In re Last Will and Testament of Palecki

• Decision Date: 26 April 2007
• Docket Number: C.A. No. 1594-N.
• Parties: In the Matter of the LAST WILL AND TESTAMENT OF Bernice T. PALECKI, Deceased. Walter Palecki, Richard Palecki, Eugene Palecki, Helen Piorko Niemkiewicz, and Edward Piorko, Petitioners, v. Joseph Gornik, Individually, and Joseph Gornik, Executor of the Estate of Bernice T. Palecki, Respondent.
• Court: Court of Chancery of Delaware

920 A.2d 413

In the Matter of the LAST WILL AND TESTAMENT OF Bernice T. PALECKI, Deceased.

Walter Palecki, Richard Palecki, Eugene Palecki, Helen Piorko Niemkiewicz, and Edward Piorko, Petitioners, v. Joseph Gornik, Individually, and Joseph Gornik, Executor of the Estate of Bernice T. Palecki, Respondent.

C.A. No. 1594-N.

Court of Chancery of Delaware, New Castle County.

Submitted: April 9, 2007.

Decided: April 26, 2007.

Raymond M. Radulski, Raymond M. Radulski, Attorney at Law, Wilmington, DE, for Petitioners.

David J. Ferry, Jr., Rick S. Miller, Ferry, Joseph & Pearce, P.A., Wilmington, DE, for Respondent.

OPINION

STRINE, Vice Chancellor.

I. Introduction

Bernice Palecki crafted by hand an "Item Four" that works in concert with her holographic Last Will and Testament dated September 24, 1985 (the "Will"). If read together with the Will, the handcrafted addendum — which I will call the "Codicil" — makes sense of the rest of the Will, which would otherwise outline an incomplete dispositive scheme. The Will, in its itemized list of bequests and instructions, makes only one complete testamentary gift: leaving the entire estate to Bernice's sister, Helen Palecki, if Helen survived Bernice. Thereafter, however, the Will contains a handwritten numeral "4" followed by a dash and a series of blank lines. As such, the Will does not address the possibility that Helen might die before Bernice. The Codicil, which bears the title "Item Four," sets forth a bequest that fills that gap in both the text and dispositive scheme of the Will. In the event that Helen predeceases Bernice, the Codicil names most of Bernice's siblings (if they survive Bernice) and about half of her nieces and nephews as the contingent beneficiaries of her estate. Unlike the Will itself, the Codicil, although indisputably in the handwriting of Bernice Palecki, was not signed by her and bears no date.

Because all of Bernice Palecki's siblings died before she did, if the Codicil is given force, Bernice's estate will pass to the five nieces and nephews that she named in that writing. If, however, the Codicil is declared invalid, her estate will pass by intestacy because the text of the Will itself makes no other disposition. In that case, all of Bernice's nieces and nephews will share in a portion of her estate.

The petitioners — Walter Palecki, Richard Palecki, Eugene Palecki, Helen Piorko Niemkiewicz, and Edward Piorko — are five nieces and nephews of Bernice Palecki who were not named as beneficiaries in the Codicil. Respondent Joseph Gornik is one of the beneficiaries named in the Codicil and the executor appointed in the Will.

The petitioners allege that the Codicil is invalid because it was not executed contemporaneously with the Will and because the absence of a signature renders it invalid under Delaware law. At this stage in the proceedings, discovery has been concluded, and respondent Gornik has moved for summary judgment. For purposes of this motion, Gornik concedes that there is a genuine dispute of fact about whether Bernice Palecki drafted the Codicil at the same time as the Will. Notwithstanding this factual dispute, Gornik argues that the Codicil is valid because there is no dispute that Palecki wrote it or that by its plain terms the Codicil works with the text of the Will in a sensible manner. Relying upon a recently-enacted New Jersey statute and the fact that Palecki lived in New Jersey at the time she drafted the Will and Codicil, Gornik argues that the absence of a signature is immaterial because New Jersey has now dispensed with a mandatory signature requirement. He argues that Delaware's probate choice of law statute, § 1306 of Title 12, should be read to validate the Codicil because the Codicil would be valid in New Jersey where Palecki was domiciled when she wrote it.

In this opinion, I reject Gornik's motion for summary judgment.

As Gornik's counsel admits, the plain language of the relevant Delaware statutes — 12 Del. C. § 1306 and a related statute, 12 Del. C. § 202 — only give deference to wills executed in other states when those wills are "signed by the testator" or by a representative of the testator in the testator's presence and at the testator's express direction. Those statutory sections are over thirty years old and date to a time when every state required wills and codicils to be signed. In recent years, a small number of states, including New Jersey, have dispensed with an absolute signature requirement. Gornik therefore seeks to have me "evolve" the relevant Delaware statutes in light of these developments, by reading out the requirement for a signature. In other words, Gornik would have me amend statutes of longstanding when the General Assembly has not done so.

Such a request cannot be granted, lest this court usurp the General Assembly's legislative powers by ignoring plain statutory text. Nor can illegitimate judicial amendments of these statutes be justified on the grounds that the statutes work absurd results. For one thing, the interpretive maxim that permits a court to eschew a literal reading of a textually-unambiguous statute on the grounds that the literal reading produces absurd results has to be used with great caution and delicacy, lest the judiciary's own sense of appropriate public policy outcomes usurp the powers entrusted to the elected legislative branch. For that reason, courts will only refuse to give effect to a linguistically faithful reading of a clear statute in the most extreme circumstances. As Chief Justice Marshall explained nearly two centuries ago, "[I]f . . . the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application."¹ That is not the case here. Although one may disagree with the statutory signature requirement, such a requirement remains a prevalent one that has the positive effect of creating an incentive for persons to take care to execute their wills and codicils with a level of formality that reduces the room for post-mortem disputes about the validity of those instruments. If the General Assembly comes to believe that the signature requirement should be relaxed and effect given to unsigned wills and codicils that would be valid under another state's law, it is, of course, free to act on that belief by amending the law. Until that time, this court must enforce the statutes as written.

II. Factual Background

Bernice Palecki had at least seven brothers and sisters, but she did not have any children of her own. As of 1985, Bernice was a resident of Ventnor, New Jersey.

In September of that year, Bernice executed her holographic Will. The Will that Bernice prepared is a two-page, pre-printed form with a coversheet onto which she handwrote her last wishes.² On the series of blank lines on the form, Bernice wrote four numeric "Item" headings, but she only completed three of those items. The first and second items contained Bernice's burial wishes and directed that her debts and funeral expenses be paid by her estate. The third item ("Item 3") presents the only bequest written on the Will form itself. Item 3 reads:

3 — If survived by my sister Helen, I leave everything I have, whatever it may be, to my sister Helen.³

Following this section, Bernice wrote "4 —" but listed nothing thereafter.⁴ As a result, the bottom of that page of the Will was left blank. As such, the Will itself made no provision for the possibility that Helen might die before Bernice.

In the Codicil, which was written on a separate, smaller sheet of paper than the Will itself, Bernice supplied the missing "Item 4" in the Will, naming most of her siblings and half of her nieces and nephews as beneficiaries in the event Helen predeceased her. The Codicil states:

Item Four:

If I should survive my sister Helen Palecki I request the execution of item one and item two and the cancellation of item three because of the death of Helen Palecki. I bequeath equal parts of my estate to my surviving brothers and sisters and to my neices (sic) and nephews here named.⁵

After this language, the Codicil provides a two column list. The left column is titled "Brothers and sisters" and lists Stanley Palecki, Walter Palecki, Mary Rupnicki, Stephanie, and Sophie Gornik.⁶ This list comprised all of Bernice's siblings, save her sister Anna who had become a nun and changed her name to Sister M. Adelaide, OSF. The right column is titled "Nieces and nephews" and lists Regina Z., Francis P., Theresa Bradley, John Gornik, and respondent Joseph Gornik.⁷ Those five were not a complete list of Bernice's nieces and nephews, and the petitioners in this case comprise five of the remaining nieces and nephews who were not named in the Codicil.

The petitioners concede that the Codicil was written in Bernice Palecki's handwriting but point out the equally undisputed and important facts that the Codicil bears no date or signature. Because the Codicil bequeaths property to Bernice's brothers Walter and Stanley if "surviving," the only relevant evidence in the discovery record suggests the Codicil was written before they died in May 1990 and June 1991, respectively. As of that time, Bernice remained a New Jersey resident. Although the petitioners say it is uncertain when the Codicil was drafted, they have adduced no evidence suggesting a rational inference that the Codicil was written after 1991.

In 1994, Bernice moved to Delaware with her sister Helen because Helen had become terrified of the ocean after a violent summer storm sent waves crashing into the beachfront property in Ventor, New Jersey where the two previously lived. Shortly after the move, in November of that year, Helen died, leaving...