March 2013

Posted March 18, 2013

Cummings v. Estate of Ronald E. Lewis, C.A. No. 6948-VCP (March 14, 2013)

Plaintiff is seeking an award against the estate of her daughter’s father under Delaware’s after-born child statute, 12 Del. C. § 301.  Plaintiff maintains that the decedent, well-known  boxing promoter and businessman Ronald E. “Butch” Lewis, fathered her child shortly before his death.  The court’s opinion dealt with several issues  relating to a motion for leave to amend filed by the estate and the other defendants. The defendants sought to amend their answer to include several requests for instruction and to add an affirmative defense.  In deciding that motion, the Court examined whether the Family Court had exclusive jurisdiction over any of the issues such that Chancery’s jurisdiction was abrogated.  In so doing, the court examined the General Assembly’s intent, including its enactment of 10 Del. § 921, which gave Family Court “exclusive original jurisdiction in all proceedings concerning . . . any petitions or actions for the . . . support of children.”  The court accordingly found that it lacked jurisdiction over several of the requests for instruction that defendants sought to add as those requests related to the “support of children.” Consequently, the court found that allowing defendants to add such requests would be futile.

Posted March 18, 2013

IMO Trust for Grandchildren of Wilbert L. and Genevieve W. Gore, C.A. No. 1165-VCN (February 27, 2013).

At the conclusion of this litigation, the court ordered that all parties’ fees be paid by the trust.

In the course of discovery taken by the non-prevailing parties, a possible alternative trust instrument was found. On its face that instrument was labeled as “irrevocable” and it predated the other previously known trust instrument. Had this second instrument controlled the trust, the respondents would have been given the per stirpes share they sought. The court concluded that without the judicial resolution resulting from the discovery of the second instrument proper administration of the trust would have been impossible. By defining the terms of the trust and the controlling instrument, the court found that this action−regardless of its original intent−benefitted the trust.

This case also involved a strategic adoption which was not disclosed until after the death of the co-settlor. The prevailing parties in the underlying litigation had argued that the adoption was in bad faith because it was hidden until after the co-settlor died, depriving the co-settlor of the opportunity to clarify the intention of the trust. But the fact that the adoption was finalized in the final days of the elderly co-settlor’s life lead the court to conclude that the decision not to disclose was appropriate given the stress it would bring and as it is unlikely that disclosure would have prevented litigation.

One additional point of interest was the court’s decision to reimburse out of the trust the co-trustees for tax counsel fees and expenses related to this litigation. The court, while admittedly unfamiliar with the intricacies and scope of the tax work involved as the specific nature was not disclosed, found that the tax analysis provided relevant, beneficial information regarding a potential settlement. And while the tax counsel fees were “large,” the court found that “although not free of some doubt, the fees and expenses were reasonable in amount and will be approved.”

Posted March 8, 2013

Davis v. Estate of Mary S. Perry, C.A. No. 2419-VCG (January 2, 2013).

Petitioner argued that the testatrix lacked capacity to make a will. He offered two facts to support his argument. The first fact was that he had spoken by phone to the testatrix at about the time she made the will and that she seemed confused to him. But the Court found that “[t]he fact that a testatrix suffers from confusion does not prevent her from creating a valid will if on the day the will is executed she is not confused and possesses an understanding of her property and the natural objects of her bounty.” The other fact that Petitioner argued showed lack of capacity was that the will didn’t have a residuary clause.  But the Court found that more likely to be a scrivener’s error than indicative of the testatrix’s confusion. Further, the now-disbarred attorney that drafted the will testified that the testatrix was competent and so did a few other admittedly self-interested witnesses.  While the Court gave none of that testimony great weight, it found on balance that the testatrix was competent to make the will.