IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IMO: )

)

The ESTATE OF JAMES VINCENT ) C.A. No. 7339-ML

TIGANI, JR., deceased, and )

the J. VINCENT TIGANI, JR., )

a/k/a JAMES VINCENT TIGANI, JR. )

REVOCABLE TRUST, U/A dtd. )

APRIL 10, 1995. )

MASTER‟S REPORT

Draft Report: September 30, 2015

Exceptions Submitted: January 22, 2016

Final Report: February 12, 2016

Neil Lapinski, Esquire and Phillip A. Giordano, Esquire, of GORDON 

FOURNARIS & MAMMARELLA, P.A., Wilmington, Delaware; Attorneys for 

Mrs. Tigani.

Michael A. Weidinger, Esquire and Alessandra C. Phillips, Esquire, of 

PINCKNEY, WEIDINGER, URBAN & JOYCE LLC, Wilmington, Delaware; 

Attorneys for Bruce W. Tigani.

LEGROW, Master 
1

This case began as Bruce Tigani‟s bid to remove his mother, Josephine 

Tigani, as executrix of Bruce‟s father‟s estate and as trustee of Bruce‟s father‟s 

trust. The relationship between Bruce and Josephine was strained to its breaking 

point in the 18 months leading up to the death of Bruce‟s father, J. Vincent Tigani, 

Jr. Many years before his death, Mr. Tigani executed a pour-over will and 

revocable trust that, among other things, designated Bruce and his siblings as 

residuary beneficiaries of Mr. Tigani‟s substantial estate. That residual interest, 

however, was subject to a limited testamentary power of appointment that allowed

Mrs. Tigani to designate different beneficiaries by her last will and testament. 

Seizing upon that power of appointment, Mrs. Tigani attempted quickly to end this 

litigation by revising her own will and trust to remove Bruce as a beneficiary of his 

father‟s trust. As a result of Mrs. Tigani‟s efforts, this case became side-tracked by 

issues of standing and testamentary capacity: namely, whether Mrs. Tigani‟s

revisions to her estate plan effectively divest Bruce of standing to maintain this 

action and, if so, whether Mrs. Tigani had the requisite capacity to execute those 

documents.

The short answers to those questions are “no” and “yes,” respectively. The 

longer answers, as described below, involve novel legal issues and complicated 

factual disputes. This case has been hard fought, at times ugly, and – in my view –

has little to do with the substantial funds at stake and much more to do with each 
2

side attempting to vindicate their own negative opinion and characterization of the 

other. Although it unfortunately means this difficult case will continue, I conclude 

that Bruce has standing to pursue this action and that Mrs. Tigani had the capacity 

to execute the challenged estate documents.

BACKGROUND

These are the facts as I find them after trial. Trial took place over four days 

and covered decades of family history. The following factual recitation includes 

only those facts I view as relevant to the issues of standing and capacity.

A. The Tigani family

Josephine C. Tigani (“Mrs. Tigani”), who is the respondent in this action, 

was married to James Vincent Tigani, Jr. (“Mr. Tigani”) for more than 60 years. 

The couple resided in Delaware for most of their marriage and had three children:

James V. Tigani, III (“Jim”),1 Diane A. Tigani (“Diane”), and Bruce W. Tigani 

(“Bruce”). Jim is married to Mary Anne Tigani (“Mary Anne”), and they have 

four children: Jennifer, Allison, Kristin, and James V. Tigani, IV (“Jimmy”). Jim 

is a dentist in Wilmington. Diane never married and was a school teacher for more 

than thirty years, until she retired to help her mother and father as they confronted 

a number of health issues in their later years. Diane lives with Mrs. Tigani, as she 

did for a number of years before Mr. Tigani‟s death. Bruce, who is the petitioner 

 

1 Because many of the parties and witnesses share the same last name, I use their first names as 

necessary for clarity. No disrespect is intended.
3

in this action, was married to his first wife, Janice, until approximately 2008. 

Bruce and Janice had two children together, Jessica Tigani (“Jessica”) and Bruce 

Tigani, Jr. (“B.J.”). Bruce is a lawyer who practices in Wilmington. He is now 

married to Jennifer Brockett Tigani (“Jennifer”).

Although not without their differences and problems over the years, Mr. and 

Mrs. Tigani and their children shared a generally warm relationship as the children 

grew up. Once the children were adults, however, rifts began to develop. One 

significant disagreement between Mrs. Tigani and Jim lasted for more than ten

years, during which time Mr. and Mrs. Tigani executed an estate plan disinheriting 

Jim. The precise origins of this falling out are unclear, but may have involved 

tensions between Mrs. Tigani and Jim‟s wife, Mary Anne. With the assistance of 

Bruce and Mr. Tigani, Mrs. Tigani and Jim ultimately resolved their differences.

Her ten year schism with Jim was not Mrs. Tigani‟s only family division. 

She also has not spoken to her sister, Madeline, for several decades, and had, at 

best, a very distant relationship with her other sister, Virginia. Mr. and Mrs. Tigani 

also had their differences and disagreements over the years. At times, Mrs. Tigani 

was very dominating of Mr. Tigani.2 With all due respect to Mrs. Tigani, the 

testimony at trial established that she is stubborn, quick-tempered, and controlling 

 

2 Deposition of James V. Tigani, IV (hereinafter “Jimmy Dep.”) at 45-46; Trial Transcript 

(hereinafter, “Tr.”) at 360-61 (Jessica) (testifying Mrs. Tigani was controlling of Mr. Tigani and 

at times belittled him); id. at 1079-80 (Jim) (testifying that he was concerned that his mother was 

placing undue pressure on his father and therefore directly asked his father whether that was the 

case).
4

of her family members, at times.

3

Some, though not all, of her behavior may be 

attributable to Mrs. Tigani‟s efforts to protect Mr. Tigani‟s health and mental state, 

which sometimes led her to attempt to control those interacting with him. 4 

Notwithstanding these traits, Mrs. Tigani maintained a fairly warm relationship 

with Bruce until around 2008, at which point tensions began to develop in their 

relationship. Those tensions and the associated fall out form the basis of this 

action.

B. Bruce’s personal and professional relationship with his father

At trial, all three of Mr. and Mrs. Tigani‟s children expressed a great deal of 

love and respect for their father. It is understandable, and plain from these 

proceedings, that Bruce places tremendous value on the memories he has of his

father and their relationship. The witnesses at trial largely were in agreement that 

Mr. Tigani was close with all three of his children, including Bruce. Bruce‟s 

relationship with his father had an additional dynamic, however, because Bruce 

served as his father‟s attorney for most of Bruce‟s legal career.

Shortly after Bruce graduated from law school, he began representing his 

father in connection with Mr. Tigani‟s position as a director and stockholder of 

several family-owned businesses, including Standard Distributing, Wesley Realty, 

 

3

Jimmy Dep. at 16, 22-24, 28-29, 38; Tr. at 371-73 (Jessica); Tr. at 401-04 (B.J.); Tr. at 1083 

(Jim) (testifying his mother instructed him not to tell Bruce that Mr. Tigani was in the hospital).

4

Tr. at 1078-79 (Jim).
5

Tigani Associates, and Tigani Ventures. 5 Bruce and Mr. Tigani discussed his 

business interests frequently, particularly later in Mr. Tigani‟s life when issues 

arose regarding various attempts to buy Mr. Tigani out of the businesses.6 Mr. 

Tigani certainly valued Bruce‟s counsel and was adamant that Bruce remain as his 

attorney.7 Even Mrs. Tigani grudgingly concedes that Bruce‟s advice was more 

valuable to Mr. Tigani than that of other attorneys whom Mr. Tigani retained late 

in his life.8 

C. The 1995 estate planning documents

After Jim and Mrs. Tigani reconciled their decade-long disagreement, Mr. 

and Mrs. Tigani executed new estate planning documents. On April 10, 1995, Mr. 

Tigani executed a will (“Mr. Tigani‟s Will”) that made certain bequests of tangible 

personal property and otherwise left the residue of his estate to a simultaneously 

executed revocable trust called the James Vincent Tigani, Jr. Revocable Trust (the 

“Trust”).9 Mrs. Tigani executed a largely identical will leaving the residue of her 

estate to the Josephine C. Tigani Revocable Trust (“Mrs. Tigani‟s Trust”).10 Mr. 

Tigani designated Mrs. Tigani as executrix of his estate and trustee of the Trust. 

Mrs. Tigani made similar, reciprocal provisions in her will and the agreement 

 

5

Tr. at 13-14 (Bruce).

6

Id. at 32-35 (Bruce).

7

Id. at 1074-75, 1077 (Jim).

8

Id. at 664-65, 669-70 (Mrs. Tigani).

9

Petitioner‟s Exhibit (“PX”) 8.

10 PX 9.
6

governing her trust. According to the agreement governing Mr. Tigani‟s Trust (the 

“Trust Agreement”), the residue of the Trust was to be divided into a marital 

deduction trust, a marital deduction generation skipping trust, and a residuary 

trust.11 Mrs. Tigani was named as the beneficiary of all those separate trusts during 

her lifetime. As explained in further detail below, the Trust Agreement gave Mrs. 

Tigani a limited testamentary power of appointment over the assets held in trust.12 

Any property not so appointed was to be divided into three equal shares for Diane, 

Jim, and Bruce.13 Mrs. Tigani made similar reciprocal provisions in her trust. In 

other words, the spouses‟ collective estate plan established in 1995 left their estates 

to the surviving spouse for their lifetime, with the residue to be distributed 

relatively evenly among their children unless the surviving spouse directed 

otherwise through the exercise of their testamentary power of appointment. The 

significance of this power of appointment is discussed below.

D. Mr. Tigani’s health begins to fail

Mr. Tigani suffered from various health problems over the course of his 

lifetime, but in early 2009 he was diagnosed with non-Hodgkin‟s lymphoma, 

which successfully was treated with chemotherapy. At the time, Bruce was 

 

11 PX 1 at Article FIRST, Sections B, C. Although technically divided into three trusts, those 

distinctions are not relevant for purposes of this report. A reference to the “Trust” refers to all 

three trusts, unless otherwise indicated.

12 Id. at Article FIRST, Section C(2)(d), Section C(3)(c), Section D(3).

13 Id. at Article FIRST, Section E(2). The Trust left Mr. and Mrs. Tigani‟s home to Diane for her 

lifetime, subject to certain exceptions. Id. Article FIRST, Section E(1).
7

attentive to his father‟s medical problems, while also attempting to assist his 

mother with her own medical appointments.14 In April 2010, however, Mr. Tigani 

suffered a blockage in his carotid artery, which triggered a stroke.15 On April 14, 

2010, Mr. Tigani had surgery that successfully removed the blockage.

The following day, Bruce went to visit Mr. Tigani in the hospital‟s 

“cardiovascular step-down unit.”

16

 Bruce insists this visit occurred at Christiana 

Hospital, while Mrs. Tigani testified it occurred at Wilmington Hospital, and Diane 

expressed some confusion about where it occurred.17 Nonetheless, Bruce assisted 

his father with eating lunch and accompanied him to a physical therapy 

appointment. When they returned to Mr. Tigani‟s room, Diane and Mrs. Tigani 

were waiting there.

Mrs. Tigani testified it was an unseasonably warm day that day, she had to 

take a circuitous route to Mr. Tigani‟s room due to hospital construction, and she 

was tired and in pain by the time she arrived, having recently had a procedure on 

her spine.18 There is no other testimony or documentation substantiating Mrs. 

Tigani‟s testimony regarding the weather, although Diane testified that Mrs. Tigani

 

14 Tr. at 22-23, 25-27 (Bruce).

15 Id. at 23-24 (Bruce).

16 Id. at 37-38 (Bruce).

17 Id. at 626, 864 (Mrs. Tigani); Dep. of Diane Tigani at 161-62.

18 Tr. at 615-18 (Mrs. Tigani).
8

did have to walk a fair distance and was in pain.19 When they arrived, Bruce 

retreated to the back of the room to tend to some work, leaving Diane and Mrs. 

Tigani to visit with Mr. Tigani. The witnesses agree that Mr. Tigani was falling 

asleep during this visit and that Mrs. Tigani told him that, if he was going to sleep,

she might not visit every day because it was hard to get there and caused her 

substantial pain to walk so far.20 Mrs. Tigani testified that she said this gently and 

without anger, largely teasing Mr. Tigani.21 Diane testified similarly, explaining 

that Mrs. Tigani was in pain and simply told Mr. Tigani something to the effect of 

“[I]t was hard for her to come up there, and, you know, if he was going to be 

sleeping, that he wouldn‟t even know she was there, you know, she was in a lot of 

pain and that she might not be able to make it.”22 

Bruce, however, viewed Mrs. Tigani‟s statements as angry and pestering, 

and understood Mrs. Tigani to be threatening to leave the hospital and not return 

because Mr. Tigani could not stay awake while she visited.23 Bruce therefore 

“stepped in,” telling his mother “[i]f you are going to leave, get the ... out,” using

 

19 Dep. of Diane Tigani at 165-66. Mrs. Tigani insists the weather was in the upper 90s, even 

though records indicate it was in the 70s. Tr. at 801-02. She also insists the last episode of As 

The World Turns was on that day, and she missed it to visit Mr. Tigani, even though records 

indicate the last episode was not aired that day. Tr. at 803.

20 Dep. of Diane Tigani at 165-66; Tr. at 39-42 (Bruce); id. at 622 (Mrs. Tigani).

21 Tr. at 621-22.

22 Dep. of Diane Tigani at 165.

23 Tr. at 39-40 (Bruce).
9

an expletive for emphasis.24 Bruce acknowledges saying this, but viewed it as 

necessary because his father was “defenseless” at the time.25 He denies coming 

toward his mother at all, and certainly not in a threatening way.26

E. Tensions escalate between Bruce and Mrs. Tigani

Although the relationship between Bruce and Mrs. Tigani already was 

strained by other factors before April 2010, the confrontation at the hospital was 

the “turning point,” leading to a drastic deterioration of their relationship. 27 A 

number of other incidents in the months after April 2010 only served to deepen the 

divide. 

A few weeks after the April 2010 hospital confrontation, Mrs. Tigani hosted 

a Mother‟s Day celebration at her home. Bruce did not attend, believing he was 

not welcome, but his daughter, Jessica, and most other members of the family

attended. Jessica felt unwelcome when she arrived.28 She soon joined Jim, Jimmy, 

and others in the family room. When someone in the group inquired about the 

score of the Phillies‟ game, Jessica put the game on the television.

29

 Shortly 

thereafter, Mrs. Tigani entered the room and asked who had changed the channel. 

When Jessica took responsibility, Mrs. Tigani angrily told her she was 

 

24 Id. at 41 (Bruce); Dep. of Diane Tigani at 169-70.

25 Tr. at 41-42 (Bruce).

26 Id. at 42. (Bruce).

27 Tr. at 1067 (Jim); Dep. of Diane Tigani at 169.

28 Tr. at 371 (Jessica).

29 Id. at 372 (Jessica); Jimmy Dep. at 14.
10

disrespectful and, if she wanted to watch TV, she could leave.30 When no one 

came to her defense, Jessica left the house.31 Jimmy testified that this was not 

particularly unusual behavior for Mrs. Tigani, who not infrequently becomes 

confrontational at family gatherings.32 Before this occasion, however, Jessica and 

Mrs. Tigani had enjoyed a particularly close relationship.33

The following month, the Tigani family again gathered at Mr. and Mrs. 

Tigani‟s home to celebrate Father‟s Day. This time, Bruce, Jessica, and B.J. 

attended, along with Diane, Jim, and most of Jim‟s children. Bruce and Mrs. 

Tigani largely kept their distance at the beginning of the celebration, but Jessica 

attempted to ease the tension with Mrs. Tigani by offering her a glass of water 

when she came in from the garden looking flushed.34 Mrs. Tigani responded by 

calling Jessica a “brat.”

35

 Shortly thereafter, Bruce confronted Jim and Jimmy,

asking why they had not defended Jessica on Mother‟s Day.36 

At this point, most of the family was gathered in the same room, including 

Mr. and Mrs. Tigani. In the midst of the confrontation, Mrs. Tigani raised an issue 

about which she and Bruce previously had clashed: whether he would come over

early on Sunday mornings to assist his father with bathing so Mrs. Tigani and 

 

30 Tr. at 372-73 (Jessica); Jimmy Dep. at 14-15.

31 Tr. at 372-73 (Jessica).

32 Jimmy Dep. at 15-16.

33 Tr. at 28; (Bruce); id. at 360 (Jessica).

34 Id. at 374-75 (Jessica).

35 Id. at 375 (Jessica); id. at 641-42 (Mrs. Tigani); id. at 1146-47 (Diane).

36 Id. at 53-54 (Bruce); id. at 377-78 (Jessica); Tr. at 1071 (Jim); Jimmy Deposition at 20-21.
11

Diane could attend Mass.37 For understandable reasons, Mr. Tigani did not want 

his daughter or granddaughters to help him with bathing.38 Bruce previously had 

indicated Sundays were the only day he had an opportunity to sleep in and had 

suggested he help his father later in the day.39 Mrs. Tigani insisted that was not an 

option. What is unclear to an outside observer – and largely irrelevant to the case –

is why neither Mrs. Tigani nor Bruce was willing to alter their typical schedules to 

accommodate the other‟s needs. There also is nothing I found in the record to 

suggest why Jim could not assist with this task. Each of the parties tries to paint 

the other as unreasonable and unyielding, when in fact they each fit the description, 

at least as to this issue.

Already upset by his mother‟s treatment of Jessica, Bruce was frustrated by 

his mother raising the Sunday morning issue, which he interpreted as Mrs. Tigani 

implying that he did not love his father and would not participate in his care.40 

What came next is the subject of some dispute. Bruce contends that he largely did 

not speak to his mother during the Father‟s Day confrontation and that he was 

focused on asking Jim and Diane why they had not defended Jessica from Mrs. 

Tigani‟s attacks. 41 Bruce vehemently denies that he physically threatened his 

 

37 Tr. at 49-51 (Bruce); id. at 645-47 (Mrs. Tigani).

38 Id. at 645-46 (Mrs. Tigani).

39 Id. at 50-51 (Bruce).

40 Id. at 51 (Bruce).

41 Id. at 53-55 (Bruce).
12

mother in any way.

42

 Jessica, B.J., and Jimmy agree with this account, although 

Jimmy does recall Bruce yelling at Mrs. Tigani and Diane.

43

 

Mrs. Tigani, on the other hand, testified that Bruce was yelling profanities at 

her, came toward her with his fists, and was “within inches of [her] head.”44 Mrs. 

Tigani claims she ducked out of the way just as Jim grabbed Bruce to restrain 

him.45 According to Mrs. Tigani, Bruce then turned to Diane and told her that 

when Mr. and Mrs. Tigani passed away, he (Bruce) would not help or assist Diane 

in any way.46 Mrs. Tigani testified Mr. Tigani witnessed, and was distraught and 

angered by, Bruce‟s treatment of both Mrs. Tigani and Diane.47 Jim‟s and Diane‟s 

trial testimony largely agreed with Mrs. Tigani‟s account, particularly on the 

disputed issues of what Mrs. Tigani said to Bruce, whether Bruce moved toward 

Mrs. Tigani when he became angry with her, whether he raised his hand toward 

her, and what Mr. Tigani witnessed.

48

 Jim‟s deposition testimony on those topics 

was not entirely consistent: during his deposition, Jim did not recall Mrs. Tigani‟s 

request and could not recall whether his father was in the room during the 

confrontation,49 while at trial Jim was certain about Mrs. Tigani asking Bruce to 

 

42 Tr. at 55-57 (Bruce).

43 Tr. at 379-80 (Jessica); id. at 401-04 (B.J.); Jimmy Dep. at 50-52, 54-57.

44 Tr. at 647-48 (Mrs. Tigani).

45 Id. at 648 (Mrs. Tigani).

46 Id.at 650-51 (Mrs. Tigani).

47 Id. at 650-652 (Mrs. Tigani). See id. at 1070-71 (Jim), 1149-50 (Diane).

48 Id. at 1069-71 (Jim); id. at 1148-50 (Diane).

49 Dep. of James V. Tigani, III at 60-62.
13

come over on Sunday mornings and recalled his father responding with disbelief 

and fear to Bruce‟s reaction to his mother.50 

It is not necessarily material to the outcome of the case to determine beyond 

a shadow of a doubt what happened that day. What is more notable is that Bruce 

and Mrs. Tigani have very different stories about the confrontation and 

precipitating events, and there are witnesses that agree with the key points in both 

versions. Having heard live testimony from all the witnesses, other than Jimmy, 

who only testified by deposition, I find it more likely than not that: (1) Bruce 

became upset with his brother and sister for not standing up for Jessica, (2) Mrs. 

Tigani inserted herself into the argument and raised an issue she likely knew would 

only further provoke Bruce, (3) Bruce yelled profanities at his mother and also 

spoke harshly to his sister, and (4) Mr. Tigani was present to witness all of these 

interactions. I am doubtful that Bruce raised his hand as though to hit his mother.

That incident, which I refer to herein as the “Father‟s Day Incident,” was one of 

the key moments in the deterioration of Bruce‟s relationship with the rest of the 

family.

Later that summer, events involving Mr. Tigani‟s various business interests 

necessitated a meeting between Bruce and Mr. Tigani. Mrs. Tigani insisted that,

 

50 Tr. at 1069-72.
14

Jim attend as well for her protection.51 The need for Jim‟s presence delayed the 

meeting until evening, by which time Mr. Tigani was tired.52 Bruce also felt Mrs. 

Tigani interfered with the meeting by injecting her views, which further 

complicated matters.53 In the end, Mr. Tigani and Bruce were unable to reach a 

final decision, which hampered Bruce‟s efforts representing Mr. Tigani‟s interests 

at a business meeting the next day.54

Because Bruce felt Mrs. Tigani was restricting his access to his father – by 

virtue of her near-constant presence with Mr. Tigani and her refusal to be in the 

same place with Bruce without someone to protect her from him – Bruce 

concluded he no longer could represent his father effectively. Bruce therefore 

wrote his father a letter explaining his decision to withdraw as counsel.55 Mr. 

Tigani was angry about Bruce‟s decision and insisted that Bruce continue to 

represent him. Jim tried to serve as intermediary between Bruce and Mr. Tigani, 

and, for a time, it appeared that Bruce might resume representing Mr. Tigani. The 

attempted reconciliation went nowhere, however, because Mrs. Tigani continued to 

insert herself into the process, and the strained relationship between Bruce and 

Mrs. Tigani made being together unworkable. Mr. Tigani ultimately retained 

 

51 Id. at 654 (Mrs. Tigani).

52 Id. at 58-60 (Bruce).

53 Id. at 60-63 (Bruce).

54 Id. at 63-64 (Bruce).

55 PX 43.
15

Emmanuel Fournaris, Esquire, to represent Mr. Tigani in connection with his 

business interests.

F. The Tiganis reconsider their estate plans

In connection with that representation, Mr. Fournaris suggested that one of 

his partners, Peter Gordon, Esquire, meet with Mr. and Mrs. Tigani to review their 

estate plans. The suggestion was not wholly surprising. In 1995, Mr. Gordon 

assisted the Tiganis with their estate plans, and in 2009 Mr. Gordon and Bruce had 

discussed the need for Mr. and Mrs. Tigani to revisit their planning.

56

 Mr. and 

Mrs. Tigani met with Mr. Gordon on September 30, 2010. Diane also was present, 

although she did not participate aside from responding to Mr. Gordon‟s questions. 

In a file memorandum recording the salient points of their discussion, Mr. Gordon 

indicated that both Mr. and Mrs. Tigani stated unequivocally that they wanted to 

remove Bruce from the will.57 Mrs. Tigani dilated at length on her reasons for 

disinheriting Bruce. During the meeting, Mrs. Tigani criticized Bruce for not 

helping his parents after Mr. Tigani‟s illness and explained that she believed his 

personal choices – particularly relating to his divorce and his relationship with 

Jennifer – were immoral and harmful to his children.58 Mr. Tigani did not explain 

 

56 PX 12.

57 Respondent‟s Exhibit (“RX 6”).

58 Id.
16

his reasons, perhaps because he had difficulty talking due to his health issues,59 but 

Mr. Gordon‟s memo indicates Mr. Tigani was decisive about disinheriting Bruce.60 

At the conclusion of the meeting, Mr. and Mrs. Tigani instructed Mr. 

Gordon to leave the bulk of their estate to Diane and Jim, with ten percent to be 

held in trust for Jessica and B.J.61 The following day, however, Mrs. Tigani called 

Mr. Gordon and indicated that they changed their mind about leaving anything to 

Jessica and B.J.62 Mr. Gordon prepared the requested documents, but Mr. and Mrs. 

Tigani did not receive them until March 2011, at least in part because Mr. Tigani 

fell ill again in or around October 2010, and Mrs. Tigani told Mr. Gordon‟s office 

that they would address the documents “later.”63

Mr. Tigani was hospitalized in November 2010 for some complications 

relating to his illness. Bruce was not informed of the hospitalization until Jim told 

Bruce approximately a week later. Bruce went to visit his father the following day, 

along with Bruce‟s good friend, Frank Behm.64 For much of the visit, Mr. Tigani 

was pleasant and talkative. After some time, however, Mr. Tigani received two 

phone calls in relatively short succession.65 Mr. Tigani‟s demeanor then changed,

and he told Mr. Behm that Bruce was being disinherited and that both Bruce and 

 

59 Id. at 1.

60 Id. at 1, 4.

61 Id.

62 RX 7.

63 PX 16.

64 Tr. at 98-99 (Bruce).

65 Id. at 99-100 (Bruce).
17

Mr. Behm should leave.66 Bruce believes that the phone calls were from Diane and 

that Mr. Tigani said these things in order to hurry Bruce and Mr. Behm out of the 

room.

67

 Diane testified, however, that the phone calls were ones she made simply 

to make sure it was a convenient time to visit her father, and that she did not know 

Bruce was visiting until she arrived at the hospital and her father told her about the 

visit and rather proudly related what he had said about Bruce being disinherited.68 

G. A thawing in the tensions

Between January and April 2011, there was little contact between Bruce and 

his parents. In January, Jim told Bruce that Mr. Tigani wanted Bruce to resume his 

position as counsel, and Bruce went to Mr. and Mrs. Tigani‟s home in an attempt 

to meet and discuss that prospect. After no more than an hour, Bruce ended the 

meeting because he felt Mrs. Tigani‟s interjections and interruptions were making 

the situation untenable. 69 In March, Mrs. Tigani and Bruce exchanged 

unproductive letters in which both stated their position regarding what the other 

had misperceived or misunderstood.70 It was during this period that Mr. and Mrs. 

Tigani received from Mr. Gordon drafts of their revised wills and revocable trust 

 

66 Id. at 428-30 (Behm).

67 Id. at 100-101 (Bruce).

68 Diane Deposition at 196-200.

69 Tr. at 102-05 (Bruce).

70 PX 17, 21.
18

agreements. 71 Mrs. Tigani promptly sent Mr. Gordon a letter with questions 

regarding the drafts.72

In late April 2011, Mr. Tigani again was hospitalized and the doctors 

discovered he had colon cancer. Bruce was not informed of the hospitalization 

until at least a week later, when Jim called Bruce because Mr. Tigani was in 

respiratory distress and Jim was concerned the end was near.73 Bruce immediately 

went to the hospital, at which point he and Mr. Tigani reconciled.

74

 Until Mr. 

Tigani died that fall, Bruce frequently visited his father, and he and Mrs. Tigani put 

their disagreements aside for a time.75 

In October 2011, approximately a week before Mr. Tigani died, Mr. Gordon 

sent Mr. and Mrs. Tigani revised drafts of their estate planning documents. The 

accompanying letter from Mr. Gordon explained the changes and expressed some 

hesitation regarding the tax consequences of various changes Mr. and Mrs. Tigani 

had requested.76 Mrs. Tigani contacted Mr. Gordon after receiving those drafts and 

indicated that she wanted to change the disposition of assets in the drafts so that 

 

71 PX 19, 20.

72 PX 23.

73 Tr. at 109-110 (Bruce).

74 Id. at 109-111 (Bruce).

75 Id. at 110-111; id. at 688 (Mrs. Tigani).

76 PX 24.
19

Bruce would receive one-third of the “business interests” upon Mrs. Tigani‟s 

death.77 

H. Mrs. Tigani revises her estate plan

On October 23, 2011, Mr. Tigani died, having never revised his will or trust 

agreement. Upon Mr. Tigani‟s death, Mrs. Tigani became the successor trustee of 

the Trust and the executrix of Mr. Tigani‟s estate. Under the Trust Agreement, 

Mrs. Tigani is entitled to all the income from the Trust during her lifetime and may 

invade the principal of the trust as she deems necessary or advisable for her health, 

maintenance, and support.78 Under the Trust Agreement, Mrs. Tigani also has a 

limited testamentary power of appointment (the “Power of Appointment”) that 

allows her to designate beneficiaries of the Trust. The Power of Appointment is 

“limited” in the sense that the class of potential beneficiaries to whom property

may be appointed is restricted to Mr. Tigani‟s issue who survive Mrs. Tigani. The 

Power of Appointment is “testamentary” because it only may be exercised in Mrs. 

Tigani‟s will. Specifically, the Power of Appointment provides, in pertinent part:

(3) Limited Testamentary Power. Upon the death of the Settlor‟s 

spouse, the Trustee shall distribute such portions or all of the principal 

of the Residuary Trust to, or in trust for the benefit of[,] the 

descendants of the Settlor who survive the Settlor‟s spouse, in such 

manner as the Settlor‟s spouse may appoint and direct by her Last 

 

77 PX 25.

78 PX 1 at Article FIRST (D)(1)-(2). The Trust created a marital trust and a residuary trust. As I 

understand it, only the Residuary Trust is at issue in this case, because it is all that will remain 

once Mr. Tigani‟s estate is settled. See Resp‟t‟s Opening Br. in Supp. of Mot. to Dismiss at 2.
20

Will and Testament admitted to probate specifically referring to this

limited power of appointment. ... In no event, shall the power of 

appointment conferred upon the Settlor‟s spouse in this subsection be 

construed as a power in the Settlor‟s spouse to appoint property in 

favor of herself, her creditors, her estate or the creditors of her 

estate.79

If Mrs. Tigani does not exercise the Power of Appointment, the Trust Agreement 

directs the Residuary Trust to be divided between Diane, Jim, and Bruce. In other 

words, Diane, Jim, and Bruce are the “default” remainder beneficiaries of the 

Trust.

The day after Mr. Tigani‟s death, Mrs. Tigani executed a last will and 

testament (the “2011 Will”) and the “First Complete Amendment” to Mrs. Tigani‟s 

Trust (“the 2011 Trust Amendment”). In the 2011 Will, Mrs. Tigani purported to 

exercise the Power of Appointment by directing the trustee of the Trust to 

distribute all the trust assets subject to the Power of Appointment to the trustee of 

Mrs. Tigani‟s Trust, to be administered and distributed in accordance with the 

agreement governing Mrs. Tigani‟s Trust.80 Mrs. Tigani simultaneously amended 

her trust agreement to distribute: (i) her tangible personal property between Diane 

and Jim, (ii) her real estate solely to Diane, and (iii) any “Business Interests” in 

equal shares to Diane, Jim, and Bruce.81 Any remaining trust assets were to be 

distributed in designated percentages to Diane and Jim. In other words, Mrs. 

 

79 PX 1 at Article FIRST, D(3).

80 PX 2 at Article SECOND.

81 PX 4 at Article First, B (1)-(2).
21

Tigani did not entirely disinherit Bruce through the 2011 Trust Amendment, but 

she limited his interest to one-third of the “Business Interests” held by the Trust at 

the time of her death.82 Mrs. Tigani apparently had this change of heart regarding 

disinheriting Bruce shortly before Mr. Tigani‟s death.83 Bruce points out that Mrs. 

Tigani misunderstood the effect of this language and believed that Bruce would 

receive one-third of the value of the Business Interests in the event some or all 

were sold before her death.84 Mrs. Tigani insists this was the legal effect of the 

October 2011 testamentary documents, although her attorneys advised her 

otherwise.

85

A week after Mr. Tigani‟s death, Mrs. Tigani‟s attorneys contacted Bruce to 

discuss Mrs. Tigani‟s decision to “put him back” in “the will” for a portion of the 

business interests. 86 In response, Bruce requested information regarding Mr. 

Tigani‟s estate plans and any changes thereto in the last two years.87 Acerbic email exchanges, particularly those from Bruce, ensued.88

 A few months later, 

Bruce and his counsel met with attorneys representing Mrs. Tigani. During that 

 

82 “Business Interests” was defined to include any direct or indirect interest in Standard 

Distributing Co., Inc., Wesley Realty Co., JVT Holdings, LLC, or their successors. PX 4 at 5.

83 PX 26 at BWT00039-40.

84 Tr. at 824 (Mrs. Tigani).

85 PX 29 at 2.

86 PX 26 at BWT00039-41. This language about putting Bruce “back” in the will, which 

frequently was employed by Mrs. Tigani and her counsel, is imprecise and incorrect, as Bruce 

never was removed from his parents‟ wills before 2012.

87 Id. at BWT00040-41; PX 27; PX 31; PX 38.

88 See, e.g. PX 26, 27.
22

discussion, Bruce became angry and called his mother an offensive word. 89 

Apparently operating under a belief that their ethical obligations required them to 

do so, Mrs. Tigani‟s attorneys reported that insult to her.

The negotiations and discussions between Bruce, Mrs. Tigani, and their 

representatives were unsuccessful. Bruce filed this action on March 20, 2012, 

seeking to remove Mrs. Tigani as executrix of Mr. Tigani‟s estate and trustee of 

the Trust and requesting an accounting of her administration of the estate and the 

Trust (the “Petition”). Although the Petition initially was filed under seal, it 

attracted the attention of the media, likely because of other recent high-profile 

litigation involving another branch of the Tigani family and their businesses. The 

local newspaper sought to unseal the Petition, and largely was successful in that 

effort. A story then ran in the newspaper describing the family dispute. Whether 

for that reason, or simply because the Petition was filed in the first instance, Mrs. 

Tigani decided to completely disinherit Bruce.90 

On April 9, 2012, Mrs. Tigani further amended her trust (the “April 2012 

Amendment”). In that amendment, Mrs. Tigani altered the trust agreement to 

 

89 Tr. at 149 (Bruce), 693 (Mrs. Tigani), 1061 (Fournaris).

90 There has been some suggestion in the briefing that Mrs. Tigani was driven to disinherit Bruce 

because of the publicity associated with this case. The record, however, indicates that she 

decided to disinherit him the moment he filed the lawsuit. PX 39.
23

completely remove Bruce or his issue as beneficiaries of Mrs. Tigani‟s trust.91 The 

April 2012 Amendment also expressly provided: 

THIRTEENTH: Disinheritance. Settlor directs that neither 

Settlor‟s son, Bruce W. Tigani, nor any of his issue, shall receive any 

part of Settlor‟s trust estate. The Trustee shall distribute Settlor‟s trust 

estate as though Settlor‟s son, Bruce W. Tigani, predeceased Settlor 

without leaving issue surviving Settlor.92

Four days later, Mrs. Tigani filed her opening brief in support of her motion to 

dismiss the Petition. In that motion, Mrs. Tigani argued that Bruce lacked standing 

to bring this action because he was only a “contingent beneficiary,” in the sense 

that “his beneficial rights to the Trust estate do not vest until Mrs. Tigani‟s life 

estate terminates and her limited power of appointment lapses unexercised.” 93 

Mrs. Tigani‟s opening brief did not mention the April 2012 Amendment and that 

issue therefore was not addressed in Bruce‟s answering brief. In her reply brief, 

Mrs. Tigani for the first time raised the April 2012 Amendment as a further basis 

to support her standing argument. Bruce was permitted to file a sur-reply in light 

of the newly raised material. 

Even then, however, Mrs. Tigani‟s position and arguments continued to shift 

and the parties did not fully and squarely address the issue of whether the 2011 

Will, exercising the Power of Appointment, combined with the April 2012 

Amendment to Mrs. Tigani‟s Trust, operated to divest Bruce of standing to pursue 

 

91 PX 3, Item I.

92 Id., Item II.

93 Resp‟t‟s Opening Br. in Supp. of Mot. to Dimiss at 3.
24

this action. In the sur-reply, Bruce also argued that the inclusion of materials 

outside the pleadings converted the motion to dismiss into a motion for summary 

judgment, and that discovery first should be permitted before the Court ruled on a 

motion for summary judgment. Among other things, Bruce argued he was entitled 

to take discovery into Mrs. Tigani‟s capacity to execute the 2011 Will and the 

April 2012 Amendment. 

After hearing argument from the parties, I issued a draft oral report 

recommending that the Court deny the motion to dismiss. I stayed the period for 

taking exceptions and instructed the parties to take limited discovery regarding the 

2011 Will and the April 2012 Amendment, including Mrs. Tigani‟s capacity to 

execute those documents. I further indicated I would resolve the legal question 

regarding Bruce‟s standing once the parties had completed limited discovery and 

briefed the precise questions raised by the standing issue.

After that hearing, Mrs. Tigani further amended her estate plan in July 2012 

in an undisguised effort to eliminate any question regarding Bruce‟s standing. On 

July 31, 2012, Mrs. Tigani signed a codicil to her 2011 Will (the “July 2012 

Codicil”). In that document, Mrs. Tigani “irrevocably” exercised the Power of 

Appointment and directed that the assets in the Trust should be distributed upon 

Mrs. Tigani‟s death in equal shares to Diane and Jim.94 The July 2012 Codicil 

 

94 PX 5, Item two.
25

further states that “no property subject to the Limited Powers of Appointment I am 

now irrevocably exercising shall be distributed to my son, Bruce W. Tigani, or any 

of his issue.”95 Finally, Mrs. Tigani clarified her intent in executing the codicil:

ITEM FOUR: I intend this Codicil to be irrevocable and I direct that 

this Codicil shall be construed to be a contract under seal to make a 

Will in accordance with 6 Del. C. § 2715 between myself, my son, 

James V. Tigani, III, and my daughter, Diane Amelia Tigani, in 

exchange for their continued love and affection and promise to assist 

me with my care and maintenance for the remainder of my lifetime.96

Jim and Diane also signed an “acceptance” of the codicil, indicating that they 

agreed to “jointly and severally continue to assist their mother with her care and 

maintenance for the remainder of her lifetime.”97

I. The parties’ experts

Each side submitted expert testimony and opinions regarding Mrs. Tigani‟s 

capacity to execute the challenged estate documents. In a nutshell, Bruce‟s experts 

concluded Mrs. Tigani does not have testamentary capacity, either because she 

suffers from delusions regarding Bruce or because she is incapable of exercising 

thought, reflection, and judgment when it comes to her relationship with Bruce. 

Mrs. Tigani‟s experts, on the other hand, concluded she does have testamentary 

capacity and what Bruce‟s experts characterize as delusions are little more than 

differences of opinions or memories of certain events and relationships. Because 

 

95 Id., Item three.

96 Id., Item four.

97 Id. at 3-4.
26

there was no dispute regarding the experts‟ impressive credentials or their 

qualifications to render an opinion in this matter, I will not further discuss their 

backgrounds here, except to note that all four experts are distinguished and 

experienced.

Bruce‟s experts, Dr. Samuel Romirosky and Dr. Robin Belcher-Timme 

(collectively, “Bruce‟s experts”) each had an opportunity to interview Mrs. Tigani 

in a clinical setting and conduct psychological testing, which was administered by 

Dr. Belcher-Timme. Bruce‟s experts issued a joint report dated March 30, 2014 

(the “Petitioner‟s First Report”) along with an addendum dated July 29, 2014 (the 

“Addendum”). The Addendum addressed the expert reports submitted by Mrs. 

Tigani‟s experts, and also provided Bruce‟s experts‟ revised conclusions reached 

after reviewing additional records and depositions that became available after 

Petitioner‟s First Report was issued.98

Mrs. Tigani reported to Bruce‟s experts that she had a happy childhood and 

was close with her siblings, parents, and grandparents growing up.99 She similarly 

reported that she had a happy marriage, despite some ups and downs she and Mr. 

Tigani experienced in the nearly 67 years they were married. Drs. Romirowsky 

and Belcher-Timme reported that Mrs. Tigani spoke negatively about Bruce and 

his relationship with his father, which she characterized as little more than an 

 

98 PX 97 at 1-2, 5-6.

99 RX 26 at 2.
27

attorney-client relationship.100 Bruce – and by extension his experts – contends 

that all three of these claims are demonstrably false, pointing out that Mrs. Tigani‟s 

description of her childhood ignores the strained relationship with her siblings and 

is not consistent with Bruce‟s recollections of Mrs. Tigani‟s relationship with her 

family during his childhood. Bruce similarly points out documented incidents of 

Mrs. Tigani badgering or harassing Mr. Tigani, including an incident at a nursing 

facility shortly before he died. Bruce also correctly argues that Mrs. Tigani‟s 

minimization of Bruce‟s relationship with Mr. Tigani is not consistent with any 

other testimony or evidence in the record. 

Bruce‟s experts make much of these “inconsistencies” or “distortions.”101 

They also find it significant that Mrs. Tigani insisted there was never an occasion 

when one of her doctors could not find a physiological reason for a physical 

problem she was experiencing, even though her medical records indicate multiple 

occasions in which the treating physician could find no basis for Mrs. Tigani‟s 

ailments and referred her for psychological treatment for her well-documented 

anxiety.102 The doctors went on to list a number of “distortions and possible 

 

100 RX 26 at 3. Although Mrs. Tigani denies making these statements, I have no reason to doubt 

the experts‟ recollection or credibility.

101 Id. at 4.

102 Id. at 6. Bruce, and at times even Bruce‟s experts, appeared to attach substantial significance 

to the fact that Mrs. Tigani‟s doctors suggested counseling or medication to help her anxiety. 

This stigmatization of, and overemphasis on, mental health issues is not persuasive, particularly 

where – as here – the problems Mrs. Tigani was facing have no discernable connection with her 

alleged lack of capacity. Rather, the repeated references to the fact that Mrs. Tigani had been 
28

delusional beliefs,” other than those listed above, including that Bruce wanted to 

“steal” the business from his parents and that Bruce‟s letter withdrawing as counsel 

to Mr. Tigani reflected his abandonment of his father.103

In the view of Bruce‟s experts, these “distortions,” combined with the results 

of a Personality Assessment Inventory (“PAI”) administered to Mrs. Tigani, 

amount to sufficient evidence to conclude “to a reasonable degree of psychological 

certainty, that [Mrs.] Tigani firmly and intractably holds irrational perceptions 

about her son, Bruce, as well as irrational perceptions of events in her life.”104 

Although they could not diagnose her with a specific disorder, other than 

Generalized Anxiety Disorder, Drs. Romirowsky and Belcher-Timme concluded 

that Mrs. Tigani had “features”105 of Delusional Disorder, Paranoid Personality 

Disorder, and Narcissistic Personality Disorder, all of which are cited as support 

for the doctors‟ conclusion that Mrs. Tigani “has a history of significant psychiatric 

symptomatology that materially and specifically, with regard to unsupported 

beliefs about Bruce Tigani, affected her capacity to create or amend her will.”106

 

referred for treatment for her anxiety takes on the appearance that Bruce and his experts are

grasping at any “weakness” they might exploit to demonstrate a lack of capacity. Similarly, the 

fact that Mrs. Tigani could not perfectly recall every referral given to her or every drug 

prescribed, is hardly noteworthy or indicative of a lack of capacity, particularly for a 90 year old 

woman who has some mild memory impairment. See RX 26 at 9.

103 RX 26 at 11-12.

104 Id. at 13.

105 Id. at 14. By “features,” the doctors mean that Mrs. Tigani has some symptoms of the listed 

disorders, but not enough to make a formal diagnosis. Id. at 13.

106 Id. at 13-14.
29

Oddly, in the Addendum, Drs. Romirowsky and Belcher-Timme retreated 

from any suggestion that they had diagnosed Mrs. Tigani with delusions or 

delusional behavior, instead insisting that their conclusions regarding Mrs. Tigani‟s 

capacity were based on the severity of her “cognitive instability, rigidity of 

thinking, and repeated position reversals.”107 Strangely, references to cognitive 

instability and repeated position reversals are not apparent from my reading of 

Petitioner‟s First Report, further suggesting that Bruce‟s experts, being unable to 

definitively diagnose Mrs. Tigani with any pertinent mental condition, instead 

cobbled together “features” of various disorders into a vague conclusion that she 

lacked capacity. Unfortunately, the trial testimony did nothing to bring clarity to 

the doctors‟ conclusions.

108

 The testimony, combined with the uncertain tone and 

diagnosis in Bruce‟s experts‟ reports, left me unable confidently to rely on the 

doctors‟ conclusions regarding Mrs. Tigani‟s capacity.

Mrs. Tigani hired her own experts, Dr. Frank M. Dattilio and Dr. Robert L. 

Sadoff, to opine as to her capacity. Drs. Datillio and Sadoff also interviewed Mrs. 

Tigani, Dr. Dattilio conducted additional “psychodiagnostic” testing, and Dr. 

Sadoff reviewed the results of that testing and Dr. Belcher-Timme‟s testing. 

 

107 PX 97 at 2, 5.

108 Dr. Belcher-Timme did not testify at trial, and Dr. Romiroswky‟s testimony was confusing or 

confused. See, e.g. Tr. at 229-30, 870 (Romirowsky) (testifying inconsistently about whether he 

had diagnosed Mrs. Tigani with delusions), 873-75 (Romirowsky) (testifying inconsistently 

about whether Mrs. Tigani suffered from distortions, misrepresentations, or delusions), 876-80 

(Romirowsky) (testifying that Mrs. Tigani met all the criteria for delusional disorder but refusing 

to say he had diagnosed her with delusional disorder).
30

During her interview with Dr. Datillio, Mrs. Tigani again described her upbringing 

in glowing terms and concluded hers was a happy marriage, despite some rough

patches.109 Dr. Dattilo noted references in Mrs. Tigani‟s medical records to some 

depression and anxiety she experienced and some prescriptions for medication and 

counseling to treat those issues. Mrs. Tigani acknowledged those facts to Dr. 

Dattilio and explained that she did not react well to the medication and did not 

continue counseling beyond four or five sessions.110 Dr. Datillio concluded that 

Mrs. Tigani meets the criteria for a diagnosis of Generalized Anxiety Disorder, but 

he concluded she had no dementia-related deterioration and exhibited admirable 

cognitive function for someone her age.111

Dr. Datillio disagreed with the conclusions reached by Bruce‟s experts and 

particularly criticized their interpretation of the results of the PAI. Dr. Datillio 

explained that Bruce‟s experts failed to account for Mrs. Tigani‟s age when 

interpreting the results of the PAI, and therefore compared her responses to the 

entire sample set, rather than to the age range in which she fell. Because only 1.9 

percent of the sample size was 65 or older, the use of the “boilerplate” scoring 

mechanism, as opposed to one scaled to Mrs. Tigani‟s age, distorted her responses 

and made some of her results appear unusual, when they in fact were typical of 

 

109 RX 28 at 4, 7.

110 Id. at 13.

111 Id. at 12.
31

people within her age bracket.112 Significantly, Drs. Romirowsky and BelcherTimme did not respond to this criticism in their Addendum. 

Dr. Datillio concluded that there was “a clear lack of evidence to support the 

notion of any serious psychopathology” and that there was not sufficient evidence 

that Mrs. Tigani was paranoid or had the capacity for distortion or gross 

misrepresentation that Bruce‟s experts described in their report.113 Dr. Datillio did 

not find anything to substantiate allegations that Mrs. Tigani suffers from a 

delusional belief system or otherwise could be diagnosed as having delusions.114 

Dr. Datillio therefore concluded that Mrs. Tigani had the requisite capacity to 

make and change her will.115

Dr. Sadoff issued two reports regarding Mrs. Tigani‟s capacity: one in 

December 2012 and one in May 2014.116 During her initial interview with Dr. 

Sadoff, Mrs. Tigani expressed sadness regarding the rift in her relationship with 

Bruce.117 After meeting with Mrs. Tigani and interviewing her lawyers and Diane, 

Dr. Sadoff concluded in 2012 that Mrs. Tigani was “clearly competent to manage 

her affairs and to have signed the [2011 Will, the 2011 Trust Amendment, the 

 

112 Id. at 14-15.

113 Id. at 15-16.

114 Id. at 16.

115 RX 28 at 20.

116 RX 21, 31.

117 RX 21 at 4, 7-8.
32

April 2012 Amendment, and the July 2012 Codicil].”118 Dr. Sadoff reasoned that 

Mrs. Tigani did not have an irrevocable bias against Bruce because she expressed a 

willingness to reconcile with him if he apologized for his actions.119

Dr. Sadoff interviewed Mrs. Tigani again in 2014 and ordered psychological 

testing for Mrs. Tigani. In his 2014 report, Dr. Sadoff confirmed his conclusion

that there was no evidence Mrs. Tigani is impaired intellectually or cognitively, 

and no evidence that she has “insane delusions” about Bruce. 120 Dr. Sadoff 

explained that a delusion is a “fixed false belief that cannot be influenced to 

change by logic or by reason or by influence.” 121 He disagreed with Drs. 

Romirowsky and Belcher-Timme‟s conclusion that Mrs. Tigani had delusions, 

explaining that the fact that Mrs. Tigani had different opinions about people‟s 

relationships or different interpretations about events or individuals‟ motives did 

not rise to the level of an insane delusion. He similarly opined that Mrs. Tigani‟s 

characterization of her marriage and childhood as “happy,” notwithstanding 

evidence that she had conflicts with her husband or her siblings, was simply a 

decision to focus on happy times and remember people – most of whom are 

deceased – in the best light.122 Dr. Sadoff also strongly criticized Bruce‟s experts 

for attributing to Mrs. Tigani symptoms of certain disorders – such as Paranoid 

 

118 Id. at 7.

119 Id. at 7-8.

120 RX 31 at 1.

121 Id. at 2.

122 Id. at 3-4.
33

Personality Disorder or Narcissistic Personality Disorder – when they had 

concluded she could not be diagnosed with those disorders.123

Mrs. Tigani provided explanations to both Dr. Dattilio and Dr. Sadoff 

regarding her reasons for disinheriting Bruce. She indicated to Dr. Datillio that she 

and Mr. Tigani decided to remove Bruce as a beneficiary of their estates after he 

withdrew as his father‟s counsel, acted violently toward Mrs. Tigani, and had what 

they considered an immoral relationship with Jennifer.124 To Dr. Sadoff, Mrs. 

Tigani described more generally the bases for her anger with Bruce, relating some 

incidents that occurred when he was in college, his decision to allow Jennifer to 

sleep in his home when the children were present, the Father‟s Day incident, and 

Bruce‟s decision to withdraw as counsel to Mr. Tigani.125

Both of Mrs. Tigani‟s experts testified at trial, and I found the testimony of 

both to be credible and consistent with their written reports. Their testimony and 

their reports also coincided with my own observations of Mrs. Tigani, who during 

her testimony appeared to be: (1) remarkably sharp for a woman of her age, (2) 

unquestionably strong-willed and firm in her beliefs about various people, and (3) 

rather unforgiving of others‟ faults, but (4) far from delusional as I understand that 

term. Perhaps most notably, Dr. Sadoff succinctly explained at trial that a person‟s 

 

123 Id. at 5-6.

124 RX 28 at 17.

125 RX 21 at 3-4; RX 31 at 2.
34

thinking cannot be characterized as “delusional,” notwithstanding evidence 

contradicting that thinking, if there is a “scintilla” of evidence that supports the 

allegedly delusional person‟s beliefs.

126

J. The parties’ positions in this litigation

After the evidentiary hearing on capacity, Mrs. Tigani filed a motion for 

summary judgment resurrecting her standing argument. The parties 

simultaneously briefed and argued the capacity issue and the standing issue. In her 

motion for summary judgment, Mrs. Tigani argues that both the April 2012 

Amendment and the July 2012 Codicil operate independently to divest Bruce of 

standing to pursue this action because he no longer is a beneficiary of Mr. Tigani‟s 

Trust. Mrs. Tigani‟s argument is premised on her position that the July 2012 

Codicil127 was both a “release” and a contract to exercise a power of appointment 

and that Delaware law should recognize a contract to exercise a power of 

appointment as effective when the contract is signed, in contrast to the settled rule 

that a testamentary power of appointment is not effectively exercised until the 

donee dies. Bruce, on the other hand, argues that he is a vested beneficiary subject 

to divestiture by virtue of his position as a taker in default of the Power of 

 

126 Tr. at 582-84 (Sadoff).

127 Although Mrs. Tigani took the position at oral argument that the April 2012 Amendment also 

effectively divested Bruce of standing because it was a “release,” her briefs in support of the 

motion for summary judgment focus almost exclusively on the July 2012 Codicil. In any event, 

because I conclude that the July 2012 Codicil does not divest Bruce of standing, the April 2012 

Amendment is similarly ineffective in removing Bruce as a party with standing to challenge Mrs. 

Tigani‟s actions as trustee and executrix.
35

Appointment, and that none of Mrs. Tigani‟s efforts to remove him as a beneficiary 

of the Trust are presently effective or can be effective until her death.

Bruce also argues that, even if the July 2012 Codicil or April 2012 

Amendment divested him of standing in this action, Mrs. Tigani lacked capacity at 

the time she executed those documents. Bruce contends that Mrs. Tigani has fixed, 

false beliefs regarding Bruce, such that she is unable to “alter her unusually rigid 

thoughts even when presented with overwhelming evidence to the contrary.”128 As 

Bruce frames his argument, Mrs. Tigani‟s delusional beliefs were so overwhelming 

that – at the time she executed the challenged documents – she was unable to 

exercise thought, reflection, and judgment regarding her relationship with Bruce. 

Bruce further contends that the conclusions of Dr. Sadoff and Dr. Datillio 

regarding Mrs. Tigani‟s capacity are based on those experts‟ beliefs that Bruce‟s 

experts were untruthful or inaccurate in reporting Mrs. Tigani‟s statements during 

her clinical interviews.

Mrs. Tigani, of course, contends that she had and has capacity to make and 

change her will and estate plan and that Bruce‟s argument conflates the “thought, 

reflection, and judgment” standard for capacity with the standard for insane 

delusions under Delaware law. Mrs. Tigani argues that Bruce grossly understates 

the standard necessary for the Court to conclude a testator lacks capacity as a result 

 

128 Pet‟r‟s Opening Post-Tr. Br. at 67.
36

of insane delusions, and that what Bruce identifies as “delusions” are little more 

than differences in the parties‟ opinions or recollections regarding various events 

or relationships.

ANALYSIS

I begin my analysis by discussing whether Mrs. Tigani‟s various estate 

planning efforts after this lawsuit was filed were sufficient to divest Bruce of 

standing to continue this action. For the reasons that follow, I conclude they do 

not. The question of whether Mrs. Tigani had the requisite capacity to execute 

those documents therefore is moot. For the sake of efficient judicial review, 

however, and because of the likelihood the issue of capacity will be raised at some 

later date if not addressed now, I then discuss my conclusions regarding capacity. 

As discussed below, I believe Mrs. Tigani had capacity to execute the challenged 

documents.

I. Bruce has standing to maintain this action because Mrs. Tigani’s 

testamentary power of appointment cannot effectively be exercised 

until her death.

Delaware law permits a “beneficiary” to bring an action to remove a trustee

of a trust.

129

 The term “beneficiary” is undefined in the relevant chapter of the 

Delaware Code and the parties therefore spent a fair amount of time at the motion 

to dismiss stage arguing whether a contingent beneficiary fell within the meaning 

 

129 12 Del. C. § 3327.
37

of “beneficiary” under 12 Del. C. § 3327. It is not necessary for this Court to 

resolve that argument because Bruce is not a contingent beneficiary, but rather a 

vested beneficiary subject to divestiture, and I believe that the statute‟s use of the 

general term beneficiary, without any language restricting the class of beneficiary 

to whom it refers, fairly encompasses a vested beneficiary subject to divestiture.

Mrs. Tigani‟s argument that Bruce is a contingent beneficiary rests on her 

contention that her death and failure to appoint Bruce‟s share to other permissible 

appointees was a condition precedent to Bruce receiving a share of the Trust. Mrs. 

Tigani did not cite any precedent for that position in her summary judgment 

briefs.130 In contrast to that argument, both the Restatement (Second) of Property

and a leading treatise on trust law indicate that a taker in default of a power of 

 

130 In her motion to dismiss, Mrs. Tigani cited a decision of the U.S. Tax Court, Estate of 

Halpern v. C.I.R., 1995 WL 447972 (Tax Ct. July 31, 1995) and a decision of this Court, N.K.S. 

Distributors, Inc. v. Tigani, 2010 WL 2011603 (Del. Ch. May 7, 2010). In Halpern, the Tax 

Court did describe as “contingent” the interests of beneficiaries who would receive the trust 

corpus if the donee of a power of appointment failed to exercise that power. The Court‟s use of 

the term “contingent,” however, appears to be dicta, as it did not form the basis for the Court‟s 

ruling. 1995 WL 447972 at *10. In addition, the Court‟s opinion does not indicate that it was 

charged with distinguishing between a contingent beneficiary and one who was vested subject to 

divestiture. In N.K.S. Distributors the Court was presented with the question of whether a 

successor beneficiary of a trust could compel the production of attorney-client communications 

between the primary beneficiary and counsel to the trust. The Court denied the motion and 

reasoned that the movant only was a “contingent beneficiary” because the primary beneficiary 

had a limited power of appointment and there was no guarantee the movant would remain as a 

beneficiary under the power of appointment. 2010 WL 2011603 at *2. The opinion in N.K.S. 

Distributors does not indicate whether the movant was a taker in default of the power of 

appointment, and therefore is of limited utility in resolving the question of Bruce‟s legal status.
38

appointment is classified as vested subject to divestiture.

131

 More importantly, 

regardless of how the interest held by a taker in default of a power of appointment 

is described, most courts in other jurisdictions have concluded that a taker in 

default has an interest in the property that is the subject of the power of 

appointment and has standing to compel an accounting from a trustee.132 Mrs. 

Tigani has not identified any reason why Delaware should deviate from this 

majority rule. In fact, there is good reason to follow that trend, particularly in this 

case, because concluding that the takers in default of the Power of Appointment do

not have standing to challenge the actions of the trustee effectively would insulate 

Mrs. Tigani from any form of judicial review of her actions as trustee.

The analysis, unfortunately, does not end there, because Mrs. Tigani 

contends that, even if Bruce had standing at the time he filed this action, the July 

2012 Codicil divested him of standing. The parties agree there is no Delaware case 

directly on point. In my view, however, persuasive authority from other 

jurisdictions, along with several secondary sources, including the Restatement, 

compel the conclusion that: (1) Mrs. Tigani‟s attempt to exercise the Power of 

 

131 Restatement (2nd) Property: Donative Transfers § 11.2, cmt. c. (“A taker in default of 

appointment has an interest in the property that is subject to the power of appointment. If the 

only thing that can defeat the interest is an exercise of the power, the interest in the taker in 

default is vested subject to divestiture.”); Alan Newman, George Gleason Bogert & George 

Taylor Bogert, The Law of Trusts and Trustees § 967 at 178 n.26 (3d ed. 2010) (citing 

Restatement (Second) Property: Donative Transfers § 11.2, cmt. c.).

132 See Alan Newman, George Gleason Bogert & George Taylor Bogert, The Law of Trusts and 

Trustees § 967 at 178-79 n.26 (3d ed. 2010) (citing cases).
39

Appointment is not effective during her lifetime; (2) the July 2012 Codicil at most 

represents a “release” of Mrs. Tigani‟s power to appoint the Trust property to 

Bruce, but it does not alter his position as a taker in default of the Power of 

Appointment; and (3) Delaware law does not, and should not, recognize a 

“contract to exercise a power of appointment” as a presently-enforceable 

agreement.

A. The Power of Appointment is not presently exercisable.

There is no dispute between the parties that the Power of Appointment is a 

testamentary power, as it only may be exercised in Mrs. Tigani‟s last will and 

testament admitted to probate.133 In turn, Mrs. Tigani necessarily must be deceased 

before any exercise of the Power of Appointment is effective, since her last will 

and testament cannot be admitted to probate while she is living. For that reason, 

Delaware law and several secondary sources provide that any exercise of a 

testamentary power of appointment becomes effective only at the death of the 

powerholder,134 who often is called the “donee” of the power.135 It is settled that 

any bequests Mrs. Tigani might make in her will of property she owns would not 

pass to the named beneficiaries until her death, because her will might be changed 

 

133 In re Estate of James Vincent Tigani, Jr., C.A. No. 7339-ML at 4-5 (June 2, 2015) 

(TRANSCRIPT).

134 Weymouth v. Wilmington Trust Co., 1991 WL 148808, at *4 (Del. Ch. Aug. 2, 1991); 

Uniform Powers of Appointment Act (hereinafter cited as “UPAA”) § 102(15)(B); Restatement 

(Second) of Property: Donative Transfers § 11.5.

135 The Restatement (Second) of Property: Donative Transfers § 11.2 contains definitions 

identifying the various persons related to a power of appointment.
40

or the property might be transferred during her lifetime. 136 Similarly, any 

appointees Mrs. Tigani might designate in her last will and testament to become 

beneficiaries of the Trust could not claim an interest in the property until her death, 

because the power of appointment does not become exercisable until that time.

B. Although the July 2012 Codicil may be a release, it does not alter 

Bruce’s position as a taker in default of a power of appointment.

Although Mrs. Tigani concedes the Power of Appointment is not presently 

exercisable, she contends the July 2012 Codicil operated as both a release137 and a 

contract to exercise a power of appointment, and the combination of those two 

things effectively eliminated Bruce as a beneficiary – whether contingent or vested 

– under the Trust. 

Delaware law expressly permits the donee of a power of appointment to 

release the power either partially or completely. Nearly any power of appointment, 

including the Power of Appointment at issue here, is “releasable,” with or without 

consideration, if the release is made in a signed writing and delivered as required 

 

136 Hill v. Baker, 102 A.2d 923, 926-27 (Del. Super. 1953).

137 It is notable that Mrs. Tigani‟s argument that the July 2012 Codicil operates as a “release” 

was not even raised until her reply in support of her motion for summary judgment. That is, 

Mrs. Tigani filed four briefs on the standing issue (two in support of the motion to dismiss and 

two in support of the motion for summary judgment) and did not contend until the last brief that 

her intent was to “release” Bruce as a permissible appointee. Bruce argues, correctly I believe, 

that this constitutes “sandbagging,” which generally is not countenanced in the Delaware courts. 

Because Mrs. Tigani does not prevail on the merits of the release argument, however, I have 

considered the issue rather than concluding that the argument was waived by the failure to timely 

raise it.
41

by law.138 The release is effective upon delivery of the signed writing to, among 

others, “any person, other than the grantee, who could be adversely affected by an 

exercise of the power.”139 There is no requirement under the law that any party 

adversely affected by the release be a party to, or consent to, the release.140

A release, however, does not alter the persons a trustor designated as takers 

in default of a power of appointment. Rather, at most, a release of a power of 

appointment limits or eliminates the donee‟s power to appoint.141 Arguably, the 

July 2012 Codicil may be read as a partial release or as a contract to release, given 

Mrs. Tigani‟s direction that no property that was the subject of the Power of 

Appointment would be distributed to Bruce.142 If it is a valid release, the July 2012 

Codicil limited Mrs. Tigani‟s Power of Appointment by reducing the class of 

permissible appointees of the power. The inquiry, however, does not end there. 

 

138 25 Del. C. § 502(a); see also Restatement (Second) Property: Donative Transfers § 14.2.

139 25 Del. C. § 502(c)(3).

140 See, e.g. 25 Del. C. § 502; Restatement (Second) Property: Donative Transfers § 14.3; 

Restatement (Third) Property: Wills and Other Donative Transfers § 20.3.

141 Restatement (Second) Property: Donative Transfers § 14.2, cmt. c (“A non-general power to 

appoint by will cannot be exercised in the donee‟s lifetime. A complete release of such a power 

causes the interests of the takers in default of appointment to be incapable of being defeated by 

an exercise of the power.”); id. § 16.2, cmt. a (“A release, however, operates negatively by 

eliminating possible appointees.”); Restatement (Third) Property: Wills & Donative Transfers § 

21.2, cmt. a (same).

142 I say “arguably” because there is some authority to support the opposite conclusion. That is, 

as discussed below, a contract to appoint may be construed as a release, but if the donee benefits 

from the contract, the contract may not be valid and enforceable and the release therefore may 

not be effective. See Restatement (Third) Property: Wills & Donative Transfers § 20.3, cmt. d. 

Because I conclude that, even if effective as a release, the July 2012 Codicil would not eliminate 

Bruce‟s standing, I need not reach the hypothetical question of whether the July 2012 Codicil is a 

valid release.
42

Mrs. Tigani might choose not to exercise the Power of Appointment, or might fail 

to exercise it correctly, in which case Bruce would be a beneficiary of the Trust as 

a taker in default of the Power of Appointment. For that reason, Mrs. Tigani also 

argues that the July 2012 Codicil functions as a contract to exercise the Power of 

Appointment.143

C. A contract to exercise a testamentary power of appointment is not 

valid in Delaware.

Mrs. Tigani argues that the July 2012 Codicil operated as a contract to 

exercise the Power of Appointment in favor of Jim and Diane, effectively 

eliminating the possibility that Bruce would take in default of the Power of 

Appointment. The question of whether a so-called “contract to appoint” is valid in 

Delaware appears to be an issue of first impression. In my view, the better rule, 

and the one adopted by the Restatement, is that a donee who holds a power to 

 

143 At argument, Mrs. Tigani acknowledged that, even if the release was valid, it did not alter 

Bruce‟s status as a taker in default, but contended that any remaining interest Bruce might have 

is so attenuated that the Court should not recognize it as conferring standing on Bruce to 

maintain this action. In re Estate of James Vincent Tigani, Jr., C.A. No. 7339-ML (June 2, 

2015) (TRANSCRIPT) at 43-45. In support of that argument, Mrs. Tigani cited the N.K.S. 

Distributors, Inc. v. Tigani, 2010 WL 2011603 (Del. Ch. May 7, 2010), discussed at footnote 

130, supra. As explained above, the utility of that case is limited here because in that case it is 

not clear whether the movant was a taker in default, as opposed to merely a permissible 

appointee. More importantly, the issue the Court confronted was whether a “contingent” 

beneficiary should be permitted to obtain privileged documents when the primary beneficiary of 

the trust was opposed to the documents being produced. The Court in that case was not 

presented with the more fundamental question of whether a “contingent” beneficiary should have 

standing to pursue an accounting. Other courts that have addressed that question have concluded 

that beneficiaries similarly situated to Bruce have standing. See n. 132, supra.
43

appoint that is not presently exercisable, such as the one at issue here, may not 

enter into a valid contract to appoint.

From the outset, it is helpful to keep in mind the distinction between a 

release and a power of appointment. A release operates negatively, by limiting or 

altogether eliminating a donee‟s power of appointment. A contract to appoint, on 

the other hand, operates affirmatively as a purported exercise of the power.144 A 

donee of a power of appointment expressly is permitted to release the power under 

Delaware law.145 The Restatement similarly recognizes the validity of a release.146

Delaware law is silent, however, with respect to contracts to appoint. The 

Restatement and other secondary sources generally indicate that contracts to 

exercise a testamentary power of appointment are not valid, with limited 

exceptions.

The Restatement explains that “a contract to exercise a power that is not 

presently exercisable is unenforceable” unless “the donee was also the donor of the 

power and reserved the power in a revocable inter vivos trust.”147 There are two 

rationales underlying that rule. First, a donee of a power not presently exercisable, 

such as a testamentary power of appointment, does not have the authority to make 

a present appointment. Allowing the donee to circumvent that rule through a 

 

144 See Restatement (Third) Property: Wills & Donative Transfers § 21.2, cmt. a.

145 25 Del. C. § 502.

146 See, e.g. Restatement (Second) Property: Donative Transfers §§ 14.2, 14.3; Restatement 

(Third) Property: Wills and Donative Transfers § 20.3.

147 Restatement (Third) Property: Wills & Donative Transfers § 21.2. 
44

contract to appoint would defeat the donor‟s intent in creating a power that could 

not be exercised immediately.

148

 A donor who creates a testamentary power of 

appointment, or any other power not presently exercisable, is presumed to intend 

that “the selection of the appointees and the determination of the interests they are 

to receive is to be made in light of the circumstances that exist on the date the 

power becomes exercisable.”149 In other words, by limiting when a power of 

appointment may be exercised, the donor essentially requires the donee to “wait 

and see” and take into account later developing facts before exercising the power.

Applied to this case, when Mr. Tigani gave Mrs. Tigani a testamentary 

power of appointment, he is presumed to have intended that she would have the 

freedom to exercise the power after taking into account all facts and circumstances 

that developed between Mr. Tigani‟s death and Mrs. Tigani‟s death. If the Court 

were to recognize the contract to appoint as valid, Mrs. Tigani‟s ability to alter the 

appointment at any time before her death would be eliminated and Mr. Tigani‟s 

intent would be defeated. Other sources are in accord with this reasoning.150 

Although Delaware law is silent on this precise issue, it is settled that the scope of 

a power of appointment is interpreted pursuant to the donor‟s intent.151

 

148 Restatement (Third) Property: Wills & Donative Transfers § 21.2, cmt. a.

149 Id. § 21.2, cmt. a.

150 UPAA § 406 (2013); John A. Burron, Jr., The Law of Future Interests, §§ 874, 1011 (3d ed.). 

The relevant sections of the UPAA and The Law of Future Interests may be found as exhibits to 

the letter to the Court from Thomas R. Riggs, Esq., dated June 4, 2015.

151 Weymouth v. Wilmington Trust Co., 1991 WL 148808, at *3 (Del. Ch. Aug. 2, 1991).
45

Second, a contract to appoint that confers a benefit on a donee when the 

donee is not a permissible appointee also is invalid on the independent ground that 

[the contract] confers a benefit on an impermissible appointee. As this Court 

explained in Weymouth v. Wilmington Trust Co., a power of appointment may not 

be exercised in a manner that would benefit an impermissible appointee.152 Such 

an appointment is considered a “fraud” on the power and is invalid.153 Mrs. Tigani 

is not a permissible appointee under the Power of Attorney. She nonetheless

conferred a benefit upon herself by contracting to exercise the Power of 

Appointment in exchange for Diane‟s and Jim‟s “continued love and affection and 

promise to assist [her] with [her] care and maintenance for the remainder of [her] 

lifetime.”154 For that reason, if Delaware follows the Restatement and the other 

secondary sources, the July 2012 Codicil is ineffective as a contract to appoint both 

because it contravenes Mr. Tigani‟s intent and because it confers a benefit on Mrs. 

Tigani, who is not a permissible appointee.

Mrs. Tigani argues, however, that Delaware should not follow the 

Restatement regarding the validity of contracts to appoint, either as a general rule 

or at a minimum in this particular case. Mrs. Tigani acknowledges that Delaware 

 

152 Id. at *3-4.

153 UPAA § 307. There need not be any actual fraud involved in a fraudulent appointment. 

Rather, an attempt to exercise the power is fraudulent and void if it is exercised for a purpose or 

with an intention beyond the scope of the power. The Law of Future Interests, supra n. 150, § 

981 at 547; see also, id. at § 1011 at 570.

154 PX 5 at Item 4.
46

courts generally find the Restatement of Laws to be persuasive authority on many 

topics,155 but contends the rule announced in the Restatement should not apply here 

because it conflicts with Delaware‟s recognition of the enforceability of contracts 

to make a will. Mrs. Tigani also argues, in the alternative, that the July 2012 

Codicil should be valid because it was not contrary to Mr. Tigani‟s intent and 

because Mr. Tigani surely would have wanted Mrs. Tigani to have the freedom to 

use the Power of Appointment to ensure the continued support of her children in 

her old age.

As to the first argument, the fact that Delaware recognizes and enforces 

contracts to make a will, provided the burden of proof of such an agreement is 

met,156 is not a sufficient basis to conclude that Delaware also should recognize 

contracts to appoint. There are important distinctions to be drawn between the two 

contracts. First, unlike a contract to appoint, a contract to make a will does not 

involve the same policy concerns of contravening a donor‟s intent. Second, a 

contract to make a will does not allow the would-be testator to use as consideration 

an interest in property to which he otherwise has no right. By entering into a 

contract to make a will, a testator agrees to make a bequest of a property interest

 

155 See, e.g. Stayton v. Del. Health Corp., 117 A.3d 521 (Del. 2015); Ascension Insur. Holdings, 

LLC v. Underwood, 2015 WL 356002 (Del. Ch. Jan 28, 2015); NAMA Holdings, LLC v. Related 

WMC LLC, 2014 WL 6436647 (Del. Ch. Nov. 17, 2014); In re Activision Blizzard, Inc., 86 A.3d 

531 (Del. Ch. 2014).

156 See 6 Del. C. § 2715; Brown v. Wiltbank, II, 2011 WL 5027057, at *5 (Del. Ch. Oct. 13, 

2011); In re Maull, 1994 WL 374302, at *3 (Del. Ch. June 9, 1994).
47

that belongs to the testator and of which the testator freely may dispose during his 

lifetime. In contrast, the property in question in a contract to exercise a 

testamentary power involves a property interest to which the donee has no claim

and which the donee cannot dispose of during her lifetime.

157

 Put another way, if a 

contract to appoint were enforceable, the donee could use the contract to confer a 

current benefit on herself in exchange for property – the remainder interest – the 

donee has no right to enjoy. Mrs. Tigani has a life estate in the income and 

principal of the Trust. She has a power to appoint the remainder interest to a set of 

permissible appointees, but she has no right herself to enjoy the remainder interest. 

Mrs. Tigani‟s argument that she has not contravened Mr. Tigani‟s intent or 

conferred a benefit on herself that he did not intend is equally unpersuasive in my 

view. To determine a settlor‟s intent, this Court looks to the language in the trust. 

If that language is unambiguous, the Court looks no further and does not consider 

extrinsic evidence of intent.158 Mrs. Tigani does not point to any ambiguity in the 

language of the Trust, but instead argues that Mr. Tigani could not have intended 

to limit her authority in this way because it was their agreement as spouses that the 

last survivor would control the ultimate disposition of their joint assets. Mrs. 

Tigani posits that Mr. Tigani likely did not understand the precise implications of 

the type of power of appointment contained in the Trust Agreement. The Court, 

 

157 Accord The Law of Future Interests, supra n. 150, § 1013 at 572.

158 Wilmington Trust v. Annan, 531 A.2d 1209, 1211 (Del. Ch. 1978).
48

however, cannot look to extrinsic evidence to read ambiguity into an unambiguous 

contract. Mr. Tigani‟s Trust plainly states that the Power of Appointment was 

testamentary, evincing his intent that Mrs. Tigani could not exercise the power 

until her death. Additionally, Mr. Tigani named the permissible appointees of the 

Power of Appointment, of which Mrs. Tigani was not one. In fact, there likely 

were important tax reasons that Mrs. Tigani was not named as a permissible 

appointee of the power. Because the language in the agreement is unambiguous, 

Mrs. Tigani cannot resort to her own testimony regarding the spouses‟ 

understanding or what Mr. Tigani may or may not have understood when he signed 

the agreement.

For those reasons, I conclude that – even if the July 2012 Codicil was an 

effective release of Mrs. Tigani‟s power – it did not divest Bruce of standing as a 

taker in default of the power, and the portion of the July 2012 Codicil that 

purported to operate as a contract to exercise the Power of Appointment is void 

under Delaware law. Bruce therefore continues to have standing as a taker in 

default to pursue this action.

D. The Power of Appointment is exclusionary.

Finally, although it is not necessary to reach the issue in light of the 

foregoing conclusion, I nevertheless will address Bruce‟s alternate argument that 

the Power of Appointment is non-exclusionary. Given the current tensions 
49

between the parties, it seems unlikely that a détente may be reached, in which case 

the issue of whether the Power of Appointment is exclusionary or nonexclusionary is likely to arise upon Mrs. Tigani‟s death. Briefly, Bruce argues that, 

even if the July 2012 Codicil were both a release and a valid contract to appoint, 

the exercise of the Power of Appointment would be invalid because he contends 

the Power of Appointment is non-exclusionary, meaning Mrs. Tigani must appoint 

a minimum reasonable share to each of the permissible appointees. In contrast, an 

exclusionary power of appointment allows the donee to select among a class of 

permissible appointees, excluding some of the permissible appointees altogether.

There is no case or statute in Delaware addressing the distinction between 

exclusionary and non-exclusionary powers of appointment. A handful of states 

have adopted statutes to the effect that all powers of appointment are 

exclusionary.159 Others follow the rule, adopted in the Restatement, that a power 

of appointment is presumed to be exclusionary unless the terms of the power 

expressly provide that the appointment must benefit each permissible appointee.160 

The Restatement explains that language that unambiguously creates a nonexclusionary power includes language “granting the donee the power to appoint to 

„all and every one‟ or to „each and every one‟ of a defined and limited class of 

permissible appointees, or language specifying the share of the appointive property 

 

159 The Law of Future Interests, supra n. 150, § 982 at 552 & n.5.

160 Restatement (Third) Property: Wills & Donative Transfers § 17.5.
50

from which one or more individually designated permissible appointees may not be 

excluded by an appointment.”161 Bruce concedes that the Power of Appointment 

does not contain any such language. 

In my view, the plain language of the Power of Appointment indicates it is 

exclusionary because it allows Mrs. Tigani to distribute “such portions or all” of 

the residue of the trust to Mr. Tigani‟s descendants who survive Mrs. Tigani, “in 

such manner as [Mrs. Tigani] may appoint and direct ... .”162 By allowing Mrs. 

Tigani to appoint some or all of the residue to the permissible appointees in such 

manner as she directed, Mr. Tigani selected unambiguous language indicating an 

intent to allow Mrs. Tigani to decide which of the permissible appointees received 

an interest, and in what amount. That conclusion also is supported by the absence 

of any language in the Trust from which a reviewing court could determine the 

minimum share each permissible appointee would receive if the power were nonexclusionary.

163 In any event, even if the Power of Appointment was ambiguous, 

the Restatement indicates that ambiguous language is presumed to create an 

exclusionary power.164

 

161 Id. § 17.5, cmt. d.

162 PX 1 at 13.

163 See The Law of Future Interests, supra n. 150 at § 982 at 552 (discussing the difficulty in 

determining whether a minimum share was “nominal,” and therefore illusory, or “substantial,” 

and therefore valid).

164 Restatement (Third) Property: Wills & Donative Transfers § 17.5, cmt. f (“[F]or example, a 

power to appoint „to,‟ „among,‟ or „between‟ a defined and limited class of permissible 

appointees is exclusionary.”).
51

II. Mrs. Tigani had capacity at the time she executed the 2011 Will, the 

2011 Trust Amendment, the April 2012 Amendment, and the July 

2012 Codicil.

As explained above, having concluded that Mrs. Tigani‟s recent estate 

planning could not divest Bruce of standing while she is still alive, the issue of 

Mrs. Tigani‟s capacity is moot. It nonetheless is likely that, if the Court does not 

resolve capacity now, that challenge will be re-raised at a later date. I therefore 

discuss the capacity issue below.

The standard for testamentary capacity in Delaware is well-worn: “[O]ne 

who makes a will must, at the time of execution, be capable of exercising thought, 

reflection and judgment, and must know what he is doing and how he is disposing 

of his property. He must have sufficient memory and understanding to 

comprehend the nature and character of his act.”165 A testator is presumed to have 

capacity, and the burden rests on the contesting party to prove incapacity by a 

preponderance of the evidence.166 If a person meets this standard, it is irrelevant 

whether the Court agrees with the testator‟s plan of distribution.167

A sound mind is one that is “wholly free from delusion.”168 Conversely, a 

delusion is the mark of an unsound mind, and a delusion that directly influences a 

 

165 In re Will of Langmeier, 466 A.2d 386, 402 (Del. Ch. 1983); see also, In re Estate of West, 

522 A.2d 1256, 1263 (Del. Ch. 1987).

166 In re Will of Langmeier, 466 A.2d at 389; In re Barnes’ Will, 18 A.2d 433, 434 (Del. Super. 

1941); In re Miller’s Will, 85 A. 803, 808 (Del. Super. 1912).

167 In re Miller’s Will, 85 A. at 808.

168 Rodney v. Burton, 86 A. 826, 829 (Del. Super. 1912).
52

person‟s will necessarily invalidates that will.169 Under Delaware law, a delusion 

is “a false belief for which there is no reasonable foundation, a conception of the 

existence of something which does not exist, of which the mind of the person 

entertaining it cannot permanently be disabused.”170 A delusion may be limited to 

particular subjects, such that a testator otherwise appears to be of completely sound 

mind. 171 Nonetheless, if that partial delusion forms the basis for a testator‟s 

decisions, it deprives the testator of capacity.

The question that must be answered by a court determining the capacity of 

an allegedly delusional testator is whether the testator suffered from such insane 

delusions, continuing up to the time of making her will, that she was not capable of 

exercising thought, reflection, and judgment and did not possess the requisite 

memory and understanding to comprehend the nature and character of her acts.172 

In Tracy v. Prudential Life Insurance Co. of America, this Court distilled the 

applicable law regarding insane delusions into a two-part test:

1. Was the belief of the [testator] a mere false idea as distinguished 

from an insane delusion?

2. Assuming such a delusion, did the [testator] change the 

beneficiaries [of the estate] because of that belief?173

 

169 Rodney, 86 A. at 829-30; In re Miller’s Will, 85 A. at 810-11.

170 In re Barnes’ Will, 18 A.2d at 434.

171 In re Miller’s Will, 85 A. at 810-11.

172 Id. at 811.

173 101 A.2d 321, 326 (Del. Ch. 1953).
53

As explained above, Bruce contends that Mrs. Tigani suffers from delusional 

beliefs regarding Bruce, and that those delusions affected her thought, reflection, 

and judgment at the time she executed the challenged testamentary documents. 

Bruce lists several delusions he contends are overwhelmingly supported by the 

evidence, namely Mrs. Tigani‟s beliefs regarding: (1) her “happy” childhood, (2) 

her “happy” marriage, (3) the confrontation between Bruce and Mrs. Tigani in 

April 2010 at the hospital, (4) the confrontation between Jessica and Mrs. Tigani 

on Mother‟s Day, the (5) “Father‟s Day Incident,” (6) Bruce‟s withdrawal letter, 

and (7) the legal effect of the 2011 Will and 2011 Trust Amendment.174 As to Mrs. 

Tigani‟s beliefs or characterizations of her childhood and marriage, Bruce 

concedes those “delusions” did not affect Mrs. Tigani‟s decision to disinherit 

Bruce, but he contends they nevertheless are important because they provide 

evidence of how her “psychological issues” inform her view of the world.175

Importantly, each of the “delusions” Bruce identifies are not, as Delaware 

law requires, false beliefs for which there is no reasonable foundation. Rather, 

each of these five items reflects either (1) a difference in the parties‟ recollection 

and interpretation of various events or (2) a lay person‟s misunderstanding of 

nuanced legal issues. None of these items, nor the collective set, stands as proof 

by a preponderance of the evidence that Mrs. Tigani is delusional. It is clear that, 

 

174 See Pet‟r‟s Opening Post-Tr. Br. at 67-82; Pet‟r‟s Reply Post-Tr. Br. at 34-35.

175 Pet‟r‟s Reply Post-Tr. Br. at 34.
54

for a number of reasons, not the least of which is this lawsuit, Mrs. Tigani dislikes 

Bruce. It also is clear that she has misunderstood him on a number of occasions.

Mistake and prejudice, however, are not insane delusions.176

The first three items Bruce identifies as delusions affecting Mrs. Tigani‟s 

testamentary decisions – the April 2010 hospital incident, the Mother‟s Day 

incident, and the Father‟s Day Incident – amount to little more than different 

peoples‟ interpretation and recollection of motivations and events. In an effort to 

prove Mrs. Tigani is delusional, Bruce focuses on items that are not material to 

Mrs. Tigani‟s testamentary decisions, such as her recollection of the temperature 

that day, the hospital in which the events occurred, and when a particular television 

program aired. Although Mrs. Tigani‟s insistence that she is correct on those 

points – despite demonstrable evidence to the contrary – is odd, those “delusions” 

did not factor into her decision to execute the challenged documents. The events 

that may have played a role in her decision to disinherit Bruce, such as whether he 

was justified in shouting at his mother in the hospital, or what occurred in the 

Tiganis‟ home during the holiday functions, are not incontrovertibly false. Rather, 

Mrs. Tigani‟s recollection is supported by others who witnessed the events. If 

there is even a modicum of facts upon which a testator might have based her belief, 

 

176 In re Barnes’ Will, 18 A.2d at 434.
55

that belief is not an insane delusion, even if the Court concludes the testator‟s 

belief is without foundation or illogical.177

Bruce also characterizes as delusional Mrs. Tigani‟s insistence that Bruce 

abandoned his father by withdrawing as counsel and her unwavering belief that the 

2011 Will gave Bruce one-third the value of the business interests, even if the 

businesses were sold before Mrs. Tigani‟s death. As to the first point, Bruce‟s 

argument focuses not on delusions, but on his belief that Mrs. Tigani misinformed 

Mr. Tigani about the contents of the withdrawal letter and that she “caused her 

husband to feel insulted and humiliated at his son‟s apparent rejection of him.”178 

Even if that was the case, which other witnesses – including Jim and Diane –

discount, those actions would not be evidence of a delusion. In addition, I believe 

Mrs. Tigani‟s insistence regarding the effect of the 2011 Will reflects not a 

delusion, but her position regarding what she intended the will to accomplish, 

although she did not achieve that intent.

Other statements of Mrs. Tigani to which Bruce has referred at times as 

“delusional,” such as those regarding Mr. Tigani‟s feelings about Bruce, also do 

 

177 Id. Bruce suggests that Mrs. Tigani‟s version of events is supported only by people she likely 

manipulated into “remembering” key events consistent with her own recollection. Although I 

find it likely that Mrs. Tigani has a tendency to try to impose her view and recollection on 

people, I had an opportunity to observe the witnesses at trial and do not believe either Jim or 

Diane materially changed their stories to suit Mrs. Tigani‟s position in this lawsuit. In any event, 

if Mrs. Tigani was able to convince others that her version of events is accurate, that necessarily 

precludes any finding that Mrs. Tigani is delusional, because the people she most trusts are 

agreeing with her beliefs.

178 Pet‟r‟s Opening Br. at 74.
56

not rise to the standard required to prove lack of capacity under Delaware law. At 

various points, Mrs. Tigani made insulting or extreme statements to or about Bruce

or his children, for which no foundation was offered, but she did not cling to those 

statements throughout this litigation. Particularly where, as here, a relationship 

between two people has deteriorated to a point of uncompromising dislike, a 

reviewing court must be careful to consider whether extreme statements one makes 

about the other actually are “delusions,” or more likely are exaggerated statements 

of anger or loathing.179

In sum, Bruce has not proved by a preponderance of the evidence that Mrs. 

Tigani suffers from delusions that altered her capacity to make a will. It is plain 

that Mrs. Tigani dislikes Bruce, but it also is plain that she has ample reason to be 

angry with him, and he with her. None of that rises to a level that permits this 

Court to substitute its judgment for that of a testator. As this Court previously has 

explained: “The fact that [a] testator dislikes certain of the natural objects of his 

bounty does not establish an insane delusion; even if such dislike is groundless; 

and still less if such dislike is based upon some reason, although it may be an 

unjust one.”180

 

179 See, e.g. Tracy., 101 A.2d at 326-27 (concluding that extreme statements made by the 

deceased regarding his wife from whom he was separated could be better explained by the 

broken relationship between the spouses than it could by reference to delusions).

180 Id. at 327 (quoting 1 Page on Wills (Lifetime Ed.) § 146).
57

CONCLUSION

For the foregoing reasons, I recommend that the Court deny Mrs. Tigani‟s 

motion for summary judgment on the basis that, although she had testamentary 

capacity to execute the challenged documents in 2011 and 2012, those documents 

do not divest Bruce of standing to maintain this action. This is my final report and 

exceptions may be taken in accordance with Rule 144.