COURT OF CHANCERY
OF THE
STATE OF DELAWARE
TAMIKA R. MONTGOMERY-REEVES Leonard Williams Justice Center VICE CHANCELLOR 500 N. King Street, Suite 11400 Wilmington, Delaware 19801-3734
Date Submitted: May 23, 2018 Date Decided: August 20, 2018
William P. Brady, Esquire Ms. Robin D. Matthews-Wright Nichole Whetham Warner, Esquire 15 Ryan Ave. The Brady Law Firm New Castle, DE 19720 240 N. James Street, Suite 106 Wilmington, DE 19804
Charles Gruver III, P.A., Esquire 724 Yorklyn Road, Suite 315 Hockessin, DE 19707
RE: In the Matter of the Estate of Georgianna Dodd Civil Action No. 11931-VCMR
Dear Counsel and Parties:
This letter opinion addresses the issues raised by the parties during the April
20, 2018 trial and in the parties’ post-trial filings, namely, whether the 1980 Last
Will and Testament of Georgianna Dodd (the “Will”) was a valid will, whether
Georgianna Dodd (“Dodd”) revoked the Will, and whether this Court should grant
Petitioner’s request for attorney’s fees. The facts in this opinion reflect my findings
based on admitted allegations in the pleadings, trial testimony, and twenty-two trial
C.A. No. 11931-VCMR August 20, 2018 Page 2 of 24
exhibits. 1 For the reasons set forth below, I conclude that Dodd’s Will was valid,
but that she revoked the Will prior to her death, and I deny Petitioner’s request for
attorney’s fees.
I. BACKGROUND In 1980, shortly after her husband passed away, Georgianna Dodd met with
an attorney to make her Will.2 On August 6, 1980, she executed the Will.3 Three
witnesses also signed the Will, and a notarized affidavit is attached to the Will. 4
At the time she signed the Will, Dodd had two children, Olivia Matthews and
Respondent Albert Matthews. 5 Under the terms of the Will, Dodd’s estate would
pass to Olivia, and if Olivia predeceased Dodd, then the estate would pass to Olivia’s
children, Petitioner Cheryl Matthews-Johnson and Respondent Robin
1 Citations to the trial transcript are in the form “Tr. # (X)” with “X” representing the surname of the speaker. Joint trial exhibits are cited as “JX #.” Citations to the parties’ briefs are to their post-trial briefs.
2 Tr. 33:23-34:19 (Matthews-Johnson).
3 JX 1.
4 Id.
5 Tr. 25:19-26:12 (Matthews-Johnson). To avoid confusion, I refer to the family members of Georgianna Dodd by their first names. No disrespect is intended.
C.A. No. 11931-VCMR August 20, 2018 Page 3 of 24
Matthews-Wright. 6 Dodd explicitly excluded her son Albert and her stepdaughter
Mary Ann Griffin from receiving any portion of her estate.7
Dodd’s primary asset was her home at 15 Ryan Avenue, New Castle,
Delaware (the “Property”). 8 She had lived there for decades,9 and her adult children
and grandchildren resided there with her, off and on, through the years. 10
By 2005, twenty-five years after Dodd executed the Will, her health had
declined and she resided at Parkview, a nursing home. 11 She suffered from
dementia, hypertension, and osteoarthritis. 12 Dodd’s son Albert filed a petition for
guardianship of Dodd, 13 and Dodd’s granddaughters Cheryl and Robin filed a cross-
6 JX 1, at 1. Olivia predeceased Dodd in July 2005. Pet’r’s Mem. 2 n.3.
7 Id. at 2.
8 See JX 3 (Inventory of Dodd estate); JX 8 (Amended Inventory of Dodd estate).
9 See Tr. 64:8-10 (Matthews-Johnson).
10 See Tr. 24:21-25:11, 64:8-12, 64:16-18 (Matthews-Johnson); Tr. 126:16-128:8 (Matthews-Wright); Tr. 163:10-24 (Matthews).
11 Tr. 31:16-21 (Matthews-Johnson).
12 JX 11 (Affidavit of Dr. Aurigemma).
13 Id.
C.A. No. 11931-VCMR August 20, 2018 Page 4 of 24
petition for guardianship. 14 Robin and Cheryl included a copy of the Will as an
exhibit to their cross-petition. 15 Cheryl later withdrew from the cross-petition, 16 and
Robin was appointed guardian. 17 Cheryl and Robin continued to live at the Property
while Dodd resided at Parkview. 18
In September 2013, Dodd passed away. 19 No action was taken with regard to
Dodd’s estate until June 24, 2014, when Robin filed the Petition for Authority to Act
as Personal Representative for the Dodd estate. 20 In this petition, Robin stated that
Dodd had no will,21 listed Albert and herself as the only surviving relatives of Dodd,
and omitted Cheryl from the list of surviving relatives. 22 Robin also filed an
14 JX 12. Olivia was not able to seek guardianship of her mother due to her own health issues at the time. Pet’r’s Mem. 2 n.3.
15 Id. at Ex. B.
16 JX 16, at 1.
17 JX 18, at 1.
18 See supra note 10.
19 JX 2, at 1.
20 JX 2.
21 Id. at 1.
22 Id. at 2.
C.A. No. 11931-VCMR August 20, 2018 Page 5 of 24
Inventory of the Dodd estate that same day. 23 In that Inventory, Robin stated that
the Property “[p]asses to Robin” only. 24
Cheryl was unaware that Robin had opened the Dodd estate. 25 Cheryl
discovered in June 2015 that the estate had been opened, and closed, in 2014. 26 On
June 20, 2015, Cheryl sent a letter to the Register of Wills explaining that the estate
had been improperly distributed to Robin alone and that Dodd had a will at the time
of her death.27 In response, the Register of Wills sent a letter to Robin instructing
her to amend the inventory of the Dodd estate by including Albert and “all lineal
descendants of [Dodd’s] other children.” 28
On August 11, 2015, Robin filed an Amended Inventory stating that the
Property “[p]asses to Albert” alone. 29 Robin omitted both herself and Cheryl from
23 JX 3.
24 Id. at 2.
25 Tr. 47:9-10 (Matthews-Johnson).
26 See Tr. 47:11-13 (Matthews-Johnson); JX 6.
27 JX 6.
28 JX 7.
29 JX 8, at 2.
C.A. No. 11931-VCMR August 20, 2018 Page 6 of 24
the Amended Inventory. 30 On January 21, 2016, Albert sent a letter to Cheryl
demanding that she vacate the Property. 31 The Property currently is deeded to
Albert,32 but Robin and Cheryl reside at the Property. 33
Cheryl, represented by counsel, filed her Verified Petition for an Order to
Show Cause Regarding the Administration of the Estate of Georgianna Dodd,
Decedent, and Petition to Remove Administratrix on January 26, 2016, naming
Albert and Robin as Respondents. In her Petition, Cheryl requests that this Court
reopen the Dodd estate, remove Robin as the administratrix of the Dodd estate, admit
into probate a copy of the Will, and appoint Cheryl as the personal representative of
the Dodd estate. Albert, represented by counsel, filed his Answer to the Petition on
March 24, 2016. Robin, representing herself, filed her Answer on July 14, 2016.
Although this matter involves issues beyond the validity and status of the Will, the
parties first seek to resolve whether the Will was validly executed and whether Dodd
30 See id.
31 JX 10.
32 JX 9.
33 Pet. ¶¶ 2-3.
C.A. No. 11931-VCMR August 20, 2018 Page 7 of 24
subsequently revoked the Will. This Court held a one-day trial regarding the validity
and status of the Will on April 20, 2018.
II. ANALYSIS Petitioner requests that I admit into probate a copy of the Will. In order to
address that request, I perform a two-step analysis. The first step in the analysis
determines whether the Will meets the statutory requirements of 12 Del. C. § 202.
The second step in the analysis then determines whether Dodd revoked the Will.
Petitioner also requests attorney’s fees, which I address below.
A. The Will Was Validly Executed For a will to be valid, (1) the testator must have testamentary capacity, (2) the
will must be in writing and signed by the testator or another person acting under the
testator’s express direction and in the testator’s presence, and (3) the will must be
signed by two credible witnesses. 34 “Delaware law disfavors invalidating a
testamentary plan and this Court therefore presumes that a will is valid[ and] that a
testator possessed testamentary capacity at the time she executed a will . . . .” 35 For
that reason, the challenger of a will generally bears the burden of proof by a
34 12 Del. C. §§ 201-203. These sections of the current Delaware Code are substantively identical to the operative sections in 1980.
35 In re Kittila, 2015 WL 688868, at *11 (Del. Ch. Feb. 18, 2015).
C.A. No. 11931-VCMR August 20, 2018 Page 8 of 24
preponderance of the evidence.36 To meet this burden, the challenger’s evidence,
“when compared to the evidence opposed to it, has the more convincing force and
makes you believe that something is more likely true than not.”37
The parties do not dispute Dodd’s testamentary capacity at the time of
execution or the authenticity of Dodd’s signature on the Will. This Court therefore
addresses only Albert’s argument that the Will was not properly signed by at least
two witnesses. 38
To be valid, a will must be “attested and subscribed in [the] testator’s presence
by 2 or more credible witnesses.”39 “Any person generally competent to be a witness
may act as a witness to a will.” 40 A will “need not be signed in the presence of the
witnesses, but must be acknowledged by the testator to [the witnesses].” 41 There is
36 Id.
37 Id. (quoting Mitchell Lane Publ’rs, Inc. v. Rasemas, 2014 WL 4925150, at *3 (Del. Ch. Sept. 30, 2014)).
38 See Resp. Matthews’ Mem. 2-6.
39 12 Del. C. § 202(a)(2).
40 12 Del. C. § 203(a).
41 Sutton v. Sutton, 5 Del. (5 Harr.) 459, 460 (Super. 1854); accord In re Hallett’s Estate, 295 A.2d 755, 756 (Del. Ch. 1972).
C.A. No. 11931-VCMR August 20, 2018 Page 9 of 24
also no requirement that the witnesses attest and subscribe the will in the presence
of each other.42
The second page of the Will (the “Signature Page”) and the attached affidavit
(the “Affidavit”) both contain the signatures of Dodd and three witnesses: Bettina
G. Heiman, Theresa K. Di Carolis, and Mary Ann Griffin.43 All three witnesses gave
testimony, either at trial or in deposition, regarding circumstances surrounding the
execution and witnessing of the Will.
1. Witness 1: Bettina G. Heiman Heiman testified during trial that she is the wife of a Delaware attorney and
that she sometimes helped him in his practice, including acting as a witness for the
execution of wills.44 In her testimony, Heiman verified her signatures on the
42 See 12 Del. C. § 202(a)(1); In re Purported Will of Young, 1998 WL 409168, at *6 (Del. Ch. June 24, 1998); Hallett’s Estate, 295 A.2d at 756.
43 The Signature Page, below Dodd’s signature and above the witnesses’ signatures, contains text pertaining to the witnesses’ signatures: “SIGNED, SEALED, PUBLISHED, AND DECLARED, by the above, GEORGIANNA DODD as and for her LAST WILL AND TESTAMENT, in the presence of us who at her request in her presence and in the presence of each other have hereinto [sic] subscribed our names as witnesses.” JX 1, at 2. This text stating that the witnesses signed in each other’s presence is superfluous to the requirements of a valid will under the Delaware Code.
44 Tr. 137:10-24, 138:18-20 (Heiman).
C.A. No. 11931-VCMR August 20, 2018 Page 10 of 24
Signature Page and the Affidavit. 45 She did not recall meeting Georgianna Dodd
thirty-eight years ago or witnessing this Will specifically, 46 but she testified credibly
that she would not have signed the Will without Dodd being present in the room at
the time. 47
2. Witness 2: Theresa K. Di Carolis Di Carolis testified during trial that she worked as a secretary for attorneys
Henry Heiman and Hank Bernstein 48 in 1980.49 As part of her employment, she
acted as a witness during clients’ will signings.50 She credibly verified her signatures
on the Signature Page and the Affidavit. 51 She also recalled that Bettina Heiman
was the wife of attorney Henry Heiman. 52 Di Carolis explained in her testimony that
45 Tr. 139:19-140:1 (Heiman).
46 Tr. 140:2-7 (Heiman).
47 Tr. 140:21-141:11 (Heiman).
48 Attorneys Heiman and Bernstein were the two sole partners in their law firm in 1980. Tr. 138:1-17 (Heiman). There is conflicting testimony as to which attorney assisted Dodd with the Will. Compare Tr. 16:12-14 (Di Carolis) with JX 22, at 20. This conflicting testimony is collateral to the issue of the validity of the Will.
49 Tr. 12:9-14 (Di Carolis).
50 Tr. 12:18-21 (Di Carolis).
51 Tr. 15:5-10 (Di Carolis).
52 Tr. 15:11-14 (Di Carolis).
C.A. No. 11931-VCMR August 20, 2018 Page 11 of 24
it was the law firm’s procedure during will signings that the client sign his or her
will in front of the witnesses 53 and this procedure was followed during Dodd’s will
signing.54 Di Carolis was not asked, nor did she testify, whether she subscribed and
attested the Will in Dodd’s presence or whether it was the law firm’s procedure for
the witness to subscribe and attest a will in front of the testator.
3. Witness 3: Mary Ann Griffin Griffin is the stepdaughter of Dodd. 55 She testified in her deposition that she
worked as a secretary for attorneys Bernstein and Heiman in the 1980s.56 Griffin
recalled several details about the Dodd will signing. She recalled signing the
Signature Page as a witness and that Bernstein and Dodd were in the room when she
witnessed the Will. 57 She also specifically recalled that Bettina Heiman and
Di Carolis were not present when she witnessed the Will.58
53 Tr. 17:8-14 (Di Carolis).
54 See Tr. 17:15-18 (Di Carolis).
55 JX 22, at 14.
56 Id. at 11-12.
57 Id. at 39-40.
58 Id. at 40-43.
C.A. No. 11931-VCMR August 20, 2018 Page 12 of 24
4. Section 202 is satisfied Albert argues that Griffin’s recollection of the will signing is the most reliable
of the three witnesses because Dodd was her stepmother, Griffin has a personal
connection to the events that occurred in 1980, and Griffin remembers more specific
details about the Will signing.59 I agree with him on this point. Albert then attacks
the credibility of Heiman and Di Carolis because there are discrepancies in the three
witnesses’ descriptions of events that happened decades ago, such as which attorney
assisted Dodd with the Will. 60 These discrepancies, however, do not go to the crux
of the issue—whether the witnesses signed the Will in the presence of Dodd.
Each witness credibly verified her signature. Heiman and Griffin also
credibly testified that Dodd was present when they attested and subscribed the
Will. 61 No one asked Di Carolis whether Dodd was present when she attested and
subscribed the Will or whether the law firm’s policy required the testator’s
presence. 62 It is immaterial that the three witnesses did not subscribe and attest the
Will in each other’s presence, and Delaware requires only two witnesses for a valid
59 Resp. Matthews’ Mem. 2-4.
60 Id. at 4-6. E.g., compare Tr. 16:12-14 (Di Carolis) with JX 22, at 20.
61 Tr. 140:21-141:11 (Heiman); JX 22, at 39-40.
62 See Tr. 12:3-23:16 (Di Carolis).
C.A. No. 11931-VCMR August 20, 2018 Page 13 of 24
will. Thus, the requirement of 12 Del. C. § 202 that a will be attested and subscribed
in the testator’s presence by two or more credible witnesses is satisfied. Albert
asserts no other challenges to the validity of the Will. Therefore, I find that the Will
has met all execution formalities and is a valid will.
B. Dodd Revoked Her Will “It is presumed that someone who had a will intended to die testate.” 63 But
“[w]hen a will that was last in the testator’s possession is missing at the time of
probate, it is presumed that the testator discarded or intentionally destroyed it with
the intent that it be revoked.”64 These two legal presumptions conflict with each
other, and I must therefore weigh the evidence in this case carefully. 65
To overcome the presumption of revocation, the proponent of the missing will
must show by a preponderance of the evidence “(i) that a valid will was executed by
the decedent, (ii) the terms of that will, (iii) that the will was lost or unintentionally
63 In re Purported Will of Kuklinski, 1995 WL 106504, at *7 (Del. Ch. Feb. 7, 1995).
64 In re Boyd, 2003 WL 21003272, at *8 (Del. Ch. Apr. 24, 2003); see Putney v. Putney, 487 A.2d 1125, 1127 (Del. 1984).
65 Kuklinski, 1995 WL 106504, at *7.
C.A. No. 11931-VCMR August 20, 2018 Page 14 of 24
destroyed, and (iv) that the decedent’s testamentary intent was not altered before
[her] death.” 66
I have already addressed the validity of the Will above. A copy of the
executed Will establishes the terms of the Will. 67 Thus, I need address only
(1) whether the Will was lost or unintentionally destroyed and (2) Dodd’s
testamentary intent.
1. There is insufficient evidence to show the Will was lost or unintentionally destroyed Dodd executed the Will at her attorney’s office.68 After the Will signing,
Dodd left the attorney’s office and was not accompanied by anyone else.69 Cheryl
and Robin both were aware that Dodd had made the Will, and they had general
knowledge of the terms of the Will.70 Neither of them, however, testified that she
ever saw the original Will. 71 Nor did they testify that Dodd discussed the Will with
66 D.R.E. 301(a); Boyd, 2003 WL 21003272, at *8.
67 See JX 1.
68 JX 22, at 39-40.
69 Id. at 47.
70 Tr. 33:10-34:12 (Matthews-Johnson); Tr. 101:21-102:10 (Matthews-Wright).
71 See Tr. 32:22-23 (Matthews-Johnson); Tr. 116:17-117:12 (Matthews-Wright).
C.A. No. 11931-VCMR August 20, 2018 Page 15 of 24
either of them. 72 Similarly, Dodd never talked to Albert about her Will; Albert was
unaware that Dodd had made a will until 2005 and never saw the original copy of
the Will. 73
After Dodd moved to Parkview in 2004 or 2005, Cheryl cleaned Dodd’s room
and did not discover the original Will.74 In 2005 when Robin and Cheryl filed their
cross-petition in the guardianship action, Robin obtained a copy of the Will from
Mr. Heiman’s office.75 After Dodd’s death, Cheryl and Robin searched for the
original copy of the Will, but neither of them found it.76
This Court has noted that a testator’s habits and living conditions may
influence the analysis of whether a will was lost or unintentionally destroyed. In In
re Purported Will of Kuklinski, the Court specifically focused on Kuklinski’s living
conditions. 77 Kuklinski left food out in the open, and one bedroom in his home was
72 See Tr. 34:20-36:7 (Matthews-Johnson); Tr. 100:15-129:11 (Matthews-Wright).
73 Tr. 156:18-23, 164:24-165:2 (Matthews).
74 Tr. 41:22-42:18 (Matthews-Johnson).
75 Tr. 116:17-117:12 (Matthews-Wright).
76 Tr. 41:8-42:22 (Matthews-Johnson).
77 See 1995 WL 106504, at *2 (Del. Ch. Feb. 7, 1995).
C.A. No. 11931-VCMR August 20, 2018 Page 16 of 24
filled with boxes at least twenty-five years old.78 In searching for the will,
Kuklinski’s niece went so far as to look in the dishwasher.79 In short, the home was
filled with “the debris of a long life.”80 Kuklinski’s “habit of keeping all sorts of
papers at his home could easily have led to the loss or misplacement of the will with
no intent on his part to revoke it.” 81 This Court therefore held that Kuklinski’s will
had been lost or misplaced and admitted a copy of the will to probate.82
In In re Wilson Estate, the testator executed a will three years before her
death.83 She also executed a codicil to the will. 84 During her final illness, the testator
discussed her will with her husband. 85 She kept both the will and the codicil in her
desk drawer, but after her death, her family found only the original codicil; they
78 Id.
79 Id. at *1.
80 Id. at *2.
81 Id. at *7.
82 Id. at *8.
83 1999 WL 504783, at *1 (Del. Ch. July 13, 1999).
84 Id.
85 Id. at *2.
C.A. No. 11931-VCMR August 20, 2018 Page 17 of 24
could not find the original will. 86 Each beneficiary of the will and each intestate heir
supported the petition to admit a copy of the will to probate; no party opposed the
petition. 87 The will named the same beneficiaries as those who would be intestate
heirs, and the only difference between the will’s terms and the statutes of intestacy
was that the will lessened the tax liability associated with the estate.88 This Court
held that the evidence rebutted the presumption that the missing will was destroyed
by the testator, and the Court admitted an unsigned copy of the will to probate. 89
Here, the record does not indicate that Dodd’s living conditions had become
disorganized or that she hoarded an insurmountable amount of papers. The record
indicates quite the opposite, that Dodd kept her important papers together in one
place, a brown briefcase.90 Both Cheryl and Robin searched for the Will but did not
find it. 91 They never saw the original copy of the Will, and Dodd did not discuss the
86 Id. at *1.
87 Id.
88 Id. at *2.
89 Id.
90 Tr. 32:6-15 (Matthews-Johnson).
91 Tr. 41:8-42:22 (Matthews-Johnson).
C.A. No. 11931-VCMR August 20, 2018 Page 18 of 24
Will with them or any of the other trial witnesses. 92 I therefore find that Cheryl has
not met her burden to show by a preponderance of the evidence that the Will was
lost or unintentionally destroyed.
2. Cheryl has not shown that Dodd’s testamentary intent was not altered before her death The evidence regarding Dodd’s testamentary intent after 1980 is scant. Dodd
did not discuss the Will with her son or granddaughters. Cheryl testified that she
had a close relationship with Dodd 93 and that Dodd did not change or revoke the
Will. 94 As evidence that Dodd’s testamentary intent was not altered, Cheryl points
to documents filed in the 2005 guardianship action.
During the guardianship action, the Court appointed an Interim Guardian.95
As part of that process, a nurse interviewed Dodd. 96 During the interview, the nurse
asked Dodd about the Property and whether she wanted to sell the Property. 97 As
92 See Tr. 32:22-23, 34:20-36:7 (Matthews-Johnson); Tr. 100:15-129:11 (Matthews- Wright); Tr. 151:9-10 (Matthews); JX 22, at 32-33.
93 See Tr. 35:10-36:6, 67:9-20 (Matthews-Johnson).
94 Tr. 40:17-41:2 (Matthews-Johnson).
95 JX 15, at 1.
96 See id. at 4.
97 Id. at 5.
C.A. No. 11931-VCMR August 20, 2018 Page 19 of 24
part of the guardianship proceeding, both the Interim Guardian and the nurse
submitted reports to the Court.98
The nurse’s report states that Dodd liked her “family” living at the Property
and that she did not want to sell the Property because she preferred her “family”
living there over having money from the sale of the Property. 99 In his report, the
Interim Guardian interprets “family” to mean Dodd’s grandchildren. 100 Cheryl
testified that “family” and “grandchildren,” as used in the context of Dodd’s wishes
for the use of the Property, mean Cheryl and Robin because although they are not
Dodd’s only grandchildren, they are the two grandchildren who were born and raised
at the Property and who resided there in 2005. 101 Cheryl’s interpretation supports
the terms of the Will. But these reports do not directly address Dodd’s testamentary
intent.102 Further, in 2005, Dodd’s dementia was apparent; it is questionable whether
98 Id. at 1, 4.
99 Id. at 5.
100 Id. at 2.
101 Tr. 66:13-67:15 (Matthews-Johnson).
102 See JX 15.
C.A. No. 11931-VCMR August 20, 2018 Page 20 of 24
she would have had the requisite testamentary capacity at that time to declare her
testamentary intent.103
Albert offers a different perspective. Albert testified regarding the evolution
of his relationship with Dodd. When Dodd executed the Will in 1980, Albert was
incarcerated.104 Cheryl testified that Dodd disinherited Albert because Dodd
disapproved of his substance abuse and related conduct. 105 But after Albert was
released from prison, he reformed his life.106 He subsequently lived with Dodd for
several years, 107 and they had a good relationship. 108 Dodd welcomed him home
when he needed a place to stay. 109 The Property was the family home, and if a
member of the family needed a place to stay, he or she was welcome. 110 Thus, Albert
103 See Tr. 112:11-22 (Matthews-Wright) (testifying that Dodd would not have been able to execute a will in 2005).
104 Tr. 161:17-23 (Matthews).
105 Tr. 36:18-37:14 (Matthews-Johnson).
106 Tr. 37:5-7 (Matthews-Johnson).
107 Tr. 162:19-20, 163:10-24 (Matthews).
108 Tr. 124:24-125:1 (Matthews-Wright); Tr. 163:1-4 (Matthews).
109 Tr. 164:1-6 (Matthews).
110 See, e.g., Tr. 92:4-15 (Matthews-Johnson) (describing the Property as the family home and stating that one of Albert’s children had also lived at the Property).
C.A. No. 11931-VCMR August 20, 2018 Page 21 of 24
believes that Dodd intentionally destroyed the Will and that, after their relationship
improved, Dodd had no intent to disinherit him.
Cheryl and Albert both present evidence regarding Dodd’s testamentary
intent. Both sets of evidence are equally convincing. I therefore find that Petitioner
has not shown by a preponderance of the evidence that Dodd’s testamentary intent
was not altered before her death.
Because Petitioner has not sufficiently shown that the Will was lost or
unintentionally destroyed and that Dodd’s testamentary intent was not altered before
her death, this Court must presume that Dodd discarded or intentionally destroyed
the Will with the intent that it be revoked. Therefore, Dodd’s estate will pass
according to the statutes of intestacy to Cheryl, Robin, and Albert. 111
C. Petitioner’s Request for Attorney’s Fees Petitioner requests that this Court award her attorney’s fees because (1) had
Robin not omitted Cheryl from the Inventory filed with the Register of Wills, this
litigation would have been unnecessary and (2) Albert’s January 2016 demand that
Cheryl vacate the Property was made in bad faith. 112
111 See 12 Del. C. § 503.
112 Pet’r’s Mem. 10-12.
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Under the “American Rule,” “each party is normally obliged to pay only his
or her own attorneys’ fees, whatever the outcome of the litigation.” 113 Under my
equitable powers, I may shift attorney’s fees and costs in certain limited
circumstances, including (1) if there is express statutory authority; (2) “where the
judge concludes a litigant brought a case in bad faith or through his bad faith conduct
increased the litigation’s cost; and (3) cases in which, although a [respondent] did
not misuse the ‘litigation process in any way, . . . the action giving rise to the suit
involved bad faith, fraud, “conduct that was totally unjustified, or the like” and
attorney’s fees are considered an appropriate part of damages.’” 114
Petitioner’s argument that litigation would have been unnecessary had Robin
included Cheryl’s name on the Inventory or Amended Inventory fails. At the heart
of this trial, Petitioner requests that this Court admit a copy of the Will to probate.115
Petitioner does not have the executed original copy of the Will. Thus, this action
was always necessary to admit a copy of the Will to probate. Robin’s representation
113 Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 545 (Del. 1998) (omission in original) (quoting Barrows v. Bowen, 1994 WL 514868, at *1 (Del. Ch. Sept. 7, 1994)).
114 Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d 665, 686-87 (Del. 2013).
115 Pet. ¶¶ 31-33.
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that Dodd died without a will 116 is consistent with the fact that neither Robin nor
Cheryl found Dodd’s Will. Robin, therefore, did not make this representation in bad
faith.117
At the time that Albert demanded Cheryl vacate the Property, he was the sole
legal owner of the Property. 118 He became the owner after Robin filed the Amended
Inventory stating the Property passes to Albert alone. 119 He took no action in bad
faith related to Property.
Therefore, Petitioner’s request for attorney’s fees is denied.
III. CONCLUSION For the foregoing reasons, I conclude that the Will was validly executed but
that Dodd revoked the Will before her death. I deny Petitioner’s request for
attorney’s fees.
116 JX 2, at 1; see JX 8.
117 This finding relates only to the testacy or intestacy of the Dodd estate. Petitioner’s argument that Robin made false statements on the Inventory is relevant to the administration of the Dodd estate and will be addressed in the context of resolving whether this Court should remove Robin as the administratrix of the Dodd estate.
118 JX 9, at 1; JX 10.
119 See JX 8, at 2.
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The parties and counsel shall confer and advise the Court within twenty days
of this letter opinion as to any outstanding matters that require the Court’s attention.
IT IS SO ORDERED.
Sincerely,
/s/ Tamika Montgomery-Reeves
Vice Chancellor
TMR/jp