NANCY B. MINIERI, f/k/a NANCY WOLFF, Personal Representative and Beneficiary, and GARY H. BEAROR, Beneficiary of and on Behalf of the ESTATE OF BERTHA W. PARKER, deceased, Petitioners,
DIANE E. BENNETT, Respondent.
Date Submitted: July 31, 2013
Draft Report: October 31, 2013
John A Sergovic, Jr., Esquire of Sergovic, Carmean & Weidman, P.A., Georgetown, Delaware; Attorneys for Petitioners.
"J" Jackson Shrum, Esquire of Archer & Greiner, P.C., Wilmington, Delaware; Attorneys for Respondent.
As is often the case in estate-related disputes that find their way to this Court, this is a sad tale of once-close siblings, whose shared love for their elderly mother was not enough to overcome resentment and hurt feelings stemming from perceived inequities in the respective burdens the parties shouldered while caring for their mother in the last years of her life. The petitioners are two siblings who did not play a substantial role in the day-to-day care of their mother as she began to experience health problems. The petitioners brought suit against the respondent, their sister, who undertook the daily work of caring for her mother and who ultimately became the beneficiary of several inter vivos gifts, including, most substantially, an addition the mother funded on the respondent's home, in which the mother lived in the last year of her life. It also appears, although the evidence is less than perfect, that the respondent was the beneficiary on most of her mother's bank accounts, which named the respondent as joint account holder with right of survivorship. The two children who left the day-to-day care of their mother to their sister, and who were not the beneficiaries of similar gifts, contend these transfers were tainted by undue influence. The parties also dispute whether the bank accounts in question were truly joint with right of survivorship, and whether purchases made from those accounts toward the end of their mother's life were for her benefit.
For the reasons that follow, I find the petitioners largely have failed to either establish that the challenged transactions were the product of undue influence or shift the burden to the respondent to demonstrate the fairness of the challenged transactions. I am directing the petitioner to obtain additional bank records in an effort to clarify how the bank accounts were titled. Depending on the outcome of that inquiry, additional proceedings may be necessary regarding certain expenditures from the accounts. This is my post-trial final report.
These are the facts as I find them after trial.
A. Family Background
The parties are the three surviving children of Bertha W. Parker (the "Decedent"), who passed away on December 16, 2008, at the age of 84. Petitioner Nancy Minieri ("Ms. Minieri") is the oldest of the surviving children and was named as executrix in the Decedent's will. The Decedent's son, Gary Bearor ("Mr. Bearor"), joined Ms. Minieri in bringing this lawsuit against their sister, Diane Bennett ("Ms. Bennett"). Sadly, Mr. Bearor passed away while this case was pending and his estate became a substitute party. The Decedent had another son, Skip Bearor, who passed away in 1975. The parties' father died in 1978.
The witnesses at trial almost uniformly described the Decedent as a strong-willed, independent woman, who was decisive and particular about her appearance and her belongings, and "had things her way." The family was close-knit, and the siblings appeared to be relatively close. Until their relationship became strained over the Decedent's care and finances, Ms. Bennett and Ms. Minieri had a trusting relationship and worked together in addressing their mother's needs. Ms. Bennett described her relationship with Mr. Bearor as "like buddies, " in part because they were very close in age. When Mr. Bearor became sick and needed a bone marrow transplant in 2000, Ms. Bennett donated her bone marrow to her brother.
For a period of her life, the Decedent lived in Delaware. When she moved to Maryland in the 1980s to be closer to her work in Washington, D.C., Ms. Bennett purchased the Decedent's home, which was a 3 bedroom/1 bathroom home in Delaware. The Decedent later moved from Maryland to Florida in the early 1990s with her second husband, Kim. The Decedent survived a battle with throat cancer in the mid 1990s, but Kim passed away in March 2002.
B. The Decedent in Florida
After Kim's passing, the Decedent continued to live independently in Florida. Shortly after Kim's death, the Decedent executed a will dated October 17, 2002 (the "Will"), which she never revoked. The Will left the Decedent's estate to her three living children, in equal shares. Around the same time, the Decedent asked Ms. Bennett if she could add her as joint account holder on the Decedent's three bank accounts: two accounts at Bank of America (the "Bank of America Accounts") and an account at Raymond James (the "Raymond James Account"). Ms. Bennett agreed, and the Decedent then sent Ms. Bennett the necessary paperwork so she could be added to the account. Ms. Minieri was aware of this arrangement and thought it was an appropriate plan. According to the testimony of the parties, neither Ms. Bennett nor Ms. Minieri knew that the Bank of America Accounts were joint with right of survivorship. Although there is no evidence documenting how the accounts were titled, the bank paid those funds to Ms. Bennett upon the Decedent's death, and it is reasonable to infer that Ms. Bennett therefore was the designated beneficiary on the accounts.
The Decedent led an active lifestyle in Florida and enjoyed the company of many friends. She played golf and bowled until she was 82, and frequently went shopping and out to eat. She also enjoyed the company of Ms. Minieri, who purchased a second home near the Decedent's home in Florida. Ms. Minieri spent approximately six weeks a year in Florida, in a community that connected to the community where her mother lived.
In 2004 or 2005, the Decedent's children began to notice some decline in her ability to manage her finances without assistance, and she began having some trouble with her memory. They apparently did not view the problem as critical until Thanksgiving 2006, when the Decedent got lost when driving to pick Ms. Minieri up at the airport, a drive with which the Decedent was familiar. After the Thanksgiving incident, Ms. Bennett and Ms. Minieri arranged for the Decedent to undergo a driving test with the Florida Highway Safety Administration. The Decedent failed the test the first time, but passed it when she insisted that she be given an opportunity to retake the test. When leaving the Highway Safety Administration, however, the Decedent backed into a truck in the parking lot. She did not drive again after that accident.
As a result of these incidents, Ms. Minieri took the Decedent to see her primary care physician, who referred the Decedent to a neurologist. The neurologist, Dr. Chris Marino, M.D., examined the Decedent, performed a Folstein mini-mental status exam ("MMSE") and ordered a series of tests. Although her daughters accompanied her to the appointments with Dr. Marino, the Decedent was able to report to Dr. Marino that she was experiencing problems with her memory and was able to provide "a coherent history." The Decedent received 26 out of 30 possible points on the MMSE. After reviewing the tests and performing an additional examination, Dr. Marino concluded that the Decedent was in the early stages of Alzheimer's disease, and also was suffering from Hypertensive Encephalopathy. Dr. Marino prescribed Aricept; a drug used to slow the progression of Alzheimer's disease, and indicated that he expected the Decedent would see "good results" with the drug.
In the spring of 2007, while the Decedent was undergoing neurological testing, the Decedent, Ms. Minieri, and Ms. Bennett agreed that the Decedent should move to Delaware to be closer to family. At the time, Ms. Minieri and Mr. Bearor were living in Maryland, and Ms. Bennett was living in Sussex County. Although the petitioners have suggested that the Decedent played no part in the decision to leave Florida, and that Ms. Minieri and Ms. Bennett effectively substituted their judgment for hers, the testimony indicates otherwise. Indeed, on cross-examination, even Ms. Minieri conceded that the Decedent participated in the discussions regarding the move, and that the Decedent agreed that she should move back to Delaware. Although Ms. Minieri and Ms. Bennett assisted the Decedent with packing her home, finding an apartment, and traveling to Delaware, it was the Decedent who took steps to list and sell her home in Florida, withdrew money from her account to pay the moving expenses, and decided which of her furniture would be moved to her Delaware apartment and which would be placed in storage.
C. The Decedent moves back to Delaware
Once the Decedent, Ms. Minieri, and Ms. Bennett agreed that the Decedent should move to Delaware, Ms. Bennett began exploring various living arrangements. She toured assisted living facilities, but the associated cost proved to be a barrier for the Decedent.Ms. Bennett ultimately found a senior living apartment in Lewes, Delaware, approximately five minutes from Ms. Bennett's office. Once the Decedent moved into the apartment, Ms. Bennett saw her approximately five days a week, and Ms. Minieri visited bi-weekly. Mr. Bearor, who was dealing with his own health concerns, visited irregularly. Because the Decedent no longer was driving, and was not willing to utilize public transportation, either Ms. Bennett or her husband, Frank Mace, bore the primary burden of transporting the Decedent to appointments and for entertainment.
The toll of the responsibilities associated with helping the Decedent move to Delaware and seeing that she was settled in her apartment quickly frustrated Ms. Bennett, who chided Mr. Bearor for what she perceived to be his nonchalance toward, or lack of participation in, the care of their mother. In an e-mail to Mr. Bearor's wife, Cynthia Bearor ("Mrs. Bearor") in May 2007, Ms. Bennett rebuked Mr. and Mrs. Bearor for failing to visit the Decedent on Mother's Day and for refusing to take an active role in her care. Ms. Bennett exclaimed that "MOM's BRAIN IN HEMMORAGING [sic]! … [She] has SEVERE brain damage and is very ill!! VERY ILL!!"
Although Ms. Bennett's e-mail paints the Decedent's condition as very serious, the full record does not support a conclusion that she was in a weakened mental state or exhibiting substantial mental defects. Instead, this e-mail and several others like it appear to be aimed at prodding Mr. Bearor - and later Ms. Minieri - into taking a more active role with their mother. As even Ms. Minieri and Mrs. Bearor concede, Ms. Bennett had a tendency to exaggerate, and was frustrated with the unequal distribution of responsibilities among the siblings. As a result, Mrs. Bearor believed that Ms. Bennett made things sound worse than they were to provoke sympathy or assistance from her siblings. More reliable evidence indicates that, although she was experiencing some of the symptoms of early Alzheimer's disease and hypertensive encephalopathy, the Decedent remained relatively sharp, strong-willed, and decisive.
For example, shortly after moving to Delaware, the Decedent decided to create bank accounts at Delaware National Bank (the "DNB Accounts"), rather than continuing to rely on the Bank of America Accounts she had established in Florida. Ms. Bennett credibly testified that it was the Decedent's idea to establish the DNB Accounts, and that the Decedent pursued the move because there was not a Bank of America branch close to the Decedent's apartment and she was tired of incurring ATM fees when she withdrew cash. Ms. Bennett drove the Decedent to the bank, and sat with her while she opened the accounts, but the Decedent did not require Ms. Bennett's assistance during the process and Ms. Bennett did not play any role in opening the accounts or deciding how they would be titled. Consistent with the apparent arrangement of her other accounts, the Decedent named Ms. Bennett as a joint account holder and determined the survivorship status of the accounts. The evidence at trial established that the DNB checking account was a right of survivorship account, and the bank paid the funds in both accounts over to Ms. Bennett upon the Decedent's death.  Ms. Bennett did not understand until after the Decedent's death that she would be the beneficiary of the funds in those accounts.  Ms. Minieri was aware that the accounts were being established, and demurred when Ms. Bennett asked if Ms. Minieri wanted to be a signatory on the accounts.
Consistent with that pattern of actively participating in the management of her finances, the Decedent understood her financial picture, and would contact the bank when necessary to verify her account balance. Although Ms. Bennett sat with the Decedent and assisted her in paying her bills and writing checks, the Decedent typically paid by herself when she went shopping and she understood her assets and obligations. She also continued to exhibit her "strong-willed" personality when shopping for clothing and furniture. In late June 2007, the Decedent executed an advanced health care directive and durable general power of attorney, naming Ms. Minieri and Ms. Bennett as her agents. Neither Ms. Minieri nor Ms. Bennett suggested that the Decedent did not have the capacity to designate agents or sign those documents.
D. The Decedent undergoes two surgeries
In July 2007, while with Ms. Bennett at a nail appointment, the Decedent collapsed and became unconscious. Her doctors ultimately determined that she had a blockage in her carotid artery that required surgery. The Decedent spent a week in the hospital and two weeks in rehabilitation, and experienced a number of falls and other setbacks during her recovery. An X-ray performed upon her discharge from the hospital showed a spot on the Decedent's lung, and her doctor ordered a PET scan to follow-up.None of the testimony or evidence submitted at trial indicates whether that PET scan ever was performed, but, if it was, the results did not appear to alarm the Decedent's physicians. E-mails exchanged among the family members in July 2007 indicate that the Decedent was in good spirits after the surgery. In late July 2007, the Decedent returned to her apartment and hired a family friend to move into the apartment for a period of time to provide daily care. The in-home care giver stayed for four or five weeks, until the Decedent decided she no longer required assistance. Neither Ms. Bennett nor Ms. Minieri made any effort to override that decision.
After the surgery in July 2007, the Decedent began experiencing problems with mobility, but the evidence does not support the conclusion that she was showing substantial mental deficits. Although the e-mail record shows Ms. Bennett's increasing frustration from the perceived lack of support from Ms. Minieri and Mr. Bearor, Ms. Bennett described the Decedent as "in great spirits" and stated that she "knows what is going on."
The Decedent's primary care physician, Dr. Steven Berkowitz, D.O., who testified by deposition, echoed that sentiment. Dr. Berkowitz began seeing the Decedent after she moved back to Delaware, and saw her five times between May 2007 and April 2008.Dr. Berkowitz testified that, although the Decedent exhibited some memory problems typical of her age, he did not see any signs of dementia or Alzheimer's disease during her visits to his practice. He described the Decedent as well-groomed, clean, and mentally sharp, able to hold an intelligent conversation, and able to understand humor. Although he acknowledged that hypertensive encephalopathy can affect a person's cognitive abilities and functions, Dr. Berkowitz did not believe that the disease was impacting the Decedent in that way, based on his observations. He described her score on the MMSE as higher than average for someone her age.
In late December 2007, the Decedent collapsed while visiting Ms. Minieri's home, and again was hospitalized and underwent surgery on her carotid artery. Just before the surgery, the Decedent gifted to Ms. Bennett a pendant the Decedent frequently wore. Although the pendant was not particularly expensive, it apparently had a great deal of sentimental value to both Ms. Bennett and Ms. Minieri. When Ms. Minieri saw Ms. Bennett wearing the necklace shortly thereafter, and Ms. Bennett indicated that it was a gift from the Decedent, Ms. Minieri expressed ...