April 2016

Posted April 12, 2016

In the Matter of the Last Will and Testament Of Edward B. Sandstrom, Deceased, C.A. No. 8948-MA

Recently, in a case arising out of the unexplained disappearance of the first page of a will, Master Ayvazian dismissed several exceptions taken to her earlier draft report in which she concluded that the Petitioners had shown by a preponderance of the evidence that (1) a valid will was executed by the decedent; (2) the terms of the missing page; and (3) the missing page was unintentionally lost or destroyed and the decedent did not alter his testamentary intent prior to his death.

In this case, the first page of the Testator’s will (“the correct page”) was unintentionally lost or destroyed shortly after the Testator, while hospitalized, signed an amended version of his last will and testament (“the Will”). With a different first page (“the incorrect page”) attached to the front of the Will, the document was admitted to probate by the Testator’s son shortly after the Testator’s death. Exactly what happened to the correct first page of the Will remains unclear. However, due to the scrivener’s error, the incorrect first page of the Will created an ambiguity as to whether the Testator intended to devise his property in Lewes, Delaware to the Respondent (his son) or to the Petitioners (a close family friend and her husband).

In her draft report, Master Ayvazian recommended that the Court revoke the probate of the Will and admit to probate a copy of the corrected first page as the first page of the Testator’s last will and testament. The Master’s decision was based largely on the extrinsic evidence introduced at trial, specifically, the affidavit and the testimony of the attorney who drafted the Will.

The Respondent took exception to the Master’s draft report and submitted arguments that an affidavit and the trial testimony of the attorney who created the Will should have been excluded from the record for violating the attorney-client privilege. Additionally, the Respondent argued that the Petitioners failed to establish the necessary prima facie case to overcome the common law presumption of animo revocandi where: (1) the terms of the missing first page cannot be demonstrated because only the Testator and the attorney (who, according to the Respondent, was restricted by the attorney-client privilege from disclosing information) had knowledge of its terms; and (2) there was no evidence of any search for the missing first page.

The Master concluded that the Respondent waived his right to object to the attorney’s testimony and affidavit by failing to assert the attorney-client privilege before or during trial. Regardless, the Master wrote that the Respondent’s argument was “without merit because under Delaware Rule of Evidence 502(d)(2), there is no attorney-client privilege where both parties are claiming through the same deceased client.” According to the Master, “Delaware courts, along with most other state courts, allow a decedent’s attorney to testify to communications concerning the drafting of a will.”

Additionally, the Respondent argued that the Petitioners were required to prove that they had searched for the original correct first page of the Will, and that they failed to do so. He argued the Petitioners’ “failure to conduct a search of the hospital dooms their efforts to prove a missing will.” However, according to the Master, because the Will was in the Respondent’s possession during the two days between the execution of the Will and the delivery of the Will by the Respondent to a third party with the incorrect first page attached, the burden shifted to Respondent to demonstrate that the missing corrected first page was destroyed by the Testator or at his direction. The Master found that the Respondent failed to overcome the burden because he presented no evidence that the Will with the corrected first page was ever returned to the Testator and destroyed by the Testator or that the corrected first page was destroyed at the Testator’s direction.

Lastly, the Respondent argued the Petitioners failed to adequately plead a missing will theory. The Master decided the Respondent’s argument was “too late,” and that he, in accordance with Rule 15(b), had impliedly consented early on to the trial of these issues.

Based on her findings, the Master dismissed all of the Respondent’s exceptions to the draft report and adopted her draft report as her final report on the matter.

Posted April 1, 2016

David L. Banks v. Mackie H. Banks and the Estate of Russell V. Banks, C.A. No. 10934-VCG

This case involved fifteen parcels of real property (the “Properties”) that were owned by the Petitioner David L. Banks and his brother Russell V. Banks. Russell died testate in July of 2012. Russell’s estate claimed that the Properties were owned as tenants in common despite an apparent intention to record them as joint tenancies with a right of survivorship. David brought suit against the estate and the executrix and asserted that because Russell had died he (David) is the sole owner of the Properties as the Properties had been unambiguously titled as joint tenancies with a right of survivorship. The parties moved for cross judgment on the pleadings.

The deeds for each of the Properties read that Russell and David took the Properties “as joint tenants with right of survivorship.” The estate argued that that language was not sufficient to create a joint tenancy with a right of survivorship under 25 Del. C. § 701. Section 701 provides that no estate in joint tenancy is created “unless the premises . . . are expressly granted, devised or conveyed . . . , to be held as joint tenants and not as tenants in common.” The executrix and the estate argued that because the deeds did not also say “and not as tenants in common” a joint tenancy had not been created.

After recounting the history of Section 701 and the general switch in preference to tenancies in the common that had occurred in the early 1800s, the Court concluded that the policy of Section 701 is served as long as the intent to create a joint tenancy is unambiguous. In short, the Court found that the phrase “and not as tenants in common” need not be included to create a joint tenancy as long as the deed is unambiguous. Here, the Court found that the language in the deeds conveying the Properties to Russell and David as “joint tenants with right of survivorship” was unambiguous.  Consequently, the Court granted David’s motion for judgment on the pleadings and found that David and Russell had owned the Properties as joint tenants with a right of survivorship and not as tenants in common.

Note: This law firm represents David Banks in this matter.