In a Case of First Impression, Vice Chancellor Dismisses Petition as Time-barred by Delaware’s Pre-Mortem Validation Statute

Delaware Fiduciary Litigation Blog

Posted February 5, 2014

In the Matter of: Restatement of Declaration of Trust Creating the Survivor’s Trust Created Under the Ravet Family Trust Dated February 9, 2012, C.A. No. 7743-VCG (January 29, 2013)

This ruling is significant because it is the first Delaware ruling, and perhaps even the first nationally, that dismissed a case based on notice pursuant to a pre-mortem validation statute. Only a small handful of states have pre-mortem validation statutes.

On January 29, 2014, at the conclusion of an evidentiary hearing, Vice Chancellor Glasscock of the Delaware Court of Chancery issued a bench ruling dismissing a beneficiary’s petition as time-barred by 12 Del. C. § 3546, commonly referred to as the 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 one hundred and twenty (120) days of notice, they are barred from ever contesting it. According to the Pre-Mortem Validation Statue, 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.

More than one hundred and fifty (150) days prior to when Petitioner first attempted to file his Petition, the Co-trustees sent packages providing notice of the trust to the Petitioner by way of first class mail to Petitioner’s home and Petitioner’s  P.O. Box, and by certified mail to both those addresses. Petitioner admitted that those addresses were correct and also that he was frequently home in the days after the mailings were sent. Petitioner also admitted that he checked his P.O. Box at least weekly. The Vice Chancellor found that Petitioner’s testimony was not credible when Petitioner denied receipt of any of the following: the unreturned first class mailings sent to both his home address and his P.O. Box, the four certified mail notices sent to his home address and P.O. Box, and a Federal Express package subsequently sent to his home address. Notably, the first notices for the certified mail were left at Petitioner’s home and P.O. Box about 150 days before he filed his Petition.  Petitioner also presented evidence that he was away from home when the Federal Express package arrived (which wasn’t until one hundred and twenty-one (121) days before he filed his Petition) and that he didn’t arrive home from that five-day trip until 119 days before he filed his Petition. Still, even on his return, Petitioner maintained that he never saw the Federal Express package at any point.

Based on its finding that the Petitioner’s myriad denials of receipt of notice were not credible, and on its finding that the Pre-Mortem Validation Statute is a statute of repose with a hard and fast deadline, the Court dismissed the Petition with prejudice.

As this was a bench ruling, there will not be a written opinion.  With the permission of the court reporter, the bench ruling is attached hereto. If you would like to purchase a copy of the entire transcript, please contact Court Reporter Jeanne Cahill at (302) 255-0521 or  This law firm, Gordon Fournaris & Mammarella, represented the Co-trustees in this matter.


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