COURT OF CHANCERY
OF THE
STATE OF DELAWARE
ABIGAIL M. LEGROW NEW CASTLE COUNTY COURTHOUSE
MASTER IN CHANCERY 500 NORTH KING STREET, SUITE 11400
WILMINGTON, DE 19801-3734
Final Report: June 24, 2015
Submitted: March 11, 2015
Scott E. Swenson, Esquire
Connolly Gallagher LLP
The Brandywine Building
1000 West Street, Suite 1400
Wilmington, DE 19801
Richard H. Cross, Jr., Esquire
Cross & Simon, LLC
1105 North Market Street, Suite 901
Wilmington, DE 19899
Re: IMO the Last Will & Testament of Wilma B. Kittila, deceased
C.A. No. 8024-ML
Dear Counsel:
On February 18, 2015, I issued my final post-trial report in this action. In
that report, I recommended that the Court enter judgment against petitioners and in
favor of the estate regarding the validity of Wilma Kittila’s last will and testament.
None of the parties took exception to that report, but the petitioners filed a motion
for an award of attorneys’ fees and costs. The parties briefed that motion. This
letter is my final report on the petitioners’ motion.
C.A. No. 9047-ML
June 24, 2015
Page 2
The factual background of this case is explained at length in my final post-
trial report and will not be repeated here. To briefly summarize, Karen Kittila
(“Karen”) and her son, Christopher Kittila (collectively with Karen, “Petitioners”),
filed a petition claiming that the last will and testament of Wilma B. Kittila
(“Wilma”) was invalid for lack of testamentary capacity, undue influence, or
because the terms of a guardianship order precluded Wilma from making a will
without the approval of her guardians. Karen’s deceased husband, Allan Kittila
(“Allan”), was Wilma’s nephew by marriage, and Allan, Karen, and their four
children enjoyed a close relationship with Wilma for much of her life. Although
Wilma previously named Allan, Karen, and their children as beneficiaries of the
residue of her estate, Wilma began exhibiting personality changes in 2000 or 2001.
She became angry with Allan for reasons she never coherently explained and
began expressing unusually strong feelings about a neighbor, Boyce Fender, who
had helped her around her home. Wilma eventually visited a lawyer with the
apparent intent of rewriting her will and removing Allan, Karen, and their children
as beneficiaries. Before Wilma completed that process, however, Karen filed a
petition to be appointed Wilma’s guardian. In that petition, Wilma’s doctor opined
that Wilma required a guardian because she suffered from delusional thought
disorder, schizoid personality/affect, and decreased reasoning ability.
C.A. No. 9047-ML
June 24, 2015
Page 3
Wilma contested the petition and a hard-fought guardianship case proceeded
for approximately six months, until the parties eventually agreed that Wilma’s
neighbors, Michael and Carol Leach, would be appointed her guardians. The
guardianship order required the guardians to inform Karen about significant
changes to Wilma’s health. Shortly after the guardianship order was entered,
Wilma executed a will (the “2004 Will”) leaving her estate to a combination of Mr.
and Mrs. Leach, Mr. Fender and his wife, and two charities. Wilma expressly
stated in the 2004 Will that she intentionally was not making any bequests to
Allan, Karen, or their children.
After the guardianship case concluded, the Kittila family did not see or
speak to Wilma for the remainder of her life, aside from a chance encounter
between Karen and Wilma shortly before Wilma died. Wilma’s guardians assisted
her with important life decisions, including the sale of her home and her move to
an independent living apartment, and also helped Wilma manage her finances. I
concluded after trial that Wilma largely maintained her independence despite the
guardianship order, and that she was self-sufficient until late 2010 or early 2011,
when she began experiencing a noticeable mental decline. In 2009, Wilma
executed a new will (the “2009 Will”) in which she increased the portion of her
estate devised to the Leaches and the Fenders, changed the named executor from
Mr. Fender to Mr. Leach, and added a third charity as a beneficiary.
C.A. No. 9047-ML
June 24, 2015
Page 4
Wilma left her independent living apartment in May 2012 and never
returned. Instead, she was hospitalized a number of times, was admitted to an
assisted living facility and hospice, and ultimately died on October 19, 2012. The
cause of death on her death certificate is listed as dementia. When Karen happened
upon Wilma in a hospice unit in August 2012, Wilma did not recognize Karen and
seemed docile but completely demented. The Leaches did not notify Karen or her
children of Wilma’s death, but when the family saw Wilma’s obituary in the
newspaper, Karen’s son Theodore (“Ted”) called Mr. Leach. During that
conversation, Mr. Leach falsely told Ted that Wilma’s estate was small and that
Mr. Leach was not sure whom Wilma designated as beneficiaries in her will.
Upon learning of Wilma’s 2009 Will, the Petitioners filed this action contesting its
validity.
Mr. Leach, as executor to the estate, moved to dismiss the petition, a motion
I recommended that the Court deny. The Petitioners filed an amended petition in
April 2013 challenging both the 2009 Will and the 2004 Will. After a three day
trial and post-trial briefing, I issued a report recommending that the Court deny the
Petitioners’ challenge to the will. I reasoned that, although the Petitioners’
contentions regarding Wilma’s capacity and susceptibility to influence were not
without evidentiary support, they had not shown by a preponderance of the
evidence that Wilma lacked capacity when she executed the 2009 Will, or that she
C.A. No. 9047-ML
June 24, 2015
Page 5
was unduly influenced to make that will. I also concluded as a legal matter that the
guardianship order did not require Wilma’s guardians to approve her will.
The Petitioners did not take exception to that report, but filed a “Motion for
Leave to File Fee Petition and for Award of Attorneys’ Fees and Costs” (the
“Motion”). In the Motion, the Petitioners argue that, although they ultimately were
not successful in contesting the will, the Court has discretion to require the estate
to pay the Petitioners’ attorneys’ fees and costs. The Petitioners rely on a line of
cases recognizing that even an unsuccessful challenger to a will may seek an award
of attorneys’ fees if the challenger can demonstrate “probable cause plus
exceptional circumstances.” The Petitioners contend they more than meet this
standard. The estate opposes the Motion, arguing that the Petitioners have not
shown either probable cause or exceptional circumstances and that this case is not
one of the rare instances in which the Court will award attorneys’ fees to an
unsuccessful litigant.
Under the “American Rule,” parties are responsible for paying their own
attorneys’ fees, regardless of their success on the merits of a claim. 1 There are a
number of exceptions to that rule recognized under Delaware law, including the
exception that permits a court in a “proper case” to impose on the estate the
1
Mahani v. Edix Media Gp., Inc., 935 A.2d 242, 245 (Del. 2007).
C.A. No. 9047-ML
June 24, 2015
Page 6
attorneys’ fees incurred by a party who unsuccessfully contests a will.2 To invoke
that exception, an unsuccessful contestant must show he had probable cause to
contest the will and that exceptional circumstances justify ordering the estate to
pay the contestant’s fees and costs.3 I believe the Petitioners have met this
standard.
To establish that they had probable cause to challenge the wills, the
Petitioners must show that the evidence they produced was “sufficient to establish
a prima facie case, and overcome the presumption of law that always exists in
favor of the will’s validity … and justify the court in believing that the paper
writing in issue is not the will of the deceased, if no other evidence should be
produced.”4 That is, if I consider only the Petitioners’ evidence, and not the
evidence presented by the estate, did the Petitioners present a prima facie case that
the challenged wills were invalid? I believe that they did. First, as I noted in my
final report, the Petitioners had justifiable cause to bring this case and presented a
fair amount of support for their position, including the expert report and testimony
of an experienced psychiatrist, the evidence of Wilma’s abrupt and unexplained
change of heart toward Allan and the rest of the family, Wilma’s strange
2
In re Estate of Newell, 1977 WL 23836, at *1 (Del. Ch. Dec. 20, 1977).
3
Ableman v. Katz, 481 A.2d 1114, 1120 (Del. 1984); In re Will of Cammock, 1995 WL
805161, at *1 (Del. Ch. Oct. 20, 1995).
4
Ableman, 481 A.2d at 1118.
C.A. No. 9047-ML
June 24, 2015
Page 7
statements and behavior leading up to the guardianship proceeding, and the fact
Wilma ultimately died from dementia. Although the evidence the estate presented,
which was more contemporaneous with Wilma’s execution of the 2009 Will,
demonstrated that Wilma had testamentary capacity and was not susceptible to
undue influence, I believe the Petitioners established a prima facie case for their
claims.
That showing alone, however, is not sufficient. The Petitioners also must
establish that the case involved exceptional circumstances demonstrating “the
special equities which would make a failure to shift the burden onto the estate
unfair.”5 The Delaware Supreme Court has held that an action “benefiting an
estate” or one in which a contestant was successful after trial but ultimately lost on
appeal are examples of exceptional circumstances. Other circumstances that may
qualify as exceptional, depending on the facts of the case, include occasions when
a testatrix disinherits a blood relative in favor of a stranger, materially alters a prior
testamentary scheme, or relies on legal advice from an interested party.6 The
presence of one or more of these factors does not, however, create a presumption
5
Scholl v. Murphy, 2002 WL 31112203 (Del. Ch. Sept. 4, 2002).
6
Ableman, 481 A.2d at 1120-21.
C.A. No. 9047-ML
June 24, 2015
Page 8
of exceptional circumstances.7 Rather, the Court evaluates each case based on its
unique facts.8
The Petitioners contend there are several “exceptional” circumstances at
work in this case. First, the Petitioners argue that this action benefited the estate by
clarifying the proper beneficiaries of the estate. The same, however, could be said
of every challenge to a will. This Court’s precedent establishes that the “benefiting
the estate” factor applies when an action clarifies an ambiguous testamentary
scheme, which is not the case here.9 The Petitioners also argue that this case was
exceptional because Wilma disinherited a blood relative in favor of strangers,
materially altered her previous testamentary scheme, and signed a will that
benefited her guardians, who served as her fiduciaries. In my view, the
combination of: (1) Wilma’s unexplained and abrupt termination of a decades-
long loving relationship with the only “family” with whom she maintained any
ties, (2) Wilma’s material alteration to her previous testamentary scheme shortly
after a guardianship was imposed over her person and property, (3) Wilma’s
bequests to her guardians, a charity suggested by her guardians, and another couple
with whom the guardians were close, (4) the guardians’ failure the alert the Kittila
family to Wilma’s failing health and ultimate death, and (5) Mr. Leach’s false
7
In re Will of Macklin, 1991 WL 67799, at *2 (Del. Ch. Apr. 17, 1991).
8
Ableman, 481 A.2d at 1120; In re Will of Macklin, 1991 WL 67799, at *2.
9
Scholl, 2002 WL 31112203, at *3. Cf. In re Will of Macklin, 1991 WL 6799, at *3.
C.A. No. 9047-ML
June 24, 2015
Page 9
statements to the family regarding Wilma’s estate and his knowledge of her will
constitute exceptional circumstances in this case. Although I ultimately concluded
that Wilma had testamentary capacity and was not susceptible to undue influence,
that conclusion was neither easy nor readily apparent at the outset of this case, and
the unusual circumstances of Wilma’s bizarre behavior, the imposition of a
guardianship and the attendant fiduciary responsibilities of the guardians, and the
executor’s false statements to Ted make this case one in which the estate should
bear some portion of the cost for the challenge to the will.
In previous cases addressing shifting fees for an unsuccessful will contest,
the Delaware courts have compared the relative size of the estate to the amount of
the fee request.10 Petitioners have not indicated how much they seek in the way of
attorneys’ fees, nor do I have a precise figure for the size of Wilma’s estate. It may
be, when the parties have presented those figures, that I will conclude that the
estate only should be required to pay a portion of the fees associated with
Petitioners’ challenge. I therefore am directing the parties to meet and confer
regarding those figures to attempt to reach an agreement regarding the amount of
fees to be paid by the estate.11 If the parties cannot agree, the Petitioners should
10
See, e.g. Ableman, 481 A.2d at 1120; Scholl v. Murphy, 2002 WL 3112203, at *3; In re
Estate of Newell, 1977 WL 23836, at *2 (Del. Ch. Dec. 20, 1977).
11
Even if the estate intends to take exception to my recommendation that the estate pay
any of Petitioners’ fees and expenses, the parties nevertheless should try to reach a
C.A. No. 9047-ML
June 24, 2015
Page 10
submit a fee petition within 20 days of the date of this report, the estate should file
its response within 14 days of the filing of the fee petition, and the Petitioners
should file their reply within 7 days of the filing of the estate’s response.
For the foregoing reasons, I recommend that the Court grant the Motion and
allow the Petitioners’ counsel to submit a fee petition. This is my final report. The
period for taking exceptions to this report shall be stayed until the parties stipulate
to, or I issue a final report regarding, the amount of fees to be paid by the estate.
Respectfully submitted,
/s/ Abigail M. LeGrow
Master in Chancery
stipulation regarding the amount of fees to be paid by the estate, with the estate reserving
its right to take exception to this report.