      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ESTATE OF GEORGE M. REED, JR.,           )
by and through George M. Reed, III       )
as executor of the Estate,               )
                                         )
and GEORGE M. REED III, as trustee       )
of the GEORGE M. REED JR. TRUST          )
U/A DTD 04/16/12,                        )
                                         )
and                                      )
                                         )
GEORGE M. REED, III and DAVID S.         )
REED, SR., as beneficiaries of the       )
GEORGE M. REED, JR. TRUST,               )
                                         )
                Petitioners,             )
v.                                       ) C.A. No. 8283-VCG
                                         )
LISA GRANDELLI,                          )
                                         )
                Respondent.              )
                       MEMORANDUM OPINION
                     Date Submitted: January 23, 2015
                      Date Decided: April 17, 2015

David J. Weidman, of SERGOVIC, CARMEAN & WEIDMAN, P.A.,
Georgetown, Delaware, Attorney for Petitioners.

Dean A. Campbell, of LAW OFFICE OF DEAN A. CAMPBELL, LLC,
Georgetown, Delaware, Attorney for Respondent.




GLASSCOCK, Vice Chancellor

                                     1
       Since the time of King David and Abishag—and, surely, before—certain old

men have pursued an interest in certain young women.1 Sometimes, as in that

case, the relationship is one of a powerful man and an exploited woman.

Sometimes, it represents, no doubt, a May-December mutual romance, or at least a

mercenary exchange of value for value. In other cases, however, it involves

exploitation of an elderly and vulnerable benefactor.             This case involves a

relationship that quickly arose between a moderately well-to-do recent widower in

his mid-eighties and a diner waitress of an age to be his granddaughter. The

Petitioners—the old man’s heirs, trust and estate—allege the relationship is of the

third variety described above; the Respondent contends it belongs in the second

category.

       During a fourteen-month relationship, George Reed, Jr. (“George Jr.”)2

lavished gifts on the Respondent, Lisa Grandelli, ranging from a few hundred

dollars to a pickup truck costing over $30,000. He also paid cash—nearly a

quarter-million dollars—for a condominium in Rehoboth Beach, titled jointly with

Lisa with right of survivorship. The Petitioners, George Jr.’s estate, his trust and

the beneficiaries of his will, seek, principally through imposition of equitable

remedies, to recoup the value of these gifts.


1
 Of course, other May-December relationships involving other genders exist as well.
2
 I refer to members of the Reed family and to Lisa Grandelli by first names throughout this
Memorandum Opinion for the sake of clarity; no disrespect is intended.
                                            2
      Individuals are presumed competent unless proven otherwise, and are free to

deploy their assets, wisely or foolishly, as they see fit.    Equity may act in

appropriate cases to remedy breaches of fiduciary duty or oppression, or to carry

out the true intent of parties. If, however, equity were empowered to remedy every

improvident expenditure in aid of unrequited love or misplaced desire, Delaware

would need a Chancery Courthouse on every corner.

               I. FACTS AND STAGE OF THE PROCEEDINGS

      As of the beginning of 2011, George Jr. was an elderly man with various

medical problems but still able to make financial decisions and drive and live

alone, with basic assistance. His physician testified that he was able to make his

own personal decisions up until the time of a second stroke in April 2012—that is,

at all times pertinent—and testimony suggests that George Jr. was a strong-willed

individual throughout his life.

      After his wife of over 50 years passed away in January 2011, George Jr.

was, understandably, saddened, but there is no evidence that he became clinically

depressed.   He kept up with social interactions with his friends and family,

including weekly attendance at a veterans’ social organization, kept in regular

contact with his sons, and had lunch daily at his former business, the family-

operated Dairy Queen in Camden. During his working life, George Jr. was a




                                        3
successful businessman, and there is no indication that he remained other than

assertive and strong-willed.

          At some time in January or February of 2011, George Jr. had lunch with his

son Scott at Hall’s Restaurant (“Hall’s”) in Wyoming,3 where he first met Lisa,

who was his waitress. He took a shine to her and called her “Brown Eyes.”

George Jr. made frequent return visits to Hall’s and asked for Lisa as his waitress.

          Over the next several months, George Jr. would visit Hall’s to see Lisa

frequently, often asking her to come over to his home. She first obliged around

June 2011, and began to see George Jr. outside of Hall’s after that.             Their

relationship became physical, and George Jr. considered Lisa his girlfriend. He

began to make cash gifts to her, and to loan her money. When her car was

“condemned” as a result of a factory recall, George Jr. bought her a new truck for

over $30,000.

          At some point in the late summer or early fall of 2011, George Jr. asked Lisa

to move in with him. She refused. When he asked to move in with her, she also

refused. But the two began to look at property they could purchase together, first

around the Dover area and then in Rehoboth Beach. They ultimately decided to

purchase a condominium in Rehoboth Beach for $220,000. According to Lisa,

George Jr. intended that the property be listed in her name alone, but then at her


3
    I refer to the town in Kent County, not the western U.S. state.
                                                   4
direction, it was changed to a joint tenancy with right of survivorship in Lisa and

George Jr.’s names. George Jr. went to the closing. Testimony from Hal Dukes,

Esquire, the real-estate attorney involved in that transaction, was that George Jr.

was aware of what he was doing and the estate that would be created, and that such

remained his wish, even after Mr. Dukes explained the implications of a joint

tenancy with right of survivorship, as opposed to tenancy in common. The exact

purpose of the condominium purchase is unclear—whether it was an investment, a

trysting place, or both; testimony at trial supported all three possibilities.

       At the same time, evidence also supports the fact that, throughout the time

she knew George Jr. and was receiving money and property from him, Lisa was

still seeing non-party Anthony Tharp,4 her sometimes live-in boyfriend. In fact, in

December 2011, George Jr. paid for Lisa to take a trip to Key West, Florida. The

evidence indicates that Lisa told George Jr. the trip would include Lisa, her brother

and his wife, and Lisa’s son, but this was untrue; in fact, the group was comprised

of Lisa and Tharp, together with Lisa’s son and a friend of the son.

       George Jr. had his first stroke days after Lisa returned from this trip to Key

West. A few days passed and he had a second, more significant stroke, after which

his physicians found him to be cognitively impaired and unable to make decisions


4
  Mr. Tharp’s name takes on a number of different spellings in the briefing. I am using the
spelling on the title and registration for a 2002 Ford F-15, registered in Lisa’s and Mr. Tharp’s
names. JX 33.
                                               5
for himself.5 Shortly after the second stroke, George Jr.’s son George M. Reed III

(“George III”) consulted with counsel, Beth Miller, Esquire, and, acting as

attorney-in-fact under George Jr.’s 2006 Durable Power of Attorney, created a trust

on George Jr.’s behalf (the “Trust”).6 The same day the Trust was created, George

Jr.’s interest in the condominium was transferred to George III as trustee for

George Jr.’s Trust.7 The deed, however, is signed by George III on a signature line

that says “George M. Reed, also known as George M. Reed, Jr.,” which signature

the Respondent contends to be in George III’s individual capacity, and the

notarization indicates that “George M. Reed, also known as George M. Reed, Jr.”

appeared and signed the document.8

       George Jr. died on August 31, 2012.

       The matter was tried on December 1 and 2, 2014. The parties then prepared

and submitted written closing arguments. This is my post-trial Memorandum

Opinion.9

                                       II. ANALYSIS

       This case is notable for what the Petitioners do not contend. They do not

argue—and no evidence in the record supports—that George Jr. lacked capacity at

5
  See JX 11; JX 12.
6
  The Trust Agreement is dated April 16, 2012. JX 13.
7
   JX 14. George III, acting as trustee for the Trust, transferred the Trust’s interest in the
condominium to George III and Scott in December 2013. See JX 15.
8
  JX 14.
9
  Neither party requested preparation of an official transcript in aid of post-trial argument. The
facts are taken from the trial exhibits and testimony as recorded in the unofficial transcript.
                                                6
the time he made the transfers at issue, or that he was a vulnerable to the exercise

of undue influence. While the transfers of property to Lisa were lavish, neither

Petitioners nor the record suggest that they were sufficient to impoverish, or even

financially inconvenience, the relatively wealthy George Jr. Nor do the Petitioners

allege that the elements of common-law fraud exist with respect to these transfers.

Instead, the Petitioners allege a kind of equitable “fraud” or breach of trust10 under

the theory advanced by this Court in Swain v. Moore.11 That case also involved an

elderly widower who lavished gifts, there on a young family, gifts that this Court

employed equity to reverse. According to the Petitioners, Swain teaches that when

an elderly person befriends a younger individual, and acts on that affection by

making gifts to her, fraud on her part is presumed, and the burden is on the

recipient of the gifts to demonstrate entire fairness in the relationship. Swain, itself

now elderly, cannot be read this broadly or simplistically, however. I examine the

transfers George Jr. made to Lisa, in light of Swain and other applicable case law,

below.

       A. The Cash Transfers and the Truck

       It is useful, I think, to examine what were clearly gifts of cash by George Jr.

to Lisa in light of their relationship. Under Delaware law, a gift is made by

10
   Lisa argues that the Petitioners did not timely raise breach of trust as a theory in this case,
relying instead on a theory of fraud. I assume for purposes of this Memorandum Opinion that
breach of trust is properly before the Court.
11
   71 A.2d 264 (Del. Ch. 1950).
                                                7
complete and unconditional delivery of property, which requires donative intent,

and acceptance of the property by the donee.12 The donee has the burden of

establishing, by clear and convincing evidence, all facts essential to the validity of

a purported gift.13 This burden arises out of the rebuttable presumption, often seen

in the context of resulting trusts, that a purchaser of property intends that

purchased property to inure to her own benefit.14 The Petitioners contend that the

law of gifts is inapplicable here and is instead overridden by Swain v. Moore,

under which case Lisa must show that the transfers were entirely fair.

       George Jr. was old, but independent both physically and in his financial

affairs. He was a wealthy former business owner. Lisa was a relatively young,

impoverished single mother waiting tables in a diner. They began a physical

romantic relationship that strikes the Petitioners, unsurprisingly, as completely

inappropriate, even meretricious.

       Lisa testified, without persuasiveness or credibility, that she “loved” George

Jr. One cannot know for certain another’s deepest emotions, but Lisa was not a

credible witness, and I am convinced that, while she was fond of George Jr., her

ultimate goal in this relationship was not romantic fulfillment. The Petitioners



12
   Hudak v. Procek, 806 A.2d 140, 150-51 (Del. 2002).
13
   Matter of Estate of Smith, 1986 WL 4873, at *5 (Del. Ch. Apr. 24, 1986).
14
   Adams v. Jankouskas, 452 A.2d 148, 152 (Del. 1982); Boush v. Hodges, 1996 WL 652762, at
*5 n.20 (Del. Ch. Nov. 6, 1996) aff'd, 705 A.2d 243 (Del. 1998); Greenly v. Greenly, 49 A.2d
126, 129 (Del. Ch. 1946).
                                             8
point to Lisa’s ongoing relationship with Tharp, and argue that, if Lisa did not

share a romantic infatuation with George Jr., she has defrauded him. This is a non-

sequitur. I conclude that, like Lisa, George Jr. was also receiving what he wanted

from this relationship: physical and emotional attention he found flattering and

fulfilling, from a much younger partner. If George Jr. had been in his fifties rather

than his eighties, and had made lavish but not impoverishing gifts to a much

younger romantic partner, I suspect an action of this type would not have been

brought, and whatever society concluded about the wisdom of his pursuit, neither

law nor equity would reverse his gifts to her. Although the transferee of property

without value in exchange bears the burden of showing that the transfer was a

gift—that is, made with donative intent—there would be little question that such

intent was present. The same is true here: the sole difference is George Jr.’s

advanced age. According to the Petitioners, under Swain, a presumption of fraud

on the part of Lisa attaches given the age difference of the parties.

      Swain involved an elderly, lonely widower, estranged from his own family,

who was befriended by a young couple living nearby. He became very close to the

family, especially the wife and their young child, and began making gifts of money

to them. Eventually, he paid for construction of part of their new house with the

understanding that he could live out his life with them, moved in and became

dependent upon them, and made gifts to them by which he impoverished himself.

                                           9
The parties had a falling out and Swain sued to recover the gifts. The Court

returned those gifts made after Swain became dependent on the defendants; they

were permitted to keep those made before that time.

       Properly read, Swain is an unremarkable trust case. Swain was emotionally

susceptible, and once he became dependent upon the defendants, a confidential

relationship arose, a relationship of trust under which the defendants, as

fiduciaries, had a duty to act with loyalty to the elderly man.               In accepting

impoverishing gifts, they violated that trust. Under the rationale of Swain, a

fiduciary such as the defendants there must show that any transaction with the

beneficiary was entirely fair, which the defendants were unable to do with respect

to the impoverishing gifts.15

       Nothing in the case before me indicates a relationship of trust. George Jr.

did not rely upon Lisa as his surrogate family; he remained close to his own family

and his interest in her was far from paternal. He clearly enjoyed Lisa’s company

and was flattered by her attention. He was independent of her, however. Unlike

the apparent facts of Swain, George Jr. had frequent contact with family and

friends other than Lisa, and he maintained a social schedule apart from her. His

gifts of cash, amounting to several thousand dollars, were lavish but not remotely

impoverishing. Similarly, when her car became unusable, he bought her a new

15
  By the time the parties parted ways, Swain was left with only title to his house and burial
money.
                                             10
truck; again, lavish but not impoverishing, and not an unusual gift from a wealthy

“swain” to a desirable partner. Just as clearly, he was able to set limits on his

giving; he made some cash transfers to Lisa that were denominated on the check or

George Jr.’s check register as “loans,” and Lisa has acknowledged at trial that at

least one transfer of money to her was a loan and not a gift. There is simply no

basis to infer a relationship of trust with respect to this situation, and Swain does

not apply. Instead, with respect to the non-“loan” transfers and the truck, the

evidence demonstrates clearly and convincingly that these were gifts to Lisa, made

with donative intent inspired by George Jr.’s romantic and physical interest in

her.16

         Equity stands ready to protect the vulnerable from exploitation, and it is a

sad fact of life that the elderly are often vulnerable to fraud or breach of trust. It

would be simple paternalism, however, to suggest that solely because of advanced

age, an individual may not indulge in pleasures at his own expense that he finds

appropriate, even if that expense appears to others to be foolish or excessive. The

Petitioners do not contend that George Jr. was the victim of undue influence,17 and


16
   One of George Jr.’s caregivers, who wrote some of the checks at his direction, colorfully
characterized the basis for George Jr.’s donative intent by denominating the checks in the
reference line as “grab ass money.” See, e.g., JX 28. The record does not reflect that either
George Jr. or Lisa objected to this reference.
17
   See Mitchell v. Reynolds, 2009 WL 132881, at *8 (Del. Ch. Jan. 6, 2009) (“Proving undue
influence requires a challenger to show (1) a person who is subject to undue influence; (2) an
opportunity to exert influence; (3) a disposition to exert such influence; and (4) a result
indicating the presence of undue influence.” (internal citation omitted)). It is not alleged that
                                               11
the record does not support allegations of fraud18 or breach of trust.19 Therefore,

the relief the Petitioners have requested with respect to cash transfers and the truck

is denied, except with respect to those transactions denominated “loan” in the

check register or otherwise.20 These include George Jr.’s pay-off of the Delaware

State Housing Authority loan, which by Lisa’s own testimony, was not a gift—

Lisa testified that she rejected it as a gift and insisted upon repaying it, thus, the

acceptance element of a gift is lacking.21 There were also certain checks on which

George Jr. wrote “loan,” or so denoted in his meticulously-kept check register.22


George Jr. was subject to undue influence or that he was isolated from his friends and family
such that there would be opportunity to exert influence.
18
   The elements of a fraud claim are: (1) a false representation, (2) knowledge by the person
making such representation that it was false, or reckless indifference to the truth of the statement,
(3) an intent, in making such statement, to induce the plaintiff to act or refrain from acting, (4)
the plaintiff’s action or inaction in justifiable reliance on the representation, and (5) damage.
Lord v. Souder, 748 A.2d 393, 402 (Del. 2000). “The elements of equitable fraud are similar to
those for common law fraud, except that the claimant need not show that the respondent acted
knowingly or recklessly—innocent or negligent misrepresentations or omissions suffice.”
Zebroski v. Progressive Direct Ins. Co., 2014 WL 2156984, at *7 (Del. Ch. Apr. 30, 2014)
(internal quotation marks omitted). With the exception of statements in connection with the
payment for the Key West trip, addressed below, the record is devoid of false statements from
Lisa to George Jr.
19
   White v. Lamborn, 1977 WL 9612, at *4 (Del. Ch. Mar. 15, 1977) (“[T]he question of whether
or not the particular relationship is of such a confidential or dependent nature as to rise to
fiduciary status is one of fact.”)
20
   See Hudak v. Procek, 806 A.2d 140, 150-51 (Del. 2002) (“As a general rule a gift must be
executed (a) by the donor's complete and unconditional delivery of the property that is the
subject of the gift and (b) by the donee's acceptance of the gift.”).
21
   The Respondent objected to the Petitioners’ evidence from George Jr.’s personal calendar and
notes on hearsay grounds with respect to the pay-off of the SHA loan. I need not rely on that
evidence in making my determination that this payment was a loan, as I found Lisa’s testimony
that she intended to repay it to be sufficient.
22
   See JX 5; JX 28. I note that the Respondent objects to the check register on foundation and
hearsay grounds. As to foundation, I found George III’s testimony that the register was in his
father’s handwriting to be credible and supported by other documents in the record. As to
hearsay, I find the cancelled checks and the check register to fall under hearsay exceptions in
                                                12
Lisa speculated in testimony that George wrote “loan” solely out of habit,

testimony I find not credible and belied by other checks to her—which I have

found to be gifts—not so denominated. With respect to the checks marked “loan,”

therefore, Lisa has not shown donative intent and those amounts must be repaid,

consistent with the discussion below.

       A final transaction requires comment. Lisa asked George Jr. for a gift of

money so that she could take her son and brother to Key West for a vacation.

Instead, she took her boyfriend and shared a motel room with him. Lisa testified

that she disclosed the true nature of the trip to George Jr. at the time he gave her

the money, and that a fraudulent caption on a photo she sent him identifying a

charter-boat captain as her “brother” was an innocent mistake. This testimony was

a concatenation of self-serving lies.           Under either a theory that this gift was

procured by fraud, or that Lisa has failed to demonstrate donative intent in light of

George Jr.’s misapprehension of the facts, all transfers relating to the Key West

trip must be returned to George Jr.’s estate.23



Delaware Rules of Evidence. They are offered to show the lack of donative intent at the time the
notations were made, and thus admissible under Rule 803(3). In addition, the records appear to
have been kept by George Jr. regularly and meticulously, akin to a business record; thus I find
them reliable under Rule 807. At any rate, it is the Respondent’s burden to show, by clear and
convincing evidence, that the elements of a gift are met, including donative intent, and she
cannot meet that burden with respect to these sums.
23
   The Petitioners contend that such fraud permeates the entire relationship, but nothing indicates
to me that there was a representation, explicit or implicit, that Lisa was committing to a
monogamous faithful sexual relationship with George Jr., or that he had reason to rely on such an
expectation, in the context of the other gifts.
                                               13
      B. The Condominium

      As stated above, a transfer of property without consideration to another is

presumed to be for purposes of the transferor, and the burden is on the recipient to

show donative intent by clear and convincing evidence. The evidence with respect

to the condominium must be viewed in light of the relationship between George Jr.

and Lisa and the donative intent demonstrated by the gifts discussed above. The

facts at trial showed that Lisa and George Jr. enjoyed the Rehoboth area, and

started looking at property there as a way to spend time at the beach or as an

investment. Lisa was largely responsible for selecting the particular unit George

Jr. ultimately purchased. All the funds used to purchase the condo—$220,000—

came from George Jr.       The lawyer who handled the transaction, Hal Dukes,

testified that he explained to George Jr. the difference between tenancy in common

and joint tenancy with right of survivorship, that George Jr. understood the

difference and that, the age differential notwithstanding, he elected a joint tenancy.

According to Dukes, George said that while he understood that the condo would

pass to Lisa if he should die, it would, on the other hand, pass to him if Lisa

predeceased, a correct statement of the law if also a bad bet.    I find that George

Jr.’s intent was to make a present gift to Lisa of an undivided interest in the




                                         14
condo.24 It is undisputed that George Jr. discussed title with counsel, understood

what he was doing and chose to create the title—joint, with survivorship—that he

did. As a matter of law, the unambiguous title document controls,25 and, as

explained above, the facts do not support equitable relief. The deed creates a joint

tenancy between Lisa and George Jr.

       That was the state of affairs at the time George Jr. had his second stroke. As

of that time, he was incapacitated. George had previously executed a springing

durable power of attorney (the “POA”) which made both his sons—including

George III—attorney-in-fact upon his disability. That disability was certified by

George Jr.’s physicians, in writing, first on April 5, 2012, in a handwritten note26

and then in a physician’s affidavit dated June 11, 2012.27 George III, as fiduciary

for his father, sought legal counsel, and hired Beth Miller, Esquire, who advised

him, as part of marshalling and protecting his father’s assets, to break the unities of

the condominium joint title with a transaction out of George Jr.’s one-half interest

in the condominium, and into George Jr.’s Trust.28                     George III complied,

employing the POA to create a deed which severed the unities and converted the



24
   I note Mr. Dukes’ testimony that initially he received the impression that the condo would be
in titled in Lisa’s name alone, but that Lisa called Mr. Dukes shortly before closing and directed
him to prepare the deed with Lisa and George, Jr. as joint tenants.
25
   See, e.g., Mack v. Mack, 2015 WL 1607797 (Del. Ch. Mar. 31, 2015).
26
   JX 11.
27
   JX 12.
28
   See JX 14.
                                               15
title to the condominium into a tenancy in common owned half by Lisa and half by

the Trust.29

       Lisa makes a number of arguments why this act should not be given

cognizance by the Court, all of which are unavailing. She argues that the transfer

was an unfaithful act because it did not comply with George Jr.’s intent, that it

should be disregarded as a self-dealing act because George III is a remainder

beneficiary of the Trust, that it was an invalid exercise of the power of attorney

because it was executed by only one of George Jr.’s sons, and that there are

technical defects in the deed itself.

       To the extent Lisa has standing to raise these issues, they cannot help her.

George Jr.’s intent, post-strokes, is unascertainable, and may well have changed

had he been cognizant of the new conditions of his life. Marshalling the assets in

the Trust or the estate was not self-dealing simply because George III was an heir

and beneficiary—the assets so marshaled were available to George Jr. during the

remainder of his life. Lisa contends that the transfer is invalid because action

under the POA could only be taken by both attorneys-in-fact jointly.                              This

argument relies on the fact that the Durable Power of Attorney appointed George

29
   See Shockley v. Halbig, 75 A.2d 512, 513 (Del. Ch. 1950) (“One joint tenant can convey his
interest and thus destroy the joint tenancy.”); In re Ellingsworth, 266 A.2d 890, 891–92 (Del. Ch.
1970) (“It has been held that a severance of a joint tenancy may be accomplished by the act,
voluntary or involuntary, of either of the joint tenants. . . . [A] joint tenancy in land is an interest
which can be sold at the option of either joint tenant, including a guardian of such a tenant,
although the practical effect of such a sale is to destroy the joint tenancy itself.”).

                                                  16
III and Scott as “attorney-in-fact,” in the singular. Lisa points out that under 12

Del. C. § 49A-111(b), joint agents, when so designated, may not act independent

of one another; therefore, she argues, the act by George III alone was invalid.30

The Durable Personal Powers of Attorney Act, however, was enacted after George

Jr. entered into the POA, and does not apply here.31 Lisa has not argued, and I do

not understand, that anything in the common law would invalidate the transfer on

this ground. The Respondent also argues that the transfer was effectively a gift to

George III and Scott, and was outside the authority granted by the Power of

Attorney. I find, however, as noted above, that the transfer was made for George

Jr.’s benefit and that it was within the scope of the Power of Attorney. Finally, in

light of my finding that George III was acting as George Jr.’s attorney-in-fact, any




30
   The Respondent also argued at one time that the power of attorney did not become effective
because George III did not have a physician’s certificate declaring George Jr.’s incapacity at the
time of the deed. But this issue was not raised in post-trial briefing, and, as such, I deem that it
has been waived. At any rate, one of his physicians indicated by written note on April 5, 2012
that he was “unable to make informed decisions at [that] time.” See JX 11.
31
   The Petitioners cite to 12 Del. C. § 49A-106(b) (“A personal power of attorney executed
before October 1, 2010, is validly executed if it complied with the laws of this State as they
existed at the time of execution, unless such personal power of attorney provides that it is
governed by the laws of another jurisdiction, in which case, such personal power of attorney is
validly executed if such execution complied with the laws of such other jurisdiction.”). Further
to the point, even if the statute applied, 12 Del. C. § 49A-111 indicates that concurrent agents
may act independently. Subsection (c) provides that, if the principal designates more than one
agent and does not specify whether they are concurrent or joint agents that they are considered
concurrent agents. Even if the statute applied, given the language used, George III and Scott
would be concurrent agents.
                                                17
defects in the deed, which destroyed the joint tenancy and created a tenancy in

common, are clearly scrivener’s errors subject to reformation.32

       Since the time the tenancy in common was created, Lisa and the Trust have

each owned an undivided half interest in the condo. The Trust seeks a partition

and accounting. Unless the parties agree otherwise, the condo must be sold at

public vendue.33 The net proceeds must be adjusted to account for payments made

by Lisa that resulted in a benefit to the tenancy, if any, and Lisa must account for

rent she has received. Before distribution, the face amount of the loans George

made to Lisa,34 and amounts paid by George Jr. in connection with the Key West

trip, together with post-judgment legal interest, should be deducted from Lisa’s

share, and paid to George Jr.’s estate. The parties should agree on these sums;

otherwise, I will resolve the matter for them. The remainder should be distributed

to Lisa and the Trust in equal parts.

                                    III. CONCLUSION


32
   The defects alleged are that the executing party is identified as George Jr., but the deed was
signed by George III without indication that he was acting as attorney-in-fact. The notarization
also provided that George Jr. executed the deed.
33
   See 25 Del. C. § 729.
34
   See JX 5; JX 28. In reviewing the check register and copies of cancelled checks, I understand
George Jr. to have made cash loans to Lisa in the amount of $5,000, not including payoff of the
DSHA loan, which must also be repaid. JX 5 indicates check number 5201 to Lisa Grandelli for
$4,000 was a “loan.” JX 28, on the page marked as Grandelli 16, shows the same check, number
5201, and indicates “loan” on the memo line. JX 5 shows that check number 12, which I find to
mean check number 5212, from the numerical order followed in the check register, dated 12/26,
is indicated as “cash-loan” in the amount of $1,000. JX 28 on the page marked Grandelli 17
shows that check, number 5212, in the amount of $1,000 dated 12/26 was payable to Lisa
Grandelli.
                                               18
      George Jr.’s heirs are upset that in the last months of his life, their father

lavished expensive gifts on a much younger woman. Their position is natural;

frankly, this is a case that was neither a pleasure to hear or write on. As a

competent individual, however, George Jr.’s choices were his to make. Lisa, on

the other hand, has treated as her own a condominium unit owned in common with

George, Jr.’s Trust, for which she must account. In addition, loans made to her by

George Jr. must be repaid, together with amounts to pay for the Key West trip,

which she received based on false representations. The parties should submit an

appropriate form of order. Each party must bear its own fees and costs.




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