In Estate Case, Vice Chancellor Overrules Exceptions To Master’s Order But Denies Request To Fee Shift

Delaware Fiduciary Litigation Blog

Posted December 28, 2021

In the Matter of the Real Estate of Alvin David Smith, Jr., C.A. No. 2019-1038-SEM (JRS) (December 3, 2021)

       On December 27, 2019, a Petition for Permission to Sell Real Estate to Pay Debts of Decedent (the “Petition”) was filed by James Furlow, as Personal Representative of the Estate of Alvin David Smith, Jr. (the “Estate”). The Master issued an Order on March 19, 2021 generally granting the Petition (the “Master’s Order”). On April 14, 2021, Carla Cowan (“Ms. Cowan”), an heir to the Estate, filed a Notice of Appeal with the Supreme Court of Delaware. On June 4, 2021, the Supreme Court issued an Order dismissing the appeal for lack of jurisdiction. On June 17, 2021, Ms. Cowan e-filed a Request for Review of Final Order, which the Vice Chancellor treated as Ms. Cowan’s Notice of Exceptions to the Master’s Order (the “Exceptions”).

       The Vice Chancellor reviewed the record de novo. In so doing, he noted that the “Exceptions do not turn on dispositive credibility determinations that would require the Court to view the witnesses.” The court, as a threshold matter, found that the Exceptions were not timely filed as they were not filed within eleven days of the Master’s report.  That alone, the court noted, would be grounds to overrule the Exceptions. The Vice Chancellor then went on to review the substantive bases of the Exceptions nonetheless. He found that Ms. Cowan was not denied due process. And he also rejected Ms. Cowan’s contention that the Master’s Order was somehow invalid because the Estate was purportedly opened in the wrong name. Further, the Vice Chancellor notably found that “the suggestion that the personal representative, his counsel (and the Master) engaged in criminal misconduct by presenting (and accepting) false information related to the Petition is frivolous.” 

       The personal representative had earlier moved for fee shifting. Notwithstanding that he found “several” of Ms. Cowan’s Exceptions to be “frivolous”, the Vice Chancellor—taking into account Ms. Cowan’s pro se status—denied the personal representative’s request to shift fees under the bad faith exception to the American Rule, but the court did caution Ms. Cowan “that continued unfounded allegations of misconduct, including judicial misconduct, or frivolous and wasteful litigation tactics, will likely subject her to sanctions including, but not limited to, fee shifting.”  Thus, this ruling appears to be largely consistent with the practice to allow somewhat more latitude to pro se litigants. That said, the Vice Chancellor appears to have concluded that that wider latitude has now been exhausted for this particular pro se litigant.


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