                               COURT OF CHANCERY
                                     OF THE
                               STATE OF DELAWARE
KIM E. AYVAZIAN                                                        CHANCERY COURTHOUSE
MASTER IN CHANCERY                                                           34 The Circle
                                                                    GEORGETOWN, DELAWARE 19947
                                                                                 AND
                                                                   NEW CASTLE COUNTY COURTHOUSE
                                                                  500 NORTH KING STREET, SUITE 11400
                                                                   WILMINGTON, DELAWARE 19980-3734




                                                August 10, 2016

Brian J. Ferry, Esquire
Ferry Joseph, P.A.
824 Market Street Suite 1000
PO Box 1351
Wilmington, DE 19899

Charles S. Knothe, Esquire
Charles S. Knothe, P.A.
14 The Commons
3516 Silverside Road
Wilmington, DE 19810

RE:      IMO Edward J. Burke Estate
         C.A. No. 10768-MA

Dear Counsel:

         This dispute is between a stepson and his stepmother, who was the attorney-

in-fact of her husband and later the executrix of her deceased husband’s estate.

The stepson claims that his stepmother breached her fiduciary duties to her

husband by adding her name as a joint owner on her husband’s bank account in

which he had segregated the proceeds from the sale of his real property in Virginia

for the benefit of his four children. The stepson also claims that the stepmother

breached her fiduciary duties by failing to use her husband’s funds for his medical

                                      Page 1 of 15
care and benefit, and instead had transferred those funds into accounts in her sole

name or had lent those funds to her own children. The stepson is seeking: (1) to

invalidate certain transfers of property and/or retitling of assets; (2) an accounting

from his stepmother in her capacity as her late husband’s attorney-in-fact; and (3)

the imposition of a constructive trust over estate assets. Pending before me is the

stepmother’s motion for summary judgment on all issues. For the reasons stated

below, I recommend that the summary judgment motion be granted.

      Factual Background1

      Edward J. Burke (“Mr. Burke” or “Decedent”) died in Wilmington,

Delaware on October 10, 2013,2 and was survived by Defendant Mildred G. Burke,

to whom he had been married for 28 years, and his four children from a previous

marriage, one of whom is Plaintiff Kevin Burke. Many years prior to his death, on

March 17, 1998, Mr. Burke executed a durable power of attorney naming Mildred

as his attorney-in-fact. 3 On the same date, Mr. Burke executed his Last Will and

Testament (“the 1998 Will”). The pertinent provisions of the 1998 Will are the

following:

           Beneficiaries: I hereby give my home and it[s] contents located at
      2225 Grundy Road, Woodbridge, Virginia to my Trustee herein named. The

1
  For the purpose of this section I am relying upon the uncontested portions of the
pleadings except where otherwise noted.
2
  The Wilmington home in which Mr. Burke resided was in his wife’s sole name.
3
  I use first names here only to avoid confusion and unnecessary repetition, and
mean no disrespect by this practice.
                                      Page 2 of 15
      Trustee shall allow my daughter, Julia Ann Bibbee to live in this home for
      three years after my death. My daughter shall be responsible for the
      payment of taxes, maintenance and insurance during this time period. After
      three years have lapsed I direct my Trustee to sell this house and invest the
      net proceeds and to give the contents of the house to Julia Ann Bibbee. I
      direct the Trustee to pay the net income to Mildred Burke for her life. Upon
      the death of Mildred Burke the corpus shall be distributed equally to my four
      children: Julia Ann Bibbee, Edward J. Burke, Jr., Kevin T. Burke, and
      Elizabeth S. Frey. In the event any of my children have predeceased me
      then I give that child’s share to his or her issue per stirpes.
             I give the rest and remainder of my estate to my wife, Mildred G.
      Burke.

In the 1998 Will, Mr. Burke named Mildred as the trustee of his testamentary trust

and the executrix of his estate.

      In July 2012, Mr. Burke sold his real estate at 2225 Grundy Road,

Woodbridge, Virginia, (“2225 Grundy Road”) for $150,000 and deposited the sale

proceeds into a PNC Bank checking account he had recently opened in his sole

name. Mr. Burke then transferred the sale proceeds to a new money market

account at PNC Bank which was also solely owned by him. Shortly thereafter, Mr.

Burke’s health began to decline and during the following months he was

hospitalized for kidney failure, a urinary tract infection, and underwent quadruple

heart bypass surgery in January 2013. Around this time, Mildred used her power

of attorney to add her name as a joint owner on her husband’s two accounts at PNC

Bank, allegedly without her husband’s knowledge or consent. In April 2013,

Mildred added her name as power of attorney on an account that Mr. Burke owned

jointly with his daughter Elizabeth Frey at the Fort Belvoir Federal Credit Union.

                                     Page 3 of 15
Around the same time, Elizabeth’s name was removed as a joint owner and, in

May 2013, Mildred closed the credit union account and transferred the funds,

$14,424.43, into a checking account that she had recently opened with her own

daughter, Eileen Hayes, at WSFS Bank.

      After her husband passed away, Mildred did not open an estate because Mr.

Burke had no solely-owned property at his death. Following repeated requests

from Mr. Burke’s children, Mildred filed the 1998 Will on November 21, 2014,

more than 13 months after her husband’s death.

      Procedural Background

      Kevin filed his complaint on March 10, 2015, alleging that the proceeds

from the sale of 2225 Grundy Road had been segregated by Mr. Burke in his solely

owned PNC Bank account with the intent to preserve the funds for his four

children after his death. According to Kevin, Mildred’s use of the power of

attorney to become a joint owner on that account without her husband’s knowledge

and consent defeated Mr. Burke’s testamentary planning. Kevin also claimed that

he is entitled to an accounting from Mildred because she: (1) improperly used her

husband’s funds to lend money to her own son; (2) failed to pay for her husband’s

medical care and needs; and (3) improperly removed Elizabeth Frey as a joint

owner of the credit union account. Kevin is seeking damages relating to Mildred’s

alleged breaches of fiduciary duty, including those alleged breaches involving the


                                    Page 4 of 15
retitling and transfers of funds from Mr. Burke’s PNC Bank accounts and credit

union account.

      In response to her stepson’s complaint, Mildred alleged that by selling 2225

Grundy Road, Mr. Burke had changed his testamentary plan. In addition, Mildred

contended that she only put her name on her husband’s accounts because she was

anticipating her husband incurring further medical expenses, and it would be easier

for her to access the money needed for Mr. Burke’s care if she were a joint owner.

Mildred also denied that Kevin is entitled to an accounting because even if she had

not put her name on the accounts as joint owner or power of attorney, she would

have inherited everything her husband owned as the residuary beneficiary of his

estate under the 1998 Will.

      After filing her answer to the complaint, Mildred filed a motion to dismiss

that I denied as untimely.4 However, upon Mildred’s request, I then treated it as a

motion for summary judgment under Court of Chancery Rule 56(b).5            In her

motion, Mildred argues that she is entitled to summary judgment as a matter of law

because once Mr. Burke sold 2225 Grundy Road, the specific gift of this property

in the 1998 Will lapsed. She also argues that adding her name to her husband’s


4
 Docket Item (“DI”) 25.
5
  DI 23. Ct.Ch. R. 56(b) provides: “A party against whom a claim, counterclaim,
cross-claim or declaratory judgment is asserted may, at any time, move with or
without supporting affidavits for a summary judgment in the party’s favor as to all
or any part thereof.”
                                     Page 5 of 15
PNC Bank accounts had no effect on Kevin because even if Mr. Burke had died

with the accounts still in his sole name, Mildred would have inherited the funds

under the residuary clause of the 1998 Will. As a result, Mildred contends that

Kevin has no interest in these funds and has no standing to bring this action.

Mildred also argues that Kevin has no interest in his father’s credit union account

and Elizabeth Frey, who was a joint owner of that account but is not a party to this

action, had agreed to the removal of her name from her father’s credit union

account.

      Kevin opposes the motion for summary judgment, arguing that genuine

issues of material fact remain in dispute whether Mildred breached her fiduciary

duties and whether the Decedent’s children are entitled to the proceeds from the

sale of 2225 Grundy Road.      In support of his breach of fiduciary duty claims,

Kevin cites several specific transactions where Mildred, using her power of

attorney, added her name to her husband’s sole bank accounts, removed her

husband’s name from their joint bank accounts, deposited funds belonging to her

husband into her own accounts, or used her husband’s funds to lend money to her

own son. Kevin argues that none of these funds were used for his father’s care and

should be accounted for by Mildred.          Kevin also contends that Mr. Burke

repeatedly had told his children that the funds from the sale of 2225 Grundy Road

were being held for them in the PNC Bank account in accordance with the 1998


                                     Page 6 of 15
Will, and that Mr. Burke repeatedly had denied Mildred’s requests to gain access

to this account because he wanted the funds to go to his children. According to

Kevin, the Court should not decide this case without hearing testimony. Kevin

also argues that the rule of ademption may not apply in this case because the 1998

Will did not devise 2225 Grundy Road to Mr. Burke’s children; rather, it was the

proceeds from the sale of the real estate that were left to his children.

      Analysis

      In the 1998 Will, Mr. Burke left 2225 Grundy Road to the trustee of a

testamentary trust to be held for the use of one of his daughters for three years then

sold, and he directed the sale proceeds to be invested by the trustee so that the net

income from the trust corpus could be paid to Mildred for her life. Upon Mildred’s

death, the trust corpus was to be distributed equally to Mr. Burke’s four children.

However, in 2012, Mr. Burke sold 2225 Grundy Road.             When he died in 2013,

Mr. Burke no longer owned 2225 Grundy Road; as a result, the specific devise of

real property to the testamentary trust failed.

      An ademption occurs when a specific gift of real or personal property in a

will is no longer available for delivery to a named beneficiary or beneficiaries

because the testator lost or conveyed it prior to his death. Here, there is no

question that this was a specific devise; Mr. Burke intended the trustee of his

testamentary trust to receive a specific property located at 2225 Grundy Road in


                                       Page 7 of 15
Woodbridge, Virginia. However, after Mr. Burke sold 2225 Grundy Road, the real

property was no longer his property to devise. Although Mr. Burke received cash

upon the sale of this property, Delaware follows the rule that once property has so

substantially changed that it cannot be traced directly to another form, an

ademption has occurred.6 While Kevin claims that the sale proceeds from 2225

Grundy Road can be traced to a specific bank account, cash is not considered a

substitute for real property under the test of substantial identity. 7 Furthermore, the

rule of ademption in Delaware does not depend upon the intention of the testator

and may, in some cases, defeat the intention of the testator.8

      Kevin argues that the rule of ademption may not apply to this case because

under the 1998 Will, Mr. Burke’s four children ultimately were to receive the net

proceeds from the sale of 2225 Grundy Road. Although Kevin provides no legal

support for his argument and I could find no Delaware cases on point, research

shows that some courts in other jurisdictions do not apply the rule of ademption


6
  See In re Hobson’s Estate, 456 A.2d 800, 802 (Del. Ch. 1982)
7
  Id. (“proceeds from the sale are so different that they cannot be regarded as the
same or standing in the place of that property.”). See also Restatement (Third) of
Property (Wills & Don. Trans.) § 5.2 (1999) (“It is also clear that if the testator
sells the property, and holds the cash proceeds of the sale at death, those cash
proceeds do not amount to the specifically devised asset in a changed form,
whether tracing is possible or not. The reason is that the change into cash is too
substantial a change to be treated as the same asset though in a changed form.
Cash is the opposite of something specific, because the holder of cash has nearly
infinite options to spend or invest it.”)
8
  Hobson’s Estate, 456 A.2d at 802.
                                      Page 8 of 15
where the specific bequest is of proceeds rather than the thing itself while other

courts do not recognize a distinction between a gift of property itself and a gift of

proceeds.9 I am reluctant to wade into “an area of considerable confusion and

disharmony both as to result and theory,”10 especially where the gift in question

does not fall neatly into either category. It bears repeating that in the 1998 Will,

Mr. Burke left 2225 Grundy Road to a trustee to be held in trust so that his

daughter Julia could enjoy a limited (three-year) life estate in the real property,

after which 2225 Grundy Road was to be sold and the proceeds invested so

Mildred could enjoy the net income from the trust corpus for the remainder of her

life before what remained of the sale proceeds was distributed to his four children.

Mildred is still alive. Had the property not been sold prior to Mr. Burke’s death,

Mildred would have been the income beneficiary of the testamentary trust and

Decedent’s four children would not have been entitled to receive any proceeds

until after Mildred’s death.

      Even if I had been tempted to wade into the above doctrinal dispute, I

cannot. The theory underlying the law of ademption in Delaware is clear.11 Mr.


9
   Douglas Hale Gross, “Ademption of bequest of proceeds of property,” 45
A.L.R.3d 10 § 2[a] (originally published in 1972).
10
   Id.
11
    See In re Dungan’s Estate, 73 A.2d 776, 780 (Del. Super. 1950) (“The
application of the rule is in no wise dependent upon what might seem to have been
the intention of the testator. The theory of the law is, that the intention to revoke
the devise is expressed by the absolute disposition by the testator in his lifetime of
                                      Page 9 of 15
Burke knew that the 1998 Will contained a specific devise of 2225 Grundy Road

when he sold the property to third parties. Therefore, under Delaware law, that

sale reflected Mr. Burke’s intention to revoke the devise. Had the sale proceeds

remained in a bank account in Mr. Burke’s sole name, upon Mr. Burke’s death, the

sale proceeds would have passed to Mildred under the general residuary clause of

the 1998 Will.12 Mildred’s use of the power of attorney to add her name as a joint

owner of her husband’s PNC Bank accounts during his lifetime makes no

difference to the outcome here.

      Since Kevin is not entitled to any portion of the sale proceeds, he also lacks

standing to complain about Mildred’s use of the power of attorney to add her name

as a joint owner of the PNC Bank account holding the proceeds. In order to have

standing, a complainant must have:

      suffered an injury in fact – an invasion of a legally protected interest which
      is (a) concrete and particularized and (b) actual or imminent, not conjectural
      or hypothetical; (2) there must be a causal connection between the injury and
      the conduct complained of – the injury has to be fairly traceable to the
      challenged action of the defendant and not the result of the independent
      action of some third party not before the court; and (3) it must be likely, as




the subject matter of the devise.”) (quoting Wolcott v. Shaw, 2 A.2d 913, 915 (Del.
Ch. 1930)).
12
   See Hobson’s Estate, 456 A.2d at 802 (“It is well established that the subject
matter of lapsed or ineffectual legacies or devises, in the absence of contrary intent,
passes under a general residuary clause where the will contains one and does not
descend as intestate property to the testator’s next of kin.”).
                                      Page 10 of 15
      opposed to merely speculative, that the injury will be redressed by a
      favorable decision.13

Here, Kevin has suffered no injury as a result of Mildred’s adding her name to her

husband’s PNC Bank accounts. Similarly, since Kevin is neither a creditor nor a

beneficiary of his late father’s estate, he is not entitled to an accounting from

Mildred of her overall handling of Mr. Burke’s funds. The only individuals who

might have been injured by Mildred’s alleged misuse of the power of attorney were

Mr. Burke and Elizabeth Frey. Elizabeth is not a party to this complaint, and

Kevin cannot represent her interests. Mildred, on the other hand, is a party both in

her individual capacity and in her capacity as executrix of her late husband’s

estate. In those capacities, she has denied any wrongdoing. Therefore, there is no

genuine issue of material fact in dispute that would warrant the denial of Mildred’s

summary judgment motion.

      Exceptions

      Kevin has taken exception to my draft report, arguing that I: (1) did not

apply the highly deferential standard when reviewing a summary judgment motion,

but instead identified factual disputes and resolved them in favor of Mildred; (2)

should not have ruled on the ademption issue before receiving any evidence or

testimony; (3) failed to address Kevin’s standing under the Delaware Power of


13
  Vichi v. Koninklijke Philips Electronics N.V., 62 A.3d 26, 38 (Del. Ch. 2012)
(quoting Dover Historical Soc’y v. City of Dover Planning Comm’n, 838 A.2d
                                     Page 11 of 15
Attorney Statute; and (4) failed to apply equitable principles to prevent Mildred’s

unjust enrichment as a faithless fiduciary.

      There was no dispute that Mr. Burke sold 2225 Grundy Road prior to his

death. This case hinges on one legal issue: whether the sale of 2225 Grundy Road

resulted in an ademption of the specific gift of this property to the testamentary

trustee named in Mr. Burke’s 1998 Will.          I see no reason to alter my previous

analysis of this issue. The sale worked an ademption of this gift because the real

property was no longer available for delivery to the testamentary trustee. As a

result, Mildred became the sole beneficiary of her late husband’s estate under the

residuary clause of his 1998 Will.

      Since Mildred was the sole beneficiary, Mildred’s alleged misuse of Mr.

Burke’s funds would have harmed no one except possibly Mr. Burke during his

lifetime or possibly his daughter Elizabeth, who had been a joint owner on one of

Mr. Burke’s accounts until Mildred removed her name from the account. To the

extent that Kevin argues that he has standing as a child of the principal to seek an

accounting from Mildred as Mr. Burke’s agent under the Delaware Power of

Attorney Statute, 12 Del. C. § 49-A-116, his request for relief comes too late. The

time for Kevin to have sought such judicial relief was while Mr. Burke was still

alive as the following pertinent parts of the statute makes clear:


1103, 1110 (Del. 2003)).
                                      Page 12 of 15
      (b) Any of the following persons may file a petition seeking appropriate
      relief under this section:
             (1) The principal or the agent;
             (2) The spouse, child, or parent of the principal;
             (2) [sic] A guardian, trustee, or other fiduciary acting for the principal;
             (3) The personal representative, trustee, or a beneficiary of the
      principal’s estate;
             (4) Any other interested person, as long as the person demonstrates to
      the Court’s satisfaction that the person is interested in the welfare of the
      principal and has a good faith belief that:
                    a. The Court’s intervention is necessary; and
                    b. The principal is incapacitated at the time of filing the petition
      or otherwise unable to protect that principal’s own interests; or
             (5) A person is asked to accept a personal power of attorney.
      (c) Upon motion by the principal, who shall be presumed to have legal
      capacity, the Court shall dismiss a petition filed under this section, unless the
      Court finds that the principal lacks capacity to revoke the agent’s authority
      or the personal power of attorney.
      (d) Nothing in this section shall preclude or diminish the Court’s authority to
      appoint a guardian or other fiduciary pursuant to Chapter 39 of this title, or
      to order other judicial relief, in order to grant appropriate relief upon review
      of a person power of attorney or an agent’s conduct with respect to a
      personal power of attorney.
      (e) Nothing in this section shall preclude the Department of Health and
      Social Services, the Public Guardian, or other governmental agency having
      authority to protect the welfare of the principal from petitioning the Court
      for access to the principal or to records necessary to determine, or terminate,
      possible abuse, neglect, exploitation or abandonment of the principal.

With one exception, the above statute contemplates petitions for judicial relief

from interested persons while the principal is alive. The exception is for cases

where the personal representative, trustee or beneficiary of the principal’s estate

might seek appropriate relief, i.e., an accounting, under Section 49A-114(g).14


14
  Section 49A-114(g) provides in pertinent part: “Except as otherwise provided in
the personal power of attorney and by § 49A-108(b) of this title, an agent is not
                                      Page 13 of 15
Only if the Court rejects my conclusion that the sale of 2225 Grundy Road worked

an ademption of Mr. Burke’s gift to the testamentary trustee would Kevin have

standing as a remainder beneficiary of a testamentary trust to request an

accounting.

      In addition to accusing Mildred of being a faithless fiduciary, Kevin also

accuses Mildred of defrauding the Register of Wills of approximately $3,780, the

probate fees to which that county office would have been entitled on an estate

worth in excess of $216,000. According to Kevin, there were zero probate assets

at his father’s death because Mildred had retitled her husband’s bank accounts

under the false pretenses of needing access to funds to pay for her husband’s

medical care. Kevin also argues that Mildred employed the same false pretenses to

convince Elizabeth Frey to remove her name from the credit union account she

jointly owned with her father, as a result of which Mildred was unjustly enriched

by $15,000, at the expense of Elizabeth.

      It bears repeating that Elizabeth is not a party to this complaint and Kevin

cannot represent Elizabeth’s interests. Similarly, it is unclear why Kevin is taking

Mildred to task for avoiding probate fees, assuming Mildred retitled her husband’s

bank accounts for that purpose. The avoidance of tax consequences has long been



required to disclose receipts, disbursements, or transactions conducted on behalf of
the principal unless ordered by a court or requested by …, or, upon the death of the
                                     Page 14 of 15
recognized by this Court as a valid objective of trusts.15 I see no reason why the

retitling of assets to avoid probate fees in the estate context should be viewed

differently.

      Conclusion

      For the reasons stated above, I am adopting the draft report as my final

report as modified herein. I recommend that the Court grant summary judgment in

favor of Mildred on all counts since Kevin is not entitled as a matter of law to

invalidate any transfers of property and/or retitling of assets, an accounting, or the

imposition of a constructive trust over estate assets. I refer the parties to Court of

Chancery Rule 144 for the process of taking exception to a Master’s Final Report.

                                                Respectfully,

                                                /s/ Kim E. Ayvazian

                                                Kim E. Ayvazian
                                                Master in Chancery

KEA/kekz




principal, by the personal representative or successor in interest of the principal’s
estate.”
15
   See Roos v. Roos, 203 A.2d 140, 143 (Del. Ch. 1964) (citing In re DuPont, 194
A.2d 309 (Del. Ch. 1963)).
                                      Page 15 of 15
