April 2013
Honaker v. The Estate of Dorothy T. Haas, C.A. No. 7966-VCG (April 11, 2013)
In this case Vice Chancellor Glasscock affirmed long standing Delaware law and held that when a personal check is given to a donee with the intent to make a gift there is no delivery until the funds needed to honor that check are available to be withdrawn from the account and the check is presented and paid. Here, petitioners alleged that the decedent authorized her attorney-in-fact to give petitioners an inter vivos gift of $25,000 each. Petitioners argued that the decedent’s attorney-in-fact and the decedent’s financial advisor were supposed to liquidate the decedent’s assets to fund the account, but this never happened.
Although both parties acknowledged the general rule that gifts of personal checks are not complete until presented and paid, petitioners argued that the facts presented in their complaint warranted an exception to this rule because the checks were drawn at the decedent’s discretion by her attorney-in-fact, and because the checks were signed by one of the petitioners, a co-tenant of the joint checking account from which the funds would be drawn. But Vice Chancellor Glasscock held that “directing an agent does not make that act a delivery, where it would not be a delivery if made by the principal.”
Petitioners also argued that their circumstances were similar to circumstances where a donor gifts a certified check. But Vice Chancellor Glasscock dismissed that comparison, explaining that a “certified check represents a completed payment from a donor to the bank, and a contractual right on behalf of the donee,” where as a personal check “is simply a revocable direction to the bank to make payment, funds permitting.”
IMO Trust for Grandchildren of Wilbert L. and Genevieve W. Gore dated April 14, 2972, C.A. No. 1165-VCN (April 1, 2013).
The Court of Chancery, per Vice Chancellor Noble, concluded that unless the parties could demonstrate a “principled basis” for keeping it under seal, the fee amounts awarded in a lengthy trust dispute should be in the public domain. The Court explained that “the Public is entitled to know what the Court does” and that the fees awarded provided an example to the Public of just how expensive litigation can be.
Before releasing an unredacted order, the Court invited the parties to offer any further arguments as to why those fee awards should remain under seal. The parties opted not to do so, and on April 5, 2013, the Court publicly released its Order Awarding Attorneys’ Fees without any redactions.
IMO: The Estate of James Vincent Tigani, Jr., et al. , C.A. No. 7339-ML (March 20, 2013).
In the context of what had become a capacity challenge, in response to an interrogatory, the trustor identified her estate planning attorney—who had witnessed the signing of the instrument—as someone whom she intended to call to testify to support her capacity. The trustor also asserted the attorney-client privilege as to estate planning communications with her attorney occurring months before the instrument was executed.
The Court of Chancery, per Master LeGrow, ruled that although DRE 502(d)(2) does not apply when the trustor is living, the trustor effectively waived the attorney-client privilege. In supporting its ruling, the Court relied upon Pfizer Inc. and stated that the trustor was using the privilege as both a sword and a shield.
