IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SCOTT BURD, ) ) Petitioner/Counterclaim ) Respondent, ) ) v. ) C.A. No. 2023-1172-LM ) TRACY BURD ELLIMAN, an ) individual and as Trustee, Executrix, ) Beneficiary, and DOES 1 through 50, ) inclusive, ) ) Respondent/Counterclaim ) Petitioner. )
Final Report: June 5, 2025 Date Submitted: February 5, 2025
POST-TRIAL FINAL REPORT
Scott Burd, Dunwoody, GA; Pro Se Petitioner.
Thomas A. Uebler, Terisa A. Shoremount, MCCOLLOM D’EMILIO SMITH UEBLER LLC, Wilmington, DE; Attorneys for Respondent Tracy Burd Elliman.
MITCHELL, M. Scott Burd1, who is estranged from his father and stepmother, Richard and
Barbara Burd, filed this Petition to invalidate their wills and trusts based on undue
influence, lack of capacity, and seeks damages for elder abuse. Although we
normally see these types of cases after the testators have passed away, here, Richard
and Barbara Burd are still alive and defending their ability to change their estate
plan. They counterclaimed seeking to declare that their trust and wills are all valid.
In any event, Scott questions whether his father and stepmother had the
capacity to make changes to their estate plan, which resulted in him being
disinherited. Importantly, he believes his half-sister, Tracy Burd Elliman, unduly
influenced her parents to disinherit him and engaged in financial elder abuse. For the
reasons explained herein, I find Scott does not meet his burden to prove that the wills
and trusts should be set aside by this Court. This is my post-trial final report.
1 This decision refers to the members of the Burd family by their first name to distinguish them. The court intends no disrespect or familiarity. I. BACKGROUND 2
A. Burd Family Background
Richard Burd and his first wife, Rhoda Ghievil, had two children, Scott Burd
and Melanie Burd.3 Richard and Rhoda divorced, and later Richard married his
current wife of 55 years, Barbara Burd.4 Richard and Barbara had one daughter,
Tracy Burd Elliman, the Respondent here. 5 Both Rhoda and Melanie predecease this
action. 6 Tracy is married and has two children. 7 Melanie and Scott have no children.8
Scott currently lives in Florida, and over the last 25 years has, for varying
periods of time, lived in Georgia, Philadelphia, Australia, and Saudi Arabia.9 Scott’s
relationship with his family can best be described as sporadic, having gone without,
or with very little, contact with them for 10 to 20 years at a time. 10 Despite the ever
2 The facts in this report reflect my findings based on the record developed at trial on January 22, 2025. Citations to the trial transcript are in the form “Tr. __”. The Respondent’s submitted exhibits 1–69 are cited as “RX__.” The lodged depositions are cited as “[First Initial., Last name] Dep.” Like the transcript citations. I grant the evidence the weight and credibility I find it deserves. 3 Tr. 136:15–23. 4 Tr. 136:12–14. 5 Tr. 225:19–20. 6 S., Burd Dep. 36:23–24; Tr. 95:19; Tr. 211:21–23. 7 Tr. 211:4–16. 8 Tr. 226:21–227:4. 9 Tr. 101:12–20. 10 Tr. 113:18–114:8; Tr. 13:21–23; Tr. 141:19–142:1.
2 present strife between the two, Richard provided financially for Scott when he
needed it. 11 Richard paid Scott’s tuition at Emory College.12 In addition, in 2004,
when Scott was forced to leave Australia after being deported when his Australian
visa expired, Richard provided Scott with $5,000 for him to come home and allowed
Scott to stay with him and Barbara for three weeks in their Delaware home.13
Richard also lent Scott money to help him purchase a home.14
Despite these prior actions, Richard and Scott both testified at trial that they
currently have no relationship with one another.15 Richard described Scott as “a user
and abuser of people,” and stated that he did not trust him. 16 Barbara, between the
years of 2004 and the start of this litigation, has had only two direct instances of
contact with Scott. The first being an email she sent him in 2010, and the second
being a birthday card she sent when Scott turned 50, but it was sent back to Barbara
after being labelled return to sender because Scott no longer lived at the address. 17
11 Tr. 147:17–19. 12 Tr. 147:21–148:7. 13 Tr. 45:8–9; Tr. 140:20–24; Tr. 148:8–10. 14 Tr. 148:11–14. 15 Tr. 101:1–3; Tr. 140:10–15. 16 Tr. 140:10–15; Tr. 142:10–11. 17 RX 19; Tr. 215:9–17.
3 Scott claims to have been cut out of the family by Tracy, however Tracy
testified that she made attempts over the years to reach out to Scott with no answer,
pointing out that her and her parents contact information had not changed. 18
Prior to her death, Melanie was in regular contact with her father and Barbara
through phone calls, and they remained close despite her living in New Mexico, until
her death.19 Richard, Barbara, and Tracy visited Melanie a few times while she was
living in New Mexico. 20 Melanie struggled financially so Richard and Barbara set
up an annuity account that would produce $300 a month for Melanie, and they also
helped her buy her house.21 Melanie and Scott would communicate occasionally
over the phone, and Melanie was the one who informed Scott of their mother,
Rhoda’s, declining health prompting Scott to briefly move in with Rhoda, in Atlanta,
Georgia, before eventually moving away to the Middle East. 22 Melanie called Scott
while he was living in the Middle East to tell him that their mother had died.23
18 Tr. 249:21–251:3. 19 Tr. 211:21–212:7. 20 Tr. 139: 2–7; Tr. 212:8–15. 21 Tr. 139:8–17; Tr. 154: 5–11; Tr. 212:16–213:6. 22 S., Burd Dep. 45:23–47:5; 49:7–10. 23 S., Burd Dep. 47:5–8.
4 B. Sexual Abuse Allegations24
Sometime in late 2008 or early 2009, Tracy was contacted by William Allred,
Melanie’s husband, who told Tracy that Melanie had been sexually abused by
Richard when she was a child.25 Shocked by this information, Tracy contacted
Melanie and Scott individually to ask about the accusations. 26 Tracy testified at trial
that she spoke with Melanie about the allegations, who said that the memory of the
sexual abuse from Richard was one that her husband had convinced her of. 27 When
Tracy asked Melanie about Scott’s experience, Melanie did not answer, stating that
she could not speak to Scott’s experience.28
When Tracy confronted Scott with the information over the phone a few
months later, Scott informed Tracy that both he and Melanie were sexually abused
by Richard when they were children.29 During the call, Scott also informed Tracy
that in about 1968 or 1969, when Melanie and him were children, a fight broke out
between Richard and Rhoda after Melanie had informed their mother of the abuse. 30
24 The allegations of sexual abuse are not direct claims in the petition presently before this Court. The Court takes notice of the testimony in relation to the subject only for its relevance, to any effect, on the validity of the 2016 wills and trust of the Testators. 25 Tr. 247:5–10. 26 Tr. 247:5–24. 27 Tr. 249:14–19. 28 Tr. 249:14–19. 29 S. Burd Dep. 21:18–22:12; RX 27 at 1; Tr. 242:21–243:11. 30 S. Burd Dep. 24:3–18.
5 Tracy, worrying for the safety of her young children, took these allegations
very seriously and took the steps necessary to ensure their safety, including
consulting a therapist, distancing her family from her father, and ensuring that her
children were not left alone with Richard.31 After a period of time of limited contact
with her father, Tracy organized a family meeting with her therapist present, to
confront her father with these allegations in order to gain some clarity on the
situation.32 Scott did not feel it was appropriate to approach their father with these
allegations and felt as though if they did it should be done in a specific way after a
nondescript period of time had passed.33 Scott was invited to attend the therapist
intervention with Richard via telephone but did not join the call. 34 It was after this
call that Tracy started to repair her relationship with her father, and at trial testified
that she is proud to say her parents and her were successful at doing so.35
When Richard was confronted with the sexual assault allegations, he denied
them and continued to deny them during his testimony at trial. 36 When he first
learned of the allegations, Richard contacted Scott by email asking him why he made
31 Tr. 243:10–23; 244:4–11. 32 Tr. 244:16–21. 33 RX 18; Tr. 32:13–19. 34 Tr. 244:22–23. 35 Tr. 244:22–245:5. 36 RX 22; Tr. 170:20–171:12.
6 these allegations. 37 Scott responded telling his father that his only concerns were his
current financial situation and that he was open to communicating with his father to
repair their relationship. 38 Despite this sentiment expressed by father and son to
mend their relationship, the two had not been in contact with one another since
2010. 39 Richard had attempted to reach out to Scott in 2011 by letter, but the letter
was returned as the wrong address on September 15, 2011.40 Richard no longer knew
where Scott lived and did not make any other attempts to contact him through other
means.41
While she was looking into the allegations, Tracy emailed Richard, Barbara,
and Scott on March 13, 2010 and provided a detailed account of all the events
leading related to the sexual abuse allegations, up to the date of the email, including
a statement that said Melanie told her personally over the phone that she was
sexually abused. 42 In the email, Tracy also relayed her own opinion that she did not
believe it was their father that sexually assaulted Melanie, but possibly one of their
father’s friends or someone else that lived in their building.43
37 RX 20. 38 RX 22; RX 23; Tr. 157:1–11. 39 Tr. 159:16–18. 40 RX 28; Tr. 158:15–159:5. 41 Tr. 159:6–18. 42 RX 27 at 1–3. 43 RX 27 at 1.
7 C. Richard and Barbara Burd’s Estate Plans
Richard and Barbara executed their original estate planning documents,
consisting of their respective wills and trusts, with the assistance of counsel on
September 14, 2001. 44 Barbara and Richard’s Trusts divided the remaining Trust
assets after their death as follows: (1) 70% to Tracy; (2) 15% to Scott; and (3) 15%
to Melanie.45 This distribution was calculated with the assumption that Barbara and
Richard would split their assets in half, then all of Barbara’s 50% would go to Tracy,
and Richard’s 50% would be split 20% to Tracy, 15% to Scott, and 15% to Melanie.46
In 2016 Richard and Barbara sought out legal counsel to make changes to their
estate plans. 47 Richard and Barbara sought out Kevin O’Brien to make changes to
their estate plan and met with him alone.48 Richard and Barbara met with Kevin
O’Brien in person on at least two occasions, once to discuss the changes to be made
to their estate plan and once to execute their estate planning documents.49
On September 14, 2016, Richard and Barbara executed new wills and each
signed revocations of their prior trusts, and executed a new trust titled “Joint
44 Tr. 217:2–22; RX 4; RX 5; RX 6; RX 7. 45 Tr. 218:8–12; RX 4 at 6, section E; RX 5 at 6, section E. 46 Tr. 218:10–22. 47 Tr. 219:4–16. 48 Tr. 220:19–221:12. 49 See RX 30 in which Kevin O’Brien memorializes their first meeting by letter sent on September 6, 2016. Tr. 190:6–12.
8 Revocable Trust of Richard Henry Burd and Barbara Lee Burd” with the help of an
attorney, Kevin O’Brien.50 On the same day, Barbara and Richard set up Durable
Powers of Attorney, medical powers of attorney, durable medical directives, and a
deed of transfer of their home into the new joint revocable trust.51 The wills were
witnessed by two individuals working as law clerks in Kevin O’Brien’s law office
that were present in the room when both Barbara and Richard signed their respective
wills.52
The most notable change made by Barbara and Richard in their 2016 wills
were their expressed disinheritance of Scott and Melanie.53 Both Richard and
Barbara cited their increasingly distant relationship with Scott, his lack of children,
and the assumption he would inherit from his mother’s estate, as the reason for them
disinheriting him.54 Richard stated that he decided not to include Melanie in his 2016
estate plan because he felt as though the $300 a month she was receiving from the
annuity was enough.55 Barbara and Richard both testified at trial that the assault
50 Tr. 149:12-150:3; RX 32; RX 33; RX 34; RX 35; D.I. 4, exhibit 3. 51 RX 37; RX 38; D.I. 4, exhibit 3; Tr. 189:19–190:6. 52 Tr. 192:2-17; RX 32; RX 33. 53 RX 32; RX 33. 54 Tr. 240:3–12; Tr. 223:5–16. 55 Tr. 154:3–11.
9 allegations had no effect on the 2016 estate planning and their decision to not include
Scott and Melanie in their final wills and trust. 56
At trial Dr. David Maleh, M.D., Richard and Barbara’s doctor, testified that
both Richard and Barbara were of sound body and mind in 2016 at the time they
executed their estate planning documents. 57 Nobody, as of trial has needed to act as
attorney in fact on Barbara or Richard’s behalf under their respective Powers of
Attorney. 58
Tracy was not informed of the changes made to her parents’ estate plans until
July or August 2023.59 Tracy had not been formally introduced to Kevin O’Brien
until August 2023.60 A meeting took place with Kevin O’Brien in August 2023 to
review Barbara and Richard’s Estate planning documents, and at this meeting it was
decided that a premortem letter should be sent to Scott. 61 Kevin O’Brien testified
that it had become a general practice for their firm to send premortem letters when
56 Tr. 159:19–160:2; Tr. 230:20–231:6. 57 Tr. 106:6–12; Tr. 106:19–107:12; Tr. 108:1–4. 58 Tr. 228:22–229:1; Tr. 245:19–21. 59 Tr. 245:6–14. 60 Tr. 245:15–18. 61 Tr. 201:16–202:12.
10 a child was disinherited.62 Richard claimed that this letter was sent to protect
themselves from any conflicts relating to Scott and the allegations he had made.63
On August 7, 2023, a premortem letter, labeled as a “Notice of Limitation,”
was sent to Scott, notifying him of his father’s change to his estate plan and telling
him that if he did not challenge the validity of the documents within 120 days, then
he will have waived any right to contest the distribution of the estate under these
changes thereafter. 64
D. Procedural Posture
On November 20, 2023, Scott initiated lawsuit against Tracy in her capacity as
Trustee of the Revocable Trust of Richard and Barbara, as Executrix of the wills,65
and as attorney in fact for Richard.66 In his petition, Scott pled two counts; (1) Undue
Influence and (2) Financial Elder Abuse.67 On December 21, 2023, Tracy answered
the petition and counterclaimed seeking declaratory judgement that Richard and
62 Tr. 202:2–12. 63 Tr. 171:14–19. 64 RX 45. Throughout trial, Scott was clearly under the impression Richard and Barbara Burd were the ones who brought this action against him by serving him with this letter. Tr. 63:18–64:8. This letter is what prompted Scott to feel as though he had to answer the premortem letter within the stated time period to preserve any rights he believed he had. Tr. 15:10–16:1. 65 Although Scott’s petition identifies Tracy as the named executor in the wills of Barbara and Richard Burd, Tracy is identified as a potential successor executor. See RX 32 and 33. 66 D.I. 1. 67 Id. at p. 14 ¶¶465–590 and p. 18 ¶¶593–676.
11 Barbara had testamentary capacity when executing their 2016 estate planning
documents and that their 2016 wills and trusts are valid.68
After a few discovery related issues, 69 a one-day trial was held on January 22,
2025. 70 Due to time restraints, the parties could not provide closing arguments,
which Scott specifically requested time to provide, so closing summations were to
be submitted in writing within 10 days. 71 Tracy submitted a post-trial brief on
February 3, 2025. 72 Scott’s closing arguments were not received until February 19,
2025, ten days after the ten-day deadline.73 Tracy then filed a motion to strike for
failure to submit in the 10-day time frame and for including testimony to the Court
that had been ruled inadmissible during trial by sustained objection.74 The motion
was unopposed and eventually granted. 75
II. ANALYSIS
The questions before this Court are: (1) whether the Wills and Trust of the
Testators are valid, (2) whether Richard and Barbara lacked capacity at the time they
68 D.I. 11. 69 See D.I. 39, 41-42, 46, 50, and 59. 70 D.I. 76. 71 Id. 72 D.I. 79. 73 D.I. 80. 74 D.I. 83. 75 D.I. 86.
12 updated their estate documents in 2016, (3) whether Tracy unduly influenced her
parents to change their estate planning documents in her favor, (4) whether there is
evidence of financial elder abuse, and (5) whether the Respondent’s attorneys’ fees
should be shifted to the Petitioner.
Under12 Del. C. § 1311, parties may validate a will before the death of a
testator by giving notice to what is usually someone who expects to inherit under a
will of their being disinherited and giving them 120 days to contest the will or
otherwise waive their ability to challenge the document after the death of the
testator.76 Similarly, under 12 Del. C. § 3546, a revocable trust may also be validated
before the death of the trustor. 77 The formal processes of pre-mortem will validation
and limitation on action contesting the validity of a trust have not been followed
here, but nonetheless Scott received a document titled “notice of limitations”
informing him of his disinheritance and prompting him to initiate this action
challenging the validity of his father and step mother’s estate plans prior to their
passing.78
For reasons, I will explain in further detail, I find the wills and trusts executed
by Richard and Barbara are valid and not the subject of undue influence. I also find
76 12 Del. C. § 1311(a)–(c). 77 12 Del. C. § 3546(a)(1). 78 RX 45; Tr. 64:21–65:2.
13 there is no evidence of financial elder abuse. Although unsuccessful in his claims, I
don’t find the Petitioner brought or prosecuted his claims in bad faith and thus deny
the Respondent’s request for fee shifting.
A. The 2016 Wills and Trusts of Richard Burd and Barbara Burd are Valid.
For a will to be valid in Delaware, the person must be at least 18 years old and
“of sound and disposing mind and memory[.]”79 The will must be “(1) In writing
and signed by the testator . . . and (2) Subject to § 1306 of this title, attested and
subscribed in the testator’s presence by 2 or more credible witnesses.” 80
Both Richard and Barbara’s wills were signed by Testators, after they
themselves took the initiative to seek legal counsel to draft the documents. 81 The
wills are valid as they are in writing, signed by Richard and Barbara, and contain a
notarized self-proving affidavit signed by each witness. 82 No evidence was presented
that shows that Richard and Barbara were not “of sound and disposing mind and
memory” such that they lacked capacity to execute a will. As discussed further below
the Petitioner has failed to meet his burden of proof in showing that the Testators
lacked capacity to execute their 2016 wills or that they were unduly influenced by
79 12 Del. C. §201. 80 12 Del. C. §202(a). 81 Tr. 149:20–150:6; RX 32; RX 33. 82 RX 32; RX 33.
14 Tracy in the execution of their wills. It is for these reasons I find that the Richard
and Barbara Burd’s respective wills executed in 2016 are valid.
Looking at the 2016 Trusts of Richard and Barbara Burd, under 12 Del. C. §
3545(a) a trust must be “in a writing executed by the trustor . . . and witnessed in
writing in the trustor’s presence by at least 1 disinterested person or 2 credible
persons[.]” “[A] disinterested person is one who has no beneficial interest in the trust
that would be materially increased or decreased as a result of the creation,
modification or revocation of the trust[.]”83
The validity of a trust is determined by looking to the intent of the trustor to
establish a trust.84 The intent of the trustor can be expressed in writing or deciphered
through extrinsic evidence such as acts or communications that occurred in the time
surrounding the Trust’s execution.85
The 2016 joint revocable Trust of Richard and Barbara Burd were in writing,
signed by each of them as trustors, and was witnessed by two witnesses, evidenced
by the signatures affixed to the bottom of the document. 86 The intent of the Trustors
to create the trust is evidenced by their signatures and their present testimony that it
was their intent to create the trust and to disinherit Scott. The 2016 trust of Richard
83 12 Del. C. § 3545(a). 84 Otto v. Gore, 45 A.3d 120, 130 (Del. 2012). 85 Id. at 130–32. 86 D.I. 4, exhibit 3.
15 and Barbara are therefore valid. I conclude that the Trustors created the wills and
trusts in accordance with the statutory requirements set forth above. I next turn to
the issues of capacity and undue influence.
i. The Testators Had Capacity.
“Delaware law presumes that the [testator] had sufficient testamentary
capacity when executing [his] will, and the party attacking testamentary capacity
bears the burden of proof.” 87 The standard for testamentary capacity provides that,
at the time of execution, the testator must “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.” 88 Only a “modest level” of competence must be
present for an individual to possess the capacity required to execute a will.89
Testators are presumed to have capacity, and thus a party contesting otherwise bears
the burden of proof by a preponderance of the evidence. 90
Scott testified that he asserted his lack of capacity claim based on the testator’s
age at the time the wills and trust were changed, however, age alone is not enough
87 McGee v. Est. of Hopkins, et. al., 2022 WL 17492353, at *5 (brackets in original) (quoting In re W., 522 A.2d 1256, 1263 (Del. 1987)). 88 Matter of Langmeier, 466 A.2d 386,402 (Del. Ch. 1983). 89 In re Vietri, 2022 WL 3925995, at *6 (Del. Ch. Aug. 31, 2022) (quoting In re West, 522 A.2d 1256, 1262 (Del. 1987)). 90 Langmeier, 466 A.2d at 389, 401.
16 to show a party lacked capacity.91 Dr. Maleh, the doctor for Richard and Barbara,
testified that in 2016 when he was the primary care physician for both parties, neither
of them exhibited signs of mental challenges or concerns about their capacity.92
Additional testimony from Kevin O’Brien, the attorney who assisted Richard and
Barabara with their 2016 estate planning, shows that there was no question by their
counsel about the capacity of Richard and Barbara in 2016 when they executed their
wills and trust.93 Furthermore, Richard and Barbara appeared competent throughout
their trial testimony, answering questions from their counsel and recalling family
events.
Scott also testified that, although he has had little to no contact with his father
and Barabara since approximately 2009, his assertions that the two lacked capacity
in 2016 were based in part on what he claimed to be “common sense,” and because
he recalled Richard insisted in the past that Scott would be in his will.94 He believes
it is reasonable to conclude that Richard’s mind would not have been able to handle
the sexual assault allegations in 2016. 95
91 Tr. 116:12–18; IMO the LW & T of Hurly, 2014 WL 1088913, at *4 (Del. Ch. Mar. 20, 2014) (“The Court cannot infer a lack of capacity solely based on a testator’s advanced age[.]”). 92 Tr. 106:6–12; Tr. 106:19–107:12; Tr. 108:1–4. 93 Tr. 199:10–200:7. 94 Tr. 115:17–116:22; Tr. 121:17–24. 95 Tr. 116:16–22.
17 Scott has failed to provide sufficient evidence to this Court to overcome the
presumption that Richard and Barbara had the modest level of capacity necessary to
be deemed competent to execute their wills and trust. As such, Scott’s claim for lack
of capacity fails.
ii. There is No Evidence of Undue Influence.
Scott claims that his sister Tracy exercised undue influence against her
parents by taking advantage of the circumstances in 2007 when both Tracy and Scott
confronted their father with accusations that he committed sexual assault against
Scott and his other sister Melanie over 40 years ago when the two were children.
“[A] duly-executed will is presumptively valid and free of undue influence,
and the challenger carries the burden of proving undue influence.” 96 The elements
needed to establish undue influence are: “(1) a susceptible testator; (2) the
opportunity to exert influence; (3) a disposition to do so for an improper purpose;
(4) the actual exertion of such influence; and (5) a result demonstrating its effect.”97
“If any one of the elements is not proven, then the challenger to the will has not met
[his] burden of proving undue influence.”98 In addition, in Melson the Delaware
96 McGee v. Est. of Hopkins, 2022 WL 17492353, at *5 (Del. Ch. Nov. 22, 2022) (citations and quotation marks omitted). 97 In re Melson, 711 A.2d 783, 787 (Del. 1998) (quoting In re Norton, 672 A.2d 53, 55 (Del. 1996)). 98 McGee, 2022 WL at *8.
18 Supreme Court pronounced an important burden shift if three factors are present:
“(a) the will was executed by a testatrix or testator who was of weakened intellect;
(b) the will was drafted by a person in a confidential relationship with the testatrix;
and (c) the drafter received a substantial benefit under the will.”99 If all three factors
are met by clear and convincing evidence, the burden of proof shifts to the will’s
proponent. 100 “[T]he proponent of the will must [then] show that there was an
absence of undue influence and prove by a preponderance of the evidence that ‘the
testator or testatrix possessed the requisite testamentary capacity.” 101
As explained in greater detail below, under the present circumstances where
the Testators have sought out independent legal counsel on their own accord to draft
their estate planning documents, the Melson factors would not apply and the burden
of proof remains with the Petitioner, Scott.
Scott has not established by a preponderance of the evidence that the 2016
estate documents were the product of undue influence.102 Although Scott testified
99 Melson, 711 A.2d at 788 (citation and quotation marks omitted). 100 In re Seppi, 2011 WL 4132374, at *12 (Del. Ch. Aug. 30, 2011). “The clear and convincing standard requires evidence that produces in the mind of the trier of fact an abiding conviction that the truth of the factual contentions is highly probable.” Hudak v. Procek, 806 A.2d 140, 147 (Del. 2002) (cleaned up). In re Hammond, 2012 WL 3877799, at *3, n.10 (Del. Ch. Aug. 30, 2012) (quoting 101
Melson, 711 A.2d at 788). 102 “Proof by a preponderance of the evidence means proof that something is more likely than not. It means that certain 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 19 that Richard was approximately 84 and suffered mental, physical, and medical
issues, Scott provided no evidence that Richard and Barbara were susceptible to
undue influence at the time of the 2016 wills and trust execution. 103 As previously
established above, both testators had sufficient testamentary capacity to execute a
will. At the time the testators executed the wills in 2016, and up to this litigation, the
testators remained independent, lived alone, and managed their own household and
finances.104
Scott provides no evidence that would suggest Tracy had a disposition to exert
undue influence against her parents and actually exerted undue influence. Although
Scott testified that Tracy was in a confidential relationship with her parents and
needed money from them to support her lifestyle, there was credible testimony from
Tracy and Barbara that Tracy was unaware her parent’s made changes to their prior
wills and trust in 2016.105 She was first made aware of this in August 2023, seven
years after they had sought out an attorney and executed their wills and trust.106
Furthermore, Scott’s testimony that Richard was unduly influenced by Tracy
not.” Del. Express Shuttle, Inc. v. Older, 2002 WL 31458243, at *17 (Del. Ch. Oct. 23, 2002) (citations and quotation marks omitted). 103 Tr. 73:16–24. 104 Tr. 135:4–136:1; Tr. 207:11–24; Tr. 209:2–16; Tr. 225:1–4; Tr: 152:21–153:2. 105 R., Burd Dep. 48:10-50:4; Tr. 231:7–20; Tr. 245:6–18. 106 Tr. 231:7–20; Tr. 245:6–18.
20 because Tracy used the alleged sexual assault against Richard to change his will and
trust to favor Tracy appears unfounded and lacks credible evidence to support it.107
Both Richard and Barbara testified this was not true and the reason Scott was
removed from the wills and trusts, is simply because he was estranged from the
family.108
Lastly, the undue influence claim also fails because the testators
independently sought out the advice of an attorney to restructure their estate plan to
disinherit their son, Scott.109 They did so without the input of their daughter, who
was not told of the new structure of her parent’s estate plan until August 2023, after
they had fully executed the documents. 110 Barbara testified that they did not even
consider the prior allegations of sexual assault when updating their estate plan.111
Richard provided coherent reasoning for changing his estate plan in 2016 to exclude
Scott and Melanie. Melanie was removed because her parents, the Testators, were
already helping her financially, while Scott was excluded because the two lost touch
107 Tr. 32:8–19. 108 Tr. 151:16–152:3; Tr. 153:19–154: 20; Tr. 220:13–221:18; Tr. 223:5–16. 109 Tr. 149: 20–6; In re Will of Cauffiel, 2009 WL 5247495, at *9 (Del. Ch. Dec. 31, 2009) (citing In re Estate of West, 522 A.2d 1256, 1264 (Del. 1987)) (“Considerable weight is to be afforded to the testimony of a disinterested, independent attorney regarding lack of undue influence.”). 110 Tr. 186:11–187:3; Tr. 231:7–20; Tr. 245:6–18. 111 Tr. 230:20–231:6.
21 and Richard wanted to help provide for his grandchildren, the children of Tracy.112
Barbara testified to even more reasons they chose to leave Scott out of their estate
plans including that he was financially stable, he didn’t have children, and they were
of the belief that he inherited assets when his mother passed away. 113
Although Tracy under the new estate plan stands to inherit more than she did
under the original, there is no “result demonstrating its effect” without any evidence
of actions on her part that would be considered to have overpowered her parents’
own willpower. It is for these reasons that I find the Petitioner has failed to meet his
burden of proof regarding his allegations of undue influence.
B. The Respondent Did Not Commit a Breach of Fiduciary Duties.
“A claim for breach of fiduciary duty is an equitable tort.” 114 A party alleging
breach of fiduciary duty is tasked with the burden of proving “(1) that a fiduciary
duty existed and (2) that the defendant breached that duty.” Scott claims that Tracy
breached fiduciary duties owed to her parents by influencing them to disinherit him
for her own benefit.
First, I look at whether a fiduciary duty existed. According to Mitchell v.
Reynolds, “a fiduciary relationship is a situation where one person reposes special
112 Tr. 223:5–22; Tr. 154:3–20. 113 Tr. 240:3–16. 114 HOMF II Inv. Corp. v. Altenberg, 2020 WL 2529806, at *43 (Del. Ch. May 19, 2020).
22 trust in another or where a special duty exists on the part of one person to protect the
interests of another.” 115 These duties arise under the traditional roles and
relationships such as Trustees, estate executors, and agents; however Delaware has
recognized “outside a formally recognized fiduciary relationship, a relationship
predicated on particular confidence or reliance may give rise to fiduciary
obligations.”116 These confidential relationships can be shown where “circumstances
make it certain the parties do not deal on equal terms but on one side there is an
overmastering influence or on the other weakness, dependence or trust, justifiably
reposed.”117
Although the relationship between a child and an elderly parent will often
evolve into one that is confidential such that the child must take control over an
elderly parent’s financial and personal decisions, here there is no evidence to suggest
that Tracy and her aging parents had reached that stage of their relationship in 2016
when the estate planning documents had been drafted, nor did it appear that she had
taken on that role in their relationship at the time of trial. At the time of trial, Richard
was 93, and in 2016 when the estate planning documents were drafted, he was 84.118
115 Mitchell v. Reynolds, 2009 WL 132881, at *9 (Del. Ch. Jan. 6, 2009) (quoting Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 901 A.2d 106, 113 (Del. 2006)). 116 Mitchell , 2009 WL at *9. 117 Id. (quoting In re Will of Wiltbank, 2005 WL 2810725, at *6 (Del. Ch. Oct. 18, 2005)). 118 Tr. 134:22–23.
23 There is no question that Richard was elderly when he made the decision to disinherit
Scott, however Richard and Barbara remain competent, living independently,
vacationing, maintaining their own home and household, and have yet to find a need
to relinquish any control over their person or finances to Tracy or anyone else for
that matter. 119 Tracy and her parents are not currently in a confidential relationship
that would give rise to fiduciary duties. Scott provides no evidence that would
suggest that Tracy and her parents’ relationship was any different in 2016. Although
Tracy was named in her parent’s trust as Trustee and in separate documentation as
her parent’s power of attorney, she has not yet stepped into these roles or in any
formal fiduciary capacity on her parents’ behalf. 120
Scott has provided no basis for the Court to treat Tracy as a fiduciary as no
fiduciary relationship exists. Having concluded that there is no fiduciary
relationship, it is safe to conclude there was no breach of those duties and Petitioner’s
claim for a breach of fiduciary duties fails.
C. There is No Evidence of Financial Elder Abuse.
Scott alleges that Tracy committed financial elder abuse against their father.
He alleges that “because [Richard Burd] was an elder at the time he was the victim
of the Respondents’ undue influence…respondent committed financial elder
119 Tr. 135:4–136:1; Tr. 207:11–24; Tr. 209:2–16; Tr. 225:1–4; Tr: 152:21–153:2. 120 Tr. 152:21–23; Tr. 186:11–23; Tr. 225:1–2.
24 abuse.”121 The relevant portions of 31 Del. C. § 3902(14) define “financial
exploitation” as:
the illegal or improper use, control over, or withholding of the property, income, resources, or trust funds of an elderly person or a vulnerable adult by an individual or entity for an individual’s or entity’s profit or advantage other than for the elderly person’s or the vulnerable adult’s profit or advantage. “Financial exploitation” includes any of the following: (a) The use of deception, intimidation, or undue influence by an individual or entity in a position of trust and confidence with an elderly person or a vulnerable adult to obtain or use the property, income, resources, or trust funds of the elderly person or the vulnerable adult for the benefit of an individual or entity other than the elderly person or the vulnerable adult; (b) The breach of a fiduciary duty, including the misuse of a power of attorney, trust,…; or (c) Obtaining or using an elderly person’s or a vulnerable adult’s property, income, resources, or trust funds without lawful authority, by an individual or entity who knows or clearly should know that the elderly person or the vulnerable adult lacks the capacity to consent to the release or use of the property, income, resources, or trust funds.
Scott argues that Respondent fits these criteria because his belief that she
intimidated and unduly influenced Richard by using the sexual abuse allegations to
make him change his will and trust to her benefit. For reasons previously stated, this
allegation lacks merit and there was no evidence at trial that the Respondent unduly
influenced Richard to transfer his assets to him upon death. Scott failed to provide
121 D.I. 1 at p. 20 ¶¶644–67.
25 the Court with any evidence or specific testimony of actions taken by Tracy that
would constitute financial elder abuse. Scott has failed to meet his burden and
therefore I must find in favor of the Respondent.
D. Attorney Fees and Costs
Tracy requests that the Court award fees and costs under the bad faith
exception to the American rule and under 12 Del. C. § 3584. 122 Under the American
rule “each party is generally expected to pay its own attorneys’ fees.” 123 A court may
shift fees under limited circumstances “for bad faith conduct ‘to deter abusive
litigation and to protect the integrity of the judicial process.’” 124 This Court does not,
however, lightly shift fees under the bad faith exception.125 “A party seeking to shift
fees must satisfy the stringent evidentiary burden of producing clear evidence of bad
faith.”126 “To capture the sorts of vexatious activities that the bad-faith exception is
intended to address, this court employs the ‘glaring egregiousness’ standard.” 127
122 D.I. 79 at 53–55. 123 Shawe v. Elting, 157 A.3d 142, 149 (Del. 2017) (citing Montgomery Cellular Hldg. Co. v. Dobler, 880 A.2d 206, 227 (Del. 2005)). 124 Tigani v. Tigani, 2021 WL 1197576, at *25 (Del. Ch. Mar. 30, 2021) (quoting Shawe v. Elting, 157 A.3d 142, 149 (Del. 2017)). 125 Ravenswood Inv. Co. v. Winmill & Co., 2014 WL 2445776, at *4 (Del. Ch. May 30, 2014) (“The bad faith exception is not lightly invoked.”). 126 Myers v. Acad. Sec., Inc., 2023 WL 6380449, at *1 (Del. Ch. Oct. 2, 2023) (ORDER) (citation and quotations omitted), adopted, 2023 WL 6846984 (Del. Ch. Oct. 16, 2023). 127 Seidman v. Blue Foundry Bancorp, 2023 WL 4503948, at *6 (Del. Ch. July 7, 2023).
26 Tracy argues that fees should be shifted under the bad faith exception and
categorizes Scott’s actions in bringing this suit as ‘misconduct’ and asserts that Scott
forced his father and stepmother to defend their estate plan. 128 With respect to Scott’s
actions during this lawsuit, Tracy has failed to prove that Scott engaged in glaringly
egregious conduct. Although there are sensitive issues at play such as allegations of
sexual abuse, strained familial relationships, and homelessness, there is not enough
to find Scott’s conduct to be glaringly egregious. Although Scott’s allegations of
sexual abuse were prevalent during this lawsuit, and his responsiveness to
communications from the respondent and the Court throughout this proceeding were
at times less than ideal, 129 Scott has pursued this litigation from states away while
living in a homeless shelter and not having consistent access to a computer. 130 The
Court is understanding of these circumstances and concludes his actions do not rise
to a level of bad faith where shifting attorneys’ fees would be acceptable. It is for
these reasons that I decline to shift attorney’s fees.
128 D.I. 66 at 52–53; D.I. 79 at 54–55. 129 At multiple points during this litigation Mr. Burd failed to participate in matters from scheduling issues to the pretrial stipulations between parties, to requests for production, to participating in depositions resulting in respondent’s filing of multiple motions to compel primarily in pursuit of their own counter claims but still to resolve the very dispute brought on by Mr. Burd’s own actions. See D.I. 39; D.I 50; D.I. 59. 130 Tr. 16:7–13; Tr. 97:7–22.
27 With respect to Tracy’s assertion that this claim was brought in bad faith to
force Richard and Barbara to defend their estate plan, I also find that argument
unconvincing. Scott testified that he did not simply wake up and decide to file this
lawsuit.131 Rather, the Petitioner filed this lawsuit in accordance with the notice of
limitation he received from the Richard and Barbara’s estate attorney.132 Scott’s
petition indicates he was served with the notice of limitation on August 8, 2023,
which gave him until December 6, 2024 to initiate judicial proceedings to contest
the validity of the 2016 trust and wills of Richard and Barbara, of which he did just
that.133 It was known there was a chance Scott would file this lawsuit in response to
the notice. Testimony shows the purpose of sending the notice was to “keep Scott
‘from going after Tracy… at some later date.’” 134 I find Scott’s lawsuit was filed not
131 Tr. 90:22–91:3; Tr. 167:19–168:4. 132 D.I. 1 at 2 ¶¶37–41; Tr. 13:23–14:2. Under 12 Del. C. § 3546, there is a limit on when a trust or an amendment to a trust can be challenged. In accordance with this statute, “A judicial proceeding to contest whether a revocable trust or any amendment thereto, or an irrevocable trust was validly created may not be initiated later than … [o]ne hundred twenty days after the date that the trustee notified in writing the person who is contesting the trust of the trust’s existence, of the trustee’s name and address, of whether such person is a beneficiary, and of the time allowed under this section for initiating a judicial proceeding to contest the trust provided… .” 12 Del. C. § 3546(1). 133 D.I. 1, at p. 2 ¶¶ 38–39. 134 D.I. 66 at 28. The Court also finds this argument that the respondent was forced into this litigation as unpersuasive. Respondent was interested in pursuing her counterclaim and at the March 1, 2024 teleconference when the Court indicated it would dismiss Scott’s claim for failing to prosecute and respond to requests to schedule, the respondent insisted on moving forward in favor of her counterclaim.
28 in bad faith, but as a direct result of receiving the notice and his uncertainty as to
why he was no longer a beneficiary.
Therefore, the request for attorney fees to be shifted to the Petitioner is denied.
The Respondent is, however, entitled to costs as the prevailing party. Under Court
of Chancery Rule 54(d), “costs shall be allowed as of course to the prevailing party
unless the Court otherwise directs.” The Respondent is the prevailing party, and I
find costs should be shifted to the Petitioner.
III. CONCLUSION
For all these reasons, I find in favor of Tracy, the respondent. Scott cannot meet
his burden to prove that the wills and trust are not valid. As such, this Court declares
that the 2016 wills and trust of Richard and Barbara are valid. The testators had
capacity to execute the wills and trust, and that the Respondent did not unduly
influence her parents or engage in financial elder abuse. Fees should not be shifted
but the respondent is entitled to costs as the prevailing party. This is my final report,
and exceptions may be filed under Court of Chancery Rule 144.135
135 See Ct. Ch. R. 144(d)(1) (In “[a]ctions that are not summary or expedited… [a] party taking exceptions must file a notice of exceptions within 11 days of the date of the Final report or Draft Report.”).