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IMO Last Will & Testament of Smith

Court of Chancery of Delaware

January 8, 2015

IMO Last Will and Testament of Ethel Smith,

Date Submitted: October 6, 2014

Draft Report: April 9, 2014


Kim E. Ayvazian Master in Chancery

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.

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 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 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]

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 home. [29] 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 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]


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. 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, ...

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