Opinion
Civil Action No. 218-N, Will Folio No. 130228.
Date Submitted: April 14, 2004.
Date Decided: June 15, 2004.
Charles J. Durante, Esquire Gregory J. Weinig, Esquire Connolly Bove Lodge Hutz LLP, Wilmington, DE.
Gordon L. McLaughlin, Esquire Law Offices of Gordon L. McLaughlin, Wilmington, DE.
Dear Counsel:
Irene Calvares and Genevena Limmina ("Petitioners") brought this petition for review of a will, together with a petition for the removal of Nicholas A. Rich, Jr. ("Respondent") as executor of the estate of Assunta Rich ("Decedent"). Petitioners also filed a petition for accounting and a motion for a temporary restraining order and preliminary injunction enjoining distribution of the proceeds from the sale of the Decedent's real property. After hearing argument on the motion for a temporary restraining order on February 20, 2004, the Court denied that motion. On February 19, 2004, Respondent filed a motion to dismiss this action. For the reasons stated below, the Court will grant the motion to dismiss.
I. FACTS
Petitioners are the daughters of the Decedent. Respondent is the son of the Decedent. Decedent, a widow since the passing of her husband on October 24, 1990, lived by herself at 1309 Lore Avenue, Wilmington, Delaware.
The facts in this letter opinion are taken from the Petition for Review of Will filed on February 6, 2004 and are assumed to be true for purposes of Respondent's motion to dismiss.
Decedent died on June 3, 2003. Decedent's self-proving will, dated February 24, 1993, was admitted to probate on June 27, 2003. Letters testamentary were issued that same day to Respondent.
Decedent's will left all of her real property at the time of her death to Respondent. Petitioners each were given a one-third share of Decedent's bank accounts. Those accounts, however, were titled in the name of Decedent or Respondent, thus passing by operation of law to Respondent.
Petitioners filed this action on February 6, 2004, alleging that Respondent exercised undue influence over Decedent and took advantage of a position of trust and confidence by having her leave all of the real property to him and having the bank accounts retitled so that they would pass to him by operation of law. Petitioners also allege that Respondent tortiously interfered with their inheritance.
II. ANALYSIS
A motion to dismiss under Court of Chancery Rule 12(b)(6) will be granted where it appears to a reasonable certainty that a plaintiff could not prevail on any set of facts that can be inferred from the pleadings when the well pleaded facts and factual inferences are viewed in the light most favorable to the plaintiff. A motion to dismiss will be granted where the complaint is clearly without legal or factual merit.
In re Paxson Communications Corp., 2001 WL 812028, at *3 (Del.Ch. July 12, 2001).
Morgan v. Wells, 80 A.2d 504, 505 (Del.Ch. 1951); Cohen v. Mayor of Wilmington, 99 A.2d 393, 394-95 (Del.Ch. 1953); Weinberger v. UOP, Inc., 409 A.2d 1262, 1263-64 (Del.Ch. 1979).
Decedent's self-proving will was admitted to probate on June 27, 2003. This action was not filed until February 6, 2004. 12 Del. C. § 1309(a) provides:
Any person interested who shall not voluntarily appear at the time of taking the proof of a will, or be served with citation or notice as provided in § 1303 of this title, shall, at any time within 6 months after such proof or after delivery to the Register of Wills of self-proved will, have a right of review which shall on the person's petition be ordered by the Court of Chancery.
Petitioners failed to file this action within the time period required by § 1309(a).
For strong public policy reasons the statute of limitations for filing a petition for review of a will is strictly interpreted. As Vice Chancellor Hartnett explained:
It is a special statute of limitation as to wills. Any person seeking a review of an instrument proven as a will shall, within 6 months after the proof of the will, file a petition seeking the review.
* * *
The purpose for a 6-month limitation on the time to attack the validity of a will or of a provision therein is clear. It is to permit the prompt and orderly administration of estates.
* * *
Statutes limiting the time for challenging a will are common in the various states for just this reason. There is a special public policy in favor of prompt settlement of decedent's estates. The statutes are strictly construed.
Criscoe v. Derooy, 384 A.2d 627, 629 (Del.Ch. 1978) (citations omitted).
Petitioners contend that their late filing should be excused for a number of reasons, including: (1) that Respondent filed the will only fourteen days late; (2) that Respondent filed the inventory thirty-two days late; (3) that the Court should apply 10 Del. C. § 8118 to this case; (4) that the Court should apply 18 Del. C. § 3914 to this case; (5) that the Court has an avowed preference for hearing cases on their merits; and (6) on the basis of the Court's traditional equitable powers. All of these arguments are without merit.
12 Del. C. § 1301(b) sets forth the consequences of an individual failing to file a will within the 10 day period required by section 1301(a). If the failure is willful, the person is liable for damages and may be subject to contempt. Petitioner does not allege that Respondent willfully failed to file the will as required by section 1301(a). Moreover, nothing in Title 12 provides that delinquent filing of a will excuses the untimely filing of a petition seeking review of the will.
12 Del. C. § 1906 provides a remedy for the delinquent filing of an inventory under a will. That penalty is $1 per day for each day the filing is delinquent from one month after the Register of Wills provides notice of the delinquency. Again, Title 12 does not provide that delinquent filing of an inventory excuses the untimely filing of a petition seeking review of the will.
10 Del. C. § 8118(a), the savings statute, permits refiling of certain actions notwithstanding the statute of limitations when the actions originally were timely filed, but were dismissed as defective in some other respect. The present action was not timely filed, and Petitioners have not alleged sufficient facts to make section 8118 applicable to this case.
18 Del. C. § 3914 applies to "insurers." Decedent's estate is not an insurer. Thus this statute is not applicable to this case.
Petitioners' final two arguments, that the Court should hear the merits of this case instead of dismissing it on a technicality and that the Court should exercise its traditional equitable powers to hear this case, ignore a fundamental maxim of equity: equity follows the law. Where the legislature has set a time period for filing certain petitions for strong public policy reasons, and the Court has noted that the statute is strictly construed because of those policy reasons, the Court is not inclined to permit untimely filing simply because Petitioners believe that their case has substantive merit.
IV. CONCLUSION
For the foregoing reasons, Respondent's motion to dismiss is GRANTED. The action for review of the will of Decedent is DISMISSED. The dismissal is without prejudice to any claims that Petitioners may have against Respondent that do not challenge or seek review of Decedent's will.
IT IS SO ORDERED.