On the Basis of Lack of Standing and Untimeliness, Master Recommends Dismissal of Probate Challenge

Delaware Fiduciary Litigation Blog

Posted November 3, 2017

IMO the Will of Lillian P. Kessler C.A. No. 12852 (October 23, 2017)

       All the parties in this case proceeded pro se. The decedent in this estate matter is Lillian P. Kessler ("Lillian"). She was the second wife of Paul Kessler ("Paul"). Paul died in 1987. Petitioner Irene E. Kessler-Millius is Paul's daughter from his first marriage. On February 23, 2016, Irene filed a claim for $10,000 against Lillian’s estate based on a first codicil to Paul’s will. That codicil states that if Lillian survived Paul, Lillian would receive Paul’s entire estate; if Lillian did not survive Paul, Irene should receive $10,000 and the remainder of Paul’s estate should be distributed among the Co-Executors and Irene. Lillian survived Paul.

       The First and Final Accounting filed on September 3, 2016, indicated $8,540 in probate assets and $2,919.89 in contributions by the Co-Executors to pay for Lillian’s funeral expenses. In other words, there were no funds to distribute to any beneficiaries. The Register of Wills approved that accounting and closed the estate on December 3, 2016.

       On October 26, 2016, Irene filed a pro se “Petition for Review of Proof of Legality of Will." Irene’s petition challenged the validity of Lillian’s will, Paul’s will, the contents and distribution of Paul’s estate, and the circumstances of Paul’s divorce from Irene’s mother and remarriage to Lillian. Irene alleges Paul’s June 1987 will and codicil gave Irene $10,000 and gave the remainder of Paul’s estate to Lillian.

       Irene’s petition claims Lillian’s will is invalid, alleging one of the witnesses to the will told Irene that he did not know and had never met Lillian and did not sign any papers dealing with her will. The Master found that Irene’s claim against Lillian’s will failed for lack of standing.

       In doing so, the Master noted that she had an independent obligation to review whether a party has standing to sue. The right of review of a will is limited to “interested” persons. An "interested person" is one who has a pecuniary interest in the estate of an alleged testator that will be defeated or impaired if the instrument in question is held to be a valid will.

       The Master found that Irene is not a beneficiary of Lillian’s estate, either pursuant to her will or if she had passed intestate. The Master also concluded that Irene suffered no injury from the will’s admission to probate. Specifically, she explained that “Irene’s $10,000 claim against Lillian’s estate is based on Paul’s will and codicil, not Lillian’s; it does not depend on the validity of Lillian’s will.” The Master therefore concluded that Irene lacked standing.

       Irene’s petition also took issue with Paul’s will. An action to seek review of a will must be brought within six months after the entry of the order of probate. Here, the Master concluded that Irene was about thirty years too late to do that. Consequently, the Master granted the motion to dismiss Irene’s petition.


William M. Kelleher, Director
Gordon, Fournaris & Mammarella, P.A.