                                 COURT OF CHANCERY
                                       OF THE
                                  STATE OF DELAWARE

ABIGAIL M. LEGROW                                              NEW CASTLE COUNTY COURTHOUSE
MASTER IN CHANCERY                                           500 NORTH KING STREET, SUITE 11400
                                                                    WILMINGTON, DE 19801-3734


                            Final Report: October 9, 2015
                             Submitted: August 4, 2015

Scott E. Swenson, Esquire
Connolly Gallagher LLP
The Brandywine Building
1000 West Street, Suite 1400
Wilmington, DE 19801

Richard H. Cross, Jr., Esquire
Cross & Simon, LLC
1105 North Market Street, Suite 901
Wilmington, DE 19899

       Re:     IMO the Last Will & Testament of Wilma B. Kittila, deceased
               C.A. No. 8024-ML

Dear Counsel:

       In my final report dated June 24, 2015, I concluded that the petitioners

(“Petitioners”), although unsuccessful in their efforts to contest the will of Wilma

B. Kittila (“Wilma”), had met the burden of showing they were entitled to have at

least a portion of their attorneys’ fees paid by Wilma’s estate. At the time I issued

that report, Petitioners had not filed a fee petition, so I was unable to consider the

amount Petitioners were requesting in relation to the size of the estate. I therefore

instructed the parties to meet and confer in an attempt to reach a resolution
C.A. No. 9047-ML
October 9, 2015
Page 2

regarding the amount of Petitioners’ fees to be paid by the estate, and – if the

parties were unable to agree – to submit supplemental briefing regarding that issue.

       The parties were unable to stipulate to the amount of fees to be paid to

Petitioners by the estate, and Petitioners’ counsel therefore filed a fee petition and

accompanying affidavit of fees. The Petitioners incurred $224,565.46 in attorneys’

fees and costs to contest Wilma’s 2009 Will and 2004 Will.1 That amount does not

reflect fees incurred by Petitioners before hiring their current counsel. 2 Petitioners

contend they are entitled to be reimbursed for that entire amount. The estate

opposes that request, largely because the amount of the fees Petitioners incurred is

disproportionate to the amount in Wilma’s estate.

       According to the inventory filed by the personal representative of Wilma’s

estate, the value of the estate at the time of her death was $440,163.25. In my

view, this is the appropriate value from which to determine what portion of

Petitioners’ attorneys’ fees should be paid by the estate. The estate contends there

is only $351,330.27 currently left in the estate, the reduced amount reflecting the

estate’s payment of its attorneys’ fees and costs in defending this case. 3 In my

view, it would not be fair to determine Petitioners’ fee request based on this net

figure. Rather, the Court should consider the question more generally: whether

1
  Affidavit of Scott E. Swenson, Esquire ¶ 2.
2
  Fee Petition at 3, n.2.
3
  Response of Executor to Pet’rs’ Fee Petition ¶ 5 and Ex. A.
C.A. No. 9047-ML
October 9, 2015
Page 3

the attorneys’ fees requested by an unsuccessful will contestant are proportional to

the gross size of the estate, while also taking into consideration the attorneys’ fees

incurred by the estate in defending the will contest.4

       Petitioners first argue that the attorneys’ fees they incurred in this action

were reasonable in light of the complex factual record at issue and the experienced

counsel representing both sides. Petitioners successfully defended a motion to

dismiss, filed two successful motions to compel, assembled a detailed factual

record, retained an expert witness, presented evidence at a three-day trial, and

submitted comprehensive pre-trial and post-trial briefing and argument.

Significantly, although the estate argues that the amount of the fees is

disproportionate to the amount at stake, the estate does not argue that the fees

incurred are unreasonable in relation to the work counsel performed.5

       The estate’s argument regarding proportionality is well taken. In a previous

decision of this Court awarding attorneys’ fees to an unsuccessful will contestant,

the Court admonished that “fees should not be awarded in such an amount as to

virtually dissipate the estate.”6 If the Court were to award Petitioners the full

amount of fees and costs they seek, Wilma’s estate would be reduced to

4
  See, e.g. In re Estate of Newell, 1977 WL 23836, at *2 (Del. Ch. Dec. 20, 1977) (taking into
consideration both the contestants’ counsel fees and the estate’s counsel fees in determining the
amounts to be paid by the estate to each side).
5
  Response of Executor to Pet’rs’ Fee Petition at 4-5.
6
  In re Estate of Newell, 1977 WL 23836, at *2 (Del. Ch. Dec. 20, 1977).
C.A. No. 9047-ML
October 9, 2015
Page 4

approximately half its original size, thereby defeating the testator’s intent in a case

where I previously determined that the testator had capacity to make a will and was

not unduly influenced in selecting the beneficiaries of her estate. When considered

in conjunction with the attorneys’ fees paid by the estate to defend this action,

awarding Petitioners their total fees and costs would leave approximately one

quarter of the estate for Wilma’s designated beneficiaries.           As between an

unsuccessful will contestant and a testator with capacity, the Court must favor a

result that ensures the testator’s intent is upheld.

      The remainder of the estate’s response to the fee petition is devoted to

criticizing the conclusion I reached in my June 24, 2015 final report regarding

whether Petitioners had established the “exceptional circumstances” necessary to

shift fees in favor of an unsuccessful will contestant.        The estate’s argument

depends in large measure on a factual contention that is at odds with my findings in

the post-trial report.     That is, the estate contends that Wilma altered her

testamentary scheme to “disinherit” Petitioners because they filed the petition

seeking guardianship of Wilma. According to the estate, this “fact” negates my

reasoning that the exceptional circumstances in this case included Wilma’s abrupt

and unexplained decision to cease contact with Petitioners and cut them out of her

estate. The “fact” on which the estate relies in making this argument, however, is

expressly contrary to the facts that I found after trial and to which the estate did not
C.A. No. 9047-ML
October 9, 2015
Page 5

take exception, namely that it was “more likely than not that the decedent already

intended to revise her will and exclude the family as beneficiaries before the

guardianship petition was filed.”7          I concluded that “[n]o coherent, definitive

explanation for that decision” was offered by Wilma or her estate.8

       In my view, it would be fair to award Petitioners attorneys’ fees and costs

equal to 20 percent of the value of the estate at the time of Wilma’s death, which

equates to $88,032.65. I believe this award fairly balances the competing interests

at stake, namely my previous finding that Petitioners demonstrated the probable

cause and exceptional circumstances necessary for the Court to award attorneys’

fees to an unsuccessful will contestant, and the importance of ensuring that an

award of fees does not eviscerate the testator’s intent.

       For the foregoing reasons, I recommend that the Court order the estate to

pay Petitioners’ attorneys’ fees in the amount of $88,032.65. This is my final

report. The parties may take exceptions to this report, as well as my June 24, 2015

final report, in accordance with Court of Chancery Rule 144.

                                                    Respectfully submitted,

                                                    /s/ Abigail M. LeGrow

                                                    Master in Chancery

7
  In re Will of Kittila, C.A. No. 8024-ML (Final Report) at 1. See also id. at 34 (Wilma indicated
an intent to remove the Kittilas from her will before the guardianship was filed).
8
  Id.
