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McCloskey v. McCloskey

Court of Chancery of Delaware

April 24, 2014

JOHN A. McCLOSKEY, personally and as Executor of The Estate of Edward McCloskey, THE ESTATE OF EDWARD McCLOSKEY, and JOSEPHINE GILLESPIE, (as beneficiary and nominal Respondent), Respondents.

Submitted: January 15, 2014

David J. Weidman, Esquire, of SERGOVIC, CARMEAN & WEIDMAN, P.A., Georgetown, Delaware; Attorneys for Petitioner.

"J" Jackson Shrum, Esquire, of WERB & SULLIVAN, Wilmington, Delaware; Attorneys for Respondents.



At its most basic, this case provides an interesting study in how spite, particularly when combined with jealousy, may drive a person to seek irrational ends, without regard for the carnage that may occur, and without any apparent realization that, even if he is successful, the spite will not be quelled. The parties to this action would have been better served spending their time and money on a therapist's couch, rather than in a courtroom. Having eschewed that more rational course, the parties, and particularly the respondent, instead chose to spend five trial days recounting decades of family drama and discord, down to the irrelevant minutia of the petitioner's sportsmanship on the basketball court.

The length of trial and the number of witnesses belie the relatively simple issue presented in this case: whether the parties' deceased father made a valid and enforceable oral agreement to make a will leaving certain property to the petitioner. Although the burden under Delaware law to prove the existence of an oral contract to make a will is substantial, the petitioner met this burden. Determined to deny his brother the property promised to him, the respondent continues to press his case, recycling the same unconvincing evidence and relying almost exclusively on his own testimony, which lacked credibility. The petitioner demonstrated by clear and convincing evidence that his father promised to leave him the family home and surrounding property in exchange for the petitioner's agreement to live in the home, improve and repair it, and care for his grandfather and father in their twilight years. Having carried that burden, the petitioner is entitled to specific performance of the contract. For the reasons that follow, I recommend that the Court enter an order requiring the father's estate to convey title to the property to petitioner. This is my final post-trial report.


These are the facts as I find them after trial.

A. Family Background

The Decedent, Edward McCloskey ("Edward"), [1] was the father of five children. His oldest son, Richard McCloskey ("Richard"), is the petitioner in this action, while his youngest son, John McCloskey ("John") is named as a respondent in this action in his personal capacity and in his capacity as executor of Edward's estate (the "Estate"). Edward's three other children are Josephine Gillespie ("Josephine"), Ronald McCloskey ("Ronnie"), and Robert McCloskey ("Robert").

Edward was married only one time, to Mary McCloskey ("Mary"), from whom he divorced in 1963. Richard and his wife, Wanda McCloskey ("Wanda"), have two children: Rusty and Randy. John is married to Linda McCloskey ("Linda"). Most of the members of the McCloskey family are involved in farming in various capacities.

B. The Property

This case involves a dispute about the ownership of Edward's home and surrounding property at 957 Midstate Road in Felton, Delaware (the "Property"). In addition to a single-family home, the Property consists of approximately 48 acres of land and some farm buildings. All of Edward and Mary's children were born in the house. In 1973, John built a home next to the Property on land given to him by Edward.

Richard married Wanda in 1959, shortly after graduating from high school, and the couple moved in to a new trailer Richard purchased. When Edward and Mary divorced in 1963, Edward remained in the Property with his elderly father, Jerry McCloskey ("Jerry"). The divorce, and the manner in which Edward ejected Mary from the Property, caused a division among the McCloskey children, with Richard taking Edward's side and the four remaining children siding with Mary.[2]

C. Richard Moves into the Property

Shortly after the confrontation during which Edward kicked Mary out of the Property, Edward asked Richard and Wanda to move into the Property to help Edward take care of the home and Edward's father, Jerry, who was 77 years old.[3] The testimony is undisputed that neither Edward nor Jerry showed an interest in performing the daily chores associated with keeping a home, including cooking, cleaning, or laundry. Jerry also required additional care as he aged.[4] Although Richard and Wanda had a home, they agreed to move in with Edward and Jerry to provide assistance. Richard and Wanda did not pay rent, but, in addition to her full-time job, Wanda performed all the necessary domestic chores, and Richard and Wanda bought the food for the household.[5] Beginning around 1975, Richard and Wanda also paid the utilities in the home.[6]

The home was in disrepair when Richard and Wanda moved into it. Although Edward had money, he did not spend his money to maintain or improve his house. Shortly after they moved in, Richard and Wanda began discussing with Edward various repairs or improvements that were necessary or desirable. Richard and Wanda credibly and consistently testified that on each occasion, Edward instructed Richard and Wanda that they should pay the associated costs because the Property would belong to Richard when Edward died.[7] Wanda's brother, Chuck Holliday, overheard Edward promise Richard the property on two occasions in the 1960s when Richard asked Edward about building a barn on the Property.[8]

Over the next ten years, Richard and Wanda paid the costs associated with closing in the front porch, adding a downstairs bathroom, replacing the roof, adding a cement patio, installing siding, replacing all the upstairs windows and installing a French drain, along with substantial electrical work and the addition of electric heat upstairs and downstairs.[9] Richard and Wanda retained many of the receipts associated with these expenses, and Wanda also contemporaneously maintained a record of the repairs and improvements and the associated costs.[10]

D. The 1977 Will

Edward executed his first will in 1977 (the "1977 Will"). At Edward's request, Richard made an appointment with a local attorney, who drew up the will. The 1977 Will left the Property to Richard in fee simple absolute, devised a separate farm (the "Turner Farm") to John, and divided the residue of Edward's Estate between Ronnie, Josephine, Robert, and John.[11] The 1977 Will named Richard and John as co-executors. Richard was aware of the contents of the 1977 Will because he sat in on Edward's meeting with the attorney. After the ...

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