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In re Trust Under Will of Vale

Court of Chancery of Delaware

February 19, 2015


Submitted: November 12, 2014

Matthew P. D'Emilio, Esq., COOCH AND TAYLOR, P.A., Wilmington, Delaware; Attorneys for Petitioner PNC Bank, N.A.

Neil R. Lapinski, Esq., GORDON FOURNARIS & MAMMARELLA, P.A., Wilmington, Delaware; Attorneys for Respondents Lisa Asche Mittnacht, E. Craig Asche, E. Vale Asche Elkins, Frederic B. Asche, III, and Franz M. Asche.

Joel Friedlander, Esq., FRIEDLANDER & GORRIS, P.A., Wilmington, Delaware; Eric Gambrell, Esq., AKIN, GUMP, STRAUSS, HAUER & FELD LLP, Dallas, Texas; Attorneys for Interested Parties Texas Capital Bank, as Independent Executor of the Estate of Frederic B. Asche, Jr., and Mary Susan Barnhill, as Independent Executrix of the Estate of Sarah Patricia Asche.


PARSONS, Vice Chancellor.

This matter arises out of a dispute between potential will beneficiaries. The will, being challenged elsewhere in terms of validity, exercised a power of appointment over a Delaware trust in favor of the testator's wife. Probate Court No. 2 of Dallas County, Texas (the "Texas Court"), admitted the will to probate without objection. To admit a will to probate, a Texas probate court must issue an order declaring that the will has the necessary formalities and the testator was "of sound mind" when he executed it-i.e., an order that the will was valid. Texas, however, allows will contests challenging the will's validity for up to two years after entry of an initial order declaring the will valid. Currently, the Texas Court is holding proceedings that challenge the validity of the testator's will underlying this case. A jury verdict has declared the will invalid. Appeals from that verdict remain pending.

After a will is admitted to probate, a Texas probate court appoints an independent executor who oversees the administration of the estate. Under Texas law, an independent executor has the authority to gather the estate assets with minimal court supervision. Here, after the appointment of the executor of the testator's estate, but before the trust assets were distributed, the testator's wife passed away. The wife's executrix now requests that the trust assets be distributed to the wife's estate as was required under the testator's will that was admitted to probate. Under the wife's will, a university medical center would receive the trust assets. If, however, the Texas will contest ultimately invalidates the will, the testator's children may receive the trust assets instead. The Delaware trustee petitioned this Court under 10 Del. C. § 6504(2) for an order directing it to distribute the trust assets to the wife's estate or, in the alternative, to be authorized to hold and invest those assets in accordance with its asset preservation policies.

On January 29, 2013, this issue was submitted to a Master in Chancery. She entered a Final Report on July 19, 2013. In her Final Report, the Master ordered the Delaware trustee to continue to hold the assets and to invest them in accordance with its asset preservation policies. The wife's executrix has filed exceptions to the Final Report. Under Court of Chancery Rule 144, I review the Master's determinations de novo. For the reasons that follow, I conclude that the trustee should refrain from distributing the trust assets until the Texas courts finally determine the validity of the will. While the will contest is pending, I authorize the trustee to invest the trust assets in accordance with its asset preservation policies.


A. Facts

On August 28, 1961, Delaware resident Elizabeth Williams Vale ("Mrs. Vale") died. In her will, she established a trust for the benefit of her daughter, Grace Vale Asche ("Mrs. Asche"). Upon Mrs. Asche's death, the principal of the trust was to be divided into three equal shares for each of Mrs. Vale's grandchildren. Accordingly, when Mrs. Asche died on March 21, 2001, the principal was divided and placed into three trusts.[2] The portion of the trust that Mrs. Vale left to Frederic B. Asche, Jr. ("Tex")[3] is the subject of this litigation (the "Trust"). Under the terms of Mrs. Vale's will, Tex had the ability to direct the disposition of the Trust assets when he died through a general testamentary power of appointment.[4] If Tex failed to exercise his power of appointment, his issue would receive the Trust assets per stirpes.

Tex died on October 6, 2011. He was survived by five children-Lisa Asche Mittnacht, Frederic B. Asche, III, E. Craig Asche, Franz M. Asche, and E. Vale Asche Elkins (collectively, the "Default Beneficiaries)-and his wife, Sarah Patricia Asche ("Sallie"). On October 18, 2011, Sallie filed an application to admit Tex's Will to probate. On November 7, 2011, the Texas Court admitted Tex's Will to probate without objection (the "Texas Order"). The Texas Order stated that Tex's Will met the necessary formalities and that Tex was "of sound mind" when he executed his will. At the time the Texas Order was entered, however, there had been no contested proceedings about the will's validity. But, Texas probate law allows interested parties to challenge the validity of a will for up to two years after it is admitted to probate.[5]

Under the terms of Tex's Will, [6] Tex exercised his power of appointment in favor of his wife, Sallie.[7] Sallie passed away on March 5, 2012. In a Texas probate court proceeding, Mary Susan Barnhill was appointed independent executrix of Sallie's estate (the "Executrix"). Under the terms of Sallie's will, Baylor University Medical Center of Dallas ultimately would receive the Trust assets. The Default Beneficiaries, however, are contesting the validity of Tex's Will in the Texas Court. If the Default Beneficiaries successfully invalidate Tex's Will, the purported exercise of the power of appointment in Tex's Will would be nullified, and, absent any other will by Tex to the contrary, the Default Beneficiaries would receive the Trust assets.

When the Executrix was appointed to administer Sallie's estate, she requested that PNC Bank, N.A. ("PNC") turn over the Trust assets pursuant to Tex's Will. Under the terms of the Trust, however, PNC and two individual co-trustees must act collectively as Trustee. At the time of Tex's death, Sallie and Tex's son Franz were the individual cotrustees. After Sallie's death, therefore, her position as co-trustee had to be filled to enable the Trustee to take any action. PNC made numerous requests of Franz to appoint a successor ...

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