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IMO Last Will and Testament of Pearl Baran

Court of Chancery of Delaware

May 26, 2017

IMO the Last Will and Testament of Pearl Baran, deceased

          Draft Report: March 15, 2017

          Date Submitted: January 4, 2017

          Curtis J. Crowther Young Conaway Stargatt & Taylor, LLP

         Dear Ms. Valentine and Mr. Crowther:

         The petitioner in this will contest case was estranged from her mother, but was nonetheless dismayed to learn after her mother's death that the decedent left the petitioner only a nominal sum, and left nearly all of her estate to the decedent's son. The petitioner challenges the decedent's will as the product of undue influence or a lack of testamentary capacity. After trial, I conclude the decedent had testamentary capacity and was not under any undue influence. I conclude the decedent knew exactly what she was doing: her estate plan reflected the decedent's estrangement from her absent daughter and her close relationship with her supportive son. For the reasons that follow, I recommend the Court deny the petition contesting the decedent's will.

         I. Background

         A. Factual Background[1]

         Petitioner, Diane Baran Valentine, is the daughter of the decedent, Pearl Baran.[2] Diane grew up in Delaware with her mother Pearl, her stepfather Ed Baran (who adopted Diane), and her half brother James "Jim" Baran. Ed died in 1986. As a young adult, in 1970, Diane moved away to Virginia to train as an occupational therapist. Upon graduating, Diane returned to Delaware for a short time, but moved back to Virginia to marry a man Pearl "despised."[3] Diane testified that she moved away because she "needed to be with people who saw the good in [her]."[4]

         As an adult, Diane focused on her husband, two children, home, and profession. She called Pearl on holidays, birthdays, and other significant days, but the calls were short and Pearl spoke to Diane's children only briefly. Diane and her family visited Pearl less than once a year, and the visits were always coupled with or inspired by another event such as a funeral, high school reunion, family party, or a class that Diane was taking. Diane and her family never visited Pearl without another event to draw them to Delaware. Diane's visits with Pearl were strained and a bit unpleasant, and Diane's children and Pearl were never close. Diane's children thought Pearl and her house smelled funny. Pearl believed Diane was motivated by money, and that Diane did not care about Pearl as a person.

         Jim stayed in Delaware as an adult, residing thirty minutes away from Pearl. Jim testified that as the eldest male in the family, his role was to cater to Pearl. Diane described Jim's presence in Pearl's life as "really important" and "a comfort to" Pearl.[5] Jim cut Pearl's lawn, maintained her house, and entertained her with his friends at his home. He also assisted her with her investments, adjusting them as Pearl directed. He filled out all her forms, including Medicare forms and doctor's forms, as Pearl directed. For several years, Jim brought Pearl with him when he visited Diane's family in Virginia. These visits stopped in 1996 when Diane prohibited Jim and his partner, William "Bill" Edrington, from having unsupervised contact with Diane's children. This additional estrangement between Pearl and Diane saddened Pearl.

         In 1999, Pearl had a chest x-ray that showed a spot on her lung. Doctors believed the spot was cancer and recommended lung surgery. Jim told Diane that Pearl had lung cancer and was going to have surgery, but Diane did not come to visit. The surgery revealed Pearl did not have cancer after all. Nevertheless, Pearl required significant assistance after the surgery, and lived with Jim and Bill for three weeks while Jim and Bill took care of her. Pearl's niece, Yvonne Sinopoli, also helped care for Pearl. Diane concluded she could not go to Delaware to help Pearl because of Diane's children's exams and sports events, and Diane's job.[6]Pearl was upset by Diane's absence and the fact that Jim, rather than Diane, was helping Pearl bathe.[7]

         After this episode, and after the family experienced difficulties settling another family member's estate, Pearl asked Jim to find her an estate planning attorney. A family friend referred Richard J. A. Popper, Esquire, of Young Conaway Stargatt & Taylor LLP. On November 6, 2000, per Jim's request, Mr. Popper sent Pearl an estate planning worksheet to complete in advance of a meeting on November 16, 2000.[8] Jim, acting as Pearl's scribe, completed the worksheet as Pearl directed, and listed his telephone number as the contact number for Pearl.[9]

         While completing the worksheet, Pearl told Jim that she did not want to leave Diane anything. Jim responded that he did not think that was fair, and that he hoped one day the two women would reconcile. After extensive argument, Pearl agreed to place $700 in an account of Jim's choosing to go to Diane. Jim chose a Vanguard account that he hoped would provide a return for Diane. Jim also urged Pearl to leave Diane's children something. Pearl told Jim she did not know them and that Jim could give them some of his inheritance if he desired.

         The estate planning worksheet identifies Diane's two children as Pearl's grandchildren, and identifies Yvonne Sinopoli as Pearl's niece.[10] The worksheet contains the following question and answer:

GENERAL COMMENTS: If you have any specific estate-planning objectives, if any of your intended beneficiaries have special needs or problems, or if there is anything else you feel we should be aware of, please discuss below:
Diane Valentine - X # of Vanguard Life Strategy growth
Yvonne Sinopoli - $10, 000
Remainder goes to James E Baran[11]

         Pearl signed the worksheet on November 16, 2000.

         Jim went with Pearl to meet with Mr. Popper that same day. Pearl made it clear early in the meeting that Jim was to receive substantially more than Diane. Mr. Popper's normal practice in such situations was to meet with the testator by herself, to ensure the testator was not under undue influence. Indeed, Jim waited in a separate room while Pearl met with Mr. Popper. It was also Mr. Popper's normal practice when a testator leaves one child substantially less than another child to write a contemporary memorandum summarizing the conversation. Mr. Popper memorialized his meeting with Pearl in handwritten notes and in a file memorandum dated November 17, 2000:[12]

It quickly became apparent that Diane was to receive very little under Pearl's estate plan, with the vast majority to pass to Jim. I sent Jim back to the lobby and continued the conference solely with Pearl.
There is no question that Pearl is mentally competent and understood what she wanted to do. She indicated that when she was sick and in hospital about one year ago and had a lung operation, Jim, and her niece, Yvonne Sinopoli, took care of her but Diane did not offer to come up from Richmond and did not call.
I was convinced that Pearl's desire to leave Diane only the one particular investment account was her wish based upon her daughter's conduct and was not caused by undue influence on the part of Jim.[13]

         Mr. Popper testified he would not proceed with representing a client if he thought she was under undue influence or not competent, and that in this case he concluded that Pearl's estate plan was what she wanted, and that she seemed "completely competent."[14] Mr. Popper was not aware of Pearl being on any medications or having any health issues.

         After the November 16 meeting, Mr. Popper continued to work on the mechanics of Pearl's estate plan through Jim, who was acting as Pearl's scribe and messenger.[15] For example, on December 12, 2000, Jim responded to Mr. Popper's question regarding what would happen to Pearl's estate if both Jim and Yvonne predeceased Pearl by telling Mr. Popper, "I will push [Pearl] on that."[16] Mr. Popper testified Pearl must have given him permission to work with Jim, and that it was not unusual for clients to seek help from family members to accomplish estate planning mechanics.

         Jim and Bill had preliminary conversations with Mr. Popper about their own estate planning.[17] In a November 21, 2000, letter to Pearl highlighting the significant portions of her proposed estate plan, Mr. Popper noted that Jim had also asked Mr. Popper for help in estate planning, and indicated that there might be a potential conflict of interest in the event Pearl's will were challenged.[18] Jim and Bill did not complete their estate plan with Mr. Popper.

         Pearl signed her estate planning documents at Mr. Popper's office on February 5, 2001.[19] Jim came with her but stayed in the lobby; Pearl signed her documents without Jim present.[20] Kathy Edwards and Bob Thomas of Young Conaway, who had never met Pearl before, acted as independent witnesses. They exchanged pleasantries with Pearl, observed Mr. Popper and Pearl review the provisions of Pearl's estate plan, concluded Pearl was competent and not under undue influence, and witnessed the signing. Mr. Popper testified he would never rely on witnesses provided by a testator if the signing occurred in his office. Again, due to the possibility of an undue influence claim, Mr. Popper memorialized the meeting in a February 6, 2001, memorandum to file:

I went over the provisions of Pearl's will and revocable trust with her. In substance, she is leaving her daughter, Diane Valentine, a very small part of her estate and after a bequest to her niece, or her niece's husband if her niece does not survive her, is leaving the vast majority of the estate to Jim. …
In Kathy and Bob's presence, I again went over the will and trust with Pearl and had her execute them using the normal formalities.
I was convinced that Pearl is fully mentally competent and that the wishes set forth in the documents are her wishes and are not the product of undue influence. I am asking [the witnesses to the will] to sign off on this memo that they agree with this description as to the portion of the meeting at which they were present.[21]

         The signatures of Kathy Edwards and Bob Thomas appear at the bottom of the memorandum.[22] Mr. Popper had no doubt that Pearl's estate plan was what she wanted, and that she was competent to execute them.

         Pearl signed a will and a revocable trust.[23] The will provides: "I intentionally make provision for my daughter Diane L. Valentine only in a limited fashion in my revocable trust, and not directly under my will."[24] The trust provides: "I intentionally made only limited provisions for my daughter, Diane L. Valentine."[25] Upon Pearl's death, Pearl's trust named Jim as trustee, gave Pearl's Vanguard Growth Strategy Fund to Diane, gave $10, 000 to Yvonne or her husband if Yvonne did not survive Pearl, and gave the residue to Jim.[26] The documents do not provide for an alternative in the event Jim and Yvonne predeceased Pearl. Pearl signed the will and dated it by filling in the month, day, and year, even though the will included the year, as follows: "Executed 02/05/01, 2001."[27] She dated the trust "02/05, 2001."[28]

         Pearl also signed two copies of a durable power of attorney: the first she dated "this day of 02/05/, 2001, " and the second she dated "this 5 day of Feb., 2001."[29] According to Mr. Popper's usual practice, Pearl signed duplicate originals so that if one original was recorded or otherwise unavailable, Pearl would still have the other. Mr. Popper testified that clients date documents in different or erroneous ways "all the time" and that it does not mean they are not paying attention to the substance of their estate plan.[30]

         Around the time Pearl was preparing and executing her estate plan, she was 74 years old. She drove, did her own shopping, took herself to her own doctor's appointments unless the doctor was a specialist, and maintained her own checkbook and budget. She had no health problems at that time. Jim testified Pearl was "sharp as a tack until she died."[31]

         Around 2011, Pearl began suffering from back pain and required strong pain medication. Jim began doing even more for Pearl, including taking her to more appointments, unloading heavy shopping items from her car, and doing nearly all her laundry so that she would not have to go up and down the basement steps. Pearl would not allow Jim to wash her underwear, and navigated the steps to the basement to wash them herself. Pearl refused to use a cane. Around 2013, Jim tried to convince Pearl to get hearing aids, but Pearl refused. At some point Diane also tried unsuccessfully to convince Pearl to use hearing aids.

         In 2013, Pearl's physical health declined further. Jim cared for Pearl as well as Bill, who was suffering from a serious illness, while working a job that required substantial travel. Jim asked Diane for help; Diane never came. In August 2013, Jim realized Pearl had lost a lot of weight, and suggested that Diane should visit and resolve her issues with Pearl; Diane never came. Around Thanksgiving of 2013, Pearl went into the hospital, then hospice care. Jim told Diane that Pearl was very ill and was in hospice care; Diane never ...

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