Deborah Harker v. Kwanza Grimes

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DEBORAH HARKER, )
)
Petitioner, )
)
v. ) C.A. No. 2023-1097-SEM
)
KWANZA GRIMES and )
ASHLEY VOGEL, individually and )
as attorney in fact for )
BETTY B. HARKER )
)
Respondents. )

Report: March 7, 2025
Date Submitted: September 18, 2024

POST-TRIAL REPORT

Jason C. Powell, Thomas J. Reichert & Laurel A. Lalone, THE POWELL FIRM
LLC, Wilmington, DE; Counsel for Petitioner.

Tiffany M. Shrenk, MACELREE HARVEY, LTD, Centreville, DE; Counsel for the
Respondent Kwanza Grimes.

Ashley Vogel, Wilmington, DE; Pro se Respondent.

MOLINA, Senior Magistrate
Delaware law protects the rights of adults to dispose of their property as they

see fit and to associate with those of their choosing. Through this action, I am asked

to second guess the late Betty Bell Harker’s exercise of her personal autonomy. Per

Ms. Harker’s daughter, certain decisions Ms. Harker made near the end of her life

were done either without capacity, or with such weakened intellect that the objects

of her affections overcame Ms. Harker, causing her to act not of her own free will,

but for others’ self-serving objectives.

Those “others” were Ms. Harker’s beloved grandson and his wife. Over four

days of trial, I heard candid and concerning testimony about the struggles and

motivations of Ms. Harker’s prized grandson. Endeavoring to provide “factual

findings . . . sufficient to support” my ruling, as required under Court of Chancery

Rule 144(b)(2), I delve arguably too deeply into the difficult personal situations

facing Ms. Harker and her kin. But even as the details risk bordering on the

scandalous, the evidence before me supports the unshakeable conclusion that Ms.

Harker chose to spend her life caring for, and catering to, her grandson. Her support,

both personally and financially, was unwavering. To overcome this definitive pattern

and undo Ms. Harker’s final actions, which were consistent therewith, her daughter

needed to make a conclusive showing that Ms. Harker lacked capacity or had her

true will overcome. The evidence for either is lacking.
Through this post-trial report, I reject the daughter’s challenges to Ms.

Harker’s estate planning. But the daughter has demonstrated that Ms. Harker’s

grandson and his wife breached their fiduciary duties to Ms. Harker, and thus various

of their self-serving transactions should be voided. The benefit this will provide to

the estate, and the good faith nature of the daughter’s challenge given the concerning

circumstances of Ms. Harker’s final days, support shifting Ms. Harker’s attorneys’

fees to Ms. Harker’s estate. In essence, although I will not set aside Ms. Harker’s

decision to disinherit her daughter, I hereby shift the grandson and his wife’s ill-

gotten gains back to the estate, which shall bear the daughter’s cost of litigating this

difficult case.

2
I. BACKGROUND 1

This action revolves around Betty Bell Harker, who passed away at the age of

94 on June 14, 2022.2 Those who loved Ms. Harker described her as “an intellectual.

She was an academic, and she coupled that with a tremendous understanding of the

adolescent mind. . . . [S]he was just one of the finest human beings[.]” 3

Ms. Harker was predeceased by her husband Robert S. Harker, whom she met

while they attended West Virginia University. 4 In 1968, the Harkers moved to

Wilmington, Delaware, to lay down their roots and build their forever home at 2003

Dogwood Lane (the “Property”). 5

1
The facts in this report reflect my findings based on the record developed at the trial held
on May 8–10 and 20, 2024. See Docket Item (“D.I.”) 138, 140. I grant the evidence the
weight and credibility I find it deserves. Citations to the first three days of trial’s transcript,
D.I. 143–45, are in the form of “[Last name] Tr.,” referring to the testimony of the
identified person. Defined parties are identified with that designation. Citations to the
fourth day of trial’s transcript, D.I. 146, are in the form of “[Last name] TT,” again referring
to the testimony of the identified person and incorporating defined parties. Citations to the
joint exhibits are in the form of “JX__.” The Respondent argues that JX51–53 should be
stricken and disregarded under Delaware Rules of Evidence 401, 402, 403, and 609, as
well as the hearsay rules. See D.I. 158 at 62–65; Tr. 313:14–315:24. I do not rely on these
three joint exhibits for purposes of this decision, and thus the objections are moot.
In this report, I use first or last names in some instances to avoid any confusion; I
intend no disrespect or familiarity. I have also opted for the term “Respondent” to describe
Kwanza Grimes, because I held the other respondent, Ashley Vogel, in default. I address
herein the effect of that default, and the process for calculating the judgment to be entered
against Ms. Vogel.
2
D.I. 132 (“Pretrial Order”) at p. 7 ¶ 30.
3
See McLaughlin Tr. 424:20–425:2.
4
Petitioner Tr. 188:8–10.
5
Id. at 189:7–9.
3
Together, the Harkers bore two children: Deborah Harker (the “Petitioner”),

their eldest, and Stephen Harker. 6 Stephen passed away in 2023, while this action

was pending. 7 He and Ms. Harker were long estranged. But Ms. Harker, until the

very end, remained close with the Petitioner. The true apple of Ms. Harker’s eye,

though, was the Petitioner’s son, Ms. Harker’s grandson Kwanza Grimes (the

“Respondent”).

A. The Respondent

The Respondent was born in 1980.8 When he turned nine, the Petitioner and

the Respondent’s father went their separate ways. 9 But the Respondent and the

Petitioner were not alone; the Harkers adored their grandson. 10 While the

Respondent was growing up, he spent weekends, summers, and holiday breaks with

his grandparents. 11 Ms. Harker lavished the Respondent with new clothes, bikes,

shoes, toys, and even a car when he turned sixteen. 12 But her contributions were not

solely financial or material. For example, when the Respondent was not receiving

6
Id. at 187:10–13.
7
Id. at 187:11.
8
See id. at 189:17 (identifying the Respondent’s age as 43, though he would turn “44 in
September”).
9
Id. at 189:21–22.
10
Id. at 189:23.
11
Id. at 189:22–190:3; Respondent Tr. 712:19–22.
12
Respondent Tr. 713:3–15, 714:3–21, 715:16–716:8.
4
enough playing time on the Sanford basketball team, Ms. Harker attempted to pull

some strings.13 She wanted the Respondent to have it all.

Suffice it to say, Ms. Harker played a large role throughout the Respondent’s

adolescence. 14 The Respondent characterized his upbringing as a “great

childhood.”15 But the Petitioner worried that Ms. Harker’s frequent spoiling was an

impediment to the Respondent’s development into an adult.16

Her concerns were valid. The Respondent candidly testified regarding his

struggles transitioning into adulthood. And, in 2000, the Respondent developed a

drug addiction after he was prescribed pain medication to treat a shoulder injury.17

Though he testified that he stopped using the prescription medication after about a

year, the Respondent struggled for quite some time, into and after his marriage.

13
McLaughlin Tr. 426:19–22.
14
Ms. Harker even went so far as to seek guardianship of the Respondent, though the
Petitioner refused to allow it. Petitioner Tr. 340:5–11.
15
Respondent Tr. 713:16.
16
Id. at 720:5–9.
17
Id. at 720:18–721:6.
5
Six years after his addiction began, the Respondent married Ashley Vogel.18

Not long thereafter, Ms. Vogel also began struggling with substance abuse and

addiction. 19 Then came the couple’s financial issues. 20

In or around the late 2000s, the Respondent and Ms. Vogel lost their home

and began living in and out of motel rooms. 21 During this time, the Petitioner tried

to help, providing them with food and paying for their motel rooms or security

deposits. 22 While the Respondent was working, he turned to medical professionals

to treat his addiction.23 Unfortunately, the Respondent’s work was sporadic and he

relapsed for three years. 24 During these tough years, though, the Respondent

continued to have the support of the Petitioner and Ms. Harker.

Sometime in or around 2014, the Petitioner offered the Respondent and Ms.

Vogel the opportunity to live in the Petitioner’s home in Chesapeake City, Maryland,

on the condition that they worked and paid the bills.25 The couple moved in, but did

18
Petitioner Tr. 190:23–192:2.
19
Respondent Tr. 721:7–13, 722:15–723:10.
20
Id. at 721:14–722:9.
21
Id. at 721:20–23.
22
Petitioner Tr. 194:17–21; Respondent Tr. 721:20–23.
23
Respondent Tr. 721:24–722:3.
24
Id. at 722:4–9.
25
Petitioner Tr. 190:17–21, 191:10–12.
6
not keep up their end of the bargain.26 While living in Maryland, the couple’s drug

addiction took off, the trash bins were overflowing, the neighbors were complaining,

and they were constantly fighting.27 Ultimately, the Petitioner gave the Respondent

and Ms. Vogel an ultimatum—the Respondent could stay in the house but Ms. Vogel

could not. 28 The Respondent decided to remain loyal to Ms. Vogel, and the two

moved out of the Chesapeake City house and back into motel rooms. 29

Eventually, the couple seemed to be doing better and were making positive

strides.30 They took steps to become financially independent, attended counseling

and were working in Baltimore while living in Elkton, Maryland.31 Then a few years

later, the Respondent and Ms. Vogel moved to Edgewood, even closer to Baltimore,

and things seemed stable.32

Then came the COVID-19 pandemic. The Respondent and Ms. Vogel both

lost their jobs and, after getting into an altercation with another neighbor’s boyfriend,

the Respondent and Ms. Vogel moved out of Maryland and into a hotel room in

26
Id. at 190:19–21.
27
Id. at 191:1–6.
28
Respondent Tr. 724:4–6.
29
Id. at 724:6–10.
30
Petitioner Tr. 194:22–195:3.
31
Id.
32
Respondent Tr. 745:13–22.
7
Delaware.33 But by this time, and as more fully addressed below, Ms. Harker was

living in the Petitioner’s home, leaving the Property empty. With the couple needing

a more permanent place to stay and Ms. Harker worried about the upkeep of the

Property, it seemed destined that, by May of 2020, the Respondent and Ms. Vogel

moved in.34

While the Respondent and Ms. Vogel were living at the Property, Ms. Harker

paid the majority of the Property’s bills such as housekeeping, taxes, and utilities;

the Petitioner also assisted by paying for the couple’s internet. 35 Throughout 2020,

the Respondent would talk on the phone with Ms. Harker periodically and attempted

to visit the Petitioner and Ms. Harker during the holidays. 36 His visits were

infrequent, though, because the Petitioner was concerned about Ms. Harker

contracting COVID through visits. 37

Unfortunately, even with their expenses largely paid, the couple floundered

while at the Property. During 2020, Ms. Vogel suffered a miscarriage, relapsed, and

would disappear for periods of time in search of drugs. 38 Ultimately, the couple

33
Petitioner Tr. 195:6–15; Respondent Tr. 748:14–21. The Petitioner found the hotel room
for the Respondent and Ms. Vogel. Id. at 749:3–12.
34
Petitioner Tr. 195:9–15.
35
Id. at 195:22–196:9.
36
Respondent Tr. 751:20–753:4.
37
Id. at 752:5–753:4.
38
Id. at 844:2–845:5.
8
separated and, as of trial, the Respondent had no knowledge of Ms. Vogel’s

whereabouts.39

B. The Harkers’ Estate Planning

The Harkers planned for the disposition of their estate before Mr. Harker’s

passing in 2011. They began, for purposes of this decision, in 2009. At that time,

Mr. Harker was getting sick and wished to transfer stocks he owned into a joint

account with Ms. Harker. 40 The Harkers worked with Steven Lucas at Edwards

Jones to open a jointly titled account, providing the couple with rights of

survivorship to the transferred assets. 41

Then, in early 2010, the Harkers executed a set of estate planning documents

with assistance from Daniel P. McCollom, Esquire. 42 The Petitioner had worked

with Mr. McCollom and referred the Harkers to him for their estate planning needs.43

The Harkers hired Mr. McCollom to create a simple will which upon their deaths

39
Id. at 845:6–8.
40
Lucas Tr. 130:21–131:7.
41
Id. at 131:22–132:13; JX7.
42
McCollom Tr. 350:5–6, 354:1–4.
43
Petitioner Tr. 243:17–24.
9
benefitted each other, then the Petitioner, followed by the Respondent, and then two

listed charities (the “2010 Documents”).44

Later, on February 8, 2011, the Harkers designated the Petitioner as the 100%

transfer on death beneficiary of their Edward Jones account. 45 That designation

remained on the account when Mr. Harker died on March 17, 2011, leaving Ms.

Harker as the then-sole owner of the Edward Jones account.46

Rather than wait until Ms. Harker’s passing, the Petitioner and Ms. Harker

worked with Mr. Lucas to open a new Edward Jones account for the stock, which

would provide the Petitioner with immediate access. Ms. Harker and the Petitioner

opened their new joint account on April 18, 2011 (the “Edward Jones Account”),

which was titled in both of their names as joint tenants with right of survivorship.47

The Petitioner and Ms. Harker used the Edward Jones Account cooperatively.

If the Petitioner or Ms. Harker needed money, such as for a home repair, they would

discuss it and either would ask Mr. Lucas to liquidate appropriately.48 Once enough

stock was sold, Mr. Lucas would transfer the liquidated amount to an M&T bank

44
McCollom Tr. 354:15–23, 356:19–367:4; see JX1 at MDSU29–56. The 2010
Documents explicitly made no provision for the Harkers’ son, Stephen. McCollom Tr.
356:19–357:1; JX1 at MDSU30.
45
JX8.
46
Lucas Tr. 137:4–10.
47
JX9.
48
Lucas Tr. 149:19–150:5.
10
account jointly owned by Ms. Harker and the Petitioner.49 From there, Ms. Harker

or the Petitioner would use the funds freely as they wished.

The Edward Jones Account was not, however, Ms. Harker’s sole asset. Thus,

with Mr. Harker’s passing, Ms. Harker looked to amend her estate plan. On

September 27, 2019, Ms. Harker and the Petitioner met with Mr. McCollom to make

changes to the 2010 Documents. 50 They discussed and explored a pour-over will to

a revocable trust, which would have provided that on Ms. Harker’s death, her assets

would essentially pass to the Petitioner, then to the Respondent or his issue per

stirpes, then to Stephen, and then ultimately to the prior two listed charities (the

“2019 Documents”). 51 Ms. Harker never executed the 2019 Documents, though,

because she was sidelined with a medical issue, as addressed below.

Ms. Harker did, however, execute new documents in 2021. Initiated by a call

from the Respondent, Ms. Harker and Ms. Vogel met with Mr. McCollom on June

7, 2021 to discuss changes to Ms. Harker’s estate planning.52 To understand Ms.

Harker’s independent wishes, Mr. McCollom asked Ms. Vogel to leave the room.53

49
The M&T joint bank account was originally set up by Mr. Harker, but after he passed
the account was owned by Ms. Harker and the Petitioner. Petitioner Tr. 204:4–10, 205:6–
11; see, e.g., JX66 at GRIMES17, 35, 45, 60, 65, 70, 75, 80, 95, 109, 122, 132, 137.
50
McCollom Tr. 364:2–4; see JX1 at MDSU3.
51
McCollom Tr. 363:13–365:1, 372:4–7.
52
Respondent Tr. 770:3–5; JX1 at MDSU8.
53
McCollom Tr. 368:10–14.
11
While alone with Ms. Harker, Mr. McCollom learned that Ms. Harker felt she was

being neglected and ignored by the Petitioner. 54 Per Mr. McCollom, Ms. Harker

appeared emotional but she was determined to remove the Petitioner from her estate

documents.55

Mr. McCollom helped Ms. Harker do just that. On the same day as the initial

meeting, Mr. McCollom drafted new estate planning documents including a

revocable trust (the “Trust”), advanced health care directive (the “AHCD”), a power

of attorney (the “First POA”), and a will (the “Will” and collectively the “June

Documents”).56 Mr. McCollom testified that he typically goes through a multi-step

process of discussions regarding documents and multiple meetings, though under

these circumstances Mr. McCollom thought it “best to accelerate things.”57

Mr. McCollom personally went over the June Documents with Ms. Harker.58

As he explained, the Will was a pour-over will which provided that the residue of

Ms. Harker’s estate would be transferred into the Trust.59 The Trust provided for

54
Id. at 368:23–369:2.
55
Id. at 368:23–370:3.
56
Tr. 371:5–7; Pretrial Order at p. 7 ¶ 27; see JX1 at MDSU123, 130, 142, 160.
57
McCollom Tr. 373:11–15; see id. at 370:24–371:4 (“Again, my concern was her well–
being, and again, she seemed she was upset. I didn't—my concern was that if there was a
bad situation, we certainly didn't want to see it escalate into something worse.”).
58
Id. at 378:11–15.
59
JX1 at MDSU160.
12
distribution to the Respondent if he was living and if he was not living to his issue

per stirpes, then to Stephen Harker, then to Patricia Harker. 60 Through the ACHD,

if Ms. Harker was found unable to make her health care decisions, the Respondent

would be appointed as her agent.61 Lastly, the First POA was a springing power of

attorney that gave the Respondent authority to act as Ms. Harker’s agent upon a later

determination that Ms. Harker did not have the ability to manage her affairs. 62

Ultimately, Ms. Harker executed the June Documents in Mr. McCollom’s office. 63

Ms. Harker went on to make additional changes to her final wishes. Before I

address those, however, I must turn to a major point of contention—Ms. Harker’s

health as she went about ordering her final affairs.

C. Ms. Harker’s Decline

There is no dispute that Ms. Harker’s health began to decline in her final years.

The earliest indications of that decline, at least in the record before me, are from

2014. In 2014, Ms. Harker slipped on ice while retrieving her mail and broke her

hip. 64 She had to undergo surgery, rehabilitation, and, thereafter, used a walker for

60
Id. at MDSU145.
61
Id. at MDSU123.
62
McCollom Tr. 379:1–9; JX1 at MDSU130.
63
McCollom Tr. 372:16–376:5.
64
Petitioner Tr. 197:8–18.
13
mobility. 65 After Ms. Harker’s hospitalization and rehabilitation, she returned to live

at the Property, where she utilized a stair chair to reach her second floor.66 Although

Ms. Harker remained independent, the Petitioner began to spend more time with her,

checking up with lunch or shopping visits about once a week.67

Then, in 2019, Ms. Harker fell again, this time breaking her left hip and

wrist. 68 This second fall proved to be more damaging than the first. Ms. Harker was

admitted to Christiana Care Hospital in Wilmington from October 2, 2019 through

October 18, 2019, during which she received treatment and rehabilitation. 69

The fall reduced Ms. Harker’s mobility, and she was no longer able to live

independently at the Property.70 Thus, shortly after her discharge, Ms. Harker moved

in with the Petitioner at the Petitioner’s primary home in Warwick, Maryland.71 But

Ms. Harker needed more than the Petitioner could provide and, on October 23, 2019,

65
Pretrial Order at p. 6 ¶ 20.
66
See Petitioner Tr. 197:15–18.
67
Id. at 197:19–198:10.
68
Pretrial Order at p. 6 ¶ 21.
69
Id. at p. 6 ¶ 22; Petitioner Tr. 198:11–15.
70
See Petitioner Tr. 200:6–20. Because the Property has a two–story home with the
bedrooms and shower on the second floor, the doctors and social workers advised Ms.
Harker and the Petitioner that Ms. Harker should not return to the Property. Id. at 198:15–
18.
71
Pretrial Order at pp. 6–7 ¶ 24; Petitioner Tr. 198:15–24.
14
Ms. Harker moved into Cadia Broadmeadow, an inpatient rehab facility in

Middletown, Delaware, where she stayed until December 11, 2019.72

While Ms. Harker was at Cadia, per Cadia’s records, Ms. Harker evinced signs

of “cognitive loss/dementia.” 73 Further, the records reflect that “Ms. Harker has an

alteration in decision making ability r/t impaired cognitive patterns secondary to

cognitive loss.”74 These notes indicated a “problem start date” of November 5, 2019,

and contained a “long term goal target date” of February 5, 2020, at which point it

was intended that Ms. Harker would “be able to recognize direct caregivers and

family[.]” 75 There is no record, however, of when or by whom Ms. Harker was

diagnosed with dementia, nor what the severity of such condition was upon

diagnosis, if any.

Upon Ms. Harker’s discharge on December 11, 2019, she returned to the

Petitioner’s home in Warwick. 76 At the Petitioner’s home, Ms. Harker had two

bedrooms—one for her bed and another for her clothes and personal items. 77 The

72
JX4; Romirowsky Tr. 21:6–12; Petitioner Tr. 201:4–7.
73
JX3 at Cadia4 (capitalization altered).
74
Id. Approaches were outlined to combat the “cognitive loss/dementia” diagnosis such as
allowing processing time for Ms. Harker, ensuring access to a clock or calendar, explaining
an activity before beginning it, providing verbal cues, and re-orienting her to the date, time
and environment as needed. Id.
75
Id.
76
Petitioner Tr. 201:11–18.
77
Id. at 206:12–22.
15
Petitioner also installed a pull-down shower and a shower bench, and purchased a

hospital bed for Ms. Harker, to make her more comfortable.78

This set up seemed to work well for Ms. Harker, who settled into a consistent

routine.79 But, as is often the case with family caregivers, the accommodations and

care required took a toll on the Petitioner. The Petitioner’s life changed more than

she had expected. 80 The Petitioner fixed dinner every night, bought Ensure, and

made pancakes and eggs at least once a week for Ms. Harker. 81 The Petitioner and

Ms. Harker also did not enjoy the same television shows, and Ms. Harker put on

closed captioning due to her difficulty hearing which drove the Petitioner “nuts.”82

Ms. Harker would also tell the Petitioner to vacuum and would follow her around in

her wheelchair picking up the lint on the floor to chastise the Petitioner’s

cleanliness. 83 In addition to the growing pains of their new living situation, the

Petitioner testified that she observed and had to grapple with Ms. Harker’s increasing

forgetfulness. 84

78
Id. at 201:16–18.
79
See, e.g., Respondent Tr. 762:4–763:1.
80
See Petitioner Tr. 230:20–21 (“And then, you know, after she came, it was—it was all
this stuff.”).
81
Id. at 230:21–231:4.
82
Id. at 231:12–16.
83
Id. at 232:20–233:4.
84
Id. at 221:2–18 (“And she would—sometimes you could have a regular conversation
with her, and sometimes she would say things like, watching TV, ‘There’s Joe Biden. He’s
16
D. The Petitioner’s Medical Scare

The mother-daughter worked through their differences as best they could. But

then the unexpected happened: in May of 2021, Ms. Harker woke up to find the

Petitioner unconscious on the floor. 85 Ms. Harker called 911 and then the

Respondent.86 The Petitioner was taken to the hospital, where she was treated for a

kidney stone that turned into an infection that went septic; she was hospitalized for

six days. 87

With the Petitioner ill, Ms. Harker looked to the Respondent and Ms. Vogel

for support. The Petitioner’s medical emergency brought the couple back together,

and they moved into the Petitioner’s house to help Ms. Harker.88 Per the Respondent,

the Petitioner’s house was in disarray when the Respondent arrived, something out

of character for the Petitioner.89 He tried to clean things up and provide the support

Ms. Harker needed in the Petitioner’s absence.

from my hometown, Summersville, West Virginia. He lives there.’ And I would say,
‘Mom, don’t you mean Wilmington? Remember, he was our Senator in Delaware for a
long time. Don’t you mean Wilmington?’ ‘No, he’s from Summersville, West Virginia.’
One night when I had lasagna for dinner, she asked me, ‘What is this I’m eating?’
‘Lasagna.’ Stuff like that that would, you know—it would just be off and not like she used
to be.”).
85
Id. at 223:22–224:1.
86
Id. at 224:2–3.
87
Id. at 224:3–13.
88
Id. at 226:5–13.
89
Respondent Tr. 755:11–756:24.
17
When the Petitioner returned home, however, things had changed. Although

the Petitioner and the Respondent cast their blame in different directions, they both

agree that the relationship between the Petitioner and Ms. Harker appeared strained

immediately after the Petitioner’s discharge and reentry into the home. It was the

Respondent who picked the Petitioner up from the hospital and brought her back to

the house.90 Her reunion with Ms. Harker was tense. But, even more unfortunately,

the same day the Petitioner came home from the hospital, the Petitioner suffered

another fall. 91 The Petitioner was then re-admitted and hospitalized for another six

days.92

This second admission provided more time for the estrangement between the

Petitioner and Ms. Harker to grow. Again, the Respondent and the Petitioner

disagree regarding how and why that estrangement grew. Per the Respondent, it was

all Ms. Harker. The Respondent testified that Ms. Harker repeatedly asked the

Respondent if she could move back into the Property with him and Ms. Vogel due

to her dismay living with the Petitioner.93 Per the Petitioner, it was the couple who

poisoned Ms. Harker against the Petitioner and set everything in motion. Blame

aside, Ms. Harker eventually made her way home.

90
Id. at 757:11–15.
91
Petitioner Tr. 224:14–225:2.
92
Id. at 224:13.
93
Respondent Tr. 765:20–23.
18
E. Ms. Harker’s Return Home

Per the Respondent, Ms. Harker pushed to return to the Property, her home,

with the couple. But the Respondent testified that he expressed apprehension

towards Ms. Harker’s idea because he thought the Petitioner would “annihilate [his]

entire life.”94 The Respondent recommended that they talk to Ms. Harker’s attorney,

Mr. McCollom, before taking any concrete steps. 95 Per the Respondent, Ms. Harker

gave him Mr. McCollom’s contact card, and the Respondent gave him a call.96

The Respondent’s message was not, however, solely about a potential move.

Mr. McCollom’s assistant received a call from the Respondent purporting to relay

Ms. Harker’s desire to make changes to her estate planning documents. That desire,

per the Respondent’s message, was spurred by apparent abuse allegations against

the Petitioner, ringing alarm bells which pointed to an “urgent” situation. 97 That call

led to the execution of the June Documents addressed above.

Per Mr. McCollom, Ms. Harker appeared emotional while they discussed the

change to her estate, but she was determined to resolve her unsatisfactory living

situation by moving out and removing the Petitioner from her estate documents.98

94
Id. at 766:5.
95
Id. at 767:1–6.
96
Id. at 768:9–16.
97
McCollom Tr. 368:16–19, 393:4–11, 395:4–7.
98
Id. at 368:23–370:3.
19
Mr. McCollom did not notice any evidence of cognitive decline during his June 7

meeting with Ms. Harker. 99 Mr. McCollom also expressed no concern that Ms.

Harker lacked capacity because in his experience evidence of incapacity “becomes

pretty apparent pretty quickly.”100 Thus, he witnessed Ms. Harker execute the June

Documents, confident she was acting knowingly and of her own free will.

Then the escape plan was hatched. 101 Ms. Harker and the couple stayed until

the Petitioner’s second return from the hospital. But, per the Petitioner, the trio was

quiet and cold toward her. Eventually, the Petitioner woke up one morning to an

empty house. 102 Neither her mother, son, nor daughter in law gave the Petitioner any

prior warning that they would be leaving.103 And all they left behind was a note from

Ms. Vogel accusing the Petitioner of theft, animal abuse, and taking advantage of

99
Id. at 370:7–10.
100
Id. at 377:8–11.
101
Per the Respondent, there was an additional reason for Ms. Harker’s urge to escape and
cut off the Petitioner—a line of credit. The Respondent testified that, around the time of
Ms. Harker’s meeting with Mr. McCollom, the Respondent and Ms. Harker saw a bank
statement that arrived in the mail referring to a line of credit on the Property. Respondent
Tr. 829:22–830:15, 834:2–19; 851:5–22. The “discovery” of the line of credit, per the
Respondent, set off red flags for both Ms. Harker and the Respondent. See id. at 830:9–22.
The Respondent testified that Ms. Harker was confused and was adamant that she did not
remember taking out the line of credit. The Respondent also found the line of credit to be
“weird,” and speculated that the Petitioner filled out the paperwork while Ms. Harker
signed it. Id. at 833:14–24. At trial, any concerns about the line of credit were alleviated.
See JX5–6, Petitioner Tr. 217:6–12; JX73 at BHARKER492; Petitioner Tr. 221:22–
222:11; JX73 at BHARKER458, 489.
102
Petitioner Tr. 228:20–21.
103
Id. at 228:24–229:4.
20
Ms. Harker. 104 The Respondent followed suit with ill-tempered text messages

accusing the Petitioner of being a thief and a narcissistic sociopath. 105 And, in

perhaps the most crushing blow, the Petitioner never saw her mother again. 106

After leaving the Petitioner’s house, the Respondent took Ms. Vogel and Ms.

Harker to a hotel in Pennsylvania for the weekend. 107 Meanwhile at the Property, the

Respondent and Ms. Vogel’s brother helped to move Ms. Harker’s bedroom

furniture downstairs to replicate the set-up of her upstairs bedroom. 108 Once ready,

the trio then moved back in.

After Ms. Harker moved back into the Property, it became difficult for her

friends to contact and visit with her.109 Bill Laughlin, Ms. Harker’s mentee, testified

about his experience when he went to visit Ms. Harker at the Property.110 During one

visit, Mr. Laughlin knocked on the door of the Property to no avail. But, upon

hearing Ms. Harker’s voice inside, he decided to wait for five to seven minutes.111

104
See id. at 234:13–18.
105
Id. at 229:6–13; Respondent Tr. 860:8–861:7.
106
Petitioner Tr. 237:10–11.
107
Respondent Tr. 773:23–775:2.
108
Id.
109
Four friends of Ms. Harker testified: William McLaughlin, Frank Livoy, Stephen
Jackson, and James Hess.
110
Laughlin Tr. 427:22–428:3.
111
Id. at 431:19–432:3.
21
During his wait, Mr. Laughlin noticed there was no longer a storm door at the

entryway to the Property because it had been shattered, and only shards of glass

remained.112

Eventually Ms. Vogel arrived in “her” BMW, addressed below, and Mr.

Laughlin proceeded to introduce himself. 113 Ms. Vogel responded that she needed

to call the Respondent first.114 After Ms. Vogel called the Respondent for approval

and apparently received it, Mr. Laughlin was able to talk to Ms. Harker in the

kitchen, with the Respondent monitoring, listening, commenting on what was being

said, and reconnoitering the area.115 Ms. Harker relayed to Mr. Laughlin that she

needed a doctor, and that she wanted to take a bath and move out. 116

In addition to the Respondent’s controlling behavior, Mr. Laughlin made

several other observations that concerned him. There were dishes piled up in the sink

and plates of uneaten and half-eaten food around the house.117 In the living room,

clothing and pillows were piled and magazines were strewn across the floor. 118 The

112
Id. at 433:5–10.
113
Id. at 432:9–12.
114
Id. at 432:12–13. In all fairness, Ms. Vogel and Mr. Laughlin did not know one another
at that time. Id. at 432:13–14.
115
Id. at 435:21–24.
116
Id. at 439:5–8.
117
Id. at 434:23–435:2.
118
Id. at 434:4–17.
22
stairs were cluttered with shoes and laundry. 119 Ms. Harker’s personal appearance

was also askew. Per Mr. Laughlin, Ms. Harker took great pride in her hair, which

always looked “perfect,” but, during his visit, it looked like an “oil slick . . . running

down her head as if her hair hadn’t been washed in how many weeks.” 120 Based on

her appearance and demeanor, he testified: “This was not the same person that I

knew.”121 Mr. Laughlin left dismayed and, despite repeated attempts, never saw Ms.

Harker again.122

F. The Financial Transactions

In connection with the move, the Respondent also assisted Ms. Harker with

several questionable financial transactions. Although the Respondent testified he

was apprehensive of the idea, in or around May/June 2021, he wrote several checks

for Ms. Harker to himself in amounts nearing $3,000 and $5,000, to pay off his credit

card bills.123 Also, on June 7, 2021, the Respondent drove Ms. Harker to the bank to

119
Id. at 453:21–454:2.
120
Id. at 440:21–441:1.
121
Id. at 437:23–438:1.
122
Id. at 439:9–15. During another visit with Ms. Harker’s friend and neighbor, Frank
Livoy, Mr. Livoy noticed that Ms. Harker would repeat the same story three times within
a half hour, and that he needed to repeat himself multiple times. Livoy Tr. 453:13–19.
123
Respondent Tr. 884:5–18; JX37.
23
liquidate the joint M&T bank account held by Ms. Harker and the Petitioner, for

which Ms. Harker received a check for $38,702.27.124

Then, shortly after moving out of the Petitioner’s house, the Edward Jones

Account came into play. Sometime in mid-2021, Ms. Harker called Mr. Lucas

requesting the Petitioner be removed from the Edward Jones Account. 125 Mr. Lucas

was surprised and indicated he would need to investigate the request and get back to

Ms. Harker, if it was possible, and if so, how it would be accomplished. 126

Thereafter, Mr. Lucas called Ms. Harker back and explained that to make the joint

account a single account, both Ms. Harker and the Petitioner needed to sign

paperwork authorizing the transfer.127 During the call, Ms. Vogel introduced herself

and explained that the Respondent was in the process of getting a power of

attorney. 128 Several weeks later, Mr. Lucas received the First POA. 129

Acknowledging its springing nature, Mr. Lucas told the Respondent that he would

124
Respondent Tr. 866:24–868:4; see JX27–28.
125
Lucas Tr. 159:3–11. Mr. Lucas believes Ms. Harker called him sometime in May, but,
assuming Mr. Lucas was able to get back to Ms. Harker a “couple of days later” as he
suggests, that initial call may have actually been made closer to July. See id. at 162:2–6;
JX75.
126
Lucas Tr. 161:15–162:1.
127
Id. at 162:2–10; JX75.
128
Lucas Tr. 162:13–163:6.
129
Id. at 163:7–13; see JX45 at GRIMES596.
24
need a letter from a doctor indicating Ms. Harker was incapacitated before the

Respondent could take action on the Edward Jones Account. 130

Mr. McCollom was also involved in the Respondent’s efforts to access, or

assist Ms. Harker with accessing, the Edward Jones Account. On June 14, 2021, Mr.

McCollom spoke with Mr. Lucas over the phone, expressing his dismay and insisting

that Ms. Harker should have access to the account and should be able to unilaterally

turn the Edward Jones Account into a single account. 131 In response, Mr. Lucas

informed Mr. McCollom that Ms. Harker could request checks to draw from the

account, which she promptly requested.132

Thereafter, on June 15, 2021, Ms. Harker executed a second power of attorney

(the “Second POA”), which was drafted by Mr. McCollom to take effect

immediately. 133 Mr. McCollom expressed no concern regarding Ms. Harker’s

capacity when signing the Second POA.134 With the Second POA, the Respondent

was able to get online access to the Edward Jones Account. 135 The Respondent

130
Lucas Tr. 165:7–13.
131
Id. at 177:11–23. Mr. McCollom testified he did not remember talking to Mr. Lucas
about the Edward Jones Account, but the conversation is referenced on his bills. Id.; see
JX1 at MDSU8 (noting a telephone conference with a broker).
132
See Respondent Tr. 868:24–869:13.
133
JX1 at MDSU175; see id. at MDSU173.
134
McCollom Tr. 383:20–22.
135
See JX20 (showing the online access capabilities to the Edward Jones Account); JX21
at 16.
25
immediately directed Mr. Lucas to withdraw $2 million.136 Mr. Lucas discussed the

request with Ms. Harker, explaining there were significant capital gains tax

consequences to the request. 137 Ms. Harker insisted on selling, but agreed to

withdraw a reduced amount of $400,000. 138

Mr. Lucas then contacted the Petitioner and informed her of Ms. Harker’s

withdrawal.139 In response, the Petitioner directed a sale and liquidation of her own:

for $500,000 to be distributed to her to ensure she was not left with nothing.140

Ultimately, between July 13, 2021, and July 16, 2021, Mr. Lucas authorized

trades liquidating the entirety of the Edward Jones Account.141 But the bank did not

permit any additional withdrawals and, rather, as confirmed in a July 20, 2021 letter,

modified the account to prohibit any further actions without the agreement of both

co-owners.142

136
Lucas Tr. 167:9–10. Before the Respondent’s access to the Edward Jones Account, the
largest single withdrawal from the account was a withdrawal of $40,000. Id. at 166:23–
167:2.
137
Id. at 167:15–22.
138
Respondent Tr. 789:5–12. The liquidation of the stock ultimately resulted in $413,
200.00. See JX30.
139
Lucas Tr. 168:14–19.
140
Id. at 168:18–169:1.
141
Pretrial Order at p. 5 ¶ 15.
This is known as the “divorcing clients” policy at Edward Jones. Lucas Tr. 169:11–
142

170:5; see JX23.
26
The questionable financial transactions do not end there. The same day the

Second POA was executed, Ms. Harker’s money was used to purchase a BMW,

which was titled in Ms. Vogel’s name.143 Her money was also used to purchase a

new Tesla, which was titled in the Respondent’s sole name. 144 Ms. Harker was

present with Ms. Vogel and the Respondent when the cars were purchased.145 Per

the Respondent, the purchases were completely appropriate because Ms. Harker

never placed restrictions on his use of her money. 146 Ms. Harker’s mantra, per the

Respondent, was “Get this, do this.”147

By others, Ms. Harker was described as someone who “would not want money

to be spent carelessly” and was a frugal spender herself. 148 Nevertheless, the

Respondent testified that Ms. Harker encouraged him to use her money to get a new

wardrobe because he “should look like a million-dollar man.”149 And he followed

“orders,” splurging, for example, on extravagant name-brand clothing for himself

and Ms. Vogel. Bank statements show that Ms. Harker’s money, in the amount of

roughly sixty-thousand dollars, was spent at places like Victoria’s Secret, tattoo

143
JX44; Respondent Tr. 794:4–11; see JX29, JX70.
144
Respondent Tr. 798:16–800:7.
145
Id. at 799:12–15; JX70.
146
Respondent Tr. 801:5–14.
147
Id. at 801:14.
148
Hess Tr. 493:4–8.
149
Respondent Tr. 803:20–804:5.
27
parlors, smoke shops, Amazon, and numerous luxury fashion stores including Dolce

& Gabbana, Jimmy Choo, FashionPhile, Christian Louboutin, and Saks 5th

Avenue.150 These purchases were for the Respondent and Ms. Vogel’s benefit.151

But, again, per the Respondent, Ms. Harker was happy to provide for both he and

Ms. Vogel in that manner.

The final financial transaction of note occurred on July 8, 2021. At that time,

the Respondent and Ms. Harker went to PNC to liquidate the rest of Ms. Harker’s

personal account and were given a cashier’s check for approximately $360,000.152

That money, according to the Respondent, was deposited with Bank of America.153

G. The APS Investigations

As things escalated, the Respondent made a referral to Adult Protective

Services (“APS”) alleging that Ms. Harker was being abused by the Petitioner,

including financial exploitation, caregiver neglect, and psychological and verbal

150
See, e.g., Respondent TT 9:4–14:23; see JX80–81.
151
See, e.g., Respondent TT 9:23–24.
152
Respondent Tr. 827:18–23; JX35. Sometime around the liquidation of the Edward Jones
Account, the Petitioner texted the Respondent that “It is a joint account WITH RIGHT OF
SURVIVORSHIP. And as far as signature, that is wrong. I have equal rights to it, which
she always agreed with until all this happened. I can make a phone call and have money
moved, I have done it many times. I can show you the account statements. Don’t play
yourself, if I see she is taking a lot of money out, I will cash out all the investments, which
will leave you with not much. She has always urged me to use that money. Her new roof,
my new roof, our living expenses, your new couch, moving you 3 times, etc. A man keeps
his word. You haven’t.” JX64.
153
Respondent Tr. 827:24–828:3, 894:10–15.
28
abuse.154 APS acted quickly and, following an attempted visit on July 20, 2021, on

July 21, 2021, a social worker visited the Property to investigate. 155 The social

worker noted the house seemed a “little hoarded” and needed “cleaning.” 156 During

a private discussion, Ms. Harker told the social worker that “[she] was living with

[her] daughter and it was not working out. She was nasty. [Her] daughter was very

abusive to [her]. [She] got out as soon as [she] [could].”157 Ultimately, Ms. Harker

signed the APS refusal of investigation and services form and stated that she was

“not being financially exploited by Mr. Kwanza Grimes and Mrs. Ashley Vogel.”158

On November 2, 2021, a second APS report was made by PNC Bank, related

to several charges made on Ms. Harker’s bank account. 159 APS contacted the

Petitioner about the allegations.160 The Petitioner informed the APS worker that she

154
JX59.
155
Id.; Respondent Tr. 820:12–22. According to the APS records, the “alleged victim’s
grandson,” i.e., the Respondent, had called APS “for resources[.]” JX59 at 2.
156
JX59 at 5.
157
Id. at 6.
158
Id. at 9. The APS records reflect that the investigation into the Petitioner, the original
alleged perpetrator, was completed and the allegations “substantiated,” but the parties
introduced an affidavit from Linda Bazemore, an Investigator’s Supervisor for APS,
attesting that the “substantiated” determinations were entered in error. Id. at 19. She
explained: “there was no determination of any allegations and findings against [the
Petitioner], despite what may be referenced in the APS Records.” Id.
159
Id. at 11, 14. The Petitioner is adamant she did not instigate the bank’s report. Petitioner
Tr. 502:8–24.
160
JX59 at 11.
29
used to be Ms. Harker’s power of attorney, but that the Respondent was then the

current power of attorney. 161 The APS worker noted that the Petitioner reported that

Ms. Harker “treats [the Respondent] like he is her baby and thinks that he can do no

wrong[,]” and therefore Ms. Harker “will never say that [the Respondent] is stealing

money from her because he [is not]. She allows him to make the purchases.”162 The

APS reports reflect that, as of March 14, 2022, they had still been unable to contact

Ms. Harker about the bank’s report and, it appears, APS did not take any further

action before Ms. Harker passed on June 14, 2022.163

H. The Final Plan

By mid-2021, the parties’ disputes had escalated such that litigation was

inevitable. But the Respondent and Ms. Harker made one more attempt to address

Ms. Harker’s estate planning before the Petitioner initiated this action. Seeing the

growing divide between his former co-worker (the Petitioner) and client (Ms.

Harker), Mr. McCollom conflicted out. 164 The Respondent then asked Delaware

estate planning attorney, Dan Crossland, Esquire, to step in. 165 In late June 2021, Mr.

161
Id.
162
Id.
163
Id.
See McCollom Tr. 385:19–387:11. On January 28, 2022, the Petitioner emailed Mr.
164

McCollom, expressing her dismay over the execution of the June Documents. Id. at
385:19–24; JX1 at MDSU6.
165
See Crossland Tr. 553:14–556:20; JX2 at MACELREE227.
30
Crossland met with Ms. Harker to review the documents drafted by Mr. McCollom,

and discussed funding the Trust. 166 Mr. Crossland’s notes reflect a discussion about

the Petitioner being “nasty/abusive[,]” but that the root of the problem “turned out”

to be issues with Ms. Harker’s hearing aids. 167 Mr. Crossland was further told that

money was “in limbo” and that the “daughter took [a] loan out.” 168 Further,

Crossland’s notes indicated a possible challenge by the Petitioner as a result of the

deed and codicil drafted by Mr. McCollom.169

As to her wishes, Ms. Harker explained that she intentionally excluded her

son in her estate plan due to their an estranged relationship.170 More importantly, Ms.

Harker explained she chose to exclude the Petitioner because she was “verbally

abusive,” and that “if she had to go back to live with her daughter, she would kill

herself.” 171 Mr. Crossland did not observe anything that would make him question

Ms. Harker’s capacity, nor did he see evidence of undue influence based on his

professional experience. 172

166
Tr. 556:21–558:19; JX2 at MACELREE102, 119.
167
JX2 at MACELREE119.
168
Id.
169
Id.
170
Crossland Tr. 560:23–561:3.
171
Id. at 562:18–23.
172
Id. at 565:16–567:8.
31
Mr. Crossland and his team, thus, began drafting revisions to Ms. Harker’s

estate plan. Those revisions were not finalized by August 31, 2021, though, by the

time the Petitioner initiated this action. 173 With the Petitioner’s filing, any estate

planning efforts were put on hold and, based on the allegations in the Petitioner’s

petition, Mr. Crossland requested Ms. Harker’s capacity be evaluated.174

To that end, on October 14, 2021, Ms. Harker had a virtual appointment with

Dr. Lynsey Brandt of Geriatric Care Swank Memory Center, the results of which

were “quite good[.]”175 Then, on December 28, 2021, psychiatrist Dr. Neil S. Kaye

conducted a forensic psychiatric evaluation, including an in-office assessment

through which Ms. Harker scored a 29/30 on a mini mental status examination.176

Dr. Kaye provided a caveat to the score, however, explaining that the capacity

assessment was “limited only to [Ms. Harker’s] understanding of her medical and

basic financial decisions,” and that it “would not encompass testamentary

capacity.”177 As part of his evaluation of Ms. Harker, Dr. Kaye reviewed her estate

planning documents, various filings in this action, the Christiana Care records, and

173
Id. at 563:13–22; see generally D.I. 1.
174
Tr. 564:10–565:15.
175
JX62.
176
JX61 at 4.
177
Id.
32
the Cadia records.178 Ultimately, Dr. Kaye issued a report finding “no evidence that

Ms. Harker [was] a susceptible individual.” 179

With this clearance, Ms. Harker moved forward with executing the estate

planning documents prepared by Mr. Crossland. 180 On December 30, 2021, with

witnesses in a conference room, Ms. Harker executed a new power of attorney (the

“Third POA”), will (the “Second Will”), advanced health care directive (the “Second

AHCD”), amended and restated trust, a deed transferring the Property to the Trust,

and a Delaware Disposition of Last Remains (collectively, the “December

Documents”).181

The entire process of reviewing and signing the documents took about two

hours. 182 During the review, Ms. Harker was engaged and asked questions relating

178
Dr. Kaye Tr. 257:11–258:18; see JX61at 6.
179
JX61 at 7. The report also documented that Ms. Harker clearly articulated to Dr. Kaye
her reason for being at his office, stating, “I’m seeing you because I need a professional
opinion about my mental state about whether or not I can do legal things and estates that
most 94-year old people can’t do.” Id. at 5. She told Dr. Kaye, “what my daughter says
about me is wrong.” Id. She was emphatic that she did not want to return to living with her
daughter, stating, “I’d rather kill myself.” Id.
180
Crossland Tr. 568:8–13.
181
Id. at 570:9–18; 654:11–23; JX2 at 69–78, 129–30, 131–35, 136–52, 172–76. Mr.
Crossland appeared on Zoom and watched the execution of the documents due to a COVID
exposure. Tr. 571:2–21. Ms. Harker pointed out changes that needed to be made on the
date of execution—Ms. Vogel’s last name was changed from Vogel to Grimes, and Ms.
Harker explained that she wanted her body donated to Temple University Hospital via the
Second AHCD. Sawyer Tr. 678:5–14.
182
Id. at 675:4–5.
33
to the documents, such as the commodities and options section of the Third POA.183

She even asked when Mr. Crossland’s associate would be sworn into the bar because

she was operating on a COVID-related limited license.184 Mr. Crossland found Ms.

Harker to be “the most capable 90-something [he has] ever met.” 185 Thus, he had no

concerns moving forward to finalize her final estate planning documents in the midst

of this litigation.

II. PROCEDURAL POSTURE

As noted, the Petitioner initiated this action on August 31, 2021. 186 The

Respondent and Ms. Vogel retained counsel shortly thereafter. 187 After the

Petitioner’s December 3, 2021 amended petition, the Respondent and Ms. Vogel

promptly answered and counterclaimed.188 Then, on January 3, 2022, Ms. Harker,

183
Id. at 659:9–14, 675:2–10, 679:1–10.
184
Id. at 649:8–19, 681:10–11. After the execution of the December Documents, Mr.
Crossland’s associate returned to her office and drafted a detailed memorandum, which
noted that “[Ms. Harker] made all of the elections on her own[,]” and described her
interactions with Ms. Harker over the course of the execution. JX2 at 238–39.
185
Crossland Tr. 645:10–11. Notwithstanding the execution of the December Documents,
Mr. Crossland was unaware that Ms. Vogel suffered a drug overdose at the Property while
Ms. Harker was present, or that the Respondent was arrested for an altercation with Ms.
Vogel at the Property. Id. at 630:24–631:12; see Respondent TT 28:4–22. After being
apprised of this information at trial, Mr. Crossland acknowledged that, had this information
been provided, he may have taken a different course of action, such as recommending
different fiduciaries. Crossland Tr. 631:21–633:4.
186
D.I. 1.
187
See D.I. 5.
188
D.I. 10–11.
34
through the same attorney representing the Respondent and Ms. Vogel, moved to

intervene and dismiss. 189 In response, the Petitioner filed a motion seeking to

disqualify opposing counsel. 190 On May 31, 2022, I issued a report denying the

Petitioner’s motion to disqualify, granting Ms. Harker’s motions to intervene and

dismiss, but staying the latter to provide the Petitioner leave to amend. 191 The parties

did not file exceptions to my report, which was adopted by the Chancellor as an

order of this Court on June 15, 2022.192

Unbeknownst to the Court, however, Ms. Harker had already passed. She died

on June 14, 2022, at the age of 94, after presenting with signs of a stroke. Ms.

Harker’s passing changed the nature of this action. On June 24, 2022, the Petitioner

clarified the needed shift through an amended petition, now seeking: (1) a caveat

against the Second Will and Will, (2) an accounting of agent transactions under the

Second POA and Third POA, and (3) recoupment of assets allegedly disposed due

to undue influence, lack of capacity, or otherwise resulting in unjust enrichment.193

189
D.I. 12.
190
D.I. 18.
191
D.I. 32 at 1.
192
D.I. 33.
193
D.I. 37.
35
On July 20, 2022, the Respondent and Ms. Vogel moved to dismiss the

reworked petition. 194 While that motion was pending, on August 8, 2022, I learned

the parties were engaging in mediation, and on August 11, 2022, I issued an order

staying this case pending same. 195 Unfortunately, that initial stay was not in place

for long. On September 26, 2022, the Petitioner filed a motion for a temporary

restraining order (the “TRO”), with a motion expedite, arguing that assets of Ms.

Harker’s estate were being dissipated and were at risk of being destroyed absent a

professional trustee and administrator for her estate.196 On October 4, 2022, after

briefing and argument, I denied the TRO. 197 No exceptions were filed, and on

October 14, 2022, the parties requested, and I granted, a continued stay in favor of

resumed mediation.198 Ultimately, though, mediation proved unsuccessful. 199

With failed mediation, the parties moved forward to brief the motion to

dismiss the amended petition. The Respondent and Ms. Vogel also initiated a new

action, on December 12, 2022, seeking the return of estate assets from the Petitioner,

which I consolidated with and into this action. 200 On May 4, 2023, after briefing, I

194
Pretrial Order at p. 3 ¶ 12; D.I. 41.
195
D.I. 44-45.
196
Pretrial Order at p. 4 ¶ 13; D.I. 46.
197
Pretrial Order at p. 4 ¶ 14; D.I. 55.
198
D.I. 58–59.
199
D.I. 60–62.
200
Pretrial Order at p. 4 ¶ 15.
36
denied the motion to dismiss.201 The pleadings closed shortly thereafter, and we were

off to the races.

This report does not address the ins and outs of discovery or the minor

skirmishes that arose; interested readers should consult the docket. Most notably, it

was during the discovery phase that Ms. Vogel’s participation ended. She did not

appear for her noticed deposition, stopped engaging with counsel and the

Respondent, and earned herself a default order declaring that: (1) any allegations

directed to Ms. Vogel within the amended petition were deemed admitted, (2) any

denials to those allegations were stricken and deemed admitted, (3) all affirmative

defenses of Ms. Vogel were waived, and (4) any objection within her interrogatory

responses were overruled.202

This matter was ultimately tried on May 8, 9, 10, and 20, 2024.203 Among the

fourteen witnesses, each side proffered expert testimony. For the Petitioner, it was

Dr. Samuel Romirowsky, who testified that Ms. Harker’s medical records referenced

both physical limitations, as well as cognitive issues such as memory loss. 204 Dr.

Romirowsky opined that Ms. Harker was susceptible and raised concerns about the

201
Pretrial Order at p. 4 ¶ 16.
202
D.I. 137.
203
D.I. 138–40.
204
Romirowsky Tr. 21:15–19.
37
influence of the Respondent and Ms. Vogel. 205 Dr. Romirowsky highlighted that Ms.

Harker’s suffered from cognitive loss and dementia, at least since November 2019

while at Cadia, which are progressive conditions, worsening over time, affecting her

ability to make sound decisions.206 He noted that medical records also indicated Ms.

Harker was at risk for immobility, cognitive loss, and incontinence, further

demonstrating her vulnerability. 207 He noted that the Respondent was present during

Ms. Harker’s medical evaluations and frequently answered questions on Ms.

Harker’s behalf, rather than Ms. Harker responding herself, suggesting to him a level

of control over Ms. Harker’s decisions that could have compromised her

independence. 208

The Respondent’s expert, Dr. Kaye, disagreed. 209 Meeting Ms. Harker in

person, he was impressed by her “high level of mentation,” particularly regarding a

205
Id. at 51:5–6; JX46.
206
Id. at 22:14–23:2; JX3 at Cadia4; id. at Cadia258 (noting that Ms. Harker was at risk
for immobility, cognitive loss, and incontinence); JX4 at ChristianaCare6 (noting that Ms.
Harker suffered from cognitive changes and impaired hearing); JX4 at ChristianaCare108.
207
See JX4 at CristianaCare113; JX3 at Cadia36.
208
Romirowsky Tr. 16:4–17:7.
209
The Petitioner argues that Dr. Kaye’s testimony exceeded the scope of his expert report
and thus should be stricken from the record and disregarded. See D.I. 152 at 64–67; Tr.
261:22–268:11. I do not rely on the challenged portion of Dr. Kaye’s testimony for
purposes of this decision, and thus the objections are moot. I otherwise give his testimony
the weight and credibility I think it deserves.
38
bird feeder outside of his office. 210 Ms. Harker’s ability to identify birds at the bird

feeder was deemed “remarkable” and, “when you have a 94-and-a-half-year-old who

does something like that, you remember it.” 211 In addition to identifying aspects of

the present, Ms. Harker was able to recall the past. For example, she was able to give

Dr. Kaye her social and family histories “without any difficulty.” 212 Dr. Kaye

ultimately opined that Ms. Harker had both testamentary and contractual capacity

and could make decisions on her own accord.213 Perhaps most critically, he did not

feel Ms. Harker was subject to undue influence.214

After developing their records, the parties engaged in post-trial briefing,

which was completed on September 18, 2024.215 This is my post-trial report.

III. ANALYSIS

In their pretrial stipulation, the parties identified nearly 40 issues of fact and

law that remained to be litigated. But, in post-trial briefing, they tightened their

focus. The following issues have been properly preserved and presented for my

consideration: (1) the ownership, and Ms. Harker’s estate’s entitlement to, the

210
Kaye Tr. 280:5–20.
211
Id. at 280:16–20.
212
Id. at 282:1–5.
213
Id. at 284:13–18.
214
Id. at 284:22–23.
215
D.I. 162; see D.I. 152, 158.
39
Edward Jones Account, (2) the extent to which the Petitioner is responsible, and

should be held liable for, a questioned line of credit, (3) whether Ms. Harker was

unduly influenced to disinherit the Petitioner in the Will and Second Will and to

withdraw funds from the Edward Jones Account, (4) whether Ms. Harker had

capacity to execute the June and December Documents, (5) whether the Respondent

breached his fiduciary duties as Ms. Harker’s agent under the Second POA and Third

POA, (6) whether the Respondent has been unjustly enriched to the Petitioner’s

detriment, and (7) whether the Petitioner’s fees should be shifted to Ms. Harker’s

estate.

In short, I find: (1) the Edward Jones Account was a joint account, providing

the Petitioner with the right of survivorship, (2) the Respondent failed to demonstrate

that the Petitioner bears any responsibility or liability in connection with the line of

credit, (3) the Petitioner failed to prove that Ms. Harker was unduly influenced, (4)

the Petitioner failed to prove that Ms. Harker lacked testamentary capacity to execute

the June and December Documents, (5) the Respondent breached his fiduciary duties

and the improper transactions should be voided, with the funds returned to Ms.

Harker’s estate, (6) the Petitioner has failed to prove unjust enrichment, and (7) the

Petitioner’s attorneys’ fees should be shifted to Ms. Harker’s estate. I address why

in turn.

40
A. The Edward Jones Account was a joint account with right of
survivorship.

The Respondent argues that the Edward Jones Account was merely a

convenience account for the benefit of Ms. Harker, which should pass through Ms.

Harker’s estate. I disagree.

Delaware law recognizes the distinction between a true joint tenancy and a

mere convenience account. A convenience account is created by the true owner of

the funds when she adds names of other persons on the account so that those persons

can access the funds in the account if the owner is incapacitated and the funds are

needed for her benefit. 216 By contrast, “[w]hen a true joint tenancy exists, one of the

consequences of such an arrangement is that the ownership of the asset passes to the

surviving joint tenants when one of them dies and does not pass through the estate

of the one who died.” 217 In Delaware, there is a rebuttable presumption that a joint

bank account is owned as tenants in common unless the owners “makes [their]

intentions explicit in the language used to create title to the property” that they intend

to create a joint tenancy with right of survivorship.218

216
In re Barnes, 1998 WL 326674, at *2 (Del. Ch. June 18, 1998).
217
Id.
218
Speed v. Palmer, 2000 WL 1800247, at *4 (Del. Ch. June 30, 2000) (explaining that a
joint tenancy with right of survivorship “can only be created by clear and definite language
not reasonably capable of any different construction”) (citation and quotation marks
omitted).
41
In determining whether an account is a joint account with a right survivorship

or merely a convenience account, I look to Walsh v. Bailey for guidance. 219

“Walsh stands for the proposition that if the account opening documents are clear

and unambiguous, parol evidence may not be admitted to show a different intent.”220

In Walsh, the Court excluded parol evidence, finding the existence of a joint account

where the clear language “outlin[ed] the consequences upon the heirs, next of kin,

legatees, assigns and personal representatives which will flow from that relationship

between the parties.” 221 By contrast, where the account opening documents are

lacking any relevant language, they do not clearly and unambiguously create a joint

account with right of survivorship. 222

This case begins and ends with the text and plain meaning of the Edward Jones

Account opening documents. That paperwork includes “clear and definite language”

showing that Ms. Harker and the Petitioner intended to create a joint tenancy with

219
197 A.2d 331 (Del. 1964).
220
In re Dryden, 2021 WL 4060193, at *3 (Del. Ch. June 22, 2021); see Messersmith v.
Del. Tr. Co., 215 A.2d 721, 723 (Del. 1965) (noting a preference for the form account
opening documents to exclude survivor-owner provisions, requiring parties to explicitly
request that such provisions be added if so intended).
221
197 A.2d at 333 (cleaned up).
222
Dryden, 2021 WL 4060193, at *5.
42
right of survivorship, barring my consideration of any “parol evidence . . . to vary

the terms of the instrument.”223 The relevant portion of the opening form provides:

Joint owners must select one form of ownership. If you have questions
regarding which form of ownership is appropriate for you, please
contact your attorney. Edward Jones will not, nor is any employee
authorized to, advise you with this choice.
1) ⛝ Joint Tenancy WROS (Not available in LA)
2) □ Tenants in Common
3) □ Tenants by the Entireties
4) □ Community Property (Community Property States only)
5) □ Community Property WROS (CA, NV & AZ only)
6) □ Survivorship Marital Property (WI only)
7) □ Marital Property (WI only)
All owners must execute this Account Authorization and
Acknowledgement Form.224

The “X” indicates the option selected for the Edward Jones Account: “Joint Tenancy

WROS.” The Respondent contends this language is not clear and unambiguous

because it does not spell out the words “With Right of Survivorship[,]” which the

Respondent implicitly agrees is the only reasonable or fair interpretation of the

initialization. 225 The Respondent’s quibble with the use of initials over the

undisputed phrase intended does not create ambiguity sufficient to open the door to

In re Gedling, 2000 WL 567879, at *6 (Del. Ch. Feb. 29, 2000) (citing Walsh, 197 A.2d
223

331).
224
JX9.
225
D.I. 158 at 35.
43
parol evidence.226 The Edward Jones Account was a joint account, the Petitioner had

a clear right of survivorship, and as such, the account became the Petitioner’s solely

owned property upon Ms. Harker’s death.

B. The Petitioner did not execute or misappropriate from the line of
credit.

The Respondent has “asserted a claim against [the Petitioner] related to the

equity line and his belief that [the Petitioner] had taken it out or withdrawn on the

line.”227 The Respondent failed, however, to adduce any evidence in support of his

suspicions and the record, rather, reflects that Ms. Harker most likely took out the

line of credit herself. On September 8, 2014, Ms. Harker opened and signed the line

of credit paperwork in the presence of a notary and a witness. 228 Ms. Harker was also

aware of the existence of the line of credit as evidenced by Ms. Harker’s own

handwritten notations of “equity” parallel to the line-of-credit payments from her

See Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1197
226

(Del. 1992) (giving weight to public policy considerations).
Even if it did, the parol evidence admitted at trial—Mr. Lucas’s testimony and the
additional Edward Jones statements—overwhelmingly support a finding that Ms. Harker
and the Petitioner intended to create an account with a right of survivorship. See, e.g., Tr.
137:16–141:15, Tr. 133:5–134:14; JX7, JX12–19. The only parol evidence arguably to the
contrary is that the Petitioner did not historically make transactions within or from the
Edward Jones Account without Ms. Harker’s approval. I find this custom or practice
insufficient to overcome all the indicia to show that the parties intended a right of
survivorship.
227
D.I. 158 at 37.
228
JX6 at 13.
44
PNC account. 229 The Respondent has, thus, failed to prove any cognizable claim in

connection with the line of credit.

C. The Petitioner failed to prove that Ms. Harker was unduly
influenced.

The Petitioner seeks to invalidate the various estate planning documents,

arguing that Ms. Harker was unduly influenced to execute them. The Petitioner bears

the burden of proving her undue influence claim by a preponderance of the

evidence.230 Specifically, the Petitioner needed to prove that, more likely than not,

(1) Ms. Harker was susceptible at the time the challenged documents were executed,

(2) the Respondent had the opportunity to exert influence over Ms. Harker, (3) the

Respondent had a disposition to exert influence for an improper purpose, (4) the

Respondent actually exerted such influence, and (5) the execution of the documents

demonstrates the effect of that exerted undue influence. 231 The Petitioner fell short

of proving Ms. Harker was, more likely than not, susceptible. Thus, the Petitioner’s

claim fails, and I decline to address the remaining elements.

229
See, e.g., JX73 at BHarker485, 492.
230
McGee v. Est. of Hopkins, 2022 WL 17492353, at *5 (Del. Ch. Nov. 22, 2022).
231
McGee, 2022 WL 17492353, at *8, adopted sub nom. Mcgee v. Hopkins, 2022 WL
17633575 (Del. Ch. Dec. 9, 2022). “Proof by a preponderance of the evidence means proof
that something is more likely than not. It means that certain evidence, when compared to
the evidence opposed to it, has the more convincing force and makes you believe that
something is more likely true than not.” Del. Express Shuttle, Inc. v. Older, 2002 WL
31458243, at *17 (Del. Ch. Oct. 23, 2002) (citation and quotation marks omitted).
45
While there is “no precise definition or defining feature of susceptibility, . . .

the analysis is informed by the subject’s capacity[.]” 232 This fact-intensive inquiry

includes determining “whether objective evidence indicates that the individual could

comprehend, understand, and make decisions himself.” 233 This Court has previously

found an individual susceptible to undue influence where he had “a debilitating

mental condition[,] . . . diminished capacity to take care of basic daily tasks, and [a]

need to rely on the help of family members[.]” 234 By contrast, in In re McElhinney,

the Court found an individual was not susceptible to undue influence when “her

health had started to decline; she had moved into assisted living; and there was

evidence of forgetfulness” but she was “able to make her own decisions” and

“understood the nature of her estate.”235

This case is akin to McElhinney. There is no dispute that Ms. Harker was

elderly, had some level of decline in her faculties, and demonstrated forgetfulness.

But the trial record overwhelming shows she still understood the nature of her estate

and was able to make her own decisions. In so holding, I find the testimony of Ms.

Harker’s attorneys, who remained steadfast that Ms. Harker was clear about her

testamentary wishes, most credible. Neither Mr. McCollom nor Mr. Crossland

232
In re Dougherty, 2016 WL 4130812, at *10 (Del. Ch. July 22, 2016).
233
Ray v. Williams, 2020 WL 1542028, at *30 (Del. Ch. Mar. 31, 2020).
234
In re Boyd, 2003 WL 21003272, at *6 (Del. Ch. Apr. 24, 2003).
235
In re McElhinney, 2007 WL 2896013, at *4 (Del. Ch. Oct. 1, 2007).
46
observed anything that would make them question Ms. Harker’s capacity. The

Petitioner’s record—including an expert witness who never personally met Ms.

Harker, medical records with unclear and unquantified references to decline, and the

testimony of the Petitioner and other lay witnesses as to Ms. Harker’s forgetfulness

and change in appearance and demeanor—is insufficient to support a finding that

Ms. Harker was susceptible.

D. The Petitioner failed to prove that Ms. Harker lacked testamentary
capacity.

The Petitioner also argues that Ms. Harker lacked testamentary capacity at the

time she executed the June and December Documents. Testators are presumed to

have capacity, and thus a party contesting capacity bears the burden of proving lack

thereof by a preponderance of the evidence.236 To have testamentary capacity, the

testator must “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.”237 Only a “modest level” of competence must be present for an individual to

236
In re Langmeier, 466 A.2d 386, 402 (Del. Ch. 1983).
237
Id.
47
possess the capacity required to execute a will. 238 If a testator has capacity, it is

irrelevant whether the Court agrees with the testator’s plan.239

The Petitioner’s primary argument for lack of capacity arises from her belief

that Ms. Harker operated under a delusion, or delusions, regarding the Petitioner’s

conduct toward her. 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.”240

In determining the capacity of a testator allegedly suffering from delusions, the

Court must decide whether such delusions occurred through the making of the

documents, that the testator was not capable of exercising reflection, judgment, and

thought, and did not possess the requisite memory and understanding to understand

the nature and character of his acts.241 Even partial delusions, if they bear the crux

of the testator’s elected disposition of assets, suggest the testator does not, in fact,

have the capacity to execute the challenged documents.242

In re Vietri, 2022 WL 3925995, at *6 (Del. Ch. Aug. 31, 2022) (citation and quotation
238

marks omitted).
239
In re Tigani, 2016 WL 593169, at *20 (Del. Ch. Feb. 12, 2016).
240
Id. (citation and quotation marks omitted).
241
Id.
242
Id.
48
This Court applies a two-part test to determine whether a testator lacked

capacity due to delusions: (1) “[w]as the belief of the testator a mere false idea as

distinguished from an insane delusion[,]” and (2) “[a]ssuming such a delusion, did

the testator change the beneficiaries of the estate because of that belief?” 243 Of

critical importance to my analysis, “[m]istake and prejudice . . . are not insane

delusions.”244 Further, the mere 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.” 245

I find the Petitioner has failed to overcome the presumption of capacity. The

Petitioner was required, and failed, to demonstrate that Ms. Harker, more likely than

not, did not understand “[her] assets, the objects of [her] bounty, and the purpose of”

the June and December Documents at the time they were executed. 246 Such cannot

be shown merely through testimony that Ms. Harker was diagnosed with “cognitive

loss/dementia[;]” a condition which has varying levels of severity and may effect

mental faculties to varying degrees. 247 Like in In re Henry, “the medical records

243
Id. (cleaned up).
244
Id. at *21.
245
Id. at *22 (citation and quotation marks omitted).
246
Boyd, 2003 WL 21003272, at *5 n.42.
247
See In re Kittila, 2015 WL 688868, at *12 (Del. Ch. Feb. 18, 2015) (explaining “a
diagnosis of dementia, including Alzheimer’s dementia, is not conclusive of a person’s
49
provided [here] do not, however, include a medical diagnosis of dementia nor any

indication as to the severity of such condition, to the extent it existed.” 248

I am unconvinced that Ms. Harker’s belief regarding the line of credit caused

her to change the beneficiaries of her estate. 249 In Ms. Harker’s interactions with Mr.

McCollom and Mr. Crossland, she failed to mention the line of credit as a reason for

disinheriting the Petitioner.250 Instead, Ms. Harker outlined the emotional abuse she

allegedly suffered at the hands of the Petitioner, a subjective, arguable, but not

deluded matter.251

testamentary capacity”); Boyd, 2003 WL 21003272, at *4 (finding testamentary capacity
even with a diagnoses of dementia when “the evidence shows that [when the will was
executed, the testator] understood that he was disposing of his estate to the beneficiaries
named in the [will]”); see JX3 at Cadia4.
248
2021 WL 5816818, at *3 (Del. Ch. Nov. 10, 2021); JX3 at Cadia4.
249
See Tigani, 2016 WL 93169, at *20.
250
The Petitioner’s own testimony undermines her delusion argument. Petitioner Tr.
336:1–8 (“I never thought she was held captive. If she didn't want to go with them, she
would not have gone with them. So I felt like, ‘You're a grown woman. You can live
wherever you want. But somebody could have told me. Somebody could have told me you
guys felt this way. None of you told me. None of you even came into my bedroom down
the hall and talked to me about any of that.’”).
251
See Livoy Tr. 456:16–21 (“[S]he claimed that [the Petitioner] had mistreated her and
hollered at her. I wrote it off as a little bit of minor dementia because everyone had to holler
at [Ms. Harker] because she didn’t wear her hearing aids or their hearing aids were not
functional.”). Hearing issues aside, I cannot find Ms. Harker delusion in her stated dislike
for how she was treated during the increasingly tense relationship with the Petitioner; it is
plausible she had a change of heart and wished to bequeath her home and assets to the
Respondent in recognition of the care and comfort he provided to her.
50
On this record, I find the Petitioner has failed to prove, by a preponderance of

the evidence, that Ms. Harker did not possess the minimal capacity required to

execute the June and December Documents.

E. The Respondent breached his fiduciary duties as Ms. Harker’s
agent under the Second POA and Third POA.

The Petitioner next argues the Respondent breached his fiduciary duties to

Ms. Harker by engaging in several self-interested transactions as agent under the

Second POA and Third POA. 252 A breach of fiduciary duty claim requires proof, by

a preponderance of the evidence, of two elements: (i) the existence of a fiduciary

duty and (ii) a breach of that duty. 253 The Respondent implicitly concedes that he

owed duties to Ms. Harker and takes issue solely with the second element—whether

he breached those duties.254 I find he did.

“The creation of a power of attorney imposes the fiduciary duty of loyalty on

the attorney-in-fact.” 255 But, although “[a]n attorney-in-fact, under the duty of

loyalty, always has the obligation to act in the best interest of the principal” the

principal can waive such duties by “consent[ing] to the attorney-in-fact engaging in

252
D.I. 162 at 29–30.
253
HOMF II Inv. Corp. v. Altenberg, 2020 WL 2529806 at *43 (Del. Ch. May 19, 2020).
254
See D.I. 158 at 56–58, D.I. 162 at 29–30.
255
Schock v. Nash, 732 A.2d 217, 224 (Del. 1992).
51
an interested transaction after full disclosure.” 256 Stated another way, “[a] self-

dealing transfer of the principal’s property to the attorney-in-fact is voidable in

equity unless the attorney-in-fact can show that the principal voluntarily consented

to the interested transaction after full disclosure.” 257 “Such consent requires

impartial advice from a competent and disinterested third person.” 258 Thus, once

a self-dealing transaction is challenged, the burden is on the fiduciary to demonstrate

that the transaction should be upheld. 259

Here, the Respondent and Ms. Vogel unquestionably engaged in several self-

dealing transactions. The Respondent’s justification for those transactions is that Ms.

Harker wanted him to have whatever he wanted, and to live a full life. This attitude

is understandable given the uncontested record of Ms. Harker’s doting upon the

Respondent. But it does not suffice to excuse the Respondent’s self-interested

dealings once he was appointed as a fiduciary for Ms. Harker. With the Second POA

and extended into the Third POA, the Respondent was required to put Ms. Harker’s

interests first. He failed to do so, and there must be consequences.

Looking to the various transactions undertaken by the Respondent as agent,

the Respondent’s overarching response that Ms. Harker wanted him to live freely is

256
Id. at 225.
257
Faraone v. Kenyon, 2004 WL 550745, at *11 (Del. Ch. Mar. 15, 2004).
258
Coleman v. Newborn, 948 A.2d 422, 429 (Del. Ch. 2007).
259
Pennewill v. Harris, 2011 WL 691618, at *3 (Del. Ch. Feb. 4, 2011).
52
wholly insufficient to demonstrate that Ms. Harker was informed and consented to

any of the transactions, particularly given the lack of any impartial advice from

disinterested third parties. Thus, the Respondent should be required to return the

value of all the self-interested transactions to Ms. Harker’s estate.

The same is true for transactions which were undertaken by, or for the benefit

of, Ms. Vogel. As addressed above, Ms. Vogel was held in default. The

consequences of that default do not change my above findings regarding Ms.

Harker’s estate planning documents. But they do justify judgment against Ms. Vogel

for her role in the self-interested transactions she undertook in her admitted fiduciary

capacity. Ms. Vogel’s ill-gotten gains must also be returned for the benefit of Ms.

Harker’s estate.

F. The Petitioner failed to prove that the Respondent was unjustly
enriched by the withdrawal of the Edward Jones Account.

The Petitioner challenges the $413,200.00 withdrawal from the Edward Jones

Account under the theory of unjust enrichment. Unjust enrichment is the “unjust

retention of a benefit to the loss of another, or the retention of money or property of

another against the fundamental principles of justice or equity and good

conscience.” 260 To succeed on her unjust enrichment claim, the Petitioner must

prove by a preponderance of the evidence: “(1) an enrichment, (2) an

260
Schock, 732 A.2d at 232 (citation and quotation marks omitted).
53
impoverishment, (3) a relation between the enrichment and impoverishment, (4) the

absence of justification, and (5) the absence of a remedy provided by law.”261 “The

fifth element need only be established if there is a dispute over jurisdiction[,]” which

is not relevant here.262

Here, there was an enrichment (the funds withdrawn), an impoverishment (the

same funds which the Petitioner can no longer access), and a relation between the

impoverishment and the enrichment (evidenced by the flow of funds out of the

Edward Jones Account). That leaves the question of justification. “Typically, the

absence of justification element ‘entails some type of wrongdoing or mistake at the

time of the transfer.’”263 Although the Respondent demanded the liquidation of the

Edward Jones Account—a joint account with right of survivorship between the

Petitioner and Ms. Harker—the record reflects that Ms. Harker, of sound mind,

authorized the Respondent to do so.264 Thus, the Petitioner has not demonstrated the

261
Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010).
Restanca, LLC v. House of Litium, Ltd., 2023 WL 4306074, at *34 (Del. Ch. June 30,
262

2023).
263
SDF Funding LLC v. Fry, 2022 WL 1511594, at *18 (Del. Ch. May 13, 2022) (quoting
Territory of U.S. V.I. v. Goldman, Sachs & Co., 937 A.2d 760, 796 n.161 (Del. Ch. 2007)).
264
See JX59 at 6 (“Client stated that every [transaction] made by [the Respondent] and
Ashley Vogel made are authorized by her. Client stated that she is aware of these
transactions.”); see also Respondent Tr. 786:22–787:15 (“And explained to Steve that,
‘Look, we’re going to use one or two of these checks and then we’re going to be stuck in
the middle of this ocean to where, you know, now we’re in the middle of a lawsuit, my
mom’s going to either pull the money out or do some stuff to get it frozen. And now we’re
going to be in the middle of this lawsuit with no oars on our boat, you know, effectively
cut off from what we would need to fight the lawsuit with.’ And that wasn’t good. Grandma
54
enrichment was without justification and, as such, her unjust enrichment claim must

fail. To the extent any of these funds were part of the Respondent’s self-dealing

transactions, however, they will be addressed by my breach finding and

supplemental proceedings quantifying same.

G. The Petitioner’s attorneys’ fees should be shifted to Ms. Harker’s
estate.

The Petitioner asks that her fees be shifted to the Respondent under the bad

faith exception to the American Rule or, alternatively, be borne by Ms. Harker’s

estate. I fail to find bad faith sufficient to shift fees to the Respondent, but I find

sufficient cause to shift fees to Ms. Harker’s estate.

“Under the American Rule and Delaware law, litigants are normally

responsible for paying their own litigation costs.”265 There are several exceptions;

“[f]or example, fees may be shifted if: (i) recovery of fees is provided by statute or

court rule; (ii) there is a contractual provision regarding entitlement to attorneys’

fees; (iii) a party has acted in bad faith in connection with the conduct of the litigation

process; (iv) a party fails to abide by a court order or is held in contempt; and (v) the

didn’t want that. She felt like she had put me in this situation by doing the documents kind
of without really talking to me about it. So she felt guilty. She felt a little bit guilty, and
she felt like, you know, ‘I want to make sure you’re going to be okay because you made
sure that I’m going to be okay.’”).
265
Mahani v. Edix Media Gp., Inc., 935 A.2d 242, 245 (Del. 2007).
55
action results in the creation, protection or distribution of a common fund or confers

a corporate benefit.”266 The Petitioner invokes (iii) and (v), which I address in turn.

Under the bad-faith exception, “Delaware courts have shifted fees for

glaringly egregious conduct, such as forcing a plaintiff to file suit to secure a clearly

defined and established right, unnecessarily prolonging or delaying litigation,

falsifying records, or knowingly asserting frivolous claims.”267 This exception only

applies in extraordinary cases. 268 This Court “does not invoke the ‘bad faith

exception’ lightly and imposes the stringent evidentiary burden of producing ‘clear

evidence’ of bad-faith conduct on the party seeking an award of fees.”269 I am not

firmly convinced that the Respondent litigated this action in bad faith.270

The Petitioner cites to RGC International Investments, LDC v. Greka Energy

Corp.,271 wherein then Vice Chancellor Strine awarded attorneys’ fees under the bad

faith exception where the opposing party’s arguments had minimal grounding in fact

266
In re Del. Pub. Schs. Litig., 312 A.3d 703, 716 (Del. 2024).
267
Pettry v. Gilead Scis., Inc., 2021 WL 3087027, at *1 (Del. Ch. July 22, 2021) (cleaned
up).
268
RBC Cap. Mkts., LLC v. Jervis, 129 A.3d 816, 877 (Del. 2015).
269
Dearing v. Mixmax, Inc., 2023 WL 2632476, at *5 (Del. Ch. Mar. 23, 2023) (ORDER).
270
Cf. B.E. Cap. Mgmt. Fund LP v. Fund.com Inc., 2024 WL 3451459, at *18 (Del. Ch.
July 18, 2024) (finding clear evidence that the party against whom fees were shifted
falsified records); Choupak v. Rivkin, 2015 WL 1589610, at *23 (Del. Ch. Apr. 6, 2105),
aff’d, 129 A.2d 232 (Del. 2015) (same).
271
2001 WL 984689 (Del. Ch. Aug. 22, 2001).
56
or law, made the litigation more expensive than it should have been and involved

the filing of false affidavits to another court. 272 The Petitioner argues the

Respondent’s claims regarding the line of credit and the Edwards Jones Account

were “demonstrably false and even a cursory investigation in reviewing records . . .

would have shown as such.”273 I appreciate the Petitioner’s comparison, but a weak

claim is different than a frivolous one. And, weak as they may have been, there is no

evidence that the Respondent’s claims delayed or made this litigation more

expensive.274 I find bad-faith fee shifting unwarranted.

The Petitioner alternatively requests that her fees be shifted to Ms. Harker’s

estate under the common fund or benefit exception. These exceptions work “to

balance the equities to prevent ‘persons who obtain the benefit of a lawsuit without

contributing to its cost [from being] unjustly enriched at the successful litigant’s

expense.’”275 Under this equitable lens, this Court will shift attorneys’ fees for “a

party who successfully challenges a will and causes the reinstatement of a prior will

272
Greka, 2001 WL 984689, at *19 n.111.
273
See D.I. 152 at 69–70.
See, e.g., Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del.
274

1998).
Dover Hist. Soc’y, Inc. v. City of Dover Plan. Comm’n, 902 A.2d 1084, 1090 (Del.
275

2006) (quoting Goodrich v. E.F. Hutton Gp., Inc., 681 A.2d 1039, 1044 (Del. 1996)).
57
reflecting the decedent’s true plan of disposition [and] has shown exceptional

circumstances benefitting the estate.”276

The non-prevailing side of a will contest may also receive an award of fees if

probable cause to contest the will existed, exceptional circumstances were present,

and the litigants’ actions benefitted the estate. 277 To prove as much, the Plaintiff

must be able to show “sufficient evidence to establish a prima facie case, and

overcome the presumption of law that exists in favor of the will’s validity.” 278

Exceptional circumstances may exist where “a testatrix disinherits a blood relative

in favor of a stranger, materially alters a prior testamentary scheme, or relies on

advice from an interested party.”279

The Petitioner argues for a similar application of the law as in In re Kittila.280

There, the decedent materially altered her previous testamentary scheme and

unexpectedly cut ties with family members. 281 Similarly, here, Ms. Harker

disinherited the Petitioner who was her sole beneficiary for over a decade, with

whom she had a good relationship before May 2021. Through this action, Ms.

276
In re Damico, 2011 WL 1938567, at *13 (Del. Ch. Apr. 11, 2011).
277
Ableman v. Katz, 481 A.2d 1114, 1122 (Del. 1984).
278
In re Kittila, 2015 WL 3899572, at *2 (Del. Ch. June 24, 2015).
279
Id.
280
See D.I. 152 at 69.
281
Kittila, 2015 WL 3899572, at *3.
58
Harker was also successful to her challenge to numerous self-dealing transactions,

the recoupment of which will benefit the estate. Thus, like in Kittila, after

“evaluat[ing [this] case based on its unique facts[,]” 282 I find the Petitioner’s

attorneys’ fees are most appropriately borne by Ms. Harker’s estate.

IV. CONCLUSION

For the foregoing reasons, I am: (1) declaring that the Edward Jones Account

is a joint account with right of survivorship, which passed to the Petitioner in full

upon Ms. Harker’s death, (2) denying the Respondent’s claim regarding the line of

credit, (3) denying the Petitioner’s undue influence, lack of capacity, and unjust

enrichment claims, (4) granting the Petitioner’s breach of fiduciary duty claims, and

(5) shifting the Petitioner’s attorneys’ fees to Ms. Harker’s estate.

These rulings require further action by the parties. Specifically, the parties are

directed to meet and confer regarding (1) the total dollar amount of the self-

interested, voided transactions and (2) a reasonable amount of the Petitioner’s fees

which should be shifted to the estate. The parties shall file an implementing order

jointly or with any disagreements noted within 60 days of the date of this report. If

the parties cannot agree on (2), the Petitioner shall submit, within the same 60-day

282
Id.
59
window, an affidavit under Court of Chancery Rule 88, to which the Respondent

may reply within 10 days of filing.

This is a magistrate’s report and exceptions under Court of Chancery Rule

144 are stayed until my final ruling on the transactions and fees to be shifted.

60