Master Refers to Mediation a Family Squabble Over Trust with Alleged Scrivener's Error

Delaware Fiduciary Litigation Blog

Posted July 31, 2017

IMO The Irene Eisenberg Trust U/A/D May 11, 2012 C.A. No. 12207-MZ (July 26, 2017)


       The matriarch of the Eisenberg family, Irene Eisenberg ("Settlor"), had four children, two of whom, Stanley and Walter, were co-trustees of the Irene Eisenberg Trust u/a/d May 11, 2012 (the "Trust"). Stanley filed a petition for trust reformation on April 14, 2016 asserting that Settlor desired the Trust to benefit two of her children and their families, but intended to exclude Stanley, his issue, and Walter. Stanley and Walter claim a scrivener's error frustrated Settlor's intent by including Walter, Stanley, and his issue as beneficiaries. As support, the petition relies on an affidavits executed by the Settlor and the scrivener as well as Settlor's other estate planning documents. All potential beneficiaries except Jordan Brandon, a minor when the Petition was filed and Stanley's grandson, filed consents or non-objections.


       On February 28, 2017, Walter replaced Stanley as petitioner due to the Trust's age limit for trustees. On May 30, 2017, Jordan appeared pro se for the first time and objected to the relief sought by the petition as it would remove his mother and himself as beneficiaries. The Court gave Jordan a June 19, 2017 deadline for him to answer the petition. When that deadline passed, Walter filed a motion for judgment on the pleadings. The Court sent a letter to Jordan on June 26, 2017 explaining his deadline to answer Walter's motion. That day, and over subsequent weeks, Jordan submitted written responses alleging that (1) Settlor did intend for Jordan and his mother to be beneficiaries; (2) Stanley unduly influenced Settlor; (3) Stanley unduly influenced the other family members in order to obtain their consents or non-objections to the petition; and (4) Stanley prevented Jordan's mother from assisting him in the litigation. Jordan submitted evidence in support of his claims including: documents indicating Settlor's past financial assistance; arguments with Stanley over finances; a video allegedly proving that Stanley unduly influenced Settlor into signing the affidavit; and a letter from the scrivener to Stanley bringing the petition's claims into question. Taking into consideration Jordan's age and the fact that he was acting pro se, Master Zurn deemed his piecemeal submissions to constitute his response to Walter's motion and an answer to the petition.


       Walter, on July 24, 2017, requested that the Court grant summary judgment in his favor; however he did not address any of Jordan's arguments or allegations. Instead, he based his reply on the failure of Jordan's submissions to live up to the normal filing standards of the court with respect to formality, scope, and timeliness.


       The Court of Chancery does have the power to reform a trust to conform to the settlor's intent, even after death, but it can only do so if the record "clearly and affirmatively establishes a mistake" by clear and convincing evidence. The Master concluded that Walter did not meet this burden. Additionally, Master Zurn found that there were genuine issues of material fact and therefore Walter was not entitled to summary judgment.


       Pursuant to Court of Chancery Rule 174, the Court used its discretion to refer the matter to mediation before a non-judicial mediator. It also addressed several of Jordan's concerns including directing Walter to answer Jordan's interrogatories, directing that the Trust reimburse Jordan for his train ticket from New York City to Delaware, and dictating that the Trust pay for Jordan's mediation costs.


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