Master in Chancery Recommends Finding that: (1) as a Power of Attorney Generally Becomes Effective When Signed, the Accounting Period at Issue Should Begin as of the Signing, and (2) that an Unrevoked Gift Cannot be Waived.

Delaware Fiduciary Litigation Blog

Posted July 7, 2014

IMO: The Estate of Paulina duPont Dean C.A. No. 7430 - ML (June 30, 2014)

In this case, Master LeGrow concluded that a power of attorney becomes effective upon the moment of its execution unless there is explicit language in the power stating otherwise. In the context of a party seeking a forensic accounting of his incompetent mother’s financial activities, the Master rejected the argument that the power of attorney only became effective when the agent began acting upon it. Instead, she ordered an accounting for the entire period going to back to when the power was signed.

The Master also held that one cannot waive an entitlement to an unrevoked gift. Here, two brothers had an understanding with their mother that she would pay for their children’s educational expenses. After accepting these payments for almost fifteen years, one brother (“Dean”) ceased seeking the reimbursements. Later, after Dean found out that his brother continued to receive those reimbursements, Dean sought reimbursement for all the educational expenses he himself had previously paid for his children. Master LeGrow stated that in order for Dean to have waived his entitlement to reimbursement, he must have had a right to those reimbursements, as the doctrine of waiver requires that there be a “contractual or statutory right that [the party] consciously chose not to enforce.” The Master further stated that, rather than waiving a right, the brother had “elected for a period of time not to accept his mother’s gift.” The Master went on to conclude, that “[b]ecause there is no evidence that [their mother] ever rescinded her offer, and no evidence that she conditioned her gift on a ‘timely’ submission of reimbursement requests, Dean is entitled to the reimbursement he now seeks.”


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