in November 2010 for some complications

relating to his illness. Bruce was not informed of the hospitalization until Jim told

Bruce approximately a week later. Bruce went to visit his father the following day,

along with Bruce‟s good friend, Frank Behm.64 For much of the visit, Mr. Tigani

was pleasant and talkative. After some time, however, Mr. Tigani received two

phone calls in relatively short succession.65 Mr. Tigani‟s demeanor then changed,

and he told Mr. Behm that Bruce was being disinherited and that both Bruce and

59 Id. at 1. 60 Id. at 1, 4. 61 Id. 62 RX 7. 63 PX 16. 64 Tr. at 98-99 (Bruce). 65 Id. at 99-100 (Bruce). 16 Mr. Behm should leave.66 Bruce believes that the phone calls were from Diane and

that Mr. Tigani said these things in order to hurry Bruce and Mr. Behm out of the

room.67 Diane testified, however, that the phone calls were ones she made simply

to make sure it was a convenient time to visit her father, and that she did not know

Bruce was visiting until she arrived at the hospital and her father told her about the

visit and rather proudly related what he had said about Bruce being disinherited.68

G. A thawing in the tensions

Between January and April 2011, there was little contact between Bruce and

his parents. In January, Jim told Bruce that Mr. Tigani wanted Bruce to resume his

position as counsel, and Bruce went to Mr. and Mrs. Tigani‟s home in an attempt

to meet and discuss that prospect. After no more than an hour, Bruce ended the

meeting because he felt Mrs. Tigani‟s interjections and interruptions were making 69 the situation untenable. In March, Mrs. Tigani and Bruce exchanged

unproductive letters in which both stated their position regarding what the other

had misperceived or misunderstood.70 It was during this period that Mr. and Mrs.

Tigani received from Mr. Gordon drafts of their revised wills and revocable trust

66 Id. at 428-30 (Behm). 67 Id. at 100-101 (Bruce). 68 Diane Deposition at 196-200. 69 Tr. at 102-05 (Bruce). 70 PX 17, 21. 17 agreements. 71 Mrs. Tigani promptly sent Mr. Gordon a letter with questions

regarding the drafts.72

In late April 2011, Mr. Tigani again was hospitalized and the doctors

discovered he had colon cancer. Bruce was not informed of the hospitalization

until at least a week later, when Jim called Bruce because Mr. Tigani was in

respiratory distress and Jim was concerned the end was near.73 Bruce immediately

went to the hospital, at which point he and Mr. Tigani reconciled.74 Until Mr.

Tigani died that fall, Bruce frequently visited his father, and he and Mrs. Tigani put

their disagreements aside for a time.75

In October 2011, approximately a week before Mr. Tigani died, Mr. Gordon

sent Mr. and Mrs. Tigani revised drafts of their estate planning documents. The

accompanying letter from Mr. Gordon explained the changes and expressed some

hesitation regarding the tax consequences of various changes Mr. and Mrs. Tigani

had requested.76 Mrs. Tigani contacted Mr. Gordon after receiving those drafts and

indicated that she wanted to change the disposition of assets in the drafts so that

71 PX 19, 20. 72 PX 23. 73 Tr. at 109-110 (Bruce). 74 Id. at 109-111 (Bruce). 75 Id. at 110-111; id. at 688 (Mrs. Tigani). 76 PX 24. 18 Bruce would receive one-third of the “business interests” upon Mrs. Tigani‟s

death.77

H. Mrs. Tigani revises her estate plan

On October 23, 2011, Mr. Tigani died, having never revised his will or trust

agreement. Upon Mr. Tigani‟s death, Mrs. Tigani became the successor trustee of

the Trust and the executrix of Mr. Tigani‟s estate. Under the Trust Agreement,

Mrs. Tigani is entitled to all the income from the Trust during her lifetime and may

invade the principal of the trust as she deems necessary or advisable for her health,

maintenance, and support.78 Under the Trust Agreement, Mrs. Tigani also has a

limited testamentary power of appointment (the “Power of Appointment”) that

allows her to designate beneficiaries of the Trust. The Power of Appointment is

“limited” in the sense that the class of potential beneficiaries to whom property

may be appointed is restricted to Mr. Tigani‟s issue who survive Mrs. Tigani. The

Power of Appointment is “testamentary” because it only may be exercised in Mrs.

Tigani‟s will. Specifically, the Power of Appointment provides, in pertinent part:

(3) Limited Testamentary Power. Upon the death of the Settlor‟s spouse, the Trustee shall distribute such portions or all of the principal of the Residuary Trust to, or in trust for the benefit of[,] the descendants of the Settlor who survive the Settlor‟s spouse, in such manner as the Settlor‟s spouse may appoint and direct by her Last

77 PX 25. 78 PX 1 at Article FIRST (D)(1)-(2). The Trust created a marital trust and a residuary trust. As I understand it, only the Residuary Trust is at issue in this case, because it is all that will remain once Mr. Tigani‟s estate is settled. See Resp‟t‟s Opening Br. in Supp. of Mot. to Dismiss at 2. 19 Will and Testament admitted to probate specifically referring to this limited power of appointment. … In no event, shall the power of appointment conferred upon the Settlor‟s spouse in this subsection be construed as a power in the Settlor‟s spouse to appoint property in favor of herself, her creditors, her estate or the creditors of her estate.79

If Mrs. Tigani does not exercise the Power of Appointment, the Trust Agreement

directs the Residuary Trust to be divided between Diane, Jim, and Bruce. In other

words, Diane, Jim, and Bruce are the “default” remainder beneficiaries of the

Trust.

The day after Mr. Tigani‟s death, Mrs. Tigani executed a last will and

testament (the “2011 Will”) and the “First Complete Amendment” to Mrs. Tigani‟s

Trust (“the 2011 Trust Amendment”). In the 2011 Will, Mrs. Tigani purported to

exercise the Power of Appointment by directing the trustee of the Trust to

distribute all the trust assets subject to the Power of Appointment to the trustee of

Mrs. Tigani‟s Trust, to be administered and distributed in accordance with the

agreement governing Mrs. Tigani‟s Trust.80 Mrs. Tigani simultaneously amended

her trust agreement to distribute: (i) her tangible personal property between Diane

and Jim, (ii) her real estate solely to Diane, and (iii) any “Business Interests” in

equal shares to Diane, Jim, and Bruce.81 Any remaining trust assets were to be

distributed in designated percentages to Diane and Jim. In other words, Mrs.

79 PX 1 at Article FIRST, D(3). 80 PX 2 at Article SECOND. 81 PX 4 at Article First, B (1)-(2). 20 Tigani did not entirely disinherit Bruce through the 2011 Trust Amendment, but

she limited his interest to one-third of the “Business Interests” held by the Trust at

the time of her death.82 Mrs. Tigani apparently had this change of heart regarding

disinheriting Bruce shortly before Mr. Tigani‟s death.83 Bruce points out that Mrs.

Tigani misunderstood the effect of this language and believed that Bruce would

receive one-third of the value of the Business Interests in the event some or all

were sold before her death.84 Mrs. Tigani insists this was the legal effect of the

October 2011 testamentary documents, although her attorneys advised her

otherwise.85

A week after Mr. Tigani‟s death, Mrs. Tigani‟s attorneys contacted Bruce to

discuss Mrs. Tigani‟s decision to “put him back” in “the will” for a portion of the

business interests. 86 In response, Bruce requested information regarding Mr.

Tigani‟s estate plans and any changes thereto in the last two years.87 Acerbic e-

mail exchanges, particularly those from Bruce, ensued. 88 A few months later,

Bruce and his counsel met with attorneys representing Mrs. Tigani. During that

82 “Business Interests” was defined to include any direct or indirect interest in Standard Distributing Co., Inc., Wesley Realty Co., JVT Holdings, LLC, or their successors. PX 4 at 5. 83 PX 26 at BWT00039-40. 84 Tr. at 824 (Mrs. Tigani). 85 PX 29 at 2. 86 PX 26 at BWT00039-41. This language about putting Bruce “back” in the will, which frequently was employed by Mrs. Tigani and her counsel, is imprecise and incorrect, as Bruce never was removed from his parents‟ wills before 2012. 87 Id. at BWT00040-41; PX 27; PX 31; PX 38. 88 See, e.g. PX 26, 27. 21 discussion, Bruce became angry and called his mother an offensive word. 89

Apparently operating under a belief that their ethical obligations required them to

do so, Mrs. Tigani‟s attorneys reported that insult to her.

The negotiations and discussions between Bruce, Mrs. Tigani, and their

representatives were unsuccessful. Bruce filed this action on March 20, 2012,

seeking to remove Mrs. Tigani as executrix of Mr. Tigani‟s estate and trustee of

the Trust and requesting an accounting of her administration of the estate and the

Trust (the “Petition”). Although the Petition initially was filed under seal, it

attracted the attention of the media, likely because of other recent high-profile

litigation involving another branch of the Tigani family and their businesses. The

local newspaper sought to unseal the Petition, and largely was successful in that

effort. A story then ran in the newspaper describing the family dispute. Whether

for that reason, or simply because the Petition was filed in the first instance, Mrs.

Tigani decided to completely disinherit Bruce.90

On April 9, 2012, Mrs. Tigani further amended her trust (the “April 2012

Amendment”). In that amendment, Mrs. Tigani altered the trust agreement to

89 Tr. at 149 (Bruce), 693 (Mrs. Tigani), 1061 (Fournaris). 90 There has been some suggestion in the briefing that Mrs. Tigani was driven to disinherit Bruce because of the publicity associated with this case. The record, however, indicates that she decided to disinherit him the moment he filed the lawsuit. PX 39. 22 completely remove Bruce or his issue as beneficiaries of Mrs. Tigani‟s trust. 91 The

April 2012 Amendment also expressly provided:

THIRTEENTH: Disinheritance. Settlor directs that neither Settlor‟s son, Bruce W. Tigani, nor any of his issue, shall receive any part of Settlor‟s trust estate. The Trustee shall distribute Settlor‟s trust estate as though Settlor‟s son, Bruce W. Tigani, predeceased Settlor without leaving issue surviving Settlor.92

Four days later, Mrs. Tigani filed her opening brief in support of her motion to

dismiss the Petition. In that motion, Mrs. Tigani argued that Bruce lacked standing

to bring this action because he was only a “contingent beneficiary,” in the sense

that “his beneficial rights to the Trust estate do not vest until Mrs. Tigani‟s life

estate terminates and her limited power of appointment lapses unexercised.” 93

Mrs. Tigani‟s opening brief did not mention the April 2012 Amendment and that

issue therefore was not addressed in Bruce‟s answering brief. In her reply brief,

Mrs. Tigani for the first time raised the April 2012 Amendment as a further basis

to support her standing argument. Bruce was permitted to file a sur-reply in light

of the newly raised material.

Even then, however, Mrs. Tigani‟s position and arguments continued to shift

and the parties did not fully and squarely address the issue of whether the 2011

Will, exercising the Power of Appointment, combined with the April 2012

Amendment to Mrs. Tigani‟s Trust, operated to divest Bruce of standing to pursue 91 PX 3, Item I. 92 Id., Item II. 93 Resp‟t‟s Opening Br. in Supp. of Mot. to Dimiss at 3. 23 this action. In the sur-reply, Bruce also argued that the inclusion of materials

outside the pleadings converted the motion to dismiss into a motion for summary

judgment, and that discovery first should be permitted before the Court ruled on a

motion for summary judgment. Among other things, Bruce argued he was entitled

to take discovery into Mrs. Tigani‟s capacity to execute the 2011 Will and the

April 2012 Amendment.

After hearing argument from the parties, I issued a draft oral report

recommending that the Court deny the motion to dismiss. I stayed the period for

taking exceptions and instructed the parties to take limited discovery regarding the

2011 Will and the April 2012 Amendment, including Mrs. Tigani‟s capacity to

execute those documents. I further indicated I would resolve the legal question

regarding Bruce‟s standing once the parties had completed limited discovery and

briefed the precise questions raised by the standing issue.

After that hearing, Mrs. Tigani further amended her estate plan in July 2012

in an undisguised effort to eliminate any question regarding Bruce‟s standing. On

July 31, 2012, Mrs. Tigani signed a codicil to her 2011 Will (the “July 2012

Codicil”). In that document, Mrs. Tigani “irrevocably” exercised the Power of

Appointment and directed that the assets in the Trust should be distributed upon

Mrs. Tigani‟s death in equal shares to Diane and Jim.94 The July 2012 Codicil

94 PX 5, Item two. 24 further states that “no property subject to the Limited Powers of Appointment I am

now irrevocably exercising shall be distributed to my son, Bruce W. Tigani, or any

of his issue.”95 Finally, Mrs. Tigani clarified her intent in executing the codicil:

ITEM FOUR: I intend this Codicil to be irrevocable and I direct that this Codicil shall be construed to be a contract under seal to make a Will in accordance with 6 Del. C. § 2715 between myself, my son, James V. Tigani, III, and my daughter, Diane Amelia Tigani, in exchange for their continued love and affection and promise to assist me with my care and maintenance for the remainder of my lifetime.96

Jim and Diane also signed an “acceptance” of the codicil, indicating that they

agreed to “jointly and severally continue to assist their mother with her care and

maintenance for the remainder of her lifetime.”97

I. The parties’ experts

Each side submitted expert testimony and opinions regarding Mrs. Tigani‟s

capacity to execute the challenged estate documents. In a nutshell, Bruce‟s experts

concluded Mrs. Tigani does not have testamentary capacity, either because she

suffers from delusions regarding Bruce or because she is incapable of exercising

thought, reflection, and judgment when it comes to her relationship with Bruce.

Mrs. Tigani‟s experts, on the other hand, concluded she does have testamentary

capacity and what Bruce‟s experts characterize as delusions are little more than

differences of opinions or memories of certain events and relationships. Because

95 Id., Item three. 96 Id., Item four. 97 Id. at 3-4. 25 there was no dispute regarding the experts‟ impressive credentials or their

qualifications to render an opinion in this matter, I will not further discuss their

backgrounds here, except to note that all four experts are distinguished and

experienced.

Bruce‟s experts, Dr. Samuel Romirosky and Dr. Robin Belcher-Timme

(collectively, “Bruce‟s experts”) each had an opportunity to interview Mrs. Tigani

in a clinical setting and conduct psychological testing, which was administered by

Dr. Belcher-Timme. Bruce‟s experts issued a joint report dated March 30, 2014

(the “Petitioner‟s First Report”) along with an addendum dated July 29, 2014 (the

“Addendum”). The Addendum addressed the expert reports submitted by Mrs.

Tigani‟s experts, and also provided Bruce‟s experts‟ revised conclusions reached

after reviewing additional records and depositions that became available after

Petitioner‟s First Report was issued.98

Mrs. Tigani reported to Bruce‟s experts that she had a happy childhood and

was close with her siblings, parents, and grandparents growing up.99 She similarly

reported that she had a happy marriage, despite some ups and downs she and Mr.

Tigani experienced in the nearly 67 years they were married. Drs. Romirowsky

and Belcher-Timme reported that Mrs. Tigani spoke negatively about Bruce and

his relationship with his father, which she characterized as little more than an

98 PX 97 at 1-2, 5-6. 99 RX 26 at 2. 26 attorney-client relationship.100 Bruce – and by extension his experts – contends

that all three of these claims are demonstrably false, pointing out that Mrs. Tigani‟s

description of her childhood ignores the strained relationship with her siblings and

is not consistent with Bruce‟s recollections of Mrs. Tigani‟s relationship with her

family during his childhood. Bruce similarly points out documented incidents of

Mrs. Tigani badgering or harassing Mr. Tigani, including an incident at a nursing

facility shortly before he died. Bruce also correctly argues that Mrs. Tigani‟s

minimization of Bruce‟s relationship with Mr. Tigani is not consistent with any

other testimony or evidence in the record.

Bruce‟s experts make much of these “inconsistencies” or “distortions.” 101

They also find it significant that Mrs. Tigani insisted there was never an occasion

when one of her doctors could not find a physiological reason for a physical

problem she was experiencing, even though her medical records indicate multiple

occasions in which the treating physician could find no basis for Mrs. Tigani‟s

ailments and referred her for psychological treatment for her well-documented

anxiety. 102 The doctors went on to list a number of “distortions and possible

100 RX 26 at 3. Although Mrs. Tigani denies making these statements, I have no reason to doubt the experts‟ recollection or credibility. 101 Id. at 4. 102 Id. at 6. Bruce, and at times even Bruce‟s experts, appeared to attach substantial significance to the fact that Mrs. Tigani‟s doctors suggested counseling or medication to help her anxiety. This stigmatization of, and overemphasis on, mental health issues is not persuasive, particularly where – as here – the problems Mrs. Tigani was facing have no discernable connection with her alleged lack of capacity. Rather, the repeated references to the fact that Mrs. Tigani had been 27 delusional beliefs,” other than those listed above, including that Bruce wanted to

“steal” the business from his parents and that Bruce‟s letter withdrawing as counsel

to Mr. Tigani reflected his abandonment of his father.103

In the view of Bruce‟s experts, these “distortions,” combined with the results

of a Personality Assessment Inventory (“PAI”) administered to Mrs. Tigani,

amount to sufficient evidence to conclude “to a reasonable degree of psychological

certainty, that [Mrs.] Tigani firmly and intractably holds irrational perceptions

about her son, Bruce, as well as irrational perceptions of events in her life.”104

Although they could not diagnose her with a specific disorder, other than

Generalized Anxiety Disorder, Drs. Romirowsky and Belcher-Timme concluded

that Mrs. Tigani had “features” 105 of Delusional Disorder, Paranoid Personality

Disorder, and Narcissistic Personality Disorder, all of which are cited as support

for the doctors‟ conclusion that Mrs. Tigani “has a history of significant psychiatric

symptomatology that materially and specifically, with regard to unsupported

beliefs about Bruce Tigani, affected her capacity to create or amend her will.”106

referred for treatment for her anxiety takes on the appearance that Bruce and his experts are grasping at any “weakness” they might exploit to demonstrate a lack of capacity. Similarly, the fact that Mrs. Tigani could not perfectly recall every referral given to her or every drug prescribed, is hardly noteworthy or indicative of a lack of capacity, particularly for a 90 year old woman who has some mild memory impairment. See RX 26 at 9. 103 RX 26 at 11-12. 104 Id. at 13. 105 Id. at 14. By “features,” the doctors mean that Mrs. Tigani has some symptoms of the listed disorders, but not enough to make a formal diagnosis. Id. at 13. 106 Id. at 13-14. 28 Oddly, in the Addendum, Drs. Romirowsky and Belcher-Timme retreated

from any suggestion that they had diagnosed Mrs. Tigani with delusions or

delusional behavior, instead insisting that their conclusions regarding Mrs. Tigani‟s

capacity were based on the severity of her “cognitive instability, rigidity of

thinking, and repeated position reversals.” 107 Strangely, references to cognitive

instability and repeated position reversals are not apparent from my reading of

Petitioner‟s First Report, further suggesting that Bruce‟s experts, being unable to

definitively diagnose Mrs. Tigani with any pertinent mental condition, instead

cobbled together “features” of various disorders into a vague conclusion that she

lacked capacity. Unfortunately, the trial testimony did nothing to bring clarity to

the doctors‟ conclusions.108 The testimony, combined with the uncertain tone and

diagnosis in Bruce‟s experts‟ reports, left me unable confidently to rely on the

doctors‟ conclusions regarding Mrs. Tigani‟s capacity.

Mrs. Tigani hired her own experts, Dr. Frank M. Dattilio and Dr. Robert L.

Sadoff, to opine as to her capacity. Drs. Datillio and Sadoff also interviewed Mrs.

Tigani, Dr. Dattilio conducted additional “psychodiagnostic” testing, and Dr.

Sadoff reviewed the results of that testing and Dr. Belcher-Timme‟s testing.

107 PX 97 at 2, 5. 108 Dr. Belcher-Timme did not testify at trial, and Dr. Romiroswky‟s testimony was confusing or confused. See, e.g. Tr. at 229-30, 870 (Romirowsky) (testifying inconsistently about whether he had diagnosed Mrs. Tigani with delusions), 873-75 (Romirowsky) (testifying inconsistently about whether Mrs. Tigani suffered from distortions, misrepresentations, or delusions), 876-80 (Romirowsky) (testifying that Mrs. Tigani met all the criteria for delusional disorder but refusing to say he had diagnosed her with delusional disorder). 29 During her interview with Dr. Datillio, Mrs. Tigani again described her upbringing

in glowing terms and concluded hers was a happy marriage, despite some rough

patches.109 Dr. Dattilo noted references in Mrs. Tigani‟s medical records to some

depression and anxiety she experienced and some prescriptions for medication and

counseling to treat those issues. Mrs. Tigani acknowledged those facts to Dr.

Dattilio and explained that she did not react well to the medication and did not

continue counseling beyond four or five sessions.110 Dr. Datillio concluded that

Mrs. Tigani meets the criteria for a diagnosis of Generalized Anxiety Disorder, but

he concluded she had no dementia-related deterioration and exhibited admirable

cognitive function for someone her age.111

Dr. Datillio disagreed with the conclusions reached by Bruce‟s experts and

particularly criticized their interpretation of the results of the PAI. Dr. Datillio

explained that Bruce‟s experts failed to account for Mrs. Tigani‟s age when

interpreting the results of the PAI, and therefore compared her responses to the

entire sample set, rather than to the age range in which she fell. Because only 1.9

percent of the sample size was 65 or older, the use of the “boilerplate” scoring

mechanism, as opposed to one scaled to Mrs. Tigani‟s age, distorted her responses

and made some of her results appear unusual, when they in fact were typical of

109 RX 28 at 4, 7. 110 Id. at 13. 111 Id. at 12. 30 people within her age bracket.112 Significantly, Drs. Romirowsky and Belcher-

Timme did not respond to this criticism in their Addendum.

Dr. Datillio concluded that there was “a clear lack of evidence to support the

notion of any serious psychopathology” and that there was not sufficient evidence

that Mrs. Tigani was paranoid or had the capacity for distortion or gross

misrepresentation that Bruce‟s experts described in their report.113 Dr. Datillio did

not find anything to substantiate allegations that Mrs. Tigani suffers from a

delusional belief system or otherwise could be diagnosed as having delusions.114

Dr. Datillio therefore concluded that Mrs. Tigani had the requisite capacity to

make and change her will.115

Dr. Sadoff issued two reports regarding Mrs. Tigani‟s capacity: one in

December 2012 and one in May 2014.116 During her initial interview with Dr.

Sadoff, Mrs. Tigani expressed sadness regarding the rift in her relationship with

Bruce.117 After meeting with Mrs. Tigani and interviewing her lawyers and Diane,

Dr. Sadoff concluded in 2012 that Mrs. Tigani was “clearly competent to manage

her affairs and to have signed the [2011 Will, the 2011 Trust Amendment, the

112 Id. at 14-15. 113 Id. at 15-16. 114 Id. at 16. 115 RX 28 at 20. 116 RX 21, 31. 117 RX 21 at 4, 7-8. 31 April 2012 Amendment, and the July 2012 Codicil].”118 Dr. Sadoff reasoned that

Mrs. Tigani did not have an irrevocable bias against Bruce because she expressed a

willingness to reconcile with him if he apologized for his actions.119

Dr. Sadoff interviewed Mrs. Tigani again in 2014 and ordered psychological

testing for Mrs. Tigani. In his 2014 report, Dr. Sadoff confirmed his conclusion

that there was no evidence Mrs. Tigani is impaired intellectually or cognitively,

and no evidence that she has “insane delusions” about Bruce. 120 Dr. Sadoff

explained that a delusion is a “fixed false belief that cannot be influenced to

change by logic or by reason or by influence.” 121 He disagreed with Drs.

Romirowsky and Belcher-Timme‟s conclusion that Mrs. Tigani had delusions,

explaining that the fact that Mrs. Tigani had different opinions about people‟s

relationships or different interpretations about events or individuals‟ motives did

not rise to the level of an insane delusion. He similarly opined that Mrs. Tigani‟s

characterization of her marriage and childhood as “happy,” notwithstanding

evidence that she had conflicts with her husband or her siblings, was simply a

decision to focus on happy times and remember people – most of whom are

deceased – in the best light.122 Dr. Sadoff also strongly criticized Bruce‟s experts

for attributing to Mrs. Tigani symptoms of certain disorders – such as Paranoid 118 Id. at 7. 119 Id. at 7-8. 120 RX 31 at 1. 121 Id. at 2. 122 Id. at 3-4. 32 Personality Disorder or Narcissistic Personality Disorder – when they had

concluded she could not be diagnosed with those disorders.123

Mrs. Tigani provided explanations to both Dr. Dattilio and Dr. Sadoff

regarding her reasons for disinheriting Bruce. She indicated to Dr. Datillio that she

and Mr. Tigani decided to remove Bruce as a beneficiary of their estates after he

withdrew as his father‟s counsel, acted violently toward Mrs. Tigani, and had what

they considered an immoral relationship with Jennifer. 124 To Dr. Sadoff, Mrs.

Tigani described more generally the bases for her anger with Bruce, relating some

incidents that occurred when he was in college, his decision to allow Jennifer to

sleep in his home when the children were present, the Father‟s Day incident, and

Bruce‟s decision to withdraw as counsel to Mr. Tigani.125

Both of Mrs. Tigani‟s experts testified at trial, and I found the testimony of

both to be credible and consistent with their written reports. Their testimony and

their reports also coincided with my own observations of Mrs. Tigani, who during

her testimony appeared to be: (1) remarkably sharp for a woman of her age, (2)

unquestionably strong-willed and firm in her beliefs about various people, and (3)

rather unforgiving of others‟ faults, but (4) far from delusional as I understand that

term. Perhaps most notably, Dr. Sadoff succinctly explained at trial that a person‟s

123 Id. at 5-6. 124 RX 28 at 17. 125 RX 21 at 3-4; RX 31 at 2. 33 thinking cannot be characterized as “delusional,” notwithstanding evidence

contradicting that thinking, if there is a “scintilla” of evidence that supports the

allegedly delusional person‟s beliefs.126

J. The parties’ positions in this litigation

After the evidentiary hearing on capacity, Mrs. Tigani filed a motion for

summary judgment resurrecting her standing argument. The parties

simultaneously briefed and argued the capacity issue and the standing issue. In her

motion for summary judgment, Mrs. Tigani argues that both the April 2012

Amendment and the July 2012 Codicil operate independently to divest Bruce of

standing to pursue this action because he no longer is a beneficiary of Mr. Tigani‟s

Trust. Mrs. Tigani‟s argument is premised on her position that the July 2012

Codicil127 was both a “release” and a contract to exercise a power of appointment

and that Delaware law should recognize a contract to exercise a power of

appointment as effective when the contract is signed, in contrast to the settled rule

that a testamentary power of appointment is not effectively exercised until the

donee dies. Bruce, on the other hand, argues that he is a vested beneficiary subject

to divestiture by virtue of his position as a taker in default of the Power of

126 Tr. at 582-84 (Sadoff). 127 Although Mrs. Tigani took the position at oral argument that the April 2012 Amendment also effectively divested Bruce of standing because it was a “release,” her briefs in support of the motion for summary judgment focus almost exclusively on the July 2012 Codicil. In any event, because I conclude that the July 2012 Codicil does not divest Bruce of standing, the April 2012 Amendment is similarly ineffective in removing Bruce as a party with standing to challenge Mrs. Tigani‟s actions as trustee and executrix. 34 Appointment, and that none of Mrs. Tigani‟s efforts to remove him as a beneficiary

of the Trust are presently effective or can be effective until her death.

Bruce also argues that, even if the July 2012 Codicil or April 2012

Amendment divested him of standing in this action, Mrs. Tigani lacked capacity at

the time she executed those documents. Bruce contends that Mrs. Tigani has fixed,

false beliefs regarding Bruce, such that she is unable to “alter her unusually rigid

thoughts even when presented with overwhelming evidence to the contrary.” 128 As

Bruce frames his argument, Mrs. Tigani‟s delusional beliefs were so overwhelming

that – at the time she executed the challenged documents – she was unable to

exercise thought, reflection, and judgment regarding her relationship with Bruce.

Bruce further contends that the conclusions of Dr. Sadoff and Dr. Datillio

regarding Mrs. Tigani‟s capacity are based on those experts‟ beliefs that Bruce‟s

experts were untruthful or inaccurate in reporting Mrs. Tigani‟s statements during

her clinical interviews.

Mrs. Tigani, of course, contends that she had and has capacity to make and

change her will and estate plan and that Bruce‟s argument conflates the “thought,

reflection, and judgment” standard for capacity with the standard for insane

delusions under Delaware law. Mrs. Tigani argues that Bruce grossly understates

the standard necessary for the Court to conclude a testator lacks capacity as a result

128 Pet‟r‟s Opening Post-Tr. Br. at 67. 35 of insane delusions, and that what Bruce identifies as “delusions” are little more

than differences in the parties‟ opinions or recollections regarding various events

or relationships.

ANALYSIS

I begin my analysis by discussing whether Mrs. Tigani‟s various estate

planning efforts after this lawsuit was filed were sufficient to divest Bruce of

standing to continue this action. For the reasons that follow, I conclude they do

not. The question of whether Mrs. Tigani had the requisite capacity to execute

those documents therefore is moot. For the sake of efficient judicial review,

however, and because of the likelihood the issue of capacity will be raised at some

later date if not addressed now, I then discuss my conclusions regarding capacity.

As discussed below, I believe Mrs. Tigani had capacity to execute the challenged

I. Bruce has standing to maintain this action because Mrs. Tigani’s testamentary power of appointment cannot effectively be exercised until her death. Delaware law permits a “beneficiary” to bring an action to remove a trustee

of a trust.129 The term “beneficiary” is undefined in the relevant chapter of the

Delaware Code and the parties therefore spent a fair amount of time at the motion

to dismiss stage arguing whether a contingent beneficiary fell within the meaning

129 12 Del. C. § 3327. 36 of “beneficiary” under 12 Del. C. § 3327. It is not necessary for this Court to

resolve that argument because Bruce is not a contingent beneficiary, but rather a

vested beneficiary subject to divestiture, and I believe that the statute‟s use of the

general term beneficiary, without any language restricting the class of beneficiary

to whom it refers, fairly encompasses a vested beneficiary subject to divestiture.

Mrs. Tigani‟s argument that Bruce is a contingent beneficiary rests on her

contention that her death and failure to appoint Bruce‟s share to other permissible

appointees was a condition precedent to Bruce receiving a share of the Trust. Mrs.

Tigani did not cite any precedent for that position in her summary judgment

briefs.130 In contrast to that argument, both the Restatement (Second) of Property

and a leading treatise on trust law indicate that a taker in default of a power of

130 In her motion to dismiss, Mrs. Tigani cited a decision of the U.S. Tax Court, Estate of Halpern v. C.I.R., 1995 WL 447972 (Tax Ct. July 31, 1995) and a decision of this Court, N.K.S. Distributors, Inc. v. Tigani, 2010 WL 2011603 (Del. Ch. May 7, 2010). In Halpern, the Tax Court did describe as “contingent” the interests of beneficiaries who would receive the trust corpus if the donee of a power of appointment failed to exercise that power. The Court‟s use of the term “contingent,” however, appears to be dicta, as it did not form the basis for the Court‟s ruling. 1995 WL 447972 at *10. In addition, the Court‟s opinion does not indicate that it was charged with distinguishing between a contingent beneficiary and one who was vested subject to divestiture. In N.K.S. Distributors the Court was presented with the question of whether a successor beneficiary of a trust could compel the production of attorney-client communications between the primary beneficiary and counsel to the trust. The Court denied the motion and reasoned that the movant only was a “contingent beneficiary” because the primary beneficiary had a limited power of appointment and there was no guarantee the movant would remain as a beneficiary under the power of appointment. 2010 WL 2011603 at *2. The opinion in N.K.S. Distributors does not indicate whether the movant was a taker in default of the power of appointment, and therefore is of limited utility in resolving the question of Bruce‟s legal status. 37 appointment is classified as vested subject to divestiture. 131 More importantly,

regardless of how the interest held by a taker in default of a power of appointment

is described, most courts in other jurisdictions have concluded that a taker in

default has an interest in the property that is the subject of the power of

appointment and has standing to compel an accounting from a trustee. 132 Mrs.

Tigani has not identified any reason why Delaware should deviate from this

majority rule. In fact, there is good reason to follow that trend, particularly in this

case, because concluding that the takers in default of the Power of Appointment do

not have standing to challenge the actions of the trustee effectively would insulate

Mrs. Tigani from any form of judicial review of her actions as trustee.

The analysis, unfortunately, does not end there, because Mrs. Tigani

contends that, even if Bruce had standing at the time he filed this action, the July

2012 Codicil divested him of standing. The parties agree there is no Delaware case

directly on point. In my view, however, persuasive authority from other

jurisdictions, along with several secondary sources, including the Restatement,

compel the conclusion that: (1) Mrs. Tigani‟s attempt to exercise the Power of

131 Restatement (2nd) Property: Donative Transfers § 11.2, cmt. c. (“A taker in default of appointment has an interest in the property that is subject to the power of appointment. If the only thing that can defeat the interest is an exercise of the power, the interest in the taker in default is vested subject to divestiture.”); Alan Newman, George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 967 at 178 n.26 (3d ed. 2010) (citing Restatement (Second) Property: Donative Transfers § 11.2, cmt. c.). 132 See Alan Newman, George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 967 at 178-79 n.26 (3d ed. 2010) (citing cases).

38 Appointment is not effective during her lifetime; (2) the July 2012 Codicil at most

represents a “release” of Mrs. Tigani‟s power to appoint the Trust property to

Bruce, but it does not alter his position as a taker in default of the Power of

Appointment; and (3) Delaware law does not, and should not, recognize a

“contract to exercise a power of appointment” as a presently-enforceable

agreement.

A. The Power of Appointment is not presently exercisable.

There is no dispute between the parties that the Power of Appointment is a

testamentary power, as it only may be exercised in Mrs. Tigani‟s last will and

testament admitted to probate.133 In turn, Mrs. Tigani necessarily must be deceased

before any exercise of the Power of Appointment is effective, since her last will

and testament cannot be admitted to probate while she is living. For that reason,

Delaware law and several secondary sources provide that any exercise of a

testamentary power of appointment becomes effective only at the death of the

powerholder,134 who often is called the “donee” of the power.135 It is settled that

any bequests Mrs. Tigani might make in her will of property she owns would not

pass to the named beneficiaries until her death, because her will might be changed

133 In re Estate of James Vincent Tigani, Jr., C.A. No. 7339-ML at 4-5 (June 2, 2015) (TRANSCRIPT). 134 Weymouth v. Wilmington Trust Co., 1991 WL 148808, at *4 (Del. Ch. Aug. 2, 1991); Uniform Powers of Appointment Act (hereinafter cited as “UPAA”) § 102(15)(B); Restatement (Second) of Property: Donative Transfers § 11.5. 135 The Restatement (Second) of Property: Donative Transfers § 11.2 contains definitions identifying the various persons related to a power of appointment. 39 or the property might be transferred during her lifetime. 136 Similarly, any

appointees Mrs. Tigani might designate in her last will and testament to become

beneficiaries of the Trust could not claim an interest in the property until her death,

because the power of appointment does not become exercisable until that time.

B. Although the July 2012 Codicil may be a release, it does not alter Bruce’s position as a taker in default of a power of appointment. Although Mrs. Tigani concedes the Power of Appointment is not presently

exercisable, she contends the July 2012 Codicil operated as both a release137 and a

contract to exercise a power of appointment, and the combination of those two

things effectively eliminated Bruce as a beneficiary – whether contingent or vested

– under the Trust.

Delaware law expressly permits the donee of a power of appointment to

release the power either partially or completely. Nearly any power of appointment,

including the Power of Appointment at issue here, is “releasable,” with or without

consideration, if the release is made in a signed writing and delivered as required

136 Hill v. Baker, 102 A.2d 923, 926-27 (Del. Super. 1953). 137 It is notable that Mrs. Tigani‟s argument that the July 2012 Codicil operates as a “release” was not even raised until her reply in support of her motion for summary judgment. That is, Mrs. Tigani filed four briefs on the standing issue (two in support of the motion to dismiss and two in support of the motion for summary judgment) and did not contend until the last brief that her intent was to “release” Bruce as a permissible appointee. Bruce argues, correctly I believe, that this constitutes “sandbagging,” which generally is not countenanced in the Delaware courts. Because Mrs. Tigani does not prevail on the merits of the release argument, however, I have considered the issue rather than concluding that the argument was waived by the failure to timely raise it. 40 by law.138 The release is effective upon delivery of the signed writing to, among

others, “any person, other than the grantee, who could be adversely affected by an

exercise of the power.”139 There is no requirement under the law that any party

adversely affected by the release be a party to, or consent to, the release.140

A release, however, does not alter the persons a trustor designated as takers

in default of a power of appointment. Rather, at most, a release of a power of

appointment limits or eliminates the donee‟s power to appoint.141 Arguably, the

July 2012 Codicil may be read as a partial release or as a contract to release, given

Mrs. Tigani‟s direction that no property that was the subject of the Power of

Appointment would be distributed to Bruce.142 If it is a valid release, the July 2012

Codicil limited Mrs. Tigani‟s Power of Appointment by reducing the class of

permissible appointees of the power. The inquiry, however, does not end there.

138 25 Del. C. § 502(a); see also Restatement (Second) Property: Donative Transfers § 14.2. 139 25 Del. C. § 502(c)(3). 140 See, e.g. 25 Del. C. § 502; Restatement (Second) Property: Donative Transfers § 14.3; Restatement (Third) Property: Wills and Other Donative Transfers § 20.3. 141 Restatement (Second) Property: Donative Transfers § 14.2, cmt. c (“A non-general power to appoint by will cannot be exercised in the donee‟s lifetime. A complete release of such a power causes the interests of the takers in default of appointment to be incapable of being defeated by an exercise of the power.”); id. § 16.2, cmt. a (“A release, however, operates negatively by eliminating possible appointees.”); Restatement (Third) Property: Wills & Donative Transfers § 21.2, cmt. a (same). 142 I say “arguably” because there is some authority to support the opposite conclusion. That is, as discussed below, a contract to appoint may be construed as a release, but if the donee benefits from the contract, the contract may not be valid and enforceable and the release therefore may not be effective. See Restatement (Third) Property: Wills & Donative Transfers § 20.3, cmt. d. Because I conclude that, even if effective as a release, the July 2012 Codicil would not eliminate Bruce‟s standing, I need not reach the hypothetical question of whether the July 2012 Codicil is a valid release. 41 Mrs. Tigani might choose not to exercise the Power of Appointment, or might fail

to exercise it correctly, in which case Bruce would be a beneficiary of the Trust as

a taker in default of the Power of Appointment. For that reason, Mrs. Tigani also

argues that the July 2012 Codicil functions as a contract to exercise the Power of

Appointment.143

C. A contract to exercise a testamentary power of appointment is not valid in Delaware. Mrs. Tigani argues that the July 2012 Codicil operated as a contract to

exercise the Power of Appointment in favor of Jim and Diane, effectively

eliminating the possibility that Bruce would take in default of the Power of

Appointment. The question of whether a so-called “contract to appoint” is valid in

Delaware appears to be an issue of first impression. In my view, the better rule,

and the one adopted by the Restatement, is that a donee who holds a power to

143 At argument, Mrs. Tigani acknowledged that, even if the release was valid, it did not alter Bruce‟s status as a taker in default, but contended that any remaining interest Bruce might have is so attenuated that the Court should not recognize it as conferring standing on Bruce to maintain this action. In re Estate of James Vincent Tigani, Jr., C.A. No. 7339-ML (June 2, 2015) (TRANSCRIPT) at 43-45. In support of that argument, Mrs. Tigani cited the N.K.S. Distributors, Inc. v. Tigani, 2010 WL 2011603 (Del. Ch. May 7, 2010), discussed at footnote 130, supra. As explained above, the utility of that case is limited here because in that case it is not clear whether the movant was a taker in default, as opposed to merely a permissible appointee. More importantly, the issue the Court confronted was whether a “contingent” beneficiary should be permitted to obtain privileged documents when the primary beneficiary of the trust was opposed to the documents being produced. The Court in that case was not presented with the more fundamental question of whether a “contingent” beneficiary should have standing to pursue an accounting. Other courts that have addressed that question have concluded that beneficiaries similarly situated to Bruce have standing. See n. 132, supra. 42 appoint that is not presently exercisable, such as the one at issue here, may not

enter into a valid contract to appoint.

From the outset, it is helpful to keep in mind the distinction between a

release and a power of appointment. A release operates negatively, by limiting or

altogether eliminating a donee‟s power of appointment. A contract to appoint, on

the other hand, operates affirmatively as a purported exercise of the power.144 A

donee of a power of appointment expressly is permitted to release the power under

Delaware law.145 The Restatement similarly recognizes the validity of a release.146

Delaware law is silent, however, with respect to contracts to appoint. The

Restatement and other secondary sources generally indicate that contracts to

exercise a testamentary power of appointment are not valid, with limited

exceptions.

The Restatement explains that “a contract to exercise a power that is not

presently exercisable is unenforceable” unless “the donee was also the donor of the

power and reserved the power in a revocable inter vivos trust.”147 There are two

rationales underlying that rule. First, a donee of a power not presently exercisable,

such as a testamentary power of appointment, does not have the authority to make

a present appointment. Allowing the donee to circumvent that rule through a 144 See Restatement (Third) Property: Wills & Donative Transfers § 21.2, cmt. a. 145 25 Del. C. § 502. 146 See, e.g. Restatement (Second) Property: Donative Transfers §§ 14.2, 14.3; Restatement (Third) Property: Wills and Donative Transfers § 20.3. 147 Restatement (Third) Property: Wills & Donative Transfers § 21.2. 43 contract to appoint would defeat the donor‟s intent in creating a power that could

not be exercised immediately.148 A donor who creates a testamentary power of

appointment, or any other power not presently exercisable, is presumed to intend

that “the selection of the appointees and the determination of the interests they are

to receive is to be made in light of the circumstances that exist on the date the

power becomes exercisable.” 149 In other words, by limiting when a power of

appointment may be exercised, the donor essentially requires the donee to “wait

and see” and take into account later developing facts before exercising the power.

Applied to this case, when Mr. Tigani gave Mrs. Tigani a testamentary

power of appointment, he is presumed to have intended that she would have the

freedom to exercise the power after taking into account all facts and circumstances

that developed between Mr. Tigani‟s death and Mrs. Tigani‟s death. If the Court

were to recognize the contract to appoint as valid, Mrs. Tigani‟s ability to alter the

appointment at any time before her death would be eliminated and Mr. Tigani‟s

intent would be defeated. Other sources are in accord with this reasoning. 150

Although Delaware law is silent on this precise issue, it is settled that the scope of

a power of appointment is interpreted pursuant to the donor‟s intent.151

148 Restatement (Third) Property: Wills & Donative Transfers § 21.2, cmt. a. 149 Id. § 21.2, cmt. a. 150 UPAA § 406 (2013); John A. Burron, Jr., The Law of Future Interests, §§ 874, 1011 (3d ed.). The relevant sections of the UPAA and The Law of Future Interests may be found as exhibits to the letter to the Court from Thomas R. Riggs, Esq., dated June 4, 2015. 151 Weymouth v. Wilmington Trust Co., 1991 WL 148808, at *3 (Del. Ch. Aug. 2, 1991). 44 Second, a contract to appoint that confers a benefit on a donee when the

donee is not a permissible appointee also is invalid on the independent ground that

[the contract] confers a benefit on an impermissible appointee. As this Court

explained in Weymouth v. Wilmington Trust Co., a power of appointment may not

be exercised in a manner that would benefit an impermissible appointee.152 Such

an appointment is considered a “fraud” on the power and is invalid.153 Mrs. Tigani

is not a permissible appointee under the Power of Attorney. She nonetheless

conferred a benefit upon herself by contracting to exercise the Power of

Appointment in exchange for Diane‟s and Jim‟s “continued love and affection and

promise to assist [her] with [her] care and maintenance for the remainder of [her]

lifetime.”154 For that reason, if Delaware follows the Restatement and the other

secondary sources, the July 2012 Codicil is ineffective as a contract to appoint both

because it contravenes Mr. Tigani‟s intent and because it confers a benefit on Mrs.

Tigani, who is not a permissible appointee.

Mrs. Tigani argues, however, that Delaware should not follow the

Restatement regarding the validity of contracts to appoint, either as a general rule

or at a minimum in this particular case. Mrs. Tigani acknowledges that Delaware

152 Id. at *3-4. 153 UPAA § 307. There need not be any actual fraud involved in a fraudulent appointment. Rather, an attempt to exercise the power is fraudulent and void if it is exercised for a purpose or with an intention beyond the scope of the power. The Law of Future Interests, supra n. 150, § 981 at 547; see also, id. at § 1011 at 570. 154 PX 5 at Item 4. 45 courts generally find the Restatement of Laws to be persuasive authority on many

topics,155 but contends the rule announced in the Restatement should not apply here

because it conflicts with Delaware‟s recognition of the enforceability of contracts

to make a will. Mrs. Tigani also argues, in the alternative, that the July 2012

Codicil should be valid because it was not contrary to Mr. Tigani‟s intent and

because Mr. Tigani surely would have wanted Mrs. Tigani to have the freedom to

use the Power of Appointment to ensure the continued support of her children in

her old age.

As to the first argument, the fact that Delaware recognizes and enforces

contracts to make a will, provided the burden of proof of such an agreement is

met,156 is not a sufficient basis to conclude that Delaware also should recognize

contracts to appoint. There are important distinctions to be drawn between the two

contracts. First, unlike a contract to appoint, a contract to make a will does not

involve the same policy concerns of contravening a donor‟s intent. Second, a

contract to make a will does not allow the would-be testator to use as consideration

an interest in property to which he otherwise has no right. By entering into a

contract to make a will, a testator agrees to make a bequest of a property interest

155 See, e.g. Stayton v. Del. Health Corp., 117 A.3d 521 (Del. 2015); Ascension Insur. Holdings, LLC v. Underwood, 2015 WL 356002 (Del. Ch. Jan 28, 2015); NAMA Holdings, LLC v. Related WMC LLC, 2014 WL 6436647 (Del. Ch. Nov. 17, 2014); In re Activision Blizzard, Inc., 86 A.3d 531 (Del. Ch. 2014). 156 See 6 Del. C. § 2715; Brown v. Wiltbank, II, 2011 WL 5027057, at *5 (Del. Ch. Oct. 13, 2011); In re Maull, 1994 WL 374302, at *3 (Del. Ch. June 9, 1994). 46 that belongs to the testator and of which the testator freely may dispose during his

lifetime. In contrast, the property in question in a contract to exercise a

testamentary power involves a property interest to which the donee has no claim

and which the donee cannot dispose of during her lifetime.157 Put another way, if a

contract to appoint were enforceable, the donee could use the contract to confer a

current benefit on herself in exchange for property – the remainder interest – the

donee has no right to enjoy. Mrs. Tigani has a life estate in the income and

principal of the Trust. She has a power to appoint the remainder interest to a set of

permissible appointees, but she has no right herself to enjoy the remainder interest.

Mrs. Tigani‟s argument that she has not contravened Mr. Tigani‟s intent or

conferred a benefit on herself that he did not intend is equally unpersuasive in my

view. To determine a settlor‟s intent, this Court looks to the language in the trust.

If that language is unambiguous, the Court looks no further and does not consider

extrinsic evidence of intent.158 Mrs. Tigani does not point to any ambiguity in the

language of the Trust, but instead argues that Mr. Tigani could not have intended

to limit her authority in this way because it was their agreement as spouses that the

last survivor would control the ultimate disposition of their joint assets. Mrs.

Tigani posits that Mr. Tigani likely did not understand the precise implications of

the type of power of appointment contained in the Trust Agreement. The Court,

157 Accord The Law of Future Interests, supra n. 150, § 1013 at 572. 158 Wilmington Trust v. Annan, 531 A.2d 1209, 1211 (Del. Ch. 1978). 47 however, cannot look to extrinsic evidence to read ambiguity into an unambiguous

contract. Mr. Tigani‟s Trust plainly states that the Power of Appointment was

testamentary, evincing his intent that Mrs. Tigani could not exercise the power

until her death. Additionally, Mr. Tigani named the permissible appointees of the

Power of Appointment, of which Mrs. Tigani was not one. In fact, there likely

were important tax reasons that Mrs. Tigani was not named as a permissible

appointee of the power. Because the language in the agreement is unambiguous,

Mrs. Tigani cannot resort to her own testimony regarding the spouses‟

understanding or what Mr. Tigani may or may not have understood when he signed

the agreement.

For those reasons, I conclude that – even if the July 2012 Codicil was an

effective release of Mrs. Tigani‟s power – it did not divest Bruce of standing as a

taker in default of the power, and the portion of the July 2012 Codicil that

purported to operate as a contract to exercise the Power of Appointment is void

under Delaware law. Bruce therefore continues to have standing as a taker in

default to pursue this action.

D. The Power of Appointment is exclusionary.

Finally, although it is not necessary to reach the issue in light of the

foregoing conclusion, I nevertheless will address Bruce‟s alternate argument that

the Power of Appointment is non-exclusionary. Given the current tensions

48 between the parties, it seems unlikely that a détente may be reached, in which case

the issue of whether the Power of Appointment is exclusionary or non-

exclusionary is likely to arise upon Mrs. Tigani‟s death. Briefly, Bruce argues that,

even if the July 2012 Codicil were both a release and a valid contract to appoint,

the exercise of the Power of Appointment would be invalid because he contends

the Power of Appointment is non-exclusionary, meaning Mrs. Tigani must appoint

a minimum reasonable share to each of the permissible appointees. In contrast, an

exclusionary power of appointment allows the donee to select among a class of

permissible appointees, excluding some of the permissible appointees altogether.

There is no case or statute in Delaware addressing the distinction between

exclusionary and non-exclusionary powers of appointment. A handful of states

have adopted statutes to the effect that all powers of appointment are

exclusionary.159 Others follow the rule, adopted in the Restatement, that a power

of appointment is presumed to be exclusionary unless the terms of the power

expressly provide that the appointment must benefit each permissible appointee.160

The Restatement explains that language that unambiguously creates a non-

exclusionary power includes language “granting the donee the power to appoint to

„all and every one‟ or to „each and every one‟ of a defined and limited class of

permissible appointees, or language specifying the share of the appointive property

159 The Law of Future Interests, supra n. 150, § 982 at 552 & n.5. 160 Restatement (Third) Property: Wills & Donative Transfers § 17.5. 49 from which one or more individually designated permissible appointees may not be

excluded by an appointment.”161 Bruce concedes that the Power of Appointment

does not contain any such language.

In my view, the plain language of the Power of Appointment indicates it is

exclusionary because it allows Mrs. Tigani to distribute “such portions or all” of

the residue of the trust to Mr. Tigani‟s descendants who survive Mrs. Tigani, “in

such manner as [Mrs. Tigani] may appoint and direct … .”162 By allowing Mrs.

Tigani to appoint some or all of the residue to the permissible appointees in such

manner as she directed, Mr. Tigani selected unambiguous language indicating an

intent to allow Mrs. Tigani to decide which of the permissible appointees received

an interest, and in what amount. That conclusion also is supported by the absence

of any language in the Trust from which a reviewing court could determine the

minimum share each permissible appointee would receive if the power were non-

exclusionary.163 In any event, even if the Power of Appointment was ambiguous,

the Restatement indicates that ambiguous language is presumed to create an

exclusionary power.164

161 Id. § 17.5, cmt. d. 162 PX 1 at 13. 163 See The Law of Future Interests, supra n. 150 at § 982 at 552 (discussing the difficulty in determining whether a minimum share was “nominal,” and therefore illusory, or “substantial,” and therefore valid). 164 Restatement (Third) Property: Wills & Donative Transfers § 17.5, cmt. f (“[F]or example, a power to appoint „to,‟ „among,‟ or „between‟ a defined and limited class of permissible appointees is exclusionary.”). 50 II. Mrs. Tigani had capacity at the time she executed the 2011 Will, the 2011 Trust Amendment, the April 2012 Amendment, and the July 2012 Codicil. As explained above, having concluded that Mrs. Tigani‟s recent estate

planning could not divest Bruce of standing while she is still alive, the issue of

Mrs. Tigani‟s capacity is moot. It nonetheless is likely that, if the Court does not

resolve capacity now, that challenge will be re-raised at a later date. I therefore

discuss the capacity issue below.

The standard for testamentary capacity in Delaware is well-worn: “[O]ne

who makes a will must, at the time of execution, be capable of exercising thought,

reflection and judgment, and must know what he is doing and how he is disposing

of his property. He must have sufficient memory and understanding to

comprehend the nature and character of his act.”165 A testator is presumed to have

capacity, and the burden rests on the contesting party to prove incapacity by a

preponderance of the evidence.166 If a person meets this standard, it is irrelevant

whether the Court agrees with the testator‟s plan of distribution.167

A sound mind is one that is “wholly free from delusion.”168 Conversely, a

delusion is the mark of an unsound mind, and a delusion that directly influences a

165 In re Will of Langmeier, 466 A.2d 386, 402 (Del. Ch. 1983); see also, In re Estate of West, 522 A.2d 1256, 1263 (Del. Ch. 1987). 166 In re Will of Langmeier, 466 A.2d at 389; In re Barnes’ Will, 18 A.2d 433, 434 (Del. Super. 1941); In re Miller’s Will, 85 A. 803, 808 (Del. Super. 1912). 167 In re Miller’s Will, 85 A. at 808. 168 Rodney v. Burton, 86 A. 826, 829 (Del. Super. 1912). 51 person‟s will necessarily invalidates that will.169 Under Delaware law, a delusion

is “a false belief for which there is no reasonable foundation, a conception of the

existence of something which does not exist, of which the mind of the person

entertaining it cannot permanently be disabused.”170 A delusion may be limited to

particular subjects, such that a testator otherwise appears to be of completely sound

mind. 171 Nonetheless, if that partial delusion forms the basis for a testator‟s

decisions, it deprives the testator of capacity.

The question that must be answered by a court determining the capacity of

an allegedly delusional testator is whether the testator suffered from such insane

delusions, continuing up to the time of making her will, that she was not capable of

exercising thought, reflection, and judgment and did not possess the requisite

memory and understanding to comprehend the nature and character of her acts.172

In Tracy v. Prudential Life Insurance Co. of America, this Court distilled the

applicable law regarding insane delusions into a two-part test:

1. Was the belief of the [testator] a mere false idea as distinguished from an insane delusion? 2. Assuming such a delusion, did the [testator] change the beneficiaries [of the estate] because of that belief?173

169 Rodney, 86 A. at 829-30; In re Miller’s Will, 85 A. at 810-11. 170 In re Barnes’ Will, 18 A.2d at 434. 171 In re Miller’s Will, 85 A. at 810-11. 172 Id. at 811. 173 101 A.2d 321, 326 (Del. Ch. 1953). 52 As explained above, Bruce contends that Mrs. Tigani suffers from delusional

beliefs regarding Bruce, and that those delusions affected her thought, reflection,

and judgment at the time she executed the challenged testamentary documents.

Bruce lists several delusions he contends are overwhelmingly supported by the

evidence, namely Mrs. Tigani‟s beliefs regarding: (1) her “happy” childhood, (2)

her “happy” marriage, (3) the confrontation between Bruce and Mrs. Tigani in

April 2010 at the hospital, (4) the confrontation between Jessica and Mrs. Tigani

on Mother‟s Day, the (5) “Father‟s Day Incident,” (6) Bruce‟s withdrawal letter,

and (7) the legal effect of the 2011 Will and 2011 Trust Amendment.174 As to Mrs.

Tigani‟s beliefs or characterizations of her childhood and marriage, Bruce

concedes those “delusions” did not affect Mrs. Tigani‟s decision to disinherit

Bruce, but he contends they nevertheless are important because they provide

evidence of how her “psychological issues” inform her view of the world.175

Importantly, each of the “delusions” Bruce identifies are not, as Delaware

law requires, false beliefs for which there is no reasonable foundation. Rather,

each of these five items reflects either (1) a difference in the parties‟ recollection

and interpretation of various events or (2) a lay person‟s misunderstanding of

nuanced legal issues. None of these items, nor the collective set, stands as proof

by a preponderance of the evidence that Mrs. Tigani is delusional. It is clear that,

174 See Pet‟r‟s Opening Post-Tr. Br. at 67-82; Pet‟r‟s Reply Post-Tr. Br. at 34-35. 175 Pet‟r‟s Reply Post-Tr. Br. at 34. 53 for a number of reasons, not the least of which is this lawsuit, Mrs. Tigani dislikes

Bruce. It also is clear that she has misunderstood him on a number of occasions.

Mistake and prejudice, however, are not insane delusions.176

The first three items Bruce identifies as delusions affecting Mrs. Tigani‟s

testamentary decisions – the April 2010 hospital incident, the Mother‟s Day

incident, and the Father‟s Day Incident – amount to little more than different

peoples‟ interpretation and recollection of motivations and events. In an effort to

prove Mrs. Tigani is delusional, Bruce focuses on items that are not material to

Mrs. Tigani‟s testamentary decisions, such as her recollection of the temperature

that day, the hospital in which the events occurred, and when a particular television

program aired. Although Mrs. Tigani‟s insistence that she is correct on those

points – despite demonstrable evidence to the contrary – is odd, those “delusions”

did not factor into her decision to execute the challenged documents. The events

that may have played a role in her decision to disinherit Bruce, such as whether he

was justified in shouting at his mother in the hospital, or what occurred in the

Tiganis‟ home during the holiday functions, are not incontrovertibly false. Rather,

Mrs. Tigani‟s recollection is supported by others who witnessed the events. If

there is even a modicum of facts upon which a testator might have based her belief,

176 In re Barnes’ Will, 18 A.2d at 434. 54 that belief is not an insane delusion, even if the Court concludes the testator‟s

belief is without foundation or illogical.177

Bruce also characterizes as delusional Mrs. Tigani‟s insistence that Bruce

abandoned his father by withdrawing as counsel and her unwavering belief that the

2011 Will gave Bruce one-third the value of the business interests, even if the

businesses were sold before Mrs. Tigani‟s death. As to the first point, Bruce‟s

argument focuses not on delusions, but on his belief that Mrs. Tigani misinformed

Mr. Tigani about the contents of the withdrawal letter and that she “caused her

husband to feel insulted and humiliated at his son‟s apparent rejection of him.” 178

Even if that was the case, which other witnesses – including Jim and Diane –

discount, those actions would not be evidence of a delusion. In addition, I believe

Mrs. Tigani‟s insistence regarding the effect of the 2011 Will reflects not a

delusion, but her position regarding what she intended the will to accomplish,

although she did not achieve that intent.

Other statements of Mrs. Tigani to which Bruce has referred at times as

“delusional,” such as those regarding Mr. Tigani‟s feelings about Bruce, also do

177 Id. Bruce suggests that Mrs. Tigani‟s version of events is supported only by people she likely manipulated into “remembering” key events consistent with her own recollection. Although I find it likely that Mrs. Tigani has a tendency to try to impose her view and recollection on people, I had an opportunity to observe the witnesses at trial and do not believe either Jim or Diane materially changed their stories to suit Mrs. Tigani‟s position in this lawsuit. In any event, if Mrs. Tigani was able to convince others that her version of events is accurate, that necessarily precludes any finding that Mrs. Tigani is delusional, because the people she most trusts are agreeing with her beliefs. 178 Pet‟r‟s Opening Br. at 74. 55 not rise to the standard required to prove lack of capacity under Delaware law. At

various points, Mrs. Tigani made insulting or extreme statements to or about Bruce

or his children, for which no foundation was offered, but she did not cling to those

statements throughout this litigation. Particularly where, as here, a relationship

between two people has deteriorated to a point of uncompromising dislike, a

reviewing court must be careful to consider whether extreme statements one makes

about the other actually are “delusions,” or more likely are exaggerated statements

of anger or loathing.179

In sum, Bruce has not proved by a preponderance of the evidence that Mrs.

Tigani suffers from delusions that altered her capacity to make a will. It is plain

that Mrs. Tigani dislikes Bruce, but it also is plain that she has ample reason to be

angry with him, and he with her. None of that rises to a level that permits this

Court to substitute its judgment for that of a testator. As this Court previously has

explained: “The fact that [a] testator dislikes certain of the natural objects of his

bounty does not establish an insane delusion; even if such dislike is groundless;

and still less if such dislike is based upon some reason, although it may be an

unjust one.”180

179 See, e.g. Tracy., 101 A.2d at 326-27 (concluding that extreme statements made by the deceased regarding his wife from whom he was separated could be better explained by the broken relationship between the spouses than it could by reference to delusions). 180 Id. at 327 (quoting 1 Page on Wills (Lifetime Ed.) § 146). 56 CONCLUSION

For the foregoing reasons, I recommend that the Court deny Mrs. Tigani‟s

motion for summary judgment on the basis that, although she had testamentary

capacity to execute the challenged documents in 2011 and 2012, those documents

do not divest Bruce of standing to maintain this action. This is my final report and

exceptions may be taken in accordance with Rule 144.