No Exception to Black Letter Law on Forming and Contesting a Will

Delaware Fiduciary Litigation Blog

Posted July 8, 2013

IMO Purported Codicil/Amendment to the LW&T of Lucia R. Sierra, C.A. No. 7769-ML (June 26, 2013)

The Decedent died on November 6, 2011. She executed a will in 2009 (the “2009 Will”) which left the bulk of her estate to her daughter-in-law (the “Petitioner”).  In August 2010 the Decedent purportedly executed an amendment to the 2009 Will, which directed that her property be sold and the proceeds shared among her heirs (the “2011 Codicil”). The Petitioner filed this action, alleging that the 2011 Codicil was not valid for a number of reasons, inter alia, was that the 2011 Codicil was not properly witnessed. The Petitioner also argued that the Respondents’ challenge to the 2009 Will was barred by the six-month statute of limitations contained in 12 Del. C. § 1309.

Petitioner moved for judgment on the pleadings, arguing that she was entitled to judgment as a matter of law because the undisputed facts established that the witnesses to the 2011 Codicil did not sign the document in the presence of the Decedent. 12 Del. C. § 202 provides in part that every will must be “attested and subscribed in testator’s presence by 2 or more credible witnesses.” Since the Respondents did not contest the fact that the will was signed outside the presence of the Decedent, the Court held that the 2011 Codicil was void. The Court further held that, since the Respondent challenged the 2009 Will more than eight months after it was admitted to probate, 12 Del. C. § 1309 barred the challenge.

Author(s)

Phillip Giordano
Associate
Gordon, Fournaris & Mammarella, P.A.