   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


                                                     )
IMO Last Will and Testament of Ethel Smith,          )     C.A. No. 8532-MA
                                                     )



                              MASTER’S REPORT

                          Date Submitted: October 6, 2014
                          Draft Report: April 9, 2014
                          Final Report: January 8, 2015


      Pending before me is a petition under 12 Del. C. § 1309, seeking a court

order declaring the Last Will and Testament of Ethel E. Smith void for lack of

testamentary capacity and as the product of undue influence. Petitioners are Ralph

E. Smith, Jr., Paula Smith, Debbie Kidwell, and Ralph E. Smith, III. Respondents

are Tammy Reed, Nancy Vogts, Sean Reed, and Jeremy Reed. At the conclusion

of the trial held on April 9, 2014, I issued an oral draft report from the bench,

recommending that the petition be denied because Petitioners had failed to

demonstrate any exercise of undue influence on the decedent or lack of

testamentary capacity when the decedent executed her Last Will and Testament on

December 18, 2012. Petitioners filed a timely exception to my draft report under

Court of Chancery Rule 144. After review of the parties’ briefs, I am again

recommending in this final report that the petition be denied.


                                      Page 1 of 21
                               Factual Background

      Mrs. Smith died on January 14, 2013, at the age of 88. According to the

petition, in her final years Mrs. Smith had suffered from pulmonary fibrosis and

had difficulty eating and retaining the food she ingested.1 She was a widow and

lived alone in her home in Milton, Delaware. Ralph Smith, Jr. is the biological son

of the sister of Mrs. Smith’s late husband.2 The couple raised Ralph, Jr. from birth

and eventually adopted him.3      Paula is the current wife of Ralph, Jr., and the

stepmother of Ralph III.4 Ralph, Sr. had had a son from a previous relationship,

who was the father of Kidwell.5    Kidwell enjoyed a close relationship with Mrs.

Smith over the years, and considered Mrs. Smith as her grandmother.6 Mrs. Smith

herself had been unable to have any children.7

      Tammy Reed is the ex-wife of Ralph III.8 By the age of 16, Tammy had lost

both her mother and grandmother so when she started living with Ralph III in




1
  There was very little medical evidence introduced at trial regarding Mrs. Smith’s
medical condition. The parties initially were pro se. After trial, Petitioners
retained counsel to represent them in taking exception to my draft report.
2
  Trial Transcript (“TT”) 50.
3
  Id. I use first names here only to avoid confusion and unnecessary repetition. I
intend no disrespect by this practice.
4
  TT 31.
5
  TT 47
6
  TT 42.
7
  TT 35, 50.
8
  TT 35.
                                     Page 2 of 21
1993,9 she viewed Mrs. Smith as a mother/grandmother figure.10 After Tammy

and Ralph III divorced in 2000,11 Tammy married Sean Reed, with whom she had

two sons, Paul and Christopher.12 Tammy and Sean subsequently divorced, but

they share custody of their young sons.         Mrs. Smith loved babies, and was

especially fond of Paul.13 She often babysat for Paul even after he started going to

school.14 Nancy Vogts is a long-time friend of Sean and, as a result of her

friendship with Sean and Tammy, Vogts became acquainted with Mrs. Smith.15

The two older women were friends during the last 13 years of Mrs. Smith’s life.16

Jeremy Reed is Sean’s brother.

      Both Ralph, Jr. and Ralph III described Mrs. Smith as having been on good

terms and bad terms with them throughout their lives.17 In particular, Ralph III

described Mrs. Smith as very controlling and overbearing.18 Mrs. Smith always

wanted Ralph III to work as much as possible, and was bothered whenever he was

unemployed.19 When Ralph III was married to Tammy, Mrs. Smith and her late


9
  TT 32.
10
   TT 38, 105.
11
   TT 30
12
   TT 79.
13
   TT 34-35.
14
   TT 56-57.
15
   TT 98.
16
   TT 99.
17
   TT 52.
18
   TT 40-41.
19
   TT 30.
                                     Page 3 of 21
husband contributed to the young couple’s household expenses by lending them

money.20 Mrs. Smith kept books in which she recorded the amount of money she

had lent to people, and when she died, Ralph III calculated that he still owed his

grandmother about $800.00.21

      Paula described Mrs. Smith as very opinionated and stubborn.22 During the

last three years of Mrs. Smith’s life, Paula would help her mother-in-law as needed

after Mrs. Smith’s close friend and neighbor moved away. 23 Another neighbor

brought Mrs. Smith food during the last year of her life.24 Mrs. Smith would return

the empty containers to this neighbor with thanks, telling him how much she had

enjoyed his food.25 Mrs. Smith did not discuss her illness with him; instead, she

talked about her home and household projects because she was always cleaning

house.26 During the last three months of Mrs. Smith’s life, Paula and Ralph Jr.

tried to convince Mrs. Smith to live with them, but Mrs. Smith refused to leave her

home.27




20
   TT 39.
21
   TT 39.
22
   TT 113, 120.
23
   TT 113.
24
   TT 123-124.
25
   TT 125. This neighbor never knew until after Mrs. Smith’s death that Mrs.
Smith had been unable to eat any of the food he had given her. TT 124.
26
   TT 125.
27
   TT 113.
                                     Page 4 of 21
        During the last three months of Mrs. Smith’s life, Paula was her primary

caregiver, stopping by Mrs. Smith’s home every day to assist her or to take her to

medical appointments.28     On December 7, 2012, after Mrs. Smith had been

discharged from the hospital, hospice nurses began to care for Mrs. Smith in her
        29
home.        On the evening of December 18th, Sean, Jeremy, and Vogts arrived at

Mrs. Smith’s house.30 Paula was present in the house when Mrs. Smith executed a

will that Vogts had drafted at Mrs. Smith’s request.31 The two witnesses were

Vogts and Sean, and Jeremy notarized the document.32

        In her Last Will and Testament (hereinafter “the Will”), Mrs. Smith

bequeathed her 2002 Ford Taurus automobile to Tammy, her curio cabinet and its

contents to Kidwell, and $1,000.00 to Kidwell’s daughter, Candace.33 Mrs. Smith

left her residuary estate to Ralph Jr., Paula, Kidwell, Tammy, Paul, and

Christopher. Mrs. Smith indicated in the Will that if Ralph, Jr. wanted to acquire

her house, he might buy out the remaining beneficiaries after an appraisal of the

fair market value of the property, exclusive of contents and personal belongings,

provided the other beneficiaries consented, otherwise the property was to be sold



28
   Id.
29
   TT 10-11.
30
   TT 117.
31
   TT 89, 99.
32
   TT 89.
33
   TT 43-44.
                                     Page 5 of 21
and divided equally. Mrs. Smith named Ralph, Jr. as executor, but if he was

unable to serve, then she named Tammy as executrix of her estate.34

      The following day, Paula asked Mrs. Smith where her will was located in

case something happened to her, and Mrs. Smith told Paula that it was underneath

the desktop.35 According to Paula, she did not bother to look at the document until

a few weeks later in January when Mrs. Smith fell into a coma. 36 When Paula read

the Will, she was shocked because it did not reflect what Mrs. Smith had

previously told Paula were her estate plans.37 Ralph, Jr. was likewise shocked

because, according to his testimony, he was supposed to get his mother’s house,

which he would use to obtain a loan to provide the funds that Mrs. Smith wanted to

give Tammy’s children.38 After that loan was repaid, Ralph III was supposed to

receive Mrs. Smith’s house.39

                                        Issues

      In their Opening Brief, Petitioners explicitly state that they are not taking

exception to my finding that there was insufficient evidence to demonstrate that

Mrs. Smith lacked testamentary capacity.             Petitioners instead focus their

exceptions on my conclusion that there was no undue influence shown.


34
   A copy of the Will is attached as an exhibit to the petition. Docket Item 1.
35
   TT 118.
36
   TT 119.
37
   Id.
38
   TT 67.
                                      Page 6 of 21
Petitioners complain that I did not address in my draft report all of the elements of

undue influence. They argue that Mrs. Smith was susceptible to undue influence,

and that Respondents had the disposition and opportunity to exert their influence

over her. They argue that the facts and circumstances surrounding the execution of

the Will demonstrate that Respondents actually exerted influence over Mrs. Smith.

Finally, Respondents argue that the Will is the result of undue influence because it

contained bequests that are contrary to what Mrs. Smith had told her son and

daughter-in-law she wanted in her will.

                                        Analysis

          Undue influence is described as an excessive or inordinate influence

considering the circumstances of a particular case.40 The degree of influence

exerted over the testatrix must be such as to subjugate her mind to the will of

another, and to compel her to make a will that is not her own, but that reflects the

mind of another.41 However this is accomplished, the undue influence must have

been in operation upon the mind of the testatrix at the time of the execution of the

will.42

          In order to for a court to find undue influence, the following elements must

be demonstrated by a preponderance of the evidence: (1) a susceptible testatrix;


39
   TT 68.
40
   See Matter of Langmeier, 466 A.2d 386, 403 (Del. Ch. 1983).
41
   Id.
                                        Page 7 of 21
(2) the opportunity to exert influence; (3) a disposition to do so for an improper

purpose; (4) the actual exertion of such influence; and (5) a result demonstrating its

effect.43 I will now address each element to determine whether Petitioners have

demonstrated all of the elements by a preponderance of the evidence.

Susceptible Testatrix:

      There is no question that Mrs. Smith was in very poor health and under

hospice care when she executed the Will. Mrs. Smith was on oxygen and taking

several medications, including morphine, which could have affected her

mentally.44 The only evidence of any altered mental state was a hospice nurse’s

observation that Mrs. Smith might have been suffering some confusion because

she responded differently to the nurses when Paula was not present than when she

was talking to Paula.45 However, another hospice nurse described Mrs. Smith as

alert, talking normally, and able to make her own judgments generally throughout

December 2012.46

      Paula testified that Mrs. Smith was upset and crying on December 18 th.47

Mrs. Smith had just come back from the doctor’s office where she had been seen



42
   See In re Estate of Reed, 1995 WL 694423 (Del. Ch. Oct. 25, 1005).
43
   In re Estate of West, 522 A.2d 1256, 1264 (Del. 1987).
44
   TT 11-12, 25, 27, 126.
45
   TT 12, 21.
46
   TT 13-14, 16.
47
   TT 117.
                                      Page 8 of 21
for her continuing problem with retaining food.48 She was not scheduled for

another surgery to address this problem until January but, according to Paula, Mrs.

Smith did not think that she could remain alive until that surgery.49

      Mrs. Smith’s signature on the Will does not give any indication that she was

suffering emotional distress that evening.           Her signature is evenly formed,

positioned directly above the signature line, and written in an elegant cursive hand.

Mrs. Smith was not yet bedridden, and was still able to live alone with people

present to assist her only during the daytime. 50 However, for the sake of this

analysis, I will assume that Mrs. Smith was a susceptible testatrix.

Opportunity to Exert Influence:

      The record shows that Tammy had an opportunity to exert influence over

Mrs. Smith. The two women lived near each other, saw each other at least once a

week, and spoke to each other on the phone frequently. 51 Mrs. Smith loved

Tammy’s children, especially Paul.52 Ralph, Jr. described Paul as the “apple” of

Mrs. Smith’s eye.53 Petitioners contend that Mrs. Smith’s desire to keep Tammy


48
   Id.
49
   Id.
50
    During the last few weeks of Mrs. Smith’s life, at Paula’s request, Tammy
helped care for Mrs. Smith by coming over to her house late at night, after
Tammy’s children were in bed, to administer her evening medications and assist
Mrs. Smith with her CPAP machine. TT 113-114.
51
   TT 103.
52
   TT 114-115.
53
   TT 56.
                                      Page 9 of 21
happy made her more predisposed to Tammy’s wishes, and therefore susceptible to

influence.    At trial, Tammy denied exerting any influence over Mrs. Smith,

claiming that she never asked Mrs. Smith for money, although she acknowledged

that she had received checks in her name that were intended as gifts for her

children.54

      The record shows that Paula and Ralph, Jr. also had the opportunity to exert

influence over Mrs. Smith. Paula saw Mrs. Smith every day for the last three

months of Mrs. Smith’s life and, moreover, had been helping Mrs. Smith draft a

will for over a year.55 Paula testified that she only hesitated to act as the notary

because, as Mrs. Smith’s daughter-in-law, she thought it might be illegal.56

According to Paula, Mrs. Smith’s estate plan was for Ralph, Jr. to get the house

and Paul to get some money, but the money was to be held in trust so Tammy

could not get her hands on it.57 According to Ralph, Jr., the plan was for Paul to

receive $10,000.00 and Christopher to receive $5,000.00, both amounts to be held

in trust so Tammy could not touch the money. 58 According to Paula, at some point

Mrs. Smith had wanted to leave Candace $10,000.00.59



54
   TT 106.
55
   TT 113-114.
56
   TT 118.
57
   TT 115.
58
   TT 57-58.
59
   TT 119.
                                     Page 10 of 21
      After Mrs. Smith was discharged from the hospital in December, it was

evident to her family that she would no longer be able to drive. Mrs. Smith’s car

registration was going to expire at the end of the month, so Ralph Jr., told his wife

that if his mother was going to give him the car, they should title the car in his

name before the registration had to be renewed.60 Paula testified that when Mrs.

Smith was informed of this plan, she objected to it. Mrs. Smith told Paula that

Tammy had asked for the car, that it was the only thing Tammy had ever asked for,

and that Mrs. Smith was going to give the car to Tammy, even though she believed

that Ralph, Jr. would be upset about it.61 Ralph, Jr. was not upset. Ralph, Jr.

testified that it was his suggestion that his mother leave the car to Tammy in her

will because he thought Tammy needed a safer car than the one she was then using

to transport her sons.62

      According to Paula, however, Mrs. Smith agreed with Paula’s suggestion to

transfer the car to Tammy immediately, and so Mrs. Smith made Paula her agent

solely for the purpose of transferring the car’s title.63 Paula and Tammy then met

at the Department of Motor Vehicles and completed the transfer, but as part of the




60
   TT 115-116.
61
   TT 117.
62
   TT 58.
63
   TT 116.
                                     Page 11 of 21
arrangement Tammy had to give Ralph, Jr. the car’s license tag.64 Thus, it appears

from the evidence that Tammy, Ralph, Jr., and Paula all had the opportunity to

exert influence over Mrs. Smith.

Disposition to Exert Influence for an Improper Purpose:

       Petitioners argue that Tammy had the disposition to exert influence over

Mrs. Smith because she knew she had leverage, i.e., she could stop bringing Paul

to see Mrs. Smith. However, the only evidence of this leverage comes from Ralph,

Jr.   According to his testimony, Mrs. Smith was upset with Tammy because

Tammy had been responsible for the breakup of her marriage with Sean,65 and

Mrs. Smith did not want Tammy to get control of Paul’s money. However, Mrs.

Smith was afraid to say anything to Tammy because if she did, Tammy would stop

allowing Mrs. Smith to see Paul.66 This argument only makes sense if Tammy

knew of Mrs. Smith’s testamentary scheme, i.e., her plan to leave trust funds for

Tammy’s children. However, according to Ralph, Jr., his mother would have

never spoken to Tammy about her will.67 If Tammy had no knowledge of Mrs.

Smith’s testamentary scheme, then Tammy would have had no reason to exert her


64
   TT 117. It is unclear from the record whether Mrs. Smith intended Tammy or
her son to have the license tag. In any event, when Ralph, Jr. discovered the
contents of the Will in January 2013, he somehow arranged for title of the 2002
Ford Taurus to be transferred from Tammy’s name into his own name. TT 75-76.
65
   TT 60, 64-65.
66
   TT 62.
67
   TT 64.
                                    Page 12 of 21
influence for the improper purpose of forcing Mrs. Smith to change her will by

threatening to stop Paul’s visits.

        Petitioners also argue that Tammy’s disposition to exert influence is proven

by the testimony of Ralph, Jr., who stated that when he asked Tammy about the

will, she replied that she did it for her boys.68 To the extent that Petitioners are

characterizing this statement as a wholesale admission of guilt by Tammy, Ralph,

Jr.’s testimony is self-serving. However, this statement is consistent with Paula’s

testimony that Mrs. Smith had told her in December that the only thing Tammy

had ever asked for was the car. If Tammy had asked Mrs. Smith to leave her the

car to transport her boys, a request that Ralph, Jr. agreed was entirely reasonable,

then there is no credible basis to extrapolate from this statement that Tammy had

the disposition to exert undue influence over Mrs. Smith for an improper purpose.

        Petitioners argue that Sean, Jeremy and Vogts also had the opportunity to

exert influence over Mrs. Smith on December 18th, pointing to the circumstances

of the will execution itself. According to Petitioners, when Respondents arrived

unexpectedly at Mrs. Smith’s house, Jeremy kept Paula busy in the kitchen so that

Paula did not realize what Sean and Vogts were doing. These actions, Petitioners

contend, demonstrate not only that Sean, Jeremy, and Vogts had dispositions to




68
     TT 64.
                                     Page 13 of 21
exert influence on Mrs. Smith, but also that they actually exerted their influence on

Mrs. Smith to benefit Tammy and her children.

      Although Sean’s children are two of the beneficiaries of the Will, there is no

evidence that Sean had any disposition to exert influence over Mrs. Smith for an

improper purpose. According to Vogts, Sean was unaware of the contents of the

Will until Vogts reviewed the document word by word with Mrs. Smith while Sean

was standing next to them.69 There is also no evidence that Vogts and Jeremy had

dispositions to exert influence over Mrs. Smith for any improper purpose. Vogts

and Mrs. Smith were long-time friends, but Vogts received no gift in the Will.

There is no evidence that Jeremy had any prior relationship with Mrs. Smith, and

there is no evidence that Jeremy even received payment for his service as notary

public.

      Paula was present in the house during this entire time. It was Vogts’s belief

that Paula was aware of what was happening since Paula was standing right beside

them as they talked with Mrs. Smith.70 Even when Paula was talking with Jeremy

in the kitchen, she was separated from the living room where Mrs. Smith was

sitting only by a kitchen counter and an overhead cabinet.71 Respondents made no

effort to hide what they were doing. After Mrs. Smith and the two witnesses


69
   TT 91, 97.
70
   TT 99.
71
   TT 80-88.
                                     Page 14 of 21
signed the document, it was placed on the kitchen counter for Jeremy to notarize. 72

Therefore, Petitioners have failed to demonstrate by the preponderance of evidence

that any of these three Respondents had the disposition or opportunity to exert

influence over Mrs. Smith.

Actual Exertion of Undue Influence:

      Paula testified that she had no idea a will was being executed and if it had

been read out loud, she would have objected because it was not what Mrs. Smith

had told her.73 According to Paula, even after the will was executed, Mrs. Smith

kept saying that Ralph, Jr. was getting the house and Tammy was getting the car.74

Petitioners argue that the circumstances surrounding the execution of the will,

especially the fact that it was not read out loud, demonstrate an actual exertion of

undue influence by Respondents.

      It is difficult to discern how the trio could have exerted such influence in the

close quarters of Mrs. Smith’s house with Paula present. Paula was standing only

four or five feet away from Vogts, Sean, and Mrs. Smith, within earshot of

everyone.75 Sean, Vogts, Jeremy and Mrs. Smith simply were going about the

private business of Mrs. Smith without directly involving Paula, who is one of the

beneficiaries of the Will. This episode was not the first time that Vogts had helped


72
   TT 88-90.
73
   TT 117-118.
74
   TT 118.
                                      Page 15 of 21
Mrs. Smith prepare a will.76 In a previous will, drafted by Vogts when Paul was

still a baby, Mrs. Smith left 50 percent of her property to Paul.77 According to

Vogts, Mrs. Smith’s previous will had been witnessed by two other people, but this

time, Mrs. Smith asked Vogts to serve as a witness and to find a second witness. 78

The only person whom Vogts knew was acquainted with Mrs. Smith was Sean.

Vogts asked Mrs. Smith if she had any objection to Sean serving as a witness, and

Mrs. Smith said absolutely not.79

      In support of their claim of undue influence, Petitioners also point to Ralph,

Jr.’s testimony: “[I]f Paula had known anything at all about what was going on

[that night], she’d have read that will. And she has kicked herself in the butt and

the head so many times over it because that will was not read to my mother, nor

did my mother read it …”80 However, Ralph, Jr. and Paula often contradicted each

other’s testimony, and sometimes their own testimony was contradictory.

According to Paula, she had been working on a will for Mrs. Smith for over a year,

a will that was never finalized. On the day following the appearance of Sean,

Jeremy, and Vogts at Mrs. Smith’s house, Paula asked her mother-in-law what they

had been doing. On December 19th, Mrs. Smith told Paula she had executed a will


75
   TT 80, 86.
76
   TT 92.
77
   TT 93-94.
78
   TT 96, 99.
79
   TT 96.
                                    Page 16 of 21
the night before, and also told Paula where the Will was located.81 Yet, Paula

apparently was not curious enough to examine the will for several weeks, at least

not until Mrs. Smith had fallen into a permanent “coma.” 82        At trial, Paula

explained her behavior as follows:

      I never bothered with that will anymore because I assumed she wasn’t lying
      to me and I assumed that everything was taken care of. Tammy was going
      to get the car. Ralph was going to get the house and do whatever they had
      discussed about monies because she wanted Paul to have monies and she
      didn’t have any money because she had to turn in her CDs to live.83

      Paula’s behavior following Mrs. Smith’s disclosures to her on December

19th undermines Ralph’s testimony. Had anything been amiss on the evening of

December 18th, Paula would have been in a position to hear or observe it. Upon

Paula’s learning the following day that a will had been executed by her mother-in-

law, one would have expected Paula to become suspicious and to have reviewed its

contents since she knew the Will’s location. Instead, she simply left it unexamined

under the desktop where Mrs. Smith had placed it. Upon reviewing the entire trial

transcript, I find that Petitioners have failed to demonstrate by the preponderance

of evidence that any undue influence was actually exerted by Tammy, Sean,

Jeremy, or Vogts.

Result:


80
   TT 75.
81
   TT 118, 121.
82
   TT 119.
                                     Page 17 of 21
        The final element needed to prove undue influence is a result demonstrating

the effect of the exertion of undue influence. For the sake of completeness, I will

address this element, even though Petitioners have failed to demonstrate by the

preponderance of evidence that any of the Respondents had a disposition to exert

influence for an improper purpose or actually exerted undue influence over Mrs.

Smith.

        Petitioners claim that the bequests in the Will are the result of undue

influence because the only change in Mrs. Smith’s prior testamentary scheme was

that Tammy was supposed to get the car. Instead of Tammy getting the car, Ralph,

Jr. getting his mother’s house, and Tammy’s two young sons getting monies to be

held in trust, the house is to be split six ways and Ralph has to buy out the five

other owners in order to “get” his mother’s house.

        I shall assume, for the sake of Petitioners’ argument, Mrs. Smith wanted to

bequeath $10,000.00 to Paul and $5,000.00 to Christopher. The record reveals that

Mrs. Smith did not have that much cash available at the end of her life. When her

husband died in 2004, Mrs. Smith’s financial assets consisted of four $10,000.00

certificates of deposit.84 In the years following her husband’s death, Mrs. Smith

spent down these assets to pay her living expenses because her monthly income



83
     TT 118.
84
     TT 55.
                                     Page 18 of 21
was only between $800.00 and $850.00.85 According to Ralph, Jr., Mrs. Smith

cashed her last certificate of deposit to pay for her funeral expenses.86

      In the Will, Mrs. Smith left bequests to seven members of her extended

“family.”87 The specific bequests consist of a car to Tammy, a curio cabinet and

contents to Kidwell, and a small cash gift ($1,000.00) to Candace. The residuary

estate is to be divided equally among six beneficiaries, Ralph, Jr., his wife Paula,

Kidwell, Tammy, and Tammy’s two young sons. The evidence reveals that the

five adult beneficiaries all had close relationships with Mrs. Smith, and the two

minor children, especially Paul, had special places in Mrs. Smith’s heart.

Although there was some feeling expressed at trial that Ralph III should have been

included in his grandmother’s will, Ralph III appears to have borrowed money

from Mrs. Smith throughout his life and still owed her money when she died.88

      There was testimony from Ralph, Jr. and Paula about a plan for Ralph, Jr. to

borrow money against the property – Mrs. Smith’s home – that he anticipated


85
   Id.
86
   TT 67-68. According to his trial testimony, Ralph, Jr. was named in Mrs.
Smith’s living will as the person who was “going to pull the plug” on her when
things were bad. TT 77-78. He also was named on Mrs. Smith’s checking
account. TT 66, 78. Ralph, Jr. testified that after paying the funeral bills, he still
has what’s left of his mother’s money, and is holding the money to put into Paul’s
trust fund while this litigation is pending. TT 58, 66. Ralph, Jr. testified that if the
will is not declared void, he may use the money to buy whatever he wants for
himself, i.e., an excavator, boat, or motorcycle, because he knows what his mother
wanted. TT 66.
87
   Both Paul and Christopher referred to Mrs. Smith as “Mom-Mom.” TT 115.
                                       Page 19 of 21
inheriting upon Mrs. Smith’s death, money that would be used to fund the trusts

for Paul and Christopher.89 Assuming that such a plan had been communicated to

Mrs. Smith, she may have believed the plan was too complicated or risky.

Assuming the plan had not been communicated to her, the evidence shows that

Mrs. Smith was a frugal person and kept track of her money.90 Toward the end of

her life, Mrs. Smith would have known that she did not have enough money to

leave specific monetary bequests to Tammy’s children. She turned to a friend,

instead of a family member, to assist her in drafting a will. And she distributed her

small estate by leaving her only significant asset - her home - to six beneficiaries

while giving Ralph, Jr. the option of buying out the other five co-owners, one of

whom was his wife, if he wanted to become the sole owner of his mother’s home.

      Petitioners have failed to demonstrate by the preponderance of evidence that

the Will was the product of undue influence. The Will appears to reflect the

wishes of a stubborn and opinionated woman who valued hard work and family,

and was generous to the people she loved.

                                    Conclusion




88
   TT 39.
89
   TT 67-68, 118.
90
   TT, 34, 54.
                                     Page 20 of 21
      For the reasons above, I recommend that the petition for review of proof of

will be denied. The parties are referred 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




                                    Page 21 of 21
