IMO Last Will & Testament of Edward B. Sandstrom ( 2016 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
In the Matter of the Last Will and Testament ) C.A. No. 8948-MA
Of Edward B. Sandstrom, Deceased )
)
MASTER’S REPORT
Date Submitted: August 27, 2015
Draft Report: October 30, 2015
Final Report: April 4, 2016
Petitioners are seeking to substitute the first page of the Last Will and
Testament of Edward B. Sandstrom (hereinafter “Mr. Sandstrom,” “the testator,”
or “the decedent”), which was admitted to probate by the Register of Wills for
Sussex County on April 23, 2013 (hereinafter “the 2013 Will”) with a writing they
allege to be a copy of the first page of the will that was actually executed by the
testator, but which was subsequently lost or destroyed. In the alternative,
Petitioners request that the Court reform the 2013 Will because it does not
accurately reflect the testator’s intent. If reformation is not available, Petitioners
request that the Court impose a constructive trust in their favor on real property
located at 34772 Frontier Road, Lewes, Delaware 19958 (hereinafter “the Lewes
house”), to avoid the testator’s son being unjustly enriched because the Lewes
house was devised to the testator’s son in the 2013 Will, despite the testator’s clear
and undisputed intention to leave the real property to Petitioners.
Page 1 of 41
Procedural Background:
On September 26, 2013, Petitioners Shaun and Jessalynn Potts filed a
Verified Petition to Reform Will.1 Attached to the Petition was the affidavit of
Neil Dignon, Esquire, the scrivener of the 2013 Will, averring that he had
corrected the first page of a will he drafted to reflect the testator’s intent prior to
the testator’s execution of the will on March 25, 2013, but that testator’s son
subsequently probated a will containing the incorrect first page, rather than the
corrected first page. A Verified Answer was filed by Respondent Edward G.
Sandstrom (hereinafter “Eddy”) on November 26, 2013,2 in which Eddy alleged
that he had never seen a “corrected first page,” and that the alleged “incorrect first
page” was the page provided to him with the rest of the will for admission to
probate.3 Eddy also denied that his father was capable of making any substantive
changes to his will on March 25, 2013. According to Eddy, the 2013 Will speaks
for itself and revisions to the 2013 Will are barred by the applicable statute of
frauds.
Pretrial proceedings moved slowly in part due to Respondent’s tardiness in
responding to the Verified Petition and Petitioners’ discovery requests, and the
1
Docket Item (“DI”) 1.
2
DI 6.
3
I use first names to avoid confusion or repetition, and intend no disrespect by this
practice.
Page 2 of 41
illness of Respondent’s original counsel.4 Following substitution of counsel on
April 2, 2015 and further discovery,5 Respondent filed a motion in limine on May
22nd, requesting that all oral statements offered to demonstrate the alleged
testamentary intent of Mr. Sandstrom be excluded from the evidentiary record.6
Petitioners’ pretrial brief was filed on June 1, 2015, in which they argued for the
first time that if the corrected first page had been lost or destroyed after execution
of the will, the corrected first page should be given effect by the Court.7 The day
before the pretrial conference on June 11, 2015, Respondent moved to amend his
Verified Answer to add several new affirmative defenses.8 On June 11, 2015,
Respondent filed a motion for partial summary judgment, arguing that no fraud had
been alleged or found regarding the 2013 Will, and that the Court lacked the power
to reform a will by inserting language allegedly omitted from the will as a result of
scrivener’s error.9
In order to make a complete record for de novo review, I reserved decision
on Respondent’s motion in limine until after trial. Thereafter, to preserve his
objection to the introduction of extrinsic evidence of the testator’s intent,
Respondent continuously objected to oral statements of the testator’s intent during
4
DI 4, 6, 8-14, 16.
5
DI 31.
6
DI 45.
7
DI 47.
8
DI 55.
Page 3 of 41
the one-day trial held on June 15, 2015. This is my draft report following the
submission of the post-trial briefs.
Factual Background:
Mr. Sandstrom died after a short illness on April 3, 2013, at the age of 78
years.10 At his death, Mr. Sandstrom owned a house near Lewes, but he had
previously resided in the Dover area where he raised his family. 11 His daughter
Julie had died at age 20 in 1978 after a car accident.12 In 2013, Mr. Sandstrom’s
surviving family consisted of his son Eddy, two granddaughters, a brother, and two
sisters.13 At the time of his father’s death, Eddy resided in Camden, Delaware, and
had worked for thirty years in the automobile business. Eddy’s last employment
involved managing car loans and titling issues.14
In addition to his family, Mr. Sandstrom also had several close friends,
including Bryan Henry Baker and his wife, Dorothy, who live in Wyoming,
Delaware.15 Baker and Mr. Sandstrom had served together in the United States Air
Force. They met in the mid-1960s when Baker was posted to the Air Force base in
9
DI 57.
10
Joint Exhibit (“JX”) 15.
11
Trial Transcript (“TT”) 237.
12
TT 190-191.
13
Mr. Sandstrom was divorced from his wife in the 1980s and never remarried.
TT 239. His siblings reside in California, Wisconsin, and Minnesota. TT 154.
14
TT 237.
15
TT 149-150.
Page 4 of 41
Dover.16 Over the ensuing years, the Bakers and Mr. Sandstrom socialized
together many times, including taking trips to visit family in Minnesota and
Hawaii, and several vacations in Mexico.17 Baker was Mr. Sandstrom’s best
friend.18 In the 2013 Will, Mr. Sandstrom bequeathed his vehicles to Baker and
named Baker as executor of his estate.19 He also named Baker as his attorney-in-
fact in a limited power of attorney document executed on March 25, 2013.20
A few months before the death of his daughter in 1978, Mr. Sandstrom met
Peter Rigterink, who had moved to Delaware that year to work for the Playtex
Company.21 Thereafter, Mr. Sandstrom spent Christmas, Thanksgiving, and other
holidays with the Rigterink family, and also vacationed with them on the Outer
Banks in North Carolina.22 For over twenty years, he and Rigterink attended
Army-Navy football games together. Mr. Sandstrom was especially close to
Rigterink’s daughter Jessalynn, whom he had known since her birth.23 During the
seven years that Jessalynn attended college and graduate school, from 1998
16
TT 175.
17
TT 175.
18
TT 151.
19
JX 6.
20
JX 8.
21
TT 190-191
22
TT 191.
23
TT 192-193, 215.
Page 5 of 41
through 2004, she resided with Mr. Sandstrom in his Lewes house each summer
while she worked as a lifeguard at the beach.24
In 2006, Jessalynn married her college boyfriend, Shaun Potts, on a beach in
North Carolina.25 Mr. Sandstrom, together with Jessalynn’s father and stepfather,
walked the bride down the “aisle” during the wedding ceremony as her third
father.26 Whenever Shaun and Jessalynn visited Delaware they stayed with Mr.
Sandstrom in his Lewes house.27 Mr. Sandstrom hosted birthday parties for Shaun
and Jessalynn in his Lewes house, and also a baby shower when they were
expecting their first child.28 He spent several Thanksgivings in California with the
young couple after they moved there in 2010.29
Mr. Sandstrom was also an active member of his church where he became
friends with Neil Dignon and Dorothy Blakely.30 In 2004, at Mr. Sandstrom’s
request,31 Dignon drafted a will (hereinafter “the 2004 Will),32 and an advanced
24
TT 193-194, 214.
25
TT 203-04.
26
TT 205.
27
Id.
28
Id.
29
TT 206.
30
TT 5-6, 64.
31
Dignon has been a member of the Delaware Bar since 1997 and a solo
practitioner since 2007. TT 62-63. He practices consumer bankruptcy, criminal
law, and immigration law and prepares simple wills, mostly for people he knows.
Over the years Dignon has been practicing law, he has drafted three to five dozen
wills. TT 63.
32
JX 1.
Page 6 of 41
health care directive naming Baker as Mr. Sandstrom’s health care representative.33
In 2010, Blakely experienced complications following eye surgery, the treatment
of which was going to require her to make frequent day trips to a Baltimore
hospital.34 Blakely asked Mr. Sandstrom’s help with transportation because her
husband could no longer safely drive a car.35
For approximately two years, Mr. Sandstrom drove Blakely to and from
Baltimore, first on a monthly basis, then every three months, and then every six
months.36 Their final trip to Baltimore together occurred on February 21, 2013.37
It was during this trip that Mr. Sandstrom became concerned about his health after
noticing that his urine was dark.38 He was admitted to Beebe Hospital in Lewes on
March 5, 2013.39 During the following weeks, Blakely was a frequent visitor to
the hospital as she tried to lift Mr. Sandstrom’s spirits with conversation and
food.40
Baker and his wife were vacationing in Florida when they got a call from
Rigterink that Mr. Sandstrom was in the hospital.41 They drove home the
33
JX 10.
34
TT 6.
35
Id.
36
TT 7.
37
Id.
38
TT 8.
39
TT 9-10.
40
TT 11, 14.
41
TT 153.
Page 7 of 41
following day, making the hospital their first stop.42 Early on the morning of
March 25th, Baker called Dignon and asked if he would be willing to come to the
hospital because Mr. Sandstrom wanted to make some changes to his will.43
Dignon had another reason for visiting the hospital that morning. His best
friend had suffered a cardiac arrest while undergoing a routine test at the hospital.44
Although his friend had survived the heart attack, Dignon had already been called
by the friend’s wife, and he spent an hour or two in the morning in the intensive
care unit of the hospital before visiting Mr. Sandstrom.45
Around 11 or 11:30 a.m., Dignon went up to Mr. Sandstrom’s room.46
Blakely and another person unknown to the lawyer were present, but shortly after
his arrival, they stepped into the hall.47 Mr. Sandstrom then told Dignon that he
wanted to leave his cars to Baker, appoint Baker as his executor, and he wanted to
leave the Lewes house to Jessalynn Potts, a woman who was very special to him. 48
After Dignon advised that the proposed changes would result in disinheriting
Eddy, Mr. Sandstrom informed Dignon that he wanted Eddy to have his accounts
42
Id.
43
TT 67-68, 155.
44
TT 67.
45
TT 67-68. Later that afternoon, Dignon went downstairs and asked his friend’s
son to serve as the second witness to Mr. Sandstrom’s will. TT 21-22, 86.
46
TT 68.
47
TT 68, 69.
48
TT 69-70.
Page 8 of 41
at Morgan Stanley.49 Since Dignon did not know whether there were beneficiaries
named on these accounts, he prepared a power of attorney document so Mr.
Sandstrom could appoint Baker as his agent to make any beneficiary designation
changes.50 Dignon made the requested testamentary changes to the electronic
version of Mr. Sandstrom’s 2004 Will that was saved on Dignon’s laptop
computer.51
When Dignon went to the nurse’s station to find a printer, he was directed to
the hospital’s IT department.52 After unsuccessfully trying to email his Microsoft
Word file to the hospital’s printer, Dignon copied the file onto a thumb drive
borrowed from someone in the IT department, who then printed out the draft will
49
TT 72.
50
TT 49, 84. Baker did not change the beneficiary designations before Mr.
Sandstrom passed away on April 3rd. Mr. Sandstrom’s granddaughters were the
designated beneficiaries of his retirement accounts, JX 12, and they also inherited
his investment account at Morgan Stanley as a result of being the beneficiaries of
the decedent’s residuary estate under the 2013 Will. JX 6. After Mr. Sandstrom’s
death, Eddy transferred all the funds and securities in the investment account to an
estate account in his capacity as personal representative of the decedent’s estate.
JX 12 & 13. Eddy then spent approximately $75,000 of these funds on the
mortgage and repairs to the roof and air-conditioning of the Lewes house, and on
his own bills, before sending a check for the remaining funds, approximately
$70,000, to one of his daughters to share with her sister. TT 260-262, 266.
51
TT 76. Eddy was the beneficiary of the Lewes house in the 2004 Will. JX 1.
After Dignon reviewed the electronic version of the 2004 Will on his computer, he
discovered that Baker was already the beneficiary of Mr. Sandstrom’s vehicles so
he did not have to revise Article Second, Paragraphs C and D. Id.
52
TT 77.
Page 9 of 41
on the hospital’s printer.53 Dignon reviewed the document, discovered an error on
the first page, and made the correction to the electronic file.54 The IT person then
printed out the corrected first page.55 After ensuring that his file had been erased
from the IT department’s thumb drive, Dignon returned to Mr. Sandstrom’s room
with the seven-page draft will and the first draft page containing the error
(hereinafter “the incorrect first page”).56
Dignon read the draft will with the corrected first page to Mr. Sandstrom,
who approved the changes to his will.57 Then Dignon left the room to find Blakely
and a second person to witness Mr. Sandstrom’s signature. After he returned with
the two testamentary witnesses, Dignon observed Mr. Sandstrom execute a
document containing the corrected first page and pages two through seven of the
draft will that had been printed in the IT department of Beebe Hospital.58
According to Dignon, he placed the executed will in a file bin on the wall of Mr.
Sandstrom’s hospital room.59 Dignon then suggested that he take the testator’s
53
TT 77-78.
54
TT 78-79.
55
TT 80.
56
TT 84-85.
57
TT 85-86, 138-139.
58
TT 101.
59
On March 25th, a limited power of attorney document naming Baker as attorney-
in-fact for Mr. Sandstrom also was printed and executed in Beebe Hospital. TT
84; JX 10. This document was also placed in the file bin on the wall of Mr.
Sandstrom’s hospital room with Mr. Sandstrom’s will.
Page 10 of 41
original 2004 Will back to his office and destroy it, and Mr. Sandstrom agreed.60
Dignon recalled destroying the old will, but he could not recall placing the new
will in an envelope or stapling its seven pages together.61 Dignon also could not
recall what he had done with the incorrect first page.62
The following day, Dignon returned to the hospital with his notary stamp to
notarize the will.63 He did not review the will during this brief visit with Mr.
Sandstorm and, after stamping his notary stamp on the document, he again placed
the will in the file bin.64 On March 26th, according to Dignon, the will was not in
an envelope and was not stapled.65 He never saw the document again before Mr.
Sandstrom’s death.66
60
TT 87.
61
TT 87, 116. Blakely testified that Dignon held the will with his hand on the
upper left corner of the document while she and the other witness signed it. TT 22-
23. She described the pages as having been folded over, but she did not see
Dignon staple the document nor did she see any fastening device holding the pages
together. TT 24, 50. According to Blakely, Dignon put a stack of pages into a
large brown envelope before placing the envelope in a file bin on the wall of Mr.
Sandstrom’s hospital room. TT 23, 46-47, 49-50.
62
TT 88.
63
Dignon did not have his notary stamp with him at Beebe Hospital on March 25th
because he had left from home that morning, and the notary stamp was in his
office. TT 88-89.
64
TT 89.
65
Id.
66
Id.
Page 11 of 41
Eddy testified that some time before his father was transferred to a
rehabilitation facility on March 28th,67 Mr. Sandstrom informed his son that he had
made revisions to his will, and had made Baker his executor and health care
agent.68 He then asked his son to deliver the brown envelope to Baker.69 Eddy
testified that he retrieved the envelope from a “little plastic office holder” and took
it out to his pickup truck.70 His father’s announcement had upset Eddy because
Eddy had been talking with his father’s doctors for the past few weeks.71 Now that
Mr. Sandstrom had made Baker in charge of his medical care, Eddy was concerned
that he would no longer have any say over his father’s care and treatment.72 While
sitting in his truck parked outside of the hospital, Eddy opened the envelope and
glanced at the will.73 He testified that he saw Jessalynn’s name and his own name,
67
According to the hospital records, Mr. Sandstrom was discharged from Beebe
Hospital to Cadia Rehabilitation Renaissance in Millsboro, Delaware on March 28,
2013. JX 10 & 11.
68
TT 243.
69
Id.
70
TT 244.
71
TT 241. Although Eddy testified that he had spoken to the doctors every day,
among the Beebe Hospital medical records was the 2004 Advanced Health Care
Directive naming Baker as Mr. Sandstrom’s health care representative. JX 10. It
is unclear who was making health care decisions on Mr. Sandstrom’s behalf during
his first stay in the hospital. Since two witnesses described Mr. Sandstrom as
“sharp as a tack” during this time, it is possible that Mr. Sandstrom was making his
own decisions. TT 28, 179. What was new was not Mr. Sandstrom’s appointment
of Baker as his health care agent, as Eddy testified, but Baker’s appointment as Mr.
Sandstrom’s attorney-in-fact.
72
TT 244, 246, 257.
73
TT 245.
Page 12 of 41
put the will back in the envelope, and closed it without altering the will “in any
way, shape, or form.”74 Eddy then drove to the Bakers’ house in Camden.
Because he did not think the Bakers were at home, Eddy did not bother to stop and
get out of his vehicle.75 Instead, Eddy rolled down the window of the truck, threw
the envelope at the Bakers’ front porch, and then drove off.76
Baker was at home and observed Eddy’s arrival and departure. He retrieved
the envelope from his driveway and read the will.77 Baker knew that Mr.
Sandstrom wanted to leave his Lewes home to Jessalynn,78 so he was confused
when he read the document. Baker’s wife also thought the paragraph about the
house did not make sense; she did not understand why it appeared to leave the
house to Eddy.79
The document that was admitted to probate (the 2013 Will) contains the
following provisions in Article Second beginning on page one and carrying over to
page two:
A. Should I predecease my dear friend, Shaun Jessalynne Potts, by Thirty
(30) days or more, I hereby devise and bequeath the real property located
at 34772 Frontier Road, domiciled outside the City of Lewes, County of
Sussex in the State of Delaware, to my beloved son Edward G.
Sandstrom.
74
TT 245-246, 257-58.
75
TT 247.
76
TT 156, 245-47.
77
TT 156.
78
TT 151-153
79
TT 182-183.
Page 13 of 41
B. Should my dear friend, Shaun Jessalynne Potts predecease me or should
I predecease my dear friend Shaun Jessalynne Potts, by fewer than thirty
(30) days I hereby direct that the real property located at 34772 Frontier
Road, outside the City of Lewes, County of Sussex in the State of
Delaware, shall pass with the rest and residue of my estate.
C. Should I predecease my good friend, Byron Henry Baker, of 8457
Westerville Road, Camden, DE 19934-9779, by Thirty (30) days or
more, I hereby devise and bequeath whatever vehicles I may own at the
time of my death, subject to any liens or encumbrances against said
vehicles existing at the time of my death to my good friend, Byron Henry
Baker.
D. Should my good friend, Byron Henry Baker predecease me or should I
predecease my good friend Byron Henry Baker, by fewer than thirty (30)
days, I direct that whatever vehicles I own at the time of my death shall
pass with the rest and residue of my estate.
E. I hereby devise and bequeath the rest and residue of my estate, both real
and personal, of every name, nature and kind whatsoever, and
wheresoever, the same may be situated, to my beloved grandchildren,
Jennifer Christine Wells, present, and Janet Claire Sandstrom, presentlya,
[sic] in equal parts, share and share alike pursuant to the following
caveats;80
Baker testified that he immediately called Dignon and asked him to correct
the will, but the lawyer informed him that it was just legal jargon. 81 At trial,
Dignon denied that he had ever been asked by Baker to correct the will. He did
remember a telephone call from Baker who had explained that Shaun was, in fact,
a separate person and Jessalynn’s husband.82 Dignon testified that he never heard
80
JX 6.
81
TT 162, 164, 168, 182-184
82
TT 91, 93.
Page 14 of 41
Mr. Sandstrom refer to Jessalynn’s husband by name so he had understood “Shaun
Jessalynne Potts” and “Jessalynne Potts” to be one and the same person. Dignon
had thought that “Shaun Jessalynne Potts” was a female who preferred to be
known by her middle name.83
Mr. Sandstrom remained in the rehabilitation facility for a few days. During
a visit there, Mrs. Baker asked Mr. Sandstrom what exactly he wanted his will to
say.84 Mr. Sandstrom simply replied that he wanted Jessalynn to have the Lewes
house and Eddy to have all the money in his Morgan Stanley accounts.85 He
thought the money would be better for Eddy because he did not believe Eddy
wanted the house.86 Mr. Sandstrom’s health soon deteriorated and he was
readmitted to Beebe Hospital on April 1st.87 He died on April 3rd and his funeral
took place on April 10th and 11th.
Sometime prior to the funeral, Baker arranged for Dignon to meet Eddy and
Eddy’s daughters at the Lewes house.88 During this meeting, Dignon explained
that Eddy’s two daughters were to receive the decedent’s IRA accounts and life
insurance, but that the decedent had wanted Eddy to have the Morgan Stanley
83
TT 107.
84
TT 178.
85
Id.
86
Id.
87
JX 10.
88
TT 92-93, 157-158, 247-248.
Page 15 of 41
89
investment account. Eddy’s daughters indicated that they were willing to give
their father the investment account.90 However, when Dignon informed them that
the decedent had left the Lewes house to Jessalynn, Eddy and one of his daughters
insisted that the decedent must not have been competent at the time. 91
During the reception following Mr. Sandstrom’s funeral, Dignon met the
Pottses. According to Shaun, they discussed the decedent’s intent to leave the
92
house to the young couple. Although Shaun had received a copy of the will
from Baker, the couple did not have a chance to review the document until they
were on the plane returning to California.93 On April 12th, Shaun called Dignon
while Dignon was driving home from work.94 Shaun was confused about the
provision that appeared to leave the Lewes house to Eddy. Without the documents
in front of him, Dignon sounded unsure, but he reiterated what he had told Shaun
at the funeral.95
Following this telephone conversation, Dignon reviewed his computer file
and confirmed that the Lewes house had been left to Jessalynn.96 He subsequently
telephoned Eddy and explained that an incorrect version of the first page had been
89
TT 248.
90
TT 262.
91
TT 93-94.
92
TT 207.
93
Id.
94
TT 208.
95
TT 208.
Page 16 of 41
attached to the will, and offered to provide Eddy a copy of the corrected first page
to execute his father’s wishes.97 Eddy responded that he was not going to change
anything, and that Jessalynn was not entitled to the Lewes house because “she’s
not blood.” 98 Eddy asked Dignon if he was smoking crack, and then informed the
lawyer that he had already sent the will to probate.99
After Mr. Sandstrom’s funeral, Baker decided to resign as executor.100
Baker met Eddy in the office of Eddy’s lawyer, Charles E. Whitehurst, Esquire.101
Whitehurst read the 2013 Will and informed Eddy and Baker that Eddy was the
beneficiary of the Lewes house.102 As they were leaving the lawyer’s office,
Baker asked Eddy whether he was going to do anything for Jessalynn since his
96
TT 97-98.
97
TT 96-99, 252.
98
TT 99.
99
TT 252. On direct examination, when asked how his conversation with Dignon
ended, Eddy testified: “Pretty much I – pretty much he said, ‘Well, what have you
done with the will?’ And I said, ‘I’ve sent it to probate. Good-bye.’ I had already
taken it to the State. And I remember him going, ‘No, you didn’t.’ And I went,
‘Oh, yes, I did.’” TT 252-253.
100
TT 159.
101
TT 249-251.
102
The exact chronology of this meeting was unclear at trial. Also unclear was
how Whitehurst obtained the 2013 Will. When asked if Baker brought the original
will with him to the meeting at Whitehurst’s office, Eddy replied: “As – yes, as
near as I remember. Where else would it have come from?” TT 249. Baker, on
the other hand, denied delivering the will to Whitehurst’s office. According to
Baker, Eddy had given Whitehurst the will. TT 163,167,169.
Page 17 of 41
father had wanted her to have the house. Eddy allegedly replied, “I’ll take care of
her.”103
On April 23, 2013, the 2013 Will was admitted to probate and Eddy was
appointed personal representative of the decedent’s estate.104 Shortly thereafter,
Eddy moved into the Lewes house because his own home in Camden was in the
process of foreclosure.105
Issues:
Petitioners contend that the corrected first page was unintentionally lost after
the will was executed or else it was intentionally destroyed by Eddy while it was in
his possession. According to Petitioners, it is possible that Eddy then attached the
incorrect first page to the remaining pages of the will. Since the record shows that
the decedent’s intention to leave the Lewes house to Jessalynn never altered,
Petitioners argue that they have overcome the rebuttable presumption that a
missing will, last in the possession of the testator was discarded or destroyed with
the intent to revoke it.106 Therefore, Petitioners contend that the corrected first
page of the will should be admitted to probate in lieu of the incorrect first page.
103
TT 159-160, 251, 268-269.
104
JX 18 & 19.
105
TT 238, 274.
106
See In re Estate of Heigle, 2007 WL 1532387 (Del. Ch. May 8, 2007) (quoting
In re Marilyn S. Wilson Estate, 1999 WL 504783 (Del. Ch. July 13, 1999)
(ORDER) (citing Putney v. Putney, 487 A.2d 1125, 1127 (Del. 1984)).
Page 18 of 41
Alternatively, Petitioners argue that the Court should reform the 2013 Will
because the first page contains a mistake that was due to a scrivener’s error, i.e.,
the mistaken inclusion of Eddy’s name in the first page, and the scrivener’s failure
to fasten the seven correct pages and to destroy the incorrect first page.
Petitioners argue that reformation should be permitted in this case because the
error appears on the face of the 2013 Will. According to Petitioners, it is clear that
the testator intended to devise the Lewes house to the Pottses because Eddy’s
devise is nonsensically conditioned on the Pottses’ survival. Petitioners urge this
Court to adopt the standard found in the Restatement (Third) of Property (Wills &
Don. Trans.) § 12.1 (2003), allowing the introduction of extrinsic evidence to
ensure that testators’ intentions are honored.
Finally, Petitioners argue that if the corrected first page is not given effect,
then the Court should consider the 2013 Will to be ambiguous because the
provisions regarding the disposition of the Lewes house deviate so greatly from the
standard drafting practice for survivorship clauses. Having two different
beneficiaries in the same survivorship clause is absurd, according to the
Petitioners, and creates an ambiguity as to the true beneficiary. Therefore,
Petitioners argue that the Court should construe the ambiguous terms based on
extrinsic evidence, which would lead to the only reasonable construction of the
2013 Will, i.e., the Pottses are the intended beneficiaries of the Lewes house.
Page 19 of 41
Respondent argues that the Petitioners have not proved by the
preponderance of evidence that the first page was lost or unintentionally destroyed
as required by Delaware law. Nor did Petitioners prove that Eddy destroyed the
first page. Respondent argues that it is not likely he would have been so upset and
thrown the envelope containing the will out of his truck onto the Bakers’ driveway
unless he had believed that the 2013 Will disinherited him. Mere speculation is all
the Petitioners have on their side, and mere speculation is not enough according to
Eddy.
Respondent also argues that under settled Delaware law, this Court lacks the
power to reform a will.107 The few Delaware cases that suggest otherwise,
Respondent contends, were either wrongly decided or else the Court merely
assumed, without deciding, that it had such power.108
Finally, Respondent argues that construction of the 2013 Will would be
inappropriate because the terms of the 2013 Will are neither patently nor latently
ambiguous. The will is clear on its face that the Lewes house was left to Eddy so
there is no need to resort to extrinsic evidence to interpret it. None of the words
are susceptible to two meanings, which would render the document latently
ambiguous. Therefore, Respondent argues, he is entitled to judgment in his favor.
107
In re Last Will & Testament of Daland, C.A. No. 2920-VCL (Del. Ch. May 5,
2010) (Transcript).
Page 20 of 41
Analysis:
The 2013 Will bearing the signatures of the testator and two witnesses, both
attesting to the testator’s sound mind and lack of undue influence, was admitted to
probate on April 23, 2013.109 Each of the seven printed pages of this document is
properly numbered in consecutive order. The signature of the testator appears on
page four, the signatures of the two witnesses appear on pages five, six and seven.
The first three pages are unmarked by any handwriting; not even the initials of the
testator appear on these first three pages.
The record shows that on March 25, 2013, two first pages of the testator’s
draft will were printed in the IT department of Beebe Hospital under the direction
of the scrivener. The first page one to be printed, along with the six following
pages of the draft will, contained a paragraph that devised the Lewes house to
Eddy on the condition that Mr. Sandstrom predeceased “Shaun Jessalynne Potts”
by 30 days or more.110 The second page one to be printed, which was printed alone
without the six other pages of the draft will, did not contain any references to
Eddy.111 Instead, the record shows that it contained a paragraph that devised the
108
See In re Estate of Pepe, C.A. No. 8177-ML (Del.Ch. Mar. 1, 2013)
(Transcript); Marshall v. Rench, 1868 WL 1259 (Del.Ch. Sept. 1868).
109
JX 18.
110
Id.
111
TT 85.
Page 21 of 41
Lewes house to “Sean Jessalynn Potts” on the condition that Mr. Sandstrom
predeceased “Sean Jessalynne Potts” by 30 days or more.112
To be consistent with the language used in the preceding sections of this
draft report, I will refer to the first page one as the “incorrect first page” and the
second page one as the “corrected first page.” According to the undisputed
evidence, the “incorrect first page”: (1) was not read to the decedent by the
scrivener; (2) was not acknowledged by the decedent to be his testamentary intent;
and (3) was not part of the testamentary document that was executed by the
decedent before two witnesses with all the solemnity required by 12 Del. C. § 202.
Nevertheless, the will that was filed in the Register of Wills on April 23, 2015,
consisted of the “incorrect first page” and pages two through seven of the
testamentary document that was executed by the decedent before two witnesses on
March 25th.
Without speculating as to how the substitution occurred, if the “incorrect
first page” was substituted for the “corrected first page” without the formality of
re-execution before two testamentary witnesses, then the 2013 Will should never
have been admitted to probate.113 Since there is no evidence that any re-execution
occurred, probate of the 2013 Will should be revoked, and the decedent should be
deemed to have died intestate because his original 2004 Will was intentionally
112
JX 7.
Page 22 of 41
destroyed at his direction. The decedent’s entire estate should pass to Eddy unless
Petitioners can demonstrate by the preponderance of the evidence that (1) a valid
will was executed by the decedent, (2) the terms of the missing first page, and (3)
the first page was lost or unintentionally destroyed and that the decedent’s
testamentary intent was not altered prior to his death.114
Both in his motion in limine and throughout the trial, Eddy repeatedly
objected to any declarations of the decedent’s testamentary intent as inadmissible
extrinsic evidence that cannot be considered by the Court to construe or vary the
terms of an unambiguous will. Since it is undisputed that the first page of the
2013 Will was not executed by the testator on March 25 th, the first page of the will
which was executed by the testator on March 25th must have been lost or
destroyed. Since declarations of a deceased testator are admissible as proof of the
contents of a lost or destroyed will, I am at liberty to consider and weigh the
evidence of the decedent’s testamentary intent in this context.115
113
See In re Ainscow’s Will, 27 A.2d 363, 363-364 (Del. Super. 1942).
114
See In re Estate of Heigle, 2007 WL 1532387 (Del. Ch. May 8, 2007) (quoting
In re Marilyn S. Wilson Estate, 1999 WL 504783 (Del. Ch. (ORDER) (citing
Putney v. Putney, 487 A.2d 1125, 1127 (Del. 1984)); In re Estate of Bartelt, 2007
WL 1310182, at *1 (Del. Ch. Mar. 26, 2007).
115
See Ainscow’s Will, 27 A.2d at 365.
Page 23 of 41
In this case, the parties do not dispute that a valid will was executed by the
decedent.116 Both the scrivener and Blakely testified at length about the events
surrounding the execution of the will.
The terms of the missing first page were established by the testimony of the
scrivener,117 and the copy of the “corrected first page” printed by the scrivener on
April 12, 2013, from the electronic file saved on the scrivener’s computer.118 The
metadata on this file reveals that the file was first created on March 25, 2013, at
12:39 pm, last modified on March 25, 2013 at 1:02 pm, and last printed on April
12, 2013 at 5:29 pm.119 Although Eddy objected to the testimony of the scrivener
as a violation of the best evidence rule,120 this rule does not apply when the original
document is missing or lost.121
The “corrected first page” states in pertinent part:
A. Should I predecease my dear friend, Sean Jessalynne Potts, by Thirty
(30) days or more, I hereby devise and bequeath the real property located
at 34772 Frontier Road, domiciled outside of the City of Lewes, County
116
Respondent waived his affirmative defenses of lack of testamentary capacity
and undue influence by failing to address the Petitioner’s arguments on these
issues in Respondent’s Post-Trial Answering Brief.
117
TT 85
118
JX 7.
119
JX 7.
120
TT 85. See Delaware Rule of Evidence (“D.R.E.”) 1002.
121
See D.R.E. 1004(1). Respondent also objected to the copy of the will with the
“corrected first page” as a violation of the best evidence rule even though the
document previously had been disclosed, along with the metadata sheet, during
discovery, and had been admitted without objection as Joint Exhibit 7. TT 82-83.
Page 24 of 41
of Sussex in the State of Delaware, to my beloved friend Sean Jessalynn
Potts.
B. Should my dear friend, Jessalynne Potts predecease me or should I
predecease my dear friend Jessalynne Potts, by fewer than thirty (30)
days I hereby direct that the real property located at 34772 Frontier Road,
outside the City of Lewes, County of Sussex in the State of Delaware,
shall pass with the rest and residue of my estate.
At trial, Respondent attempted to impeach the scrivener’s credibility by
suggesting that it was driven by fear of Petitioners filing a claim against him. 122
Respondent also challenged the accuracy of the scrivener’s memory by pointing
out that the name “Shaun Jessalynne Potts” in the 2013 Will was spelled “Sean
Jessalynne Potts” in the “corrected first page,” and that the absence of the name
“Sean” or “Shaun” in front of “Jessalynne Potts” in paragraph B eliminated a
carriage return and added an extra line of text at the bottom of “corrected page
one.” 123 This would have duplicated the same line of text that was on the first line
on page two of the 2013 Will. However, any doubt about the scrivener’s
credibility or the terms of the missing page was eliminated by the testimony of two
disinterested witnesses: Blakely and Mrs. Baker.
It was during one of their early trips to Baltimore that Blakely first heard the
decedent state that when he died, he wanted his house to go to Jessalynn, whom he
122
TT 102-103.
123
TT 107-112.
Page 25 of 41
referred to as his “daughter.”124 According to Blakely’s testimony, the decedent
made this statement several times to her because they frequently talked about end-
of-life issues and about getting their affairs in order. Mrs. Baker similarly testified
that before Mr. Sandstrom was hospitalized, he had told her that he wanted
Jessalynn to have the house, and that Eddy was not interested in the house. 125 The
last part of this statement was corroborated by Eddy.126
Eddy argues, nevertheless, that the Pottses have failed to prove that he,
Eddy, destroyed the “corrected first page,” or that it was unintentionally destroyed
or lost. He contends that the Pottses have also failed to prove that they searched
for the missing document and, thus, have failed to make a prima facie case for a
missing will.
Mrs. Baker’s testimony undermines Eddy’s first argument. Like her
husband, Mrs. Baker could not make sense out of the language in the will. 127 So
when she visited Mr. Sandstrom at the rehabilitation facility shortly before his
124
TT 36-37. At trial, Eddy objected to Blakely’s testimony as hearsay. It is
admissible under D.R.E. 803(3) as a statement of the declarant’s then existing state
of mind or emotion.
125
TT 177-178.
126
Eddy testified that he always had been told that he was going to get the beach
house when his father died, and he would tell his father that he really did not want
to live at the beach, but his daughters and grandchildren would enjoy it. TT 242.
According to Eddy, as late as the fall of 2012, the decedent kept saying that his son
was going to get the beach house. TT 253.
127
TT 181-183
Page 26 of 41
death,128 Mrs. Baker explicitly asked the decedent what he wanted his will to
say.129 He told her that he wanted Jessalynn to have the house and Eddy to have
the Morgan Stanley accounts.130 This evidence satisfies the remaining elements
needed to probate a copy of a missing will. First, it demonstrates that the
decedent’s testamentary intent had not altered before his death. Second, it
demonstrates that the decedent would not have intentionally discarded or destroyed
the first page of his will with intent to revoke it. Therefore, the “corrected first
page” must have been unintentionally lost or destroyed some time after the will
was executed before Eddy delivered the brown envelope to the Bakers’ house.
Although the decedent had wanted Jessalynn to have the Lewes house, he
never intended to disinherit his son. The decedent intended Eddy to receive his
financial accounts at Morgan Stanley, which were valued shortly before his death
at approximately $238,500.131 To that end, he appointed Baker as his agent to act
in his stead to change the beneficiary designations on these accounts. Since Eddy
128
According to the medical records, the decedent was transferred to Cadia on
March 28th, and readmitted to Beebe Hospital on April 1st. JX 10 & 11. While in
Cadia, the decedent celebrated Good Friday with Blakely, who had arranged for
their chaplain to administer the sacraments to him. TT 30-33. During this visit,
the decedent informed Blakely that he was at peace even though he knew he was
dying. TT 31.
129
TT 178.
130
TT 178.
131
JX 12.
Page 27 of 41
lived near Baker in Camden,132 it is not surprising that the decedent would have
asked Eddy to deliver the executed documents to Baker, presumably so Baker
could safeguard the will and make the requested beneficiary changes as soon as
133
possible. Looking at the record as a whole, and given decedent’s unequivocal
statements of testamentary intent after the will was executed, I find that Petitioners
have demonstrated by the preponderance of evidence that the “corrected first page”
was unintentionally lost or destroyed.
Regarding the requirement of proof of a search, this was not a typical
missing will situation where a widow or adult child futilely searches through a
decedent’s home and safe deposit box for a missing will. Here, the decedent was
gravely ill and hospitalized when he executed his will. The “corrected first page”
was in the decedent’s hospital room from March 25th until March 28th at the very
latest, when the decedent was transferred to Cadia. While he was in the hospital,
the decedent had many visitors, and was in and out of surgery. 134 The decedent’s
son then had possession of the will for a short time before he delivered it to the
132
TT 245.
133
The decedent was aware of the risk that if the beneficiary designations were not
timely changed, Eddy might be disinherited. TT 73-74. According to the
scrivener’s testimony, when Baker called to inform him that Shaun was
Jessalynn’s husband, they discussed the need for Baker to make the necessary
changes to the Morgan Stanley accounts as Mr. Sandstrom’s attorney-in fact. TT
91.
Page 28 of 41
Bakers’ home, although there is no evidence that Eddy had possession of the
“corrected first page.” Eddy denied altering his father’s will, and his behavior in
the Bakers’ driveway tends to corroborate his testimony.
It was not until after Shaun had returned to California and called Dignon on
April 12th, did it occur to anyone that a substitution might have mistakenly
occurred after the will was executed.135 By then, the decedent had been buried,
Eddy had collected the decedent’s few possessions that were left at Cadia, and the
trail, so to speak, had gone cold.136 A few months later, Petitioners initiated this
litigation with Dignon’s cooperation and affidavit, and sought discovery from
Eddy.137 No “corrected first page” has ever been produced, other than the copy
that Dignon printed out on April 12th. The Pottses obtained a copy of the
“corrected first page” from Baker on April 30th, who in turn had received it from
Dignon.138 I find that the Pottses have demonstrated that they conducted a search
for the missing page, and were unable to find it.
To sum up, the Pottses have shown by the preponderance of evidence that:
(1) a valid will was executed by the decedent; (2) the terms of the missing page;
134
According to Eddy and the medical records, the doctors performed several
biopsies on the decedent as they were unsure of the cause of his illness. TT 242-
243; JX 10.
135
TT 131.
136
JX 11.
137
DI 8.
138
JX21.
Page 29 of 41
and (3) the missing page was unintentionally lost or destroyed and the decedent did
not alter his testamentary intent prior to his death. Therefore, I recommend that a
copy of the “corrected first page” be admitted to probate with pages two through
seven of the 2013 Will. As a result of this recommendation, I do not need to
address the Pottses’ alternative claims for reformation of the 2013 Will and
imposition of a constructive trust.
Nevertheless, one other issue remains to be addressed concerning the
“corrected first page.” The language in Paragraphs A and B of Article Second,
when read together, creates an ambiguity. Paragraph A devises the Lewes house
to “Sean Jessalynn Potts” on the condition that the testator predeceases “Sean
Jessalynne Potts” by 30 or more days. Paragraph B passes the Lewes house to the
testator’s residuary estate if “Jessalynne Potts” predeceases the testator or if the
testator predeceases “Jessalynne Potts” by fewer than 30 days. It is not clear from
this language whether the testator intended to leave the Lewes house to Shaun
Potts, Jessalynn Potts, or to Shaun and Jessalynn Potts.
The cardinal rule in all cases of will construction “is to determine and give
effect to the intention of the testator as it appears from the language of the entire
Page 30 of 41
139
will when read in the light of surrounding circumstances.” Statements of the
testator as to intent generally may not be considered.140
Without repeating at length the facts outlined above, the record shows that of
these two individuals, it was Jessalynn who had grown up under the testator’s eyes.
It was Jessalynn who had spent seven summers as a young adult residing with the
testator in his Lewes house. It was Jessalynn who had been escorted down the
aisle by the testator, and it was the Rigterink family who considered the testator as
one of their “clan.” The testator’s relationship with Shaun was not of the same
duration and closeness. Therefore, it does not appear that the testator intended
Shaun Potts to be the sole beneficiary of the Lewes house.
If the testator intended Jessalynn Potts to be the sole beneficiary of the
Lewes house, then Paragraphs A and B, when read together, are unambiguous.
Provided Jessalynn survived the testator by 30 days, she inherited the house. If she
predeceased the testator, or failed to survive the testator by 30 days, then the house
would pass to the testator’s two granddaughters. Since Shaun’s relationship with
the testator was not as close as Jessalynn’s relationship to the testator, it does not
appear odd that the testator would have preferred to gift over the Lewes house to
his own kin rather than Shaun in the event of Jessalynn’s untimely death.
139
In re Last Will and Testament of Theodore W. Dixon, 280 A.2d 735, 737 (Del.
Ch. 1971) (citing Delaware Trust Co. v. McCune, Del. Ch., 269 A.2d 256, aff’d,
Bank of Delaware v. Delaware Trust Co., 280 A.2d 534 (Del.Super. 1971)).
Page 31 of 41
If the testator intended to leave the house to both Shaun and Jessalynn Potts,
then Paragraphs A and B, when read together, are ambiguous. If Jessalynn
predeceased or failed to survive the testator by 30 days, it would be uncertain
whether the Lewes house would pass to Shaun or the testator’s granddaughters by
operation of Paragraph B. On the other hand, if Shaun predeceased or failed to
survive the testator by 30 days, it would be unclear whether Jessalynn would
receive the gift or whether the gift was void since it was conditioned on Shaun’s
survival.
The testator did not have a large or complex estate. He owned a house, its
contents, and some vehicles. During his lifetime, he maintained close friendships
with several people, friendships that endured for decades. One of those friends
was Baker. The testator left his cars to Baker. Another one of those friends was
Jessalynn, whom the testator viewed as a daughter. Given his special relationship
with Jessalynn, I find that Paragraph A in the “corrected first page” should be
construed as a devise of the Lewes house to Jessalynn Potts.
Conclusion:
For the reasons stated above, I recommend that the Court revoke the probate
of the 2013 Will, and admit to probate a copy of the “corrected first page” as the
140
See Bird v. Wilmington Soc. Of Fine Arts, 43 A.2d 476, 486 (Del. 1945)
Page 32 of 41
first page of the Last Will and Testament of Edward B. Sandstrom with pages two
through seven of the 2013 Will.
Exceptions:
In his exceptions to my draft report, Eddy raises for the first time the
argument that Dignon’s affidavit and trial testimony should have been excluded
from the record as a violation of the attorney-client privilege. In addition, Eddy
argues that Petitioners failed to establish the necessary prima facie case to
overcome the common law presumption of animo revocandi where: (1) the terms
of the missing first page cannot be demonstrated because only Mr. Sandstrom and
Dignon had knowledge of its terms, Mr. Sandstrom is now deceased and Dignon is
precluded by the attorney-client privilege from disclosing those terms; and (2)
there was no evidence of any search for the missing first page. Eddy also argues
that Petitioners failed to adequately plead a missing will theory.
Eddy has waived his right to object to Dignon’s testimony and affidavit by
failing to assert the attorney-client privilege before or during trial.141 Even if this
objection were not waived, it is without merit because under Delaware Rule of
Evidence 502(d)(2),142 there is no attorney-client privilege where both parties are
141
See Dep’t of Corr. v. Del. Corr. Officers’ Ass’n, 2002 WL 31926610, at *3
(Del. Ch. Dec. 23, 2002).
142
D.R.E. 502(d) provides that “there is no privilege under this rule: … (2) [a]s to
a communication relevant to an issue between parties who claim through the same
Page 33 of 41
claiming through the same deceased client. Here, the Pottses and Eddy are both
claiming to have inherited Mr. Sandstrom’s Lewes house, the Pottses through the
missing corrected first page and Eddy through the incorrect first page that Eddy
filed with the Register of Wills along with the other pages of the Will for
admission to probate. Delaware courts, along with most other state courts,143 allow
a decedent’s attorney to testify to communications concerning the drafting of a
will.144 Therefore, this exception is dismissed.
In his second exception, Eddy raises several challenges to the conclusion in
my draft report that the Pottses had overcome the presumption that Mr. Sandstrom
had revoked his will by intentionally destroying the corrected first page. The first
challenge is based on Eddy’s contention that the attorney-client privilege bars the
admission and the Court’s consideration of Dignon’s affidavit and his testimony
concerning the terms of the missing corrected first page. However, since the
deceased client, regardless of whether the claims are by testate or intestate
succession or by inter vivos transaction.”
143
E.S. Stephens, “Privilege as to communications to attorney in connection with
drawing of will,” 66 A.L.R. 2d 1302, at § 1 (1959) (supplementing 64 A.L.R. 184
(1930)). See also 98 C.J.S. Witnesses § 364 (“an exception to the posthumous
survival of the attorney-client privilege exists when a controversy arises
concerning the validity of the will or between the claimants under the will … . By
this rule, the attorney-client privilege is not a bar to the admission of testimony by
the lawyer-draftsman as to what the client intended in a will.”) (footnotes omitted).
144
See Mahoney v. Healy, 91 A. 208, 208 (Del. Ch. 1914). See generally, In re
Wilson’s Estate, 1999 WL 504783 (Del. Ch. 1999); In re Kuklinski’s Will, 1995
WL 106504 (Del. Ch. 1995 (Master’s Report); In re Sharpley’s Will, 120 A. 586
(Del. Super. 1923).
Page 34 of 41
attorney-client privilege does not apply in this case, there is no basis for the Court
to exclude either Dignon’s affidavit or his trial testimony from the record. This
evidence, along with the copy of the corrected first page printed by Dignon from
the electronic file saved on his computer, sufficiently established the content of the
missing corrected first page of the Will. In addition, as discussed in my draft
report, two disinterested witnesses testified that Mr. Sandstrom had told them that
he intended to leave his Lewes house to Jessalynn Potts. This exception, therefore,
is dismissed.
Eddy also contends that the Pottses failed to demonstrate that the corrected
first page had been lost or unintentionally destroyed. According to Eddy, there
was no evidence of what happened to the corrected first page, only speculation that
it might have been lost or unintentionally destroyed. Eddy claims that it is equally
plausible that the corrected first page was intentionally destroyed and, according to
Eddy, the missing will theory does not apply to the intentional destruction of wills.
Eddy also argues that in order to make a prima facie case of a missing will, the
Pottses were required to present affirmative evidence of having made a search for
the missing corrected first page. In this case, there was no evidence of a search
having been conducted of Beebe Hospital for the missing page. Finally, Eddy
argues that the Pottses never properly pleaded a missing will theory; this theory
only appeared for the first time in the Pottses’ Pretrial Brief.
Page 35 of 41
Where someone other than the testator intentionally destroys a will, there
is precedent in Delaware for admitting a missing will to probate upon proof of its
contents and full execution.145 Since there was no definitive proof of what
happened to the missing corrected first page, it is within the realm of possibility
that the corrected first page was intentionally destroyed, but not by or at the
direction of the testator. Before his final illness, the testator had told several
friends, including the Bakers, Sheila Blakely, and Peter Rigterink, that he wanted
to leave his Lewes house to Jessalynn Potts. While in Beebe Hospital during his
final illness, the testator instructed his scrivener that he wanted to leave his Lewes
house to Jesslynn Potts, although the scrivener misapprehended the correct name
of the beneficiary. Several days after executing his will and entrusting the will to
his son Eddy for delivery to Baker, the testator again told Mrs. Baker that he
wanted to leave his Lewes house to Jessalynn Potts.
The execution of the will took place in a hospital room under hurried and
stressful conditions for both the scrivener and testator. The pages of the will were
not fastened together, and were placed in a file bin on the wall of the hospital room
which was neither secure nor private. The scrivener took the testator’s original
prior will back to his office to be destroyed, and a day or two later, Eddy removed
145
See Kearns v. Kearns, 1843 WL 429, at *1 (Del. Super. Fall Session 1843) (“As
the will cannot be revoked without the act and intention of the testator, if it be
Page 36 of 41
the will at the testator’s direction to deliver to Baker. Instead of delivering the
document to Baker in person, Eddy threw a manila envelope containing the will
onto Baker’s driveway. Shortly thereafter, the testator was transported from the
hospital to a rehabilitation facility and his possessions were packed up and moved
to the facility by two friends. A few days later, after the testator’s death, Eddy
retrieved his father’s possessions from the rehabilitation facility. The Pottses’
subsequent requests for production of documents from Eddy failed to turn up the
missing corrected first page.
Eddy cites dicta in Dawson v. Smith and In re Ainscow’s Will for the
proposition that a Court cannot merely presume a will is lost, there must be proof
of a search having been made to find the original page or document. 146 Eddy
claims that the Pottses’ failure to conduct a search of the hospital dooms their
efforts to prove a missing will. A review of the jury charge in Dawson, however,
reveals an aspect of the missing will doctrine which I did not consider in my draft
report. According to the jury charge in that case:
If it had been shown to [the jury’s] satisfaction by the evidence in the case,
that after [the will] was made, she took possession of it, and that it continued
in her possession until it disappeared, the presumption would be that she
voluntarily destroyed it animo revocandi, that is to say with the intention of
revoking or annulling it. And yet, this presumption may be rebutted by
destroyed without that act or consent, it still exists as his will. The will rests not in
the paper but in the intent.”)
146
See Dawson v. Smith, 1866 WL 950 (Del. Super. Fall Session 1866); In re
Ainscow’s Will, 27 A.2d 363 (Del Super. 1942).
Page 37 of 41
contrary evidence, or facts and circumstances to the contrary of it. For if on
the other hand, you are satisfied from the evidence before you, that it had in
the mean while been out of her possession and in the possession of another
person, who had been entrusted with the keeping and preservation of it, the
defendants must show to your satisfaction, that it came again into her own
possession, or was actually destroyed by her direction, or it will not be held,
or presumed to be revoked by her, but will be deemed to remain unrevoked
by her. Or, in other words, if, in this case, it has been proved to the
satisfaction of the jury that the will in question was out of her possession,
and has not been shown to have returned again into her possession, then it is
necessary for the defendants, who are opposing the establishment of it as her
last will and testament, to show conclusively that it was destroyed by her
direction. If, however, the jury shall be satisfied from the evidence that it
was not destroyed by her, or by her direction, but that same was actually
lost, or was destroyed by some other person without her direction, then the
contents of it may be proved by competent and sufficient evidence aliunde
and may be set up and established as substantially her same will and
testament, whether it was so lost, or destroyed without her direction, either
before, or after her death, provided the same was done without her
knowledge in her life time, if it was done before her death.147
In this case, a day or two days elapsed between the execution of the will
with the corrected first page and the delivery of the will with the incorrect first
page to the Bakers’ house. During this time, the will was out of the testator’s
possession, having been entrusted to Eddy for delivery to Hank Baker. As a
result, according to Dawson, the burden now shifts to Eddy to demonstrate that the
missing corrected first page was destroyed by the testator or at his direction
because, under these factual circumstances, the will should not be presumed to
have been revoked by the testator.
147
Dawson, 1866 WL 950, at *5.
Page 38 of 41
Eddy presented no evidence that the will with the corrected first page was
ever returned to the testator and destroyed by the testator or that the corrected first
page was destroyed at the testator’s direction. In the absence of such evidence, the
failure of the Pottses to have demonstrated that they had searched Beebe Hospital
for the missing corrected first page is of no consequence because under Dawson,
there is no presumption of revocation for the Pottses to overcome. Under these
factual circumstances, the will would be deemed to have remained unrevoked by
the testator, subject to being admitted to probate upon sufficient evidence of the
contents of the missing corrected first page. This exception, therefore, is
dismissed.
Finally, Eddy argues that the Pottses failed to adequately plead a missing
will theory, and only raised it for the first time in their Pretrial Brief on June 1,
2015.148 The record shows that in their original pleading filed on September 26,
2013, the Pottses sought reformation of the will as their only ground for relief
because the will was alleged to be inconsistent with testator’s intent. However,
included among the petition’s allegations were the following paragraphs:
20. It is unclear what happened to the Correct First Page and why the Filed
Will contains the Incorrect First Page. Petitioners are unaware of who had
possession of the Revised Will from March 25, 2013 until April 3, 2013.
21. The Filed Will is inconsistent with Testator’s explicit intent to devise
Testator’s real property to Petitioners. Aff. ¶ 18. This inconsistency is the
direct and proximate result of scrivener’s error. That is, the Incorrect First
148
Petitioners’ Pretrial Brief, Docket Item (“DI”) 47.
Page 39 of 41
Page was included either because Attorney had Testator mistakenly execute
an incorrect version of the Will or because Attorney failed to fasten the
correct pages together and the Correct First Page was mistakenly replaced
with the Incorrect First Page before filing.149
Although not explicitly raised by the Pottses, the above factual allegations are
consistent with a lost or missing will claim. Because of the extended illness of
Eddy’s first attorney and the subsequent substitution of new counsel, the litigation
progressed very slowly and the deadline for fact discovery was extended until May
15, 2015 with a trial scheduled to take place on June 15, 2015. 150 In opposition to
Eddy’s May 22nd motion in limine seeking to exclude any extrinsic evidence of Mr.
Sandstrom’s testamentary intent,151 the Pottses argued that such extrinsic evidence
was relevant to their claims, asserting for the first time as an additional ground for
relief the theory of a lost or destroyed will or pages of a will.152 This theory was
further developed in their Pretrial Brief.
The record shows that Eddy was on notice by May 29th that the Pottses were
asserting the theory of a lost or missing will as a ground for relief. In Section V of
their Pretrial Stipulation and Order filed on June 8, 2015, both parties reserved
their right to seek amendments to the pleadings to conform to the evidence in
accordance with Court of Chancery Rule 15(b). The Pottses did not seek to amend
149
Petitioners Shaun D. Potts and Jessalynn R. Potts Verified Petition to Reform
Will, DI 1.
150
Stipulated Amended Scheduling Order. DI 41.
151
Respondent’s Motion in Limine, DI 45.
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their pleading by asserting a claim for relief under a lost or missing will theory, but
in post-trial briefing, both sides argued whether the evidence showed that the first
page of the will had been lost or unintentionally destroyed.153 Rule 15(b) provides:
“[w]hen issues not raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they had been raised in the
pleadings.” It is too late for Eddy to complain about any inadequacy of the
pleadings since he impliedly consented to the trial of these issues. Therefore, this
exception is dismissed.
For the foregoing reasons, the exceptions to the draft report are dismissed. I
am adopting my draft report as my final report as modified herein. I refer the
parties to Court of Chancery Rule 144 for the process of taking exception to a
Master’s Final Report.
Respectfully,
/s/ Kim E. Ayvazian
Kim E. Ayvazian
Master in Chancery
KEA/kekz
152
Petitioners’ Opposition to Respondent’s Motion in Limine, at ¶ 8. DI 46.
153
Petitioners’ Post-Trial Opening Brief, DI 64; Respondent’s Post-Trial
Answering Brief, DI 65.
Page 41 of 41