                                       COURT OF CHANCERY
                                             OF THE
                                       STATE OF DELAWARE
MORGAN T. ZURN
 MASTER IN CHANCERY
                                                                          LEONARD L. WILLIAMS JUSTICE CENTER
                                                                           500 NORTH KING STREET, SUITE 11400
                                                                                  WILMINGTON, DE 19801-3734

                                 Final Report: September 11, 2018
                                      Submitted: July 5, 2018



   Charles J. Durante, Esquire
   Daniel R. Stranek, Esquire
   Connolly Gallagher LLP
   1000 West Street, Suite 1400
   Wilmington, DE 19801

   Adam R. Elgart, Esquire
   Mattleman, Weinroth & Miller, P.C.
   200 Continental Dive, Suite 215
   Newark, DE 19713

           Re:        In re: the Matter of the Estate of Rita J. Francisco, deceased
                      C.A. No. 2017-0424-MTZ

   Dear Counsel:

           This matter began as a petition to sell real estate to pay debts. Pending

   before me is the petitioner’s motion for leave to amend that petition. For the

   reasons that follow, I recommend the Court grant the motion. This is a final report.

           Petitioner Rita L. Alexander (“Petitioner”) is the personal representative of

   the estate of Rita J. Francisco (“Decedent”), who died intestate on December 8,

   2016. Petitioner and Respondent Douglas Francisco (“Respondent”) are

   Decedent’s intestate heirs. On June 5, 2017, Petitioner filed a petition to sell real
C.A. No. 2017-0424-MTZ
September 11, 2018
Page 2


estate to pay Decedent’s debts pursuant to 12 Del. C. §§ 2701, et seq. On July 6,

2017, Respondent filed an objection and petitioned to remove Petitioner as

personal representative for allegedly neglecting to perform her official duties,

including failing to gather all assets of the estate and claiming expenses that are not

part of the estate. After a hearing on July 10, 2017, Petitioner and Respondent

reached a nonjudicial resolution, whereby the property at issue was sold on

December 22, 2017, and the proceeds were divided equally between Petitioner and

Respondent.1 After the Court requested a status update on March 1, 2018,

Petitioner sought and received two extensions of time to address additional

information about Decedent’s estate and confer with Respondent.

          On June 18, 2018, Petitioner filed a motion to amend her petition, seeking to

add a claim that Respondent misappropriated assets from Decedent while Decedent

was living, as well as from Decedent’s estate. Petitioner alleges she discovered

Respondent’s alleged misappropriation during the pendency of this case. On July

5, 2018, Respondent filed an opposition to the motion to amend, asserting justice

does not require the amendment and that amendment would further delay the

administration of the estate. Petitioner did not file a reply.




1
    Mot. ¶ 6; Resp. ¶¶ 1, 2.
C.A. No. 2017-0424-MTZ
September 11, 2018
Page 3


       Court of Chancery Rule 15(a) provides that leave to amend a pleading shall

be freely given when justice so requires.

       This determination is a matter of the court’s discretion. Rule 15(a)
       reflects the modern philosophy that cases are to be tried on their
       merits, not on the pleadings. Therefore, courts generally will not test
       the sufficiency of the pleadings in ruling on a motion to amend. A
       motion to amend may be denied, however, if the amendment would be
       futile, in the sense that the legal insufficiency of the amendment is
       obvious on its face. In exercising its discretion, the court also
       considers factors such as bad faith, undue delay, dilatory motive,
       repeated failures to cure by prior amendment, undue prejudice, and
       futility of amendment. 2

       Justice requires giving Petitioner leave to amend. Respondent has not

asserted Petitioner’s claims are futile. I see no basis to infer bad faith or dilatory

motive. I accept Petitioner’s explanation that she formed her allegations after

examining Decedent’s estate in more detail while this case was pending, and that

she devoted additional time to attempting to confer with Respondent before

seeking leave to amend.

       While Petitioner’s new allegations expand the scope of this action beyond

the original petition to sell real estate to pay debts, a Court vested with the power

of ordering that sale has authority to hear all matters necessary and proper to a just

determination. 3 If proven, Petitioner’s amended allegations may inform the


2
  NACCO Indus., Inc. v. Applica Inc., 2008 WL 2082145, at *1 (Del. Ch. May 7, 2008) (internal
citations and quotation omitted).
3
  Green v. Saulsbury, 33 A. 623, 630 (Del. Ch. 1880).
C.A. No. 2017-0424-MTZ
September 11, 2018
Page 4


distribution of the proceeds from that sale. It is therefore proper for this Court to

hear those allegations in this action. Further, Respondent already expanded the

action in his answer by requesting the Court remove Petitioner as personal

representative for failure to perform her duties. Finally, requiring Petitioner to file

a new action would be inefficient and duplicative.

      I recommend the Court grant Petitioner’s motion to amend. This is a final

report pursuant to Court of Chancery Rule 144.

                                    Respectfully,

                                 /s/ Morgan T. Zurn

                                 Master in Chancery
