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In re Last Will and Testament of Kittila

Court of Chancery of Delaware

February 18, 2015


Date Submitted: October 21, 2014

Draft Report: January 29, 2015

Scott E. Swenson, Esquire, of CONNOLLY GALLAGHER LLP, Wilmington, Delaware; Attorney for Petitioners.

Richard H. Cross, Jr., Esquire, of CROSS & SIMON, LLC, Wilmington, Delaware; Attorney for the Executor.


Abigail M. LeGrow Master in Chancery

The family members of an elderly widow became estranged from her during a series of events that culminated in a guardianship proceeding more than a decade ago in this Court. After her neighbors were appointed her guardians by order of this Court, the woman revised her estate plan twice, both times excluding the family members who petitioned for guardianship and who previously were the primary beneficiaries of her estate. Those family members now challenge the validity of two wills executed by their aunt. The challenged wills left the residue of the decedent's estate to a combination of the guardians, two other friends, and charitable organizations. The petitioners contend that the wills are invalid for one of three reasons: (1) the decedent lacked testamentary capacity at the time she executed the wills, (2) the decedent was unduly influenced to dispose of her estate in the manner reflected in the challenged wills, or (3) the terms of the guardianship order precluded the decedent from making a will, rendering her legally incapable of revising her estate plan.

The petitioners case is not without merit. Among other things, although it is plain that the familys decision to pursue guardianship drove a irreparable wedge between them and their aunt, it appears more likely than not that the decedent already intended to revise her will and exclude the family as beneficiaries before the guardianship petition was filed. No coherent, definitive explanation for that decision has been offered. Ultimately, however, I conclude that the absence of an explanation for that decision is not sufficient to invalidate the decedents will because the petitioners have failed to demonstrate by a preponderance of the evidence that the decedent lacked testamentary capacity or was unduly influenced at the time she executed her last will. This is my final report after trial and post-trial briefing.


These are the facts as I find them after trial. Wilma B. Kittila ("Wilma" or the "Decedent") [1] was married to Richard Kittila ("Dick") and resided in Hockessin, Delaware on Mill Creek Road for the majority of the events at issue in this case. Wilma and Dick had no children. The witnesses at trial described Wilma as independent, particular, opinionated, and relatively private about her life and her belongings.[2] She liked things done in a certain way and placed substantial value on her ability to control her life.

A. The Kittila Family

Allan Kittila ("Allan") was Dicks nephew and therefore was Wilmas nephew by marriage. Allan was married to Karen Kittila ("Karen"), and Allan and Karen had four children, Christopher Kittila ("Chris"), Theodore Kittila ("Ted"), Kathleen Kittila Beaulieu ("Kathy"), and Timothy Kittila ("Tim"). Karen and Chris are the petitioners in this action.

Allan, Karen, and their children enjoyed a close relationship with Wilma and Dick that dated back to Allans childhood. Wilma and Dick would vacation and celebrate holidays with Allan, Karen, and their children, and when the Kittila children attended college at the University of Delaware they regularly visited Wilma and Dick at their home in Hockessin. Until shortly before the events that precipitated the guardianship proceedings, Wilma expressed great fondness for Allan, Karen, and the Kittila children.[3] In March 1994, Wilma named Allan as her alternate attorney-in-fact in the event Dick was unable to serve in that capacity.[4]

B. Wilma's 1994 Will

Dick passed away unexpectedly in a home accident on Labor Day weekend in 1994.[5] Wilma never remarried and came to rely on Allan and Karen for help with her finances and maintaining her home.[6] Shortly after Dicks death, Wilma revised her estate plan, executing a new will along with a new durable power of attorney. The power of attorney (the "1994 POA") named Allan as Wilmas attorney-in-fact and designated Karen as the alternate agent in the event Allan was unable to serve.[7] Wilmas last will and testament (the "1994 Will") named Allan, Karen, and their four children as the residuary beneficiaries of her estate.[8] Wilma gave Allan and Karen a copy of the 1994 Will to keep in their safe.[9]

C. The Guardianship Proceeding

During 2000 and 2001, members of the Kittila family began to notice some changes in Wilmas behavior and demeanor. Wilma became more forgetful, needed frequent reminders about appointments, and left notes around the house to remind her of things, including seemingly intuitive items such as "Lock Door" and "Light Switch On."[10] Wilma also employed a number of "handymen" to assist with various projects around her home, which was located on a 3-acre wooded property. Wilma told the Kittilas that one such man was a convicted murderer who had been sent back to prison on charges of domestic violence. [11] On another occasion, Wilma refused to pay a landscaping company and was sued for non-payment, which Ted helped her resolve.[12]Wilma also made strange accusations that people were stealing her tools and siphoning gas from her car.[13] Perhaps most alarmingly, she became fixated on animals coming into her garden and on one occasion discharged a gun in her house to get rid of an animal and ended up shooting her windowsill instead.[14]

In 2002, Wilma started exhibiting anger and resentment toward Allan for reasons she never articulated clearly to Allan or the other Kittilas. Seemingly out of nowhere, Wilma began making vague accusations that Allan had done something and described him as "evil" and "vindictive."[15] When pressed by Ted about her change of feelings, Wilma related a story that had happened six or seven years earlier on a trip she took to a wolf museum in Minnesota with Allan and Karen. Wilma refused to see or speak to Allan, but she continued to treat the remaining members of the family warmly.[16] Medical records from the same time period indicate that Wilma expressed anger and frustration that Allan and his family wanted her belongings and were pressuring her to move to assisted living in – she believed – an effort to get her possessions.[17] In August 2003, Allan unexpectedly received a letter in the mail, signed by Wilma and indicating that she was revoking the 1994 POA.[18]

Around the same time, Wilma began describing with increasing affection a neighbor named Boyce Fender ("Mr. Fender"), whom she called her "angel without wings."[19] Wilma told Karen, and later Ted, that Mr. Fender frequently stopped by her home to check on her and do odd jobs for her without any expectation of payment, that she had romantic feelings for Mr. Fender, and that she wished she were younger and that his wife was dead.[20] When Ted and his wife visited Wilma, alarmed by the stories they were hearing from Allan and Karen, Wilma told Ted that Mr. Fender had touched her leg and kissed her, that she wanted to give him her house, and that Mr. Fender and his wife had suggested she see Richard Franta, Esquire ("Mr. Franta"), whom Wilma described as the attorney "[the Fenders] send all their old friends to."[21] Wilma went on to insist that she needed to change her estate plans and that Mr. Fenders wife, Janet Fender ("Mrs. Fender"), had given her ideas about estate planning.[22]

Although the Kittilas only were just hearing about these ideas, Wilma already had consulted Mr. Franta to discuss estate plans. In an initial meeting on August 7, 2003, Wilma spoke lovingly of all the Kittilas, other than Allan, and indicated that she wanted to name Karen and the four children as residuary beneficiaries in her will while revoking the 1994 POA naming Allan as her agent.[23] Mr. Franta advised Wilma how to revoke the power of attorney.[24] Wilma told Mr. Franta that she would like to name Mr. Fender as her new agent under a power of attorney, but she was concerned he would refuse to do so out of reluctance to interfere in family issues.[25] In this initial meeting, Wilma also stated she wanted her new will to give Mr. Fender a "right of first offer" to purchase Wilmas home from the estate for fair market value.[26]

Wilma and Mr. Franta met again on August 13, 2003 to exchange additional information about Wilmas estate plans. Although it is not entirely clear from the record, it appears more likely than not that by the time of this meeting Wilma had decided to disinherit all of the Kittilas, including the four children.[27] Mr. Frantas notes do not indicate that Wilma expressed any desire or intent to leave any portion of her estate to the Fenders, other than the right of first offer regarding her home.[28] Mr. Franta does recall, however, that Wilma informed him at or around this meeting that Mr. Fender was willing to serve as her agent under a power of attorney.[29] Mr. Franta, who met with Wilma on at least two occasions and who is an experienced estate attorney, had no concerns about Wilmas testamentary capacity, describing her as a "relatively spry" and "spunky" woman who found her way to his office without assistance and expressed firmly and coherently what she wanted to do regarding her estate.[30]

The Kittila family, however, was alarmed by Wilmas statements to Ted and Karen, which were out-of-character and involved a man they did not know. The family therefore consulted legal counsel. The day after his meeting with Wilma, Ted also made an anonymous call to Adult Protective Services ("APS"), raising concerns that Wilma was being exploited.[31] The APS case manager who was assigned to the case conducted a home visit with Wilma, administered a Folstein Mini-Mental State Examination ("MMSE"), and posed questions regarding potential exploitation. Wilma flatly denied that Mr. Fender was exploiting her or that he ever had asked her for money. Wilma offered her own version of her dispute with Allan and stated that it stemmed from her revocation of the 1994 POA, Allans requests that Wilma give him her dining room table, and her perception that – in substance – all Allan cared about was inheriting Wilmas estate.[32] Notably, during this visit, which occurred on August 25, 2003, Wilma stated that she would have designated Karen or Ted as her attorney-in-fact when she revoked the 1994 POA, but she was afraid that Allan would control their decisions if she did so.[33]After interviewing Wilma, the case manager concluded that Wilma was "able to make her own decisions and self preserve[, and] gave reasonable reasons for revoking her nephew as [durable power of attorney]."[34]

The family also contacted Wilmas primary care physician, Dr. Parul DeSai, who examined Wilma on August 22, 2003. Dr. DeSais notes from that examination indicate that Wilma was "obsessing" about a bruise, "easily agitated, irritable, and hostile, " which was "similar to past visits."[35] Wilma also scored a 29/30 on the MMSE Dr. DeSai administered.[36] After the examination, Dr. DeSai executed a physicians affidavit in which she indicated Wilma was disabled by reason of "probable delusional thought disorder; history of depression/anxiety; schizoid (paranoid) personality/affect; decreased reasoning ability."[37] Armed with Dr. DeSais diagnosis, Karen – with the support of the rest of her family – filed a petition in this Court to be appointed as Wilmas guardian.

The guardianship petition was filed on August 27, 2003.[38] The following day, Vice Chancellor Lamb signed an order appointing Karen as Wilmas interim guardian for a period of 30 days and appointed William Garrett, Esquire as the attorney ad litem charged with representing Wilmas interests.[39] Karen called Wilma to notify her, for the first time, about the petition and the appointment, after which Wilma became irate and refused to speak further with Karen.[40] Karen called Wilma again on September 1, 2003. Wilma again tried to hang up, but the call did not disconnect and Karen overheard a conversation between Wilma and a man Karen believed was Mr. Fender.[41] Karen recorded her recollection of the call immediately after it occurred, and having heard Karens testimony on this point I credit her memory and contemporaneous notes of what she overheard. In substance, Karen overheard Wilma and Mr. Fender discussing the guardianship and Mr. Fender advising Wilma to quickly move her funds to new accounts so Allan, Karen, and their attorneys could not find her money. To Karen, Mr. Fender seemed gleeful at the thought of tricking the Kittilas. Karen also recalls hearing Wilma and Mr. Fender exchanging "adoring" comments and agreeing that unnamed persons should not know that Wilma and Mr. Fender were meeting.[42] There is no evidence in the record, however, that Wilma made any effort to move her accounts as Mr. Fender suggested.

Wilma strongly opposed the guardianship petition and retained Suzanne Seubert, Esquire as counsel to represent her in the proceedings. [43] In connection with her opposition, Wilma also obtained a physicians affidavit from Dr. Russell Labowitz, who began treating Wilma in 2002 and opined that she was not disabled and did not need a guardian.[44] In October 2003, this Court entered an order for an independent medical examination of Wilma by Dr. Carol A. Tavani.[45] That order also permitted Wilma to be evaluated by a psychiatrist or physician of her own choosing.

Dr. Tavani interviewed Wilma and issued a report to the Court dated November 26, 2003.[46] Dr. Tavani diagnosed Wilma with dementia, probably Alzheimers type. According to the report, Wilma arrived on time for her appointment with Dr. Tavani, but exhibited confusion in the waiting room, had difficulty finding the bathroom, and asked for water while standing next to the water cooler. Dr. Tavani reviewed some of Wilmas medical files that were available to her, though not all were, and noted that Wilma was given a diagnosis of dementia in 2001 during a stay in a rehabilitation facility after knee surgery.[47] Wilma recounted her personal history to Dr. Tavani, with some inconsistencies regarding dates, and exhibited deficits in both short term and long term memory. When pressed about her falling out with Allan, Wilma related two stories: one about the trip to the wolf museum in Minnesota, and a second about Allan becoming enraged after Wilma refused to give a toast at Teds wedding. Dr. Tavani concluded that Wilmas cognition was "impaired, " that her judgment was clouded by cognitive deficit, and that she seemed "rather guarded toward some people but perhaps insufficiently so and overly trusting toward others."[48] Dr. Tavani did acknowledge that Wilma articulated a "realistic, logical plan" regarding her living situation and her plan to move to an assisted living facility.[49] Dr. Tavani noted the preliminary nature of her report, but concluded Wilma exhibited "cognitive decline, apparently over time, with some apparently paranoid ideation, and clearly with reactive depression."[50]

In contrast, Wilma and her attorney retained Dr. Barry W. Rovner, who provided his own report to the Court dated December 12, 2003, and who ordered neuropsychological testing that was conducted on October 28, 2003.[51] In their discussion of the falling out with Allan, Wilmas explanation was similar to what she relayed to Dr. Tavani, but Wilma elaborated that she felt Allan was motivated by his interests in her estate, rather than her well-being, and that he was controlling and dominating toward others. After reviewing the results of Wilmas testing, Dr. Rovner concluded that Wilma showed mild cognitive deficits primarily affecting her memory, but that she did not meet the criteria for major mental disorder, including dementia, because her deficits were confined to memory and did not include any other neuropsychological functions or impair her social or occupational functioning.[52] Dr. Rovner concluded Wilma did "not have a mental disorder []or impaired decision-making capability regarding who should be her beneficiaries, " reasoning that Wilma had "a factual understanding of the relevant issues regarding power of attorney and her possessions and an appreciation of how these facts pertain to her, " and that she understood "the motivations that drive her decisions and their possible outcomes."[53]

As an aside, the Kittila family disputes Wilmas version of events and the timeline she recounted to Dr. Tavani, Dr. Rovner, and others about the trip to the wolf museum and the toast at Teds wedding. Wilma repeatedly alleged that Allan became enraged when she refused to give a toast at Teds wedding and, to punish Wilma, he made her sit in the back seat on the way to the museum and intentionally drove a round-about course so she would not have much time to spend there. In contrast, the Kittilas recall that Wilma asked to visit the wolf museum, that Allan and Karen took her there and spent several hours there, and that other facts Wilma recalled about the trip (such as the presence of Allans mother-in-law or the fact that the trip occurred after Teds wedding) are demonstrably false. Neither Karen nor Ted had any knowledge of Allan asking Wilma to make a toast at Teds wedding, much less any tension that arose between Allan and Wilma when Wilma allegedly refused to do so. Karen recalled that Wilma attended the wedding and appeared to have a good time at the event and that the wedding occurred three years after the Minnesota trip. Both events occurred several years before Wilma began expressing anger toward Allan. Having reviewed the testimony, I believe the Kittilas recollection of these events is accurate, making one of two things likely: either Wilma misremembered the sequence and actual facts of these life events, or she intentionally misconstrued the stories to justify her feelings toward Allan. What remains to be determined, however, is which is true and whether either possibility serves as a basis to upend Wilmas estate plan.

Returning to the guardianship proceeding, armed with the competing opinions of their experts, the parties recognized that their options were to work toward a settlement or litigate the merits of their positions. Eventually, almost six months after the guardianship petition was filed, the parties stipulated to a final order that appointed Wilmas long-time neighbors, Michael and Carol Leach, as permanent guardians of her person and property (the "Guardianship Order").[54] The Guardianship Order contained a number of provisions that do not typically appear in guardianship orders issued by this Court. For example, paragraph 2 of the order stated that Wilma retained "the right to legal representation and the right to participate in making decisions which affect her life and property with the final decision being reserved to the guardians."[55] In addition, Karen Kittila agreed not to request copies of the inventory, accountings, or any "other pleadings related to finances" filed with the Court, and Karen and the Kittila family agreed not to initiate contact with any facility where Wilma lived.[56] In return, the guardians agreed to confirm to Karen the status of Wilmas financial condition, convey messages between Karen and Wilma until Wilma agreed to direct contact, and "provide prompt notice to [Karen] of any significant changes in Mrs. Kittilas medical condition, hospitalizations, medical emergencies, and non-routine medical appointments." [57] In ...

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