Master Grants Petitioners’ Motion for an Award of Attorneys’ Fees and Costs Following Rejection of Petitioners’ Challenge to Validity of Wills, Cites the Existence of Probable Cause and Exceptional Circumstances

Delaware Fiduciary Litigation Blog

Posted June 29, 2015

IMO the Last Will & Testament of Wilma Kittila, deceased C.A. No. 8024-ML (June 24, 2015)

Master LeGrow, in a recent final post-trial report, granted a motion for an award of attorneys’ fees and costs to petitioners. The motion was preceded by a judgment against the petitioners regarding the validity of Wilma Kittila’s last will and testament. We addressed that judgment in a recent blog post. To access our earlier blog post for more detailed information about the facts of the case, please go to:

The petitioners sought an award of attorneys’ fees and costs from the estate on the basis that they had demonstrated the required “probable cause plus exceptional circumstances” that allows for deviation from the American Rule that each party bear its own expenses. The Master explained that, considering only the petitioners’ evidence and not the estate’s evidence, the petitioners had probable cause to challenge the wills because they provided a prima facie case that the challenged wills were invalid. The Master referenced an expert’s report, the testimony of an experienced psychiatrist, evidence of the decedent’s abrupt change in personality and treatment of the petitioners, and the decedent’s cause of death (dementia), as important factors supporting the determination that probable cause existed.

Additionally, the petitioners had to show that there were exceptional circumstances demonstrating “the special equities which would make a failure to shift the burden onto the estate unfair.” (citation omitted). The Master explained that the Court’s decision “that Wilma had testamentary capacity and was not susceptible to undue influence,” was neither “easy nor readily apparent at the outset of [the] case,” and that “unusual circumstances” made “this case one in which the estate should bear some portion of the cost for the challenge to the will.” Several factors, including the decedent’s unusual behavior in the final years of her life, the guardianship imposed on the decedent, and false statements made by the executor of the decedent’s estate, persuaded the Court that the estate should be required to bear the burden of some of the costs resulting from the petitioners’ challenge to the validity of the decedent’s wills.

The petitioners did not include in their motion a requested amount for attorneys’ fees and costs. The Master therefore ordered the parties to convene “to attempt to reach an agreement regarding the amount of fees to be paid by the estate,” to be determined by comparing “the relative size of the estate to the amount of the fee request.”


William M. Kelleher, Director
Gordon, Fournaris & Mammarella, P.A.
Henry Meldrum – Law Clerk