1

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ESTATE OF GEORGE M. REED, JR., by and through George M. Reed, III as executor of the Estate, and GEORGE M. REED III, as trustee of the GEORGE M. REED JR. TRUST U/A DTD 04/16/12,

and GEORGE M. REED, III and DAVID S. REED, SR., as beneficiaries of the GEORGE M. REED, JR. TRUST ,

Petitioners, )

) ) ) ) ) ) ) ) ) ) ) ) ) ) v. ) ) C.A. No. 8283-VCG LISA GRANDELLI,

Respondent. )

) ) MEMORANDUM OPINION Date Submitted: January 23, 2015 Date Decided: April 17, 2015 David J. Weidman, of SERGOVIC, CARMEAN & WEIDMAN, P .A., Georgetown, Delaware, Attorney for Petitioners

. Dean A. Campbell, of LAW OFFICE OF DEAN A. CAMPBELL , LLC, Georgetown, Delaware, Attorney for Respondent

.

GLASSCOCK, Vice Chancellor2

Since the time of King David and Abishag—and, surel y, before—certain old men have pursued an interest in certain young women

. 1 Sometimes, as in that case, the relationship is one of a powerful man and an exploited woman. Sometimes, it represents, no doubt, a May-December mutual romance, or at least a mercenary exchange of value for value. In other ca ses, however, it involves exploitation of an elderly and vulnerable benefacto r. This case involves a relationship that quickly arose between a moderatel y well-to-do recent widower in his mid-eighties and a diner waitress of an age to be his granddaughter. The Petitioners—the old man’s heirs, trust and estate—a llege the relationship is of the third variety described above; the Respondent conte nds it belongs in the second

category. During a fourteen-month relationship, George Reed, Jr. (“George Jr.”) 2 lavished gifts on the Respondent, Lisa Grandelli, r anging from a few hundred dollars to a pickup truck costing over $30,000. He also paid cash—nearly a quarter-million dollars—for a condominium in Rehobo th Beach, titled jointly with Lisa with right of survivorship. The Petitioners, George Jr.’s estate, his trust and the beneficiaries of his will, seek, principally th rough imposition of equitable remedies, to recoup the value of these gifts.

1 Of course, other May-December relationships involv ing other genders exist as well. 2 I refer to members of the Reed family and to Lisa Grandelli by first names throughout this Memorandum Opinion for the sake of clarity; no disr espect is intended.3

Individuals are presumed competent unless proven ot herwise, and are free to deploy their assets, wisely or foolishly, as they s ee fit. Equity may act in appropriate cases to remedy breaches of fiduciary d uty or oppression, or to carry out the true intent of parties. If, however, equit y were empowered to remedy every improvident expenditure in aid of unrequited love o r misplaced desire, Delaware would need a Chancery Courthouse on every corner.

I. FACTS AND STAGE OF THE PROCEEDINGS As of the beginning of 2011, George Jr. was an elde rly man with various medical problems but still able to make financial d ecisions and drive and live alone, with basic assistance. His physician testif ied that he was able to make his own personal decisions up until the time of a secon d stroke in April 2012—that is, at all times pertinent—and testimony suggests that George Jr. was a strong-willed individual throughout his life. After his wife of over 50 years passed away in Janu ary 2011, George Jr. was, understandably, saddened, but there is no evid ence that he became clinically depressed. He kept up with social interactions wit h his friends and family, including weekly attendance at a veterans’ social o rganization, kept in regular contact with his sons, and had lunch daily at his former business, the familyoperated Dairy Queen in Camden. During his working life, George Jr. was a4

successful businessman, and there is no indication that he remained other than assertive and strong-willed. At some time in January or February of 2011, George Jr. had lunch with his son Scott at Hall’s Restaurant (“Hall’s”) in Wyomin g, 3 where he first met Lisa,

who was his waitress. He took a shine to her and c alled her “Brown Eyes.” George Jr. made frequent return visits to Hall’s an d asked for Lisa as his waitress. Over the next several months, George Jr. would visi t Hall’s to see Lisa frequently, often asking her to come over to his ho me. She first obliged around June 2011, and began to see George Jr. outside of H all’s after that. Their relationship became physical, and George Jr. consid ered Lisa his girlfriend. He began to make cash gifts to her, and to loan her mo ney. When her car was “condemned” as a result of a factory recall, George Jr. bought her a new truck for over $30,000. At some point in the late summer or early fall of 2 011, George Jr. asked Lisa

to move in with him. She refused. When he asked t o move in with her, she also refused. But the two began to look at property the y could purchase together, first

around the Dover area and then in Rehoboth Beach. They ultimately decided to purchase a condominium in Rehoboth Beach for $220,0 00. According to Lisa, George Jr. intended that the property be listed in her name alone, but then at her

3 I refer to the town in Kent County, not the wester n U.S. state.5

direction, it was changed to a joint tenancy with r ight of survivorship in Lisa and George Jr.’s names. George Jr. went to the closing . Testimony from Hal Dukes, Esquire, the real-estate attorney involved in that transaction, was that George Jr. was aware of what he was doing and the estate that would be created, and that such remained his wish, even after Mr. Dukes explained t he implications of a joint tenancy with right of survivorship, as opposed to t enancy in common. The exact purpose of the condominium purchase is unclear—whet her it was an investment, a trysting place, or both; testimony at trial support ed all three possibilities. At the same time, evidence also supports the fact t hat, throughout the time she knew George Jr. and was receiving money and pro perty from him, Lisa was still seeing non-party Anthony Tharp, 4 her sometimes live-in boyfriend. In fact, in December 2011, George Jr. paid for Lisa to take a t rip to Key West, Florida. The evidence indicates that Lisa told George Jr. the tr ip would include Lisa, her brother and his wife, and Lisa’s son, but this was untrue; in fact, the group was comprised of Lisa and Tharp, together with Lisa’s son and a f riend of the son. George Jr. had his first stroke days after Lisa ret urned from this trip to Key West. A few days passed and he had a second, more significant stroke, after which his physicians found him to be cognitively impaired and unable to make decisions

4 Mr. Tharp’s name takes on a number of different sp ellings in the briefing. I am using the spelling on the title and registration for a 2002 F ord F-15, registered in Lisa’s and Mr. Tharp’s names. JX 33.6

for himself. 5 Shortly after the second stroke, George Jr.’s son George M. Reed III (“George III”) consulted with counsel, Beth Miller, Esquire, and, acting as attorney-in-fact under George Jr.’s 2006 Durable Po wer of Attorney, created a trust on George Jr.’s behalf (the “Trust”). 6 The same day the Trust was created, George

Jr.’s interest in the condominium was transferred t o George III as trustee for George Jr.’s Trust. 7 The deed, however, is signed by George III on a s ignature line that says “George M. Reed, also known as George M. Reed, Jr.,” which signature the Respondent contends to be in George III’s indiv idual capacity, and the notarization indicates that “George M. Reed, also k nown as George M. Reed, Jr.” appeared and signed the document. 8 George Jr. died on August 31, 2012. The matter was tried on December 1 and 2, 2014. Th e parties then prepared and submitted written closing arguments. This is m y post-trial Memorandum Opinion. 9

II. ANALYSIS

This case is notable for what the Petitioners do not contend. They do not argue—and no evidence in the record supports—that G eorge Jr. lacked capacity at

5 See JX 11; JX 12. 6 The Trust Agreement is dated April 16, 2012. JX 1 3. 7 JX 14. George III, acting as trustee for the Trus t, transferred the Trust’s interest in the condominium to George III and Scott in December 201 3. See JX 15. 8 JX 14. 9 Neither party requested preparation of an official transcript in aid of post-trial argument. The facts are taken from the trial exhibits and testimo ny as recorded in the unofficial transcript.7

the time he made the transfers at issue, or that he was a vulnerable to the exercise of undue influence. While the transfers of propert y to Lisa were lavish, neither Petitioners nor the record suggest that they were s ufficient to impoverish, or even financially inconvenience, the relatively wealthy G eorge Jr. Nor do the Petitioners allege that the elements of common-law fraud exist with respect to these transfers. Instead, the Petitioners allege a kind of equitable “fraud” or breach of trust 10 under the theory advanced by this Court in Swain v. Moore

. 11 That case also involved an elderly widower who lavished gifts, there on a youn g family, gifts that this Court employed equity to reverse. According to the Petit ioners, Swain teaches that when an elderly person befriends a younger individual, a nd acts on that affection by making gifts to her, fraud on her part is presumed, and the burden is on the recipient of the gifts to demonstrate entire fairne ss in the relationship. Swain , itself now elderly, cannot be read this broadly or simplis tically, however. I examine the transfers George Jr. made to Lisa, in light of Swain and other applicable case law,

below. A. The Cash Transfers and the Truck It is useful, I think, to examine what were clearly gifts of cash by George Jr. to Lisa in light of their relationship. Under Dela ware law, a gift is made by

10 Lisa argues that the Petitioners did not timely ra ise breach of trust as a theory in this case, relying instead on a theory of fraud. I assume for purposes of this Memorandum Opinion that breach of trust is properly before the Court. 11 71 A.2d 264 (Del. Ch. 1950).8

complete and unconditional delivery of property, wh ich requires donative intent, and acceptance of the property by the donee. 12 The donee has the burden of establishing, by clear and convincing evidence, all facts essential to the validity of a purported gift. 13 This burden arises out of the rebuttable presumpt ion, often seen in the context of resulting trusts, that a purchase r of property intends that purchased property to inure to her own benefit. 14 The Petitioners contend that the law of gifts is inapplicable here and is instead ov erridden by Swain v. Moore , under which case Lisa must show that the transfers were entirely fair. George Jr. was old, but independent both physically and in his financial affairs. He was a wealthy former business owner. Lisa was a relatively young, impoverished single mother waiting tables in a dine r. They began a physical romantic relationship that strikes the Petitioners, unsurprisingly, as completely inappropriate, even meretricious. Lisa testified, without persuasiveness or credibili ty, that she “loved” George Jr. One cannot know for certain another’s deepest emotions, but Lisa was not a credible witness, and I am convinced that, while sh e was fond of George Jr., her ultimate goal in this relationship was not romantic fulfillment. The Petitioners

12 Hudak v. Procek , 806 A.2d 140, 150-51 (Del. 2002). 13 Matter of Estate of Smith , 1986 WL 4873, at *5 (Del. Ch. Apr. 24, 1986). 14 Adams v. Jankouskas , 452 A.2d 148, 152 (Del. 1982); Boush v. Hodges , 1996 WL 652762, at *5 n.20 (Del. Ch. Nov. 6, 1996) aff'd , 705 A.2d 243 (Del. 1998); Greenly v. Greenly , 49 A.2d 126, 129 (Del. Ch. 1946).9

point to Lisa’s ongoing relationship with Tharp, an d argue that, if Lisa did not share a romantic infatuation with George Jr., she h as defrauded him. This is a nonsequitur. I conclude that, like Lisa, George Jr. w as also receiving what he wanted from this relationship: physical and emotional atte ntion he found flattering and fulfilling, from a much younger partner. If George Jr. had been in his fifties rather than his eighties, and had made lavish but not impo verishing gifts to a much younger romantic partner, I suspect an action of th is type would not have been brought, and whatever society concluded about the w isdom of his pursuit, neither law nor equity would reverse his gifts to her. Alt hough the transferee of property without value in exchange bears the burden of showi ng that the transfer was a gift—that is, made with donative intent—there would be little question that such intent was present. The same is true here: the sol e difference is George Jr.’s advanced age. According to the Petitioners, under Swain, a presumption of fraud on the part of Lisa attaches given the age differen ce of the parties.

Swain involved an elderly, lonely widower, estranged fro m his own family, who was befriended by a young couple living nearby. He became very close to the family, especially the wife and their young child, and began making gifts of money to them. Eventually, he paid for construction of p art of their new house with the understanding that he could live out his life with them, moved in and became dependent upon them, and made gifts to them by whic h he impoverished himself.10

The parties had a falling out and Swain sued to rec over the gifts. The Court returned those gifts made after Swain became depend ent on the defendants; they were permitted to keep those made before that time. Properly read, Swain is an unremarkable trust case. Swain was emotiona lly susceptible, and once he became dependent upon the defendants, a confidential relationship arose, a relationship of trust under w hich the defendants, as fiduciaries, had a duty to act with loyalty to the elderly man. In accepting impoverishing gifts, they violated that trust. Und er the rationale of Swain, a fiduciary such as the defendants there must show th at any transaction with the beneficiary was entirely fair, which the defendants were unable to do with respect to the impoverishing gifts. 15 Nothing in the case before me indicates a relations hip of trust. George Jr. did not rely upon Lisa as his surrogate family; he remained close to his own family and his interest in her was far from paternal. He clearly enjoyed Lisa’s company and was flattered by her attention. He was indepen dent of her, however. Unlike the apparent facts of Swain , George Jr. had frequent contact with family and friends other than Lisa, and he maintained a social schedule apart from her. His gifts of cash, amounting to several thousand dollar s, were lavish but not remotely impoverishing. Similarly, when her car became unus able, he bought her a new

15 By the time the parties parted ways, Swain was lef t with only title to his house and burial money.11

truck; again, lavish but not impoverishing, and not an unusual gift from a wealthy “swain” to a desirable partner. Just as clearly, h e was able to set limits on his giving; he made some cash transfers to Lisa that we re denominated on the check or George Jr.’s check register as “loans,” and Lisa ha s acknowledged at trial that at least one transfer of money to her was a loan and n ot a gift. There is simply no basis to infer a relationship of trust with respect to this situation, and Swain does not apply. Instead, with respect to the non-“loan” transfers and the truck, the evidence demonstrates clearly and convincingly that these were gifts to Lisa, made with donative intent inspired by George Jr.’s roman tic and physical interest in

her. 16 Equity stands ready to protect the vulnerable from exploitation, and it is a sad fact of life that the elderly are often vulnera ble to fraud or breach of trust. It would be simple paternalism, however, to suggest th at solely because of advanced age, an individual may not indulge in pleasures at his own expense that he finds appropriate, even if that expense appears to others to be foolish or excessive. The Petitioners do not contend that George Jr. was the victim of undue influence, 17 and

16 One of George Jr.’s caregivers, who wrote some of the checks at his direction, colorfully characterized the basis for George Jr.’s donative i ntent by denominating the checks in the reference line as “grab ass money.” See, e.g., JX 28. The record does not reflect that either George Jr. or Lisa objected to this reference. 17 See Mitchell v. Reynolds , 2009 WL 132881, at *8 (Del. Ch. Jan. 6, 2009) (“P roving undue influence requires a challenger to show (1) a perso n who is subject to undue influence; (2) an opportunity to exert influence; (3) a disposition t o exert such influence; and (4) a result indicating the presence of undue influence.” (inter nal citation omitted)). It is not alleged that12

the record does not support allegations of fraud 18 or breach of trust. 19 Therefore, the relief the Petitioners have requested with resp ect to cash transfers and the truck is denied, except with respect to those transaction s denominated “loan” in the check register or otherwise. 20 These include George Jr.’s pay-off of the Delawar e State Housing Authority loan, which by Lisa’s own t estimony, was not a gift— Lisa testified that she rejected it as a gift and i nsisted upon repaying it, thus, the acceptance element of a gift is lacking. 21 There were also certain checks on which George Jr. wrote “loan,” or so denoted in his metic ulously-kept check register. 22

George Jr. was subject to undue influence or that h e was isolated from his friends and family such that there would be opportunity to exert influ ence. 18 The elements of a fraud claim are: (1) a false rep resentation, (2) knowledge by the person making such representation that it was false, or re ckless indifference to the truth of the statement, (3) an intent, in making such statement, to induce the plaintiff to act or refrain from acting, (4) the plaintiff’s action or inaction in justifiable r eliance on the representation, and (5) damage. Lord v. Souder , 748 A.2d 393, 402 (Del. 2000). “ The elements of equitable fraud are similar to those for common law fraud, except that the claiman t need not show that the respondent acted knowingly or recklessly—innocent or negligent misre presentations or omissions suffice.” Zebroski v. Progressive Direct Ins. Co. , 2014 WL 2156984, at *7 (Del. Ch. Apr. 30, 2014) (internal quotation marks omitted). With the exception of statements in connection with the payment for the Key West trip, addressed below, the record is devoid of false statements from Lisa to George Jr. 19 White v. Lamborn , 1977 WL 9612, at *4 (Del. Ch. Mar. 15, 1977) (“[T ]he question of whether or not the particular relationship is of such a con fidential or dependent nature as to rise to fiduciary status is one of fact.”) 20 See Hudak v. Procek , 806 A.2d 140, 150-51 (Del. 2002) (“As a general r ule a gift must be executed (a) by the donor's complete and unconditio nal delivery of the property that is the subject of the gift and (b) by the donee's acceptan ce of the gift.”). 21 The Respondent objected to the Petitioners’ eviden ce from George Jr.’s personal calendar and notes on hearsay grounds with respect to the pay-of f of the SHA loan. I need not rely on that evidence in making my determination that this payme nt was a loan, as I found Lisa’s testimony that she intended to repay it to be sufficient. 22 See JX 5; JX 28. I note that the Respondent objects to the check register on foundation and hearsay grounds. As to foundation, I found George III’s testimony that the register was in his father’s handwriting to be credible and supported b y other documents in the record. As to hearsay, I find the cancelled checks and the check register to fall under hearsay exceptions in13

Lisa speculated in testimony that George wrote “loa n” solely out of habit, testimony I find not credible and belied by other c hecks to her—which I have found to be gifts—not so denominated. With respect to the checks marked “loan,” therefore, Lisa has not shown donative intent and t hose amounts must be repaid,

consistent with the discussion below. A final transaction requires comment. Lisa asked G eorge Jr. for a gift of money so that she could take her son and brother to Key West for a vacation. Instead, she took her boyfriend and shared a motel room with him. Lisa testified that she disclosed the true nature of the trip to G eorge Jr. at the time he gave her the money, and that a fraudulent caption on a photo she sent him identifying a charter-boat captain as her “brother” was an innoce nt mistake. This testimony was a concatenation of self-serving lies. Under either a theory that this gift was procured by fraud, or that Lisa has failed to demon strate donative intent in light of George Jr.’s misapprehension of the facts, all tran sfers relating to the Key West trip must be returned to George Jr.’s estate. 23

Delaware Rules of Evidence. They are offered to sh ow the lack of donative intent at the time the notations were made, and thus admissible under Rule 803(3). In addition, the records appear to have been kept by George Jr. regularly and meticulo usly, akin to a business record; thus I find them reliable under Rule 807. At any rate, it is t he Respondent’s burden to show, by clear and convincing evidence, that the elements of a gift ar e met, including donative intent, and she cannot meet that burden with respect to these sums. 23 The Petitioners contend that such fraud permeates t he entire relationship, but nothing indicates to me that there was a representation, explicit or implicit, that Lisa was committing to a monogamous faithful sexual relationship with George Jr., or that he had reason to rely on such an expectation, in the context of the other gifts.14

B. The Condominium As stated above, a transfer of property without con sideration to another is presumed to be for purposes of the transferor, and the burden is on the recipient to show donative intent by clear and convincing eviden ce. The evidence with respect to the condominium must be viewed in light of the r elationship between George Jr. and Lisa and the donative intent demonstrated by th e gifts discussed above. The facts at trial showed that Lisa and George Jr. enjo yed the Rehoboth area, and started looking at property there as a way to spend time at the beach or as an investment. Lisa was largely responsible for selec ting the particular unit George Jr. ultimately purchased. All the funds used to pu rchase the condo—$220,000— came from George Jr. The lawyer who handled the tr ansaction, Hal Dukes, testified that he explained to George Jr. the diffe rence between tenancy in common and joint tenancy with right of survivorship, that George Jr. understood the difference and that, the age differential notwithst anding, he elected a joint tenancy. According to Dukes, George said that while he under stood that the condo would pass to Lisa if he should die, it would, on the oth er hand, pass to him if Lisa predeceased, a correct statement of the law if also a bad bet. I find that George Jr.’s intent was to make a present gift to Lisa of an undivided interest in the15

condo. 24 It is undisputed that George Jr. discussed title with counsel, understood what he was doing and chose to create the title—joi nt, with survivorship—that he did. As a matter of law, the unambiguous title doc ument controls, 25 and, as explained above, the facts do not support equitable relief. The deed creates a joint tenancy between Lisa and George Jr. That was the state of affairs at the time George Jr . had his second stroke. As of that time, he was incapacitated. George had pre viously executed a springing durable power of attorney (the “POA”) which made bo th his sons—including George III—attorney-in-fact upon his disability. T hat disability was certified by George Jr.’s physicians, in writing, first on April 5, 2012, in a handwritten note 26 and then in a physician’s affidavit dated June 11, 2012. 27 George III, as fiduciary for his father, sought legal counsel, and hired Bet h Miller, Esquire, who advised him, as part of marshalling and protecting his fath er’s assets, to break the unities of the condominium joint title with a transaction out of George Jr.’s one-half interest in the condominium, and into George Jr.’s Trust. 28 George III complied, employing the POA to create a deed which severed th e unities and converted the

24 I note Mr. Dukes’ testimony that initially he rece ived the impression that the condo would be in titled in Lisa’s name alone, but that Lisa calle d Mr. Dukes shortly before closing and directed him to prepare the deed with Lisa and George, Jr. a s joint tenants. 25 See, e.g., Mack v. Mack , 2015 WL 1607797 (Del. Ch. Mar. 31, 2015). 26 JX 11. 27 JX 12. 28 See JX 14.16

title to the condominium into a tenancy in common o wned half by Lisa and half by

the Trust. 29 Lisa makes a number of arguments why this act shoul d not be given cognizance by the Court, all of which are unavailin g. She argues that the transfer was an unfaithful act because it did not comply wit h George Jr.’s intent, that it should be disregarded as a self-dealing act because George III is a remainder beneficiary of the Trust, that it was an invalid ex ercise of the power of attorney because it was executed by only one of George Jr.’s sons, and that there are

technical defects in the deed itself. To the extent Lisa has standing to raise these issu es, they cannot help her. George Jr.’s intent, post-strokes, is unascertainab le, and may well have changed had he been cognizant of the new conditions of his life. Marshalling the assets in the Trust or the estate was not self-dealing simply because George III was an heir and beneficiary—the assets so marshaled were availa ble to George Jr. during the

remainder of his life. Lisa contends that the tran sfer is invalid because action under the POA could only be taken by both attorneys -in-fact jointly. This argument relies on the fact that the Durable Power of Attorney appointed George

29 See Shockley v. Halbig , 75 A.2d 512, 513 (Del. Ch. 1950) (“One joint tena nt can convey his interest and thus destroy the joint tenancy.”); In re Ellingsworth , 266 A.2d 890, 891–92 (Del. Ch. 1970) (“It has been held that a severance of a join t tenancy may be accomplished by the act, voluntary or involuntary, of either of the joint te nants. . . . [A] joint tenancy in land is an intere st which can be sold at the option of either joint ten ant, including a guardian of such a tenant, although the practical effect of such a sale is to destroy the joint tenancy itself.”).17

III and Scott as “attorney-in-fact,” in the singula r. Lisa points out that under 12

Del. C. § 49A-111(b), joint agents, when so designated, may not act independent of one another; therefore, she argues, the act by G eorge III alone was invalid. 30 The Durable Personal Powers of Attorney Act, howeve r, was enacted after George Jr. entered into the POA, and does not apply here. 31 Lisa has not argued, and I do not understand, that anything in the common law wou ld invalidate the transfer on this ground. The Respondent also argues that the t ransfer was effectively a gift to George III and Scott, and was outside the authority granted by the Power of Attorney. I find, however, as noted above, that th e transfer was made for George Jr.’s benefit and that it was within the scope of t he Power of Attorney. Finally, in light of my finding that George III was acting as G eorge Jr.’s attorney-in-fact, any

30 The Respondent also argued at one time that the po wer of attorney did not become effective because George III did not have a physician’s certi ficate declaring George Jr.’s incapacity at the time of the deed. But this issue was not raised in post-trial briefing, and, as such, I deem that it has been waived. At any rate, one of his physician s indicated by written note on April 5, 2012 that he was “unable to make informed decisions at [ that] time.” See JX 11. 31 The Petitioners cite to 12 Del. C. § 49A-106(b) (“A personal power of attorney execut ed before October 1, 2010, is validly executed if it c omplied with the laws of this State as they existed at the time of execution, unless such perso nal power of attorney provides that it is governed by the laws of another jurisdiction, in wh ich case, such personal power of attorney is validly executed if such execution complied with th e laws of such other jurisdiction.”). Further to the point, even if the statute applied, 12 Del. C. § 49A-111 indicates that concurrent agents may act independently. Subsection (c) provides tha t, if the principal designates more than one agent and does not specify whether they are concurr ent or joint agents that they are considered concurrent agents. Even if the statute applied, gi ven the language used, George III and Scott would be concurrent agents.18

defects in the deed, which destroyed the joint tena ncy and created a tenancy in common, are clearly scrivener’s errors subject to r eformation. 32 Since the time the tenancy in common was created, L isa and the Trust have

each owned an undivided half interest in the condo. The Trust seeks a partition and accounting. Unless the parties agree otherwise , the condo must be sold at public vendue. 33 The net proceeds must be adjusted to account for payments made by Lisa that resulted in a benefit to the tenancy, if any, and Lisa must account for rent she has received. Before distribution, the fa ce amount of the loans George made to Lisa, 34 and amounts paid by George Jr. in connection with the Key West trip, together with post-judgment legal interest, s hould be deducted from Lisa’s share, and paid to George Jr.’s estate. The partie s should agree on these sums; otherwise, I will resolve the matter for them. The remainder should be distributed to Lisa and the Trust in equal parts.

III. CONCLUSION

32 The defects alleged are that the executing party is identified as George Jr., but the deed was signed by George III without indication that he was acting as attorney-in-fact. The notarization also provided that George Jr. executed the deed. 33 See 25 Del. C. § 729. 34 See JX 5; JX 28. In reviewing the check register and c opies of cancelled checks, I understand George Jr. to have made cash loans to Lisa in the a mount of $5,000, not including payoff of the DSHA loan, which must also be repaid. JX 5 indicat es check number 5201 to Lisa Grandelli for $4,000 was a “loan.” JX 28, on the page marked as Grandelli 16, shows the same check, number 5201, and indicates “loan” on the memo line. JX 5 shows that check number 12, which I find to mean check number 5212, from the numerical order fo llowed in the check register, dated 12/26, is indicated as “cash-loan” in the amount of $1,000 . JX 28 on the page marked Grandelli 17 shows that check, number 5212, in the amount of $1, 000 dated 12/26 was payable to Lisa Grandelli.19

George Jr.’s heirs are upset that in the last mont hs of his life, their father lavished expensive gifts on a much younger woman. Their position is natural; frankly, this is a case that was neither a pleasure to hear or write on. As a competent individual, however, George Jr.’s choices were his to make. Lisa, on the other hand, has treated as her own a condominiu m unit owned in common with George, Jr.’s Trust, for which she must account. I n addition, loans made to her by George Jr. must be repaid, together with amounts to pay for the Key West trip, which she received based on false representations. The parties should submit an appropriate form of order. Each party must bear it s own fees and costs.