    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.
                                      Page 40 of 41
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
