February 2015

Posted February 19, 2015

IMO Last Will & Testament of Wilma B. Kittila, deceased C.A. No. 8024-ML (February 18, 2015)

After conducting a trial and reviewing post-trial briefing, Master LeGrow issued her final report in this factually intensive case. Like most will challenges, the case turned on its specific facts, including testimony from the drafting counsel and medical experts.

In this case, the family members of an elderly widow, who didn’t have any children of her own, became estranged from her during a series of events that culminated in a guardianship proceeding filed more than a decade ago in the Delaware Court of Chancery. Per a settlement of the contested guardianship proceeding, the widow’s neighbors were appointed her guardians by court order. But the guardianship order included some atypical provisions, including that the widow retained “the right to legal representation and the right to participate in making decisions which affect her life and property with the final decision being reserved to the guardians.” Further, the order stated that the widow’s family members agreed not to initiate contact with any facility where the widow lived.

The widow revised her estate plan twice, both times excluding the family members who petitioned for guardianship and who previously were the primary beneficiaries of her estate. Those family members challenged the validity of two wills executed by the widow, who was their aunt. The challenged wills left the residue of the decedent’s estate to a combination of the guardians, two other friends, and charitable organizations. The petitioners contended that the wills were invalid for one of three reasons: (1) the decedent lacked testamentary capacity at the time she executed the wills, (2) the decedent was unduly influenced to dispose of her estate in the manner reflected in the challenged wills, or (3) the terms of the guardianship order precluded the decedent from making a will, rendering her legally incapable of revising her estate plan.

The Master explained that while “[]the petitioners’ case is not without merit,” she ultimately had to reject it. In making her decision, the Master found that “among other things, although it is plain that the family’s decision to pursue guardianship drove a irreparable wedge between them and their aunt, it appears more likely than not that the decedent already intended to revise her will and exclude the family as beneficiaries before the guardianship petition was filed. No coherent, definitive explanation for that decision has been offered.” In fact, the two proffered reasons were rather odd and were not well supported by the factual record. Nonetheless, the Master concluded that “the absence of an explanation for that decision is not sufficient to invalidate the decedent’s will because the petitioners have failed to demonstrate by a preponderance of the evidence that the decedent lacked testamentary capacity or was unduly influenced at the time she executed her last will.”

Posted February 12, 2015

On February 12, 2015, the Delaware Supreme Court, by way of the two-paragraph order attached below, affirmed the Delaware Court of Chancery’s June 2014 ruling dismissing a petitioner’s case as untimely based on notice given under Delaware’s pre-mortem validation statute. Delaware’s Pre-Mortem Validation Statute allows settlors to provide notice of a trust to all interested parties and if the noticed parties do not contest the trust within 120 days of notice, they are barred from ever contesting it. According to the Pre-Mortem Validation Statute, notice is given when notice is received by the interested party and that, absent evidence to the contrary, it is presumed that the interested party received notice if that notice is delivered to that person’s last known address.

The trial court’s ruling was significant because it was the first Delaware ruling—and perhaps even the first nationally—that dismissed a case based on notice pursuant to a pre-mortem validation statute. That the dismissal was affirmed by Delaware’s highest court is also quite notable.

To read our blog post on the trial court’s ruling and the reasons supporting its finding, go to http://www.gfmlaw.com/blog/court-chancery-denies-motions-seeking-alter-or-change-its-january-2014-ruling-had-dismissed

Note: This law firm represents the co-trustees in this case

Posted February 5, 2015

Geraldine Messick v. Estate of Ronald R. Messick, C.A. No. 6290-MA (February 3, 2015)


In this case, the surviving spouse filed a timely petition for an elective share. In Delaware, a surviving spouse’s elective share is an amount equal to one third of the elective estate, less certain transfers.  The surviving spouse’s husband’s estate sought an order allowing it to pay the elective share in any assets it so chooses. The gross estate equaled about six and one half million dollars and included ownership interests in various entities, which presumably were not very liquid. The surviving spouse argued that she should not be forced to take minority interests in the entities as her elective share because she claimed that they are being poorly run by the executor/trustee.

12 Del. C. § 901(a) explicitly provides that “[t]he elective share may be satisfied in cash or in kind, or partly in each.” The Master explained that, “[t]his language is clear and unambiguous.” She then ruled that, “[n]evertheless, the amount of [the surviving spouse’s] elective share has yet to be finalized. It would be premature of the Court to issue an order of instruction that might be construed as foreclosing [the surviving spouse] from disputing the valuation of her elective share or whether the proposed distribution of assets satisfies her elective share. (citation omitted). However, since the proposed order also states that [the surviving spouse] retains the right to demand that her elective share be paid in full, I recommend that the proposed order be approved by the Court.”