COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LOREN MITCHELL LEONARD L. WILLIAMS JUSTICE CENTER
MAGISTRATE IN CHANCERY 500 NORTH KING STREET, SUITE 11400
WILMINGTON, DE 19801-3734
Final Report: February 5, 2024
Date Submitted: September 6, 2023
Robert C. McDonald, Esquire Brian J. Ferry, Esquire
Silverman, McDonald & Friedman Ferry Joseph, P.A.
1523 Concord Pike, Suite 400 1521 Concord Pike, Suite 202
Wilmington, DE 19803 Wilmington, DE 19802
Re: Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
Dear Counsel:
This case arises from a dispute over the administration of the estates of the
parties’ parents. The Petitioner seeks to have the Respondent removed as the
personal representative of their father’s estate and wants sanctions imposed against
the Respondent for her conduct.
After reviewing the evidence from trial, I find the Respondent should be
removed as the personal representative of both parents’ estates. Although
Respondent has not neglected all of her duties, she has breached the fiduciary duties
owed in her role as personal representative.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 2 of 17
I. Background1
This case arises from the administration of the estates of Carl E. Wanamaker,
Sr. and Sarah Wanamaker (together, the “Decedents”). On April 26, 2019, Carl
Wanamaker, Sr. died intestate in New Castle County, Delaware. 2 A little over a
month later, his spouse, Sarah Wanamaker also died intestate on May 29, 2019.3
The Decedents left behind two beneficiaries, Carl Wanamaker, Jr. (the “Petitioner”)
and Sandra Wanamaker (the “Respondent”). 4
On June 27, 2019, the Respondent filed and was appointed as the personal
representative of Carl Wanamaker, Sr.’s estate. 5 On July 29, 2019, the Respondent
was also appointed as the personal representative of the estate of Sarah Wanamaker.6
Throughout her time as personal representative, issues arose between the
Respondent and the Petitioner. On November 15, 2019, less than five months after
1
The facts in this report reflect my findings based on the record developed at trial on June
6, 2023. See Docket Item (“D.I.”) 35. I grant the evidence the weight and credibility I find
it deserves. Citations to the trial transcripts are in the form “Tr. #.” The parties’ jointly
submitted exhibits are cited as “JX __.” Citations to the Register of Wills docket are cited
as “ROW” D.I.#.
2
D.I. 34.
3
Id.
4
Id.
5
Id.
6
JX G at 1.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 3 of 17
she was appointed personal representative, the Respondent filed this action to
remove her as the personal representative of the Estate of Carl Wanamaker pursuant
to 12. Del. C. § 1541.7
A. The Property
Prior to their deaths, the Decedents owned real property at 5894 Summit
Bridge Road, Townsend, Delaware (the “Property”), property at 645 South Street,
Townsend, Delaware, and property located at 649 South Street in Townsend,
Delaware (collectively the “Townsend lots”). It is undisputed that the Respondent
has resided at the Property since the date of the Decedents’ deaths.8 However, the
Respondent testified that she moved into the Property before the Decedents’ deaths,
around summer 2018,9 while the Petitioner maintains that she moved in after the
Decedents’ deaths. 10 The Respondent also testified that she has lived alone at the
Property since her parents died but has allowed the Property to be listed as the home
address for her grandchildren to allow them to attend school in Appoquinimink
School District, although they don’t reside with her in the home.11
7
D.I. 1.
8
D.I. 34.
9
Tr. 70:11-16.
10
Tr. 154:20-157:16.
11
Tr. 17:15-19:13.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 4 of 17
While the Respondent was living in the Property, some issues arose which
required repairs. At the end of 2019, the Property suffered from a sewer system
backup causing damages to several rooms. 12 This damage required extensive
repairs, including pipe repairs and carpet removal. 13 The well on the Property
needed to be partially replaced. 14 The Respondent also had a new hot water heater
and boiler system installed. 15 All of these repairs and improvements were paid for
from the assets of the Decedents’ estates. 16
The Petitioner attempted to visit the property after the death of his mother. On
one occasion when the Petitioner visited the Property, the Respondent testified that
he and a friend harassed her. 17 However, the Petitioner indicates he demanded his
sister to stop driving their parent’s vehicle, which was an estate asset. 18 The
Respondent filed for a protection from abuse order (“PFA”) against the Petitioner
due to this incident.19 Although there was a temporary period where the Respondent
12
Tr. 25:4-14.
13
Tr. 25:17-20.
14
Tr. 28:3-15.
15
Tr. 29:24-30:9.
16
Tr. 27:19-21; Tr. 30:12-13.
17
Tr. 67:9-68:2.
18
Tr. 161:10-162:6.
19
Tr. 31:19-32:5; JX B.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 5 of 17
could not go on the property due to the PFA 20, the PFA was ultimately dismissed in
December 2019. 21 The Petitioner testified that he knew if he went back to the
property, she would call the cops again and attempt to get another PFA against him.22
B. The Vehicles
The main assets of the Decedents’ estates were a collection of vehicles and
valuable license plates. Among these vehicles, was a 1996 Mercedes Benz (the
“Mercedes”).23 The Decedents used this as their daily car, and the Respondent
continued to use it in that manner after their death. Respondent testified that she
stopped using the Mercedes daily a couple of years ago, but occasionally uses it if
she has maintenance trouble with her vehicle, which occurred as recently as one
week before the trial.24 In order to re-register the Mercedes, the Respondent had it
titled solely in her name, despite acknowledging the Petitioner’s right to a share in
the Mercedes. 25
20
JX B.
21
Id.; Tr. 162:12-22; JX B.
22
Tr. 162:23-163:3.
23
JX F.
24
Tr. 20:2-21:11.
25
Tr. 22:9-23.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 6 of 17
The Respondent worked to sell some of the Decedents’ other vehicles. The
Respondent had an appraisal of the vehicles performed by Beach Bound Auto.26 The
Respondent sold the Decedents’ 1958 Mercedes Benz 220S cabriolet, 1975
Chevrolet Caprice, 1935 Ford Model 31, and 1926 Ford Model T.27 At trial, the
Respondent testified that she could not recall the values received for these vehicles.28
The Respondent also testified that the Decedents’ 1982 Mercedes Benz 380SL
Roadster, 1993 Chevrolet Caprice, and 1990 Ford F150 remain in the yard at the
Property.29 The Respondent has also retained two low numbered license plates,
numbered 899 and 1251.30 At trial, she testified that the current balance of the
Decedents’ estate account is approximately $45,000.00, 31 which appears to be
significantly lower than the appraised value of the sold vehicles.32
26
JX I.
27
Tr. 52:24-54:21.
28
Tr. 53:3-8.
29
Tr. 55:2-56:5.
30
Tr. 56:12-20.
31
Tr. 57:15-22.
32
JX J.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 7 of 17
C. The Administration
1. Estate of Carl Wanamaker Sr.
On June 27, 2019, the Respondent filed and was appointed as the personal
representative of Carl Wanamaker, Sr.’s estate.33 In accordance with the letters of
administration, the inventory was due on or before August 31, 2019 with the
accounting due by May 31, 2020.34 The Respondent filed an Inventory for the Estate
of Carl Wanamaker Sr. on December 11, 2019 35 after requesting a 90-day extension
on September 24, 2019.36 On June 26, 2020, approximately one month after the
accounting was due, Respondent requested a 90-day extension to file the
accounting.37 To date, no accounting has been filed for the Estate of Carl
Wannamaker Sr.
33
D.I. 34.
34
In the Matter of Carl E. Wanamaker Sr., ROW 172297 D.I. 4; Filings with the Register
of Wills are subject to judicial notice. Arot v. Lardani, 2018 WL 5430297, at *1 n.6 (Del.
Ch. Oct. 29, 2018) (citing 12 Del. C. § 2501; Del. R. Evid. 202(d)(1)(C)).
35
D.I. 34; JX E.
36
ROW Folio 172297 AF, D.I. 10.
37
ROW Folio 172297 AF, D.I.. 15.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 8 of 17
2. Estate of Sarah Wanamaker
On July 29, 2019, the Respondent was appointed as the personal
representative of the estate of Sarah Wanamaker.38 The letters of administration
required the inventory to be filed by October 29, 2019 and the accounting to be filed
before July 29, 2020.39 On September 24, 2019, Respondent was granted a 90-day
extension to file the inventory.40 With the extension, the inventory was now due on
January 29, 2020. 41 On March 9, 2020, a little over five weeks after the inventory
was due, Respondent filed the inventory with the Register of Wills. 42 She
subsequently filed an amended inventory on September 17, 2020. 43 On June 5, 2020,
The Register of Wills sent a reminder letter to the Respondent that the accounting
was due on July 29, 2020.44 To date, no accounting has been filed, nor has an
extension been requested.
38
JX G at 1.
39
In the Matter of Sarah Wanamaker, ROW 172445 AF, D.I. 3.
40
ROW Folio 172445 AF, D.I. 6.
41
Id.
42
ROW Folio 172445 AF, D.I. 8.
43
JX G.; ROW Folio 172445 AF, D.I. 11.
44
ROW Folio 172445 AF, D.I. 10.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 9 of 17
II. Analysis
A. Standing
This Petition seeks to have the Respondent removed as personal
representative of the Estate of Carl Emory Wanamaker Sr.45 When Mr. Wanamaker
passed away intestate, his assets transferred to his surviving spouse under the laws
of intestate succession. However, a little over a month later, Mrs. Sarah Wanamaker
also passed away. By law, those assets would pass to the surviving children, the
Petitioner and Respondent. At trial, the Court inquired about whether this litigation
should have been filed under the estate of Sarah Wanamaker rather than under the
estate of Carl Wanamaker Sr.46 Both parties acknowledged that the assets were
identical.47 In addition, the Respondent is the personal representative under both
estates.
This action was originally filed on November 15, 2019, with the trial being
held on June 6, 2023. At no point between the filing of this action and the trial, did
the Respondent object to standing or request dismissal for potentially filing under
the wrong case. With more than four years since the petition was filed, it would be
45
D.I. 1.
46
Tr. 101:3-103:19.
47
Id.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 10 of 17
inequitable to require the Petitioner to refile the case under the estate of Sarah
Wanamaker and put on identical evidence. Moreover, because of the obvious
overlap, I am going to consider the personal representative’s actions, which are in
question by the Petitioner, under both estates.
B. The Respondent breached her fiduciary duties of care and loyalty
to the Decedents’ estates.
To prevail on a breach-of-fiduciary-duty claim, the Petitioner must
demonstrate two elements: “(1) that a fiduciary duty existed and (2) that
the defendant breached that duty.”48 Personal representatives of an estate owe both
a duty of care and a duty of loyalty to the estate. 49 The personal representative’s
standard of care is judged by the standard of “ordinary care, prudence, skill and
diligence” in carrying out the duties as a personal representative.50 The duty of
loyalty requires the personal representative “to act, at all times, in the best interests
of the estate.”51
The Respondent breached her duty of care by failing to exercise reasonable
care in the administration of the estate. Respondent indicated she has not yet filed
48
Heller v. Kiernan, 2002 WL 385545, at *3 (Del. Ch. Feb. 27, 2002).
49
In re Est. of Newton, 2023 WL 3144700, at *3 (Del. Ch. Apr. 28, 2023).
50
Est. of Chambers, 2020 WL 3173032, at *2 (Del. Ch. June 12, 2020).
51
Id.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
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accountings because of the pending litigation. Although litigation in these cases
does not preclude the filing of an accounting and it is common practice to request a
stay of the Register of Wills deadlines, such a request was not made.
Respondent also failed to exercise reasonable care by submitting inaccurate
inventories. The Respondent testified that she took in stock dividend checks owed
to Carl Sr., but these checks were not identified on the inventory, or the amended
inventory for either of the Decedents. 52 Although she testified at trial that she
believed she has the information, the Respondent failed to provide sufficient
evidence that she kept records of expenditures from the estate account, or record
specific amounts expended.
Notwithstanding the lack of accountings and accuracy of the inventories,
Respondent’s actions show a breach of her fiduciary duties even without the ability
to analyze transactions on an accounting. The Respondent utilized estate assets for
her personal benefit, breaching her duty of loyalty. Although her actions benefited
the estate in that she made repairs to the Property, she sold the most valuable estate
vehicles to fund repairs to maintain the home she lived in and had no intention of
selling. All, but one, of the working vehicles were sold. She chose not to sell the
52
Tr. 43:21-45:4.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 12 of 17
Mercedes because she hoped to keep it as her second car. So, acting in her best
interest, she decided not to treat it the same as the other valuable vehicles in working
condition. She also continued to occasionally drive the Mercedes whenever it suited
her.
Additionally, Respondent has turned the Summit Bridge Property, into her
personal asset. She has not converted this into her sole name, but she has moved in,
allowed her grandchildren to use the house as their address for school, and as
previously mentioned, sold estate assets to keep the home habitable for herself and
cover the carrying costs. Further, she testified that she has no intention of selling the
home because she wants it to go to her grandkids.53 Her testimony revealed that she
wants to split the estate assets with her brother 50/50 but wants to “come to an
agreement” on the Summit Bridge Property where she lives. 54 She believes she has
a superior claim to the home because she has children, and grandchildren, while the
Petitioner does not.55 Although the idea of keeping a home in the family because that
is what a parent would want 56, is not lost on me, the role of the fiduciary is to have
53
Tr. 37:12-24 and Tr. 38:10-18.
54
Tr. 124:14-22.
55
Tr. 37:20-38:9.
56
Tr. 38:16-18.
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
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a duty of loyalty to the beneficiaries and not to the decedents undocumented wishes.
Respondent’s actions and feelings towards the Property continue to show the
primary purpose of her actions are for her best interest, with her duties to the
beneficiaries serving as her secondary purpose.
The Respondent further breach her duty of loyalty by converting an asset of
the estate, the 1996 Mercedes Benz, into a personal asset. Although she explained
her rationale for retitling the Mercedes in only her name, she was aware of her
brother’s interest in the car, but still decided to solely put it in her names. In both
cases of the Property and the Mercedes, she acted in her personal interest, to the
detriment of her fellow beneficiary. This is a clear breach of her duty of loyalty.
All these failures combine to show that the Respondent did not exercise
sufficient care in her estate administration. The Respondent’s sole priority in
administering the estate, was to maintain the property she lived in, and the one
vehicle she wanted to keep for herself.
C. The Respondent should be removed as personal representative of
the Decedents’ estates under 12 Del. C. § 1541.
12 Del. C. § 1541 provides “[i]f an executor or administrator neglects official
duties, the Court of Chancery may remove the executor or administrator from
office.” Amongst these official duties are those found in 12 Del.C. § 2301 (a):
“Every executor or administrator shall render an account of their administration to
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 14 of 17
the Court of Chancery, in money, every year from the date of their letters until the
estate is closed and a final account passed by the Court.”
Here, it is clear and undisputed that the Respondent has failed to comply with
the statutory requirement to carry out her official duties as the personal
representative of the Decedents’ estates. The estates have been open since 2019 and
yet the Respondent has not filed a single accounting, and based on the evidence at
trial, seems woefully unprepared to do so. Respondent asserts she has not filed an
accounting due to the pending Court of Chancery litigation.57 However, even if
Respondent wanted to wait for the outcome of this litigation to file an accounting,
doing so was detrimental to both the estate and her case. Without an accounting, or
even records to present at the trial, I am unable to determine the expenditures and
whether they were justified. Therefore, I recommended the Respondent be removed
as the personal representative of the Decedents’ estates.
D. The Petitioner is not entitled to rental payments under 25 Del. C.
§ 702 as part of this estate action.
The Petition requests the Court to impose sanctions upon Respondent for her
failure to properly administer the estates. Petitioner alludes to sanctions in the form
of the Respondent paying her share of rent due to her possession of the property.
57
D.I. 34
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 15 of 17
Delaware law provides that “if a co-tenant has exclusive possession of the
property and ousts other co-tenants, then the rental value (representing the benefit
received by the co-tenant having exclusive possession) may be set off against their
share of the sale proceeds.” 58 However, under Delaware law, the property passed
immediately to both parties in equal shares, so the Petitioner and the Respondent are
co-owners of the Property as joint tenants.59 With the property no longer part of the
estate60, I decline to make a determination on whether the Petitioner is entitled to
the payment of rent for the Respondent’s possession of the property. Such an
analysis is more appropriate for a partition matter, or if the property is to be sold,
and not the current estate dispute.61
58
Ponder v. Willey, 2020 WL 6735715 at *3 (Del. Ch. Nov. 17, 2020).
59
See In re Estate of Morrell, 1995 WL 783075, at *4 (Del. Ch. Dec. 26, 1995) (“[R]eal
estate, at the death of a decedent, passes directly to the intestate heirs, if there is no will,
and directly to the persons named in the will as the new owners, if there is a will.”).
60
In re Harris’ Estate, 44 A.2d 18, 19 (Del. Orph. 1945). (“It is well settled in Delaware
that the title to real estate descends to the heirs or vests in the devisees immediately upon
the death of the testator subject to be divested if it be necessary to sell it for the payment
of debts of the deceased.”).
61
See Green v. Shockley, 2022 WL 4589217, at *6 (Del. Ch. Sept. 30, 2022) (holding
that the only appropriate method to collect rental income “is a partition action, not the
Estate [matter].”).
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
Page 16 of 17
E. The Respondent’s commission should be reduced.
Commissions represent “compensation to the personal representative for [her]
own services in collecting the assets, checking into and paying bills, and performing
the various duties which may be necessary, and his trouble and [i]ncidental expenses
incurred thereby.”62 Per Court of Chancery Rule 192, “[c]ommissions of personal
representatives, and fees of the attorneys who represent them, shall be allowed in a
reasonable amount.” Under 12 Del. C. § 2305(c), “[t]he Court of Chancery may
reduce commissions and attorneys’ fees if the accounts required to be filed by this
chapter are not filed within the required time period.” As indicated above, the
Respondent failed to file the accountings for the Decedents’ estates with the Register
of Wills and failed to request a stay or an extension of the requirement. I recommend
the Respondent not be permitted to take the full commission for her time as personal
representative of the Decedents’ estates and any commissions be reduced by 50%.
III. Conclusion
For the foregoing reasons, I recommend that the Respondent be removed as
the personal representative of the Decedents’ estates. If the Petitioner seeks to be
appointed, he shall apply to through the Register of Wills within thirty days, or a
62
In re Whiteside, 258 A.2d 279, 282 (Del. 1969).
Carl Wanamaker v. Sandra Wanamaker,
C.A. No. 2019-0920-LM
February 5, 2024
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neutral personal representative will be appointed. In addition, the Respondent shall
file an accounting for all estate expenditures within forty-five (45) days of this
order. If she fails to do so, a rule to show cause will be issued to her directing her to
appear at a hearing and show cause why a judgment should not be entered against
her. Furthermore, I recommend that the Respondent be prohibited from taking a full
commission for her time as Personal Representative.
This is a final report under Court of Chancery Rule 143 and exceptions may
be filed under Court of Chancery Rule 144.
IT IS SO ORDERED.
/s/ Loren Mitchell
Loren Mitchell
Magistrate in Chancery