PARSONS, Vice Chancellor.

Petitioners seek to invalidate a quitclaim deed executed by the 87 year-old decedent, Violet Lawrie ("Violet"), on July 30, 2004 (the "Deed"). The Deed grants to Violet's daughter, Respondent Maxine Lawrie ("Maxine"), an interest in Violet's real property. The Deed was executed at Maxine's behest while Violet was in a hospital recovering from a number of ailments, including delirium. Petitioners are Catherine L. Tucker ("Catherine"), one of Violet's other daughters, and Catherine's husband, Thomas Tucker ("Thomas" and together with Catherine, the "Tuckers"). Petitioners argue, among other things, that the Deed was executed while Violet was suffering from a weakened intellect and is the product of undue influence; that Respondent should bear the burden of showing that the Deed's execution was not the product of undue influence; and that Respondent has not carried that burden. They ask that Maxine be ejected from the property in dispute, 23684 Old Meadow Road, Seaford, Delaware (the "Property"), and argue that she owes Petitioners rent for the time that she has lived at the Property. For the reasons set forth below, I will order that the Deed is void and ineffective, that Maxine must vacate the Property within 90 days of the date of this Memorandum Opinion, and that Maxine owes the Tuckers rent in the amount of $483.34 per month for the period beginning January 9, 2005, the date Violet died, until she vacates the Property.

I. BACKGROUND AND FACTS A. Facts

On April 15, 1991, Violet conveyed to the Tuckers a two-thirds interest in the Property as joint tenants with right of survivorship, retaining the other one-third interest for herself, and executed a new deed showing the Tuckers' interest (the "1991 Deed"). She apparently did this pursuant to an informal agreement whose content the parties now dispute. This agreement is discussed more fully in Section II.A. infra. At least part of the agreement was an understanding that the Tuckers would borrow money, using their new interest in the Property as security, and use (at least some of) the proceeds to renovate the Property.

Over time, the Tuckers executed three mortgages on the Property dated April 20, 1991, June 24, 1991, and January 11, 2001. They used some of the money to pay personal debts and some of it to renovate the Property. The parties debate the exact amount of money the Tuckers spent on the Property, but the resolution of that issue is not germane to the resolution of this case. Neither party is seeking damages or restitution for any of the money or work related to the renovations. The Tuckers have been solely responsible for payments on the mortgages.

Around 1998, a severe rift developed in the Lawrie/Tucker family. Regardless of its genesis, the rift effectively ended the Tuckers' relationship with Violet. The Tuckers' son, Thomas Tucker, Jr., aligned himself with his father and mother, while the Tuckers' daughter from whom they are estranged, Catherine Petka ("Petka"), aligned herself with her grandmother, Violet. From 1998 until Violet's death, the Tuckers had little contact with Violet that was not marred by contention. Catherine and Thomas saw Violet on no more than two occasions from about 1999 until her death in 2005.

From approximately 1997 until 2004, Violet received assistance and care from Alice Fitchett, a Certified Nurses Assistant employed by an outside agency to assist Violet. Fitchett visited Violet on Monday through Friday for two hours per day and rendered personal services such as cooking, light cleaning, and helping Violet bathe. During the year 2000, Violet's friend and neighbor of about 48 years, Shirley Purse ("Mrs. Purse"), contacted Maxine, who was living in Florida at the time, and told her that she was concerned about Violet's welfare. Mrs. Purse feared that Violet would fall, for example, and might not be discovered for a prolonged period of time. After a visit or two, Maxine moved in with Violet in December 2000.

Maxine presented credible testimony of friends and neighbors such as Mrs. Purse, Violet's aid Alice Fitchett, and long-time friend and neighbor Maderia Kovach, demonstrating that Violet and Maxine had a good relationship. Maxine assisted Violet by running errands, cooking, cleaning, and doing yard work. Instead of full-time employment, Maxine worked two or three part-time jobs so that she could come home between jobs to cook meals and care for her mother. On December 3, 2003, Violet executed a general power of attorney granting Maxine broad powers to manage Violet's affairs if Violet became incapacitated. If activated, this power of attorney included broad powers to manage Violet's real property.

Mrs. Purse testified that although Violet was physically frail, she possessed a sharp wit. Violet's friends and neighbors consistently described her as quite a "character." Fitchett, Violet's aid, described her as "alert" and "very direct." Based on her observations of Violet and Maxine, Fitchett did not believe Violet would have a problem saying "no" to Maxine if Maxine tried to pressure Violet into doing something Violet did not want to do. Kovach, Violet's friend and neighbor of 45 years, described Violet as generally competent and not dominated by Maxine. Mr. and Mrs. Purse testified to the same effect.

Violet's relationship with Thomas Tucker, on the other hand, was poor, and she reportedly regretted having given Thomas an interest in her Property. Before Maxine moved in with Violet, Kovach took Violet to an attorney seeking advice on having (at least) Thomas Tucker removed from the 1991 Deed, but Violet was advised that Thomas would have to agree to his removal. At one point, Mrs. Purse also made an appointment for Violet to visit an attorney to have Thomas removed from the Deed to the Property, but Violet cancelled the appointment because she was concerned she could not afford an attorney. Mr. Purse testified that he and his wife had made an appointment with an attorney to seek advice on giving Maxine an interest in the Property by adding her to the 1991 Deed. The record is unclear, however, as to whether this was the same appointment Mrs. Purse remembered. When Maxine took Violet to the attorney for advice on the power of attorney she executed in 2003, Violet again asked for advice on having the 1991 Deed revoked. The attorney said she would look into the matter, and when Violet and Maxine returned to the attorney's office to execute the power of attorney, Violet was advised that it was not feasible to revoke the 1991 Deed.

In a document dated February 15, 2002, Violet attempted to create a new will (the "Attempted Will"). Violet had the Attempted Will notarized, but failed to secure the signatures of two witnesses. Consequently, the parties agree that the Attempted Will was not validly executed pursuant to Delaware law. The Attempted Will purports to revoke all preceding wills, appoint Maxine as executor, and grant Maxine all of Violet's furniture except for one cupboard that was to be left to Petka.

During the first six months of 2004, Violet was admitted to the hospital emergency room several times for a variety of reasons, including pain, difficulty ambulating, urinary tract infection, trouble with bowel movements, and other difficulties. In February, she was admitted to Nanticoke Memorial Hospital in Seaford, Delaware, complaining primarily of lower-back pain and abdominal pain. At some point before her physical health worsened in 2004, Violet executed a medical power of attorney in favor of Maxine.

1. The Deed is done

Q. You just asked for a neurological consult because she was confused and had delirium?

A. Yes, sir. This was not my mother. This presented itself — I got a call from Alice [Fitchett] telling me about the first incident, and then I came home, saw it, and as time was progressing, it would vacillate. She'd go in and out of it; not so often the first, you know, hour or so, and then as the night drew near, and it became midnight and 1:00 a.m., you could see it was really getting bad. So I was very concerned.

On July 24, 2004, Dr. Mohammad B. Kahn, M.D., examined Violet "for change in mental status versus delirium." Dr. Kahn wrote that "today her mental status seems to be improved. According to the physicians, her mental status has been improving since with [sic] treatment of her urinary tract infection. . . . At this time, she is alert, awake and oriented times three. . . . She answers questions appropriately." Dr. Kahn's report further states:

IMPRESSION: I was asked to see this patient because of the change in her mental status versus delirium. At this time, her mental status seems to be better. There is no mental status change noted and on the examination she is alert, awake and oriented times three. She does follow simple commands. My impression is delirium versus encephalopathy, which has improved. This could most likely be related to infection versus medication. Also, this could be due to her recent pelvic and compression fracture.

As late as July 27, however, Violet's attending physician, Dr. Alon David, M.D., noted that Violet was "still confused."

On July 29, the day before Violet executed the Deed, she underwent a vertebroplasty. This is a procedure whereby bone cement is injected into the spine to support fractured vertebrae. Violet had mild to severe to acute compression fractures of multiple vertebrae, and it was hoped that the vertebroplasty would reduce her level of pain. She was released the next day. Violet's discharge summary, dated July 30, 2004, indicates that she suffered from a number of ailments and was being treated with a number of medications. While it references Dr. Kahn's report, Violet's discharge summary does not mention the state of Violet's mind on the day of discharge. In a letter written at the request of Maxine and dated March 21, 2005, however, one of Violet's attending physicians, Elleda Ziemer, D.O., says that Violet was lucid when she discharged her on July 30, 2004.

Roughly contemporaneously with these developments, beginning on about July 2, 2004 and lasting until February 2, 2005, Maxine had a running email exchange with her daughter, Anne Davenport ("Davenport"), about how Maxine could come to possess an interest in the Property. Davenport first urged Maxine to seek the assistance of an attorney to have Maxine added to Violet's will. Davenport and Maxine would then acquire life insurance on Violet and use the proceeds to buy the Tuckers' remaining interest in the Property. Maxine testified that her mother knew about the insurance idea, and was in agreement and ready to consent to the physical, but the cost of the insurance was prohibitive. Davenport was particularly concerned about the Tuckers' mortgage debt, and at one point, she suggested to Maxine to "see if she [Violet] will leave you a minimum on the will of 75% of the house and the Tuckers 25% with them 100% liable to the debt and not you." In an email dated July 20, 2004, Davenport suggested that Maxine have Violet execute a quitclaim deed granting Maxine an interest in the Property with a right of survivorship. In a response dated July 21, 2004 (the day before Violet was admitted to the hospital), Maxine noted with concern that her mother was "not doing well, she is starting to see things."

Davenport prepared the Deed, and on July 30, 2004 (Violet's discharge date), Maxine presented it to Violet for execution at the Peninsula Hospital. Violet executed the Deed in front of two witnesses and the Deed was notarized. The witnesses spoke with Violet, but neither of them nor the notary personally knew her. The parties agree that Maxine paid only a token dollar as consideration for the transfer of interest in the Property, yet she received a one-half interest as a joint tenant with right of survivorship in Violet's one-third interest in the Property. Petitioners produced credible evidence that Violet's signature on the Deed was worse than normal, in that it appeared weak and sloppy. Violet did not read the Deed, and Maxine did not ask a doctor if Violet was mentally capable of executing the Deed.

After she was released from Peninsula Hospital on July 30, 2004, Violet was admitted to another hospital for rehabilitation. Shortly thereafter, perhaps the same day, Maxine also had Violet sign a transfer tax affidavit given to Maxine by the Recorder of Deeds. Violet stayed in rehabilitation for approximately one month, and returned home in September 2004. The general power of attorney Violet previously executed in favor of Maxine apparently became effective in December 2004. Violet Lawrie died on January 9, 2005.

B. Procedural History

The Tuckers filed their original petition for cancellation of the Deed on February 10, 2005. They filed an amended petition on September 29, 2005, and requested leave to file a second amended petition on December 12, 2006. The latter request was granted with modifications on December 20, 2006, and the second amended petition became the operative pleading (the "Petition"). Respondent filed her answer on January 2, 2007. Trial was held on January 4 and 5, and post-trial arguments were heard on April 26, 2007.

Count I of the Petition asks this Court to declare that the Deed is void and ineffective and should be stricken from the records of the Sussex County Recorder of Deeds. Petitioners also ask, among other things, that Maxine be ejected from the Property and ordered to pay Petitioners two-thirds of its fair rental value for her use of the Property since December 2002. Count II asks the Court to declare that the Attempted Will is an invalid will and not a separate written statement disposing of tangible personal property pursuant to 12 Del. C. § 212. Count III requests, in the alternative, that if the Deed is held to be valid, the Court appoint a trustee to conduct a partition sale of the Property.

II. ANALYSIS A. The Parties' Contentions

Petitioners offer several arguments for invalidating the Deed. First, they argue that Violet gave the Tuckers a two-thirds interest in the Property so that the Tuckers could execute a mortgage on their interest and use the money to renovate the Property. Petitioners contend that their agreement with Violet required that the entire Property would pass to them upon her death, and that Violet breached this agreement when she executed the Deed making Maxine a co-owner. Respondent replies that the agreement between Violet and the Tuckers was satisfied when Violet gave them their interest in the Property in exchange for the renovations. Thus, Maxine contends that the agreement was satisfied upon the execution of the 1991 Deed, and that if it was not, the passing of the Property to the Tuckers was conditioned upon the Tuckers moving in with, and helping to take care of, Violet in her elderly years. Although the Tuckers renovated the Property, they never moved in with Violet, so Maxine argues that the Tuckers breached any agreement that was not discharged by the 1991 Deed.

Neither party produced any written agreement between Violet and the Tuckers, and there is no indication that the agreement was ever reduced to writing. Based on the sparse record developed at trial, this Court cannot determine with a reasonable degree of confidence any terms of the agreement beyond a promise by Violet to give the Tuckers two-thirds of her interest in the Property in exchange for their renovating it. Violet is no longer alive and able to testify. Her obligations under the agreement may have been discharged when she executed the 1991 Deed in exchange for the Tuckers financing the renovations to the Property. If Violet and the Tuckers agreed that the property ultimately would pass to the Tuckers, that further conveyance may have been conditioned on the Tuckers moving in with Violet. Because the Petitioners have presented no credible evidence that their view of the agreement is correct, I find that whatever contractual obligations may have existed between Violet and the Tuckers, those obligations were discharged in 1991 when Violet transferred to the Tuckers a two-thirds interest in the Property.

The Tuckers also argue that in evaluating the validity of the Deed, this Court should apply the Melson burden-shifting scheme normally applicable to wills. I agree that the burden-shifting required by Melson should be applied to the execution of the Deed because the Deed was being used as a will substitute in suspicious circumstances.

B. Standard

For a formal will, the Melson doctrine provides that:

[T]he presumption of testamentary capacity does not apply and the burden of claims of undue influence shifts to the proponent where the challenger of the will is able to establish, by clear and convincing evidence, the following elements; (a) the will was executed by a testatrix or testator who was of weakened intellect; (b) the will was drafted by a person in a confidential relationship with the testatrix; and (c) the drafter received a substantial benefit under the will.

I hold that this reasoning should be applied to the Deed at issue in this litigation because the Deed was being used as a will substitute.

A will substitute is an arrangement respecting property or contract rights that is established during the donor's life, under which (1) the right to possession or enjoyment of the property or to a contractual payment shifts outside of probate to the donee at the donor's death; and (2) substantial lifetime rights of dominion, control, possession, or enjoyment are retained by the donor.

The Deed reflects an arrangement of property rights established during Violet's life because it purports to grant to Maxine an immediate one-half interest in Violet's one- third interest in the Property. If valid, the Deed shifted the right of possession and enjoyment of the Property outside of probate to Maxine at the time of Violet's death. Also, because Violet remained a joint tenant with Maxine, Violet retained substantial lifetime rights of dominion, control, possession, and enjoyment in the Property. Therefore, the Deed satisfies the Restatement definition of a will substitute; indeed, a joint tenancy with right of survivorship is frequently used as a will substitute. Thus, under the circumstances of this case, I will apply Melson to determine if burden shifting is warranted. For the reasons that follow, I find that the burden of proving testamentary capacity and lack of undue influence should shift to Respondent, Maxine, as the proponent of the Deed's validity.

1. Weakened intellect

Petitioners have shown that Violet executed the Deed while suffering from a "weakened intellect." Although I believe Violet was normally lucid and sharp intellectually, the evidence shows that she was "not herself" when she was hospitalized on July 22, 2004. In an email to Davenport the day before Violet was admitted to the hospital for, among other things, confusion, Maxine acknowledged that her mother was beginning to hallucinate. After Violet was admitted to the hospital, Maxine asked for a neurological consult because of the noticeable changes in her mother's mental condition. The subsequent neurological consult concluded that Violet was suffering from delirium, probably caused by her urinary tract infection. Among Violet's many physical ailments, she suffered from lower back pain, and a vertebroplasty was performed on her the day before she executed the Deed. She was elderly, sick, in pain, medicated, recovering from surgery, and recovering from delirium. In addition, Petitioners presented testimony by video deposition of a medical expert, Dr. Carol Tavani, a highly qualified psychiatrist familiar with Delaware standards regarding weakened intellect and undue influence. Based on her review of the available medical records, Dr. Tavani opined that Violet was suffering from a weakened intellect when she executed the Deed and was susceptible to undue influence. I accept Dr. Tavani's conclusions regarding Violet's weakened intellect. I therefore find that Violet was suffering from a "weakened intellect" when she executed the Deed on July 30, 2004.

2. Confidential relationship

I also find that Petitioners have shown, by clear and convincing evidence, that the Deed was drafted by a person in a confidential relationship with Violet. Maxine lived with Violet for almost four years and took care of many of her mother's daily needs.

Violet had given Maxine a medical power of attorney and had executed a general power of attorney granting Maxine broad powers to make decisions for Violet, if Violet became incapacitated. Respondent weakly argues that this second element of the Melson test is not met because Davenport, not Maxine, drafted the Deed. The evidence of record including the several emails between Davenport and her mother, Maxine, shows that they were acting in concert and that Davenport drafted the Deed for the express purpose of having Maxine get it signed by Davenport's grandmother, Violet, and thereby helping Maxine. On these facts, there is no merit to Maxine's denial of the existence of a confidential relationship.

Davenport was acting on behalf of Maxine when she transmitted the Deed to her. Maxine presented the Deed to Violet for execution. Since the Deed was drafted at Maxine's behest, and Maxine presented it to Violet for execution, I find that the Deed was drafted by a person in a confidential relationship with Violet.

3. Substantial benefit

Finally, Maxine received a substantial benefit from the Deed's execution since she became a joint owner of a one-third interest in the Property as a joint tenant with right of survivorship. This interest in real property, if valid, effectively would give Maxine the right to enjoy and possess the whole of Violet's interest, which in turn would give Maxine the right to enjoy and possess the Property. Maxine essentially paid nothing for the property interest conveyed to her. Thus, she did receive a substantial benefit.

Respondent argues that the Melson burden-shifting principle is not applicable in this case because of the differences between wills and deeds. I recognize that there are differences between wills and deeds. Because the Deed at issue here clearly was used as a will substitute, however, I am not persuaded that these distinctions preclude the application of the Melson doctrine. Respondent points out that wills may dispose of numerous real and personal properties, while deeds generally convey fewer items and always real property. The interest in real estate presumptively conveys a substantial benefit to the grantee under a deed, thus eliminating the challenger's need, in the case of an alleged gift, to prove that the grant was significant. Yet, even if true, I fail to see how this argues against burden shifting in this case. The fact that the Tuckers, in challenging the Deed's execution, might not have to prove that it conferred a substantial benefit does not alleviate the suspiciousness of the circumstances under which the Deed was executed.

Maxine also argues that wills are usually drafted by an attorney or the testatrix. Deeds, however, are commonly available as tools for laypersons to use, so it is not as suspicious, according to Maxine, when someone receives help drafting a deed. First, as discussed above, I have imputed the drafting of the Deed to Maxine. The fact that she received assistance from her daughter does not undermine my decision to apply Melson because it is not Maxine's reliance on Davenport for advice in the Deed's drafting that persuades me that Melson should be applied in this case. Maxine and Davenport's email exchange is only one aspect of the circumstances that make the Deed's execution suspicious, and that is mostly because it significantly overlapped a time period when Maxine knew Violet was in a weakened state of mind and because the emails reflected a desire to limit the Tuckers' financial options. I also consider it important that Violet showed a propensity for seeking legal advice when it came to her will and her interest in the Property. Yet, without legal assistance, Violet executed the Deed while in the hospital recovering from delirium. Maxine knew of these circumstances, but produced no evidence that she told anyone about the Deed's execution or that Violet at any time afterward discussed the Deed with anyone or sought to ratify it.

I do not mean to downplay the differences between deeds and wills, nor am I implying that these differences are irrelevant in determining whether Melson should be applied. The analysis depends importantly on the facts and circumstances of the case at hand. Because this Deed clearly was used as a will substitute and was executed by a susceptible grantor, I hold that the Melson burden-shifting doctrine should apply.

The facts of this case bear similarities to Melson. As in Melson, a lawyer did not prepare the Deed; therefore, the ethical rules that constrain lawyers when they prepare instruments like the Deed, and the broad prohibitions against drafting instruments that grant one a gift, did not apply to the Deed's preparation. Maxine has not shown that Violet knew she was executing a deed that would grant Maxine a present possessory interest in the Property. The Deed was executed before witnesses who had never previously met Violet, and neither witness testified at trial. For all of these reasons, I find that Maxine bears the burden of showing, by a preponderance of the evidence, that she did not unduly influence Violet when Violet executed the Deed.

C. Undue Influence

(1) a susceptible testator; (2) the opportunity to exert influence; (3) a disposition to do so for an improper purpose; (4) the actual exertion of such influence; and (5) a result demonstrating its effect.

Hence, to rebut the Tuckers' claim of undue influence Maxine must show by a preponderance of the evidence that at least one of the elements of undue influence has not been met. Maxine must show that she exerted no influence adverse to the interests of Violet and that the execution of the Deed was consistent with Violet's intentions.

The Tuckers have shown the Violet was suffering from a weakened intellect, so they also have shown that Violet was susceptible to undue influence. Maxine also had the opportunity to exert undue influence during her time alone with Violet and while she was in the hospital. This does not raise a presumption that Maxine actually exerted influence; it merely shows the opportunity. Thus, Maxine has failed to show that either of the first two elements for proving undue influence is not met.

I also find that Maxine had a disposition to influence Violet for an improper purpose. Maxine intended to encourage Violet to execute a new deed for Maxine's benefit, as evidenced by the email exchange with Davenport. That exchange began on July 2, only a few days before Violet fell, and persisted throughout one of Violet's weakest mental periods. At the least, Davenport wanted to play hardball with the Tuckers with regard to any interest Maxine might receive and who would be responsible for the mortgage payments. Maxine never corrected Davenport or indicated any concern about the fairness of her receiving as much as a 75% interest in the Property, which the Tuckers at least partially renovated, while the Tuckers remained obligated for all of the mortgage payments, Maxine knew that Violet had consulted more than one lawyer about the status of the 1991 Deed and Thomas Tucker's interest in the Property. Yet, Maxine charged forward with the hasty execution of the Deed without obtaining any legal advice as to how or whether its execution would effect Violet's agreement with the Tuckers.

For her part, Maxine produced some credible evidence that Violet wished to have Thomas removed from the 1991 Deed and that, as her neighbors testified, Violet thought well of Maxine and may have wanted to give her an interest in the Property. As late as 2002, however, when Violet attempted to execute a new will and failed, she did not mention the Property in that document or attempt to leave Maxine any interest in it. Most importantly, Maxine has failed to show that, on the day Violet executed the Deed, she knew what she was doing and wanted Maxine to have an interest in the Property without regard to any legal obligations Violet might have had to the Tuckers. For these reasons, I find that Maxine has failed to show that she lacked an improper purpose when she had Violet execute the Deed.

Respondent also failed to show that either the fourth or fifth element is not met. The preparation and execution of the quitclaim Deed reflect the actual exertion of Maxine's influence, and its effect is evidenced by the Deed granting Maxine one-half of Violet's interest in the Property. For these reasons, I find that Maxine has failed to carry her burden of proving that Violet's execution of the Deed was not the product of undue influence.

D. Damages

The Tuckers argue that if the Deed is invalidated, Maxine owes them two-thirds of the fair rental value of the Property from December 2000 until the present. They contend that as a mere third party living at a residence owned by the Tuckers and Violet, Maxine is obligated to pay them rent for use of their two-thirds interest in the Property. The Tuckers presented the testimony of Stephen Huston, a state certified residential real estate appraiser showing that the fair market rent for the Property is $700 — 725 per month, with emphasis on the high end of this range. Maxine did not present expert testimony or any other evidence disputing this amount. I therefore accept as fact that the Property's fair market rent is $725 per month. I further hold that Petitioners are entitled to two-thirds of the fair market rent of the Property, i.e. $483.34 per month, for each month for which they demonstrate that rent was due,

The Tuckers contend Maxine owes them rent for the entire time she lived at the Property, from December 2000 to the present. Maxine denies that the Tuckers ever requested rent from her or that they ever were ousted from the Property. On those grounds, she argues that she owes no rent at all. For the reasons explained below, I conclude that Maxine had no obligation to pay rent to the Tuckers during Violet's lifetime, but does owe rent from the date of Violet's death until the present.

No one disputes that while she was alive Violet had the right to live on, enjoy, and possess the Property. Regardless of the exact details of her agreement with the Tuckers, their performance and other actions show that part of the agreement was that Violet could continue to live at the Property until she died, apparently rent free. By December 2000, however, Violet's physical condition had deteriorated to the point that she could no longer safely live at the Property alone, so she invited Maxine to come and live with her. Violet needed Maxine, or someone like Maxine, to live with and help her. So when Maxine moved to the Property in December 2000, she was an invited and necessary guest of her mother. In these circumstances, I hold that the Tuckers have failed to prove that Maxine owed them any rent for the period before Violet died.

The Tuckers presented no credible evidence that they discussed or even attempted to discuss the issue of rent with Violet or Maxine before July 30, 2004, when the Deed was executed. The evidence suggests that there may have been such a request sometime after July 30, 2004 and before Violet's death in January 2005, but Petitioners failed to prove any precise date of notice. The absence of proof of any timely request for rent before Violet died and the ill-defined nature of the agreement between Violet and the Tuckers under which Violet retained the right to live on the Property further convinces me that Maxine owes no rent for that period.

Petitioners cite In re the Estate of Gedling as support for their claim for rent for the period Maxine lived with Violet, but the Gedling court did not hold that a co-owner may retroactively collect rent, even if the co-owner never gave the third party notice of an expectation of rent. In Gedling, the court held that the guest of a 50 percent co-owner may not have to pay rent to that co-owner, but would be liable to pay one-half of the fair rental value of the jointly held property to the other co-owner. The Gedling court made clear, however, that the third party would have to receive notice of the demand for rent.

[I]t is my conclusion that no liability to pay rent existed on anyone's part before Mrs. Gedling died, and that [the third party] has had no obligation since then except to the extent [the co-owner] has notified him of his obligation to her. . . .

Because the Tuckers proved only that they gave Maxine notice that they expected her to pay rent sometime between July 30, 2004 and the date of Violet's death, I hold that Maxine's obligation to pay rent only began when Violet died and Maxine remained at the Property. After Violet died on January 9, 2005, Maxine's status changed: she became a non-owner or third party tenant living at the Property. For the period Maxine was a third party tenant, the Tuckers seek payment of rent for their two-thirds interest in the Property. Maxine has paid no rent or mortgage payments since Violet's death. I therefore hold that, as a mere third party tenant, she is obligated to pay rent in the amount of $483.34 per month.

E. Violet's Furniture

Violet's valid, 1984 Will was admitted to probate by the Register of Wills of Sussex County. Pursuant to 12 Del. C. § 212, Item IV.B. of the Will directs her executor to distribute her tangible personal property in the manner to be set forth in any separate written statement attached to Violet's will or "found among my valuable papers addressed to my Executor and signed by me." Section 212 states:

A will may refer to a written statement or a list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by the testator and must identify the items and the legatees with reasonable certainty, The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.

Maxine argues that the Attempted Will satisfies the requirements for a separate written statement because it is handwritten, signed by Violet, and only disposes of Violet's furniture. The Attempted Will states that all of Violet's furniture should go to Maxine, except for one particular cupboard, which should go to Petka.

The Tuckers argue that the Attempted Will was intended to be a will, not a separate written statement. Petitioners note that Violet attempted to appoint Maxine as executrix under the Attempted Will and argue that is inconsistent with the document being a separate written statement. Thus, Petitioners contend that the Attempted Will is just that, an Attempted Will — nothing more, nothing less.

I conclude that the 2002 Attempted Will qualifies as a separate written statement. I disagree with Petitioners' emphasis on Violet's perceived intent to create an abbreviated will. Section 212 says nothing about the testator's intentions, other than that "[t]o be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by the testator and must identify the items and the legatees with reasonable certainty." There is no dispute that the Attempted Will is in Violet's handwriting and bears her signature. It also identifies the items to be distributed, Violet's furniture, and the intended legatees, Maxine and Petka, with reasonable certainty. There is no indication at all in 12 Del. C. § 212 that an intent to create a separate statement, rather than a will itself, is necessary or sufficient to create a separate statement.

Moreover, as a matter of statutory construction, I find Petitioners' position to be odd. They basically argue that because the Attempted Will does not satisfy the 12 Del. C. § 202 requirements for a will (because it does not contain the required witness signatures) the instrument also fails to satisfy 12 Del. C. § 212 as a separate written statement, even though the Attempted Will appears to meet the requirements of the latter section. The failure to meet the requirements of one part of the will statute does not preclude the instrument from meeting others, and as set forth above, I do not believe Violet's intent to create one type of document, rather than another, controls. The record contains no convincing evidence that giving effect to the Attempted Will as a separate written statement would be inconsistent with Violet's intent, donative or otherwise, when she created that document. For these reasons, I find that the Attempted Will satisfies 12 Del. C. § 212, and should be admitted to probate as a separate written statement bequeathing Violet's furniture as indicated.

III. conclusion

Violet's Attempted Will dated February 15, 2002, constitutes a separate written statement in accordance with 12 Del. C. § 212, and as such is part of her 1984 Will.

Count III of the Petition, seeking in the alternative the appointment of a trustee and a partition sale, is dismissed as moot.

Each party shall bear their own costs, including attorneys' fees.

Petitioners' counsel shall prepare and file on notice to Respondent's counsel, and within ten days of the date of this Memorandum Opinion, an appropriate form of order and judgment to implement these rulings.