Submitted: November 23, 2016
J. Ferry, Esquire Rick S. Miller, Esquire Ferry Joseph P.A.
Lapinski, Esquire Gordon Fournaris & Mammarella, P.A.
A. Uebler, Esquire
Counsel and Mr. Kalil:
contends that decedent James Kalil, Sr. ("James
Sr.") mistakenly failed to retitle an account in the
name of a 1989 trust to be in the name of a 1997 trust, even
though James Sr. intended to distribute the funds in that
account according to the 1997 trust and James Sr.'s 1997
will. In support of that contention, Petitioner alleges James
Sr. provided Respondent James Kalil, Jr. ("James
Jr.") with economic support, including paying for a
defense against criminal charges, and that James Sr. amended
the 1997 trust several times to adjust James Jr.'s share
accordingly. Petitioner asks the Court to reform the
1997 trust to control the mistitled account. Petitioner also
seeks dissolution of a partnership holding real estate in
favor of a limited partnership to which Petitioner contends
the real estate should have been transferred years ago.
Jr.'s pro se Answer to the Petition denies James
Sr. paid for James Jr.'s legal defense and requests
reversal of a $200, 000 deduction from his inheritance
representing that alleged payment. James Jr. also denies
Petitioner's allegations regarding a 2012 trust amendment
debiting James Jr.'s share and a 2014 trust amendment
imposing a forfeiture clause in case James Jr. contested the
1997 trust's terms. James Jr.'s Answer alleges
Petitioner manipulated James Sr.'s estate to James
Jr.'s detriment. James Jr. asks the Court to deny
Petitioner's request to reform the 1997 trust. As for the
partnership issue, James Jr. denies Petitioner's
allegation that James Jr. was bought out of the limited
partnership, contends he never received the buyout funds,
seeks distribution of funds allegedly held by the original
partnership, and alleges further manipulation by Petitioner.
October 31, 2016, James Jr. filed a pro se Motion to
Amend, which Petitioner opposed on November 9, 2016. James
Jr. filed a reply on November 23, 2016. This is my final
report on James Jr.'s Motion.
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
Court also has discretion to exhibit some degree of leniency
toward a pro se litigant in order to see that his
case is fully and fairly heard.
James Jr.'s Motion to propose amending his Answer to
include six topics or requests for relief. First, James Jr.
restates his request that the Court "uphold the 1989
trust, " including James Jr.'s position as a
co-trustee of the 1989 trust. Petitioner opposes this
amendment only on the grounds that it is redundant of James
Jr.'s Answer. In pursuit of a full and fair hearing of
James Jr.'s case, I recommend granting James Jr.'s
Motion as to his first request.
Jr.'s second and third proposed amendments both elaborate
on the denial in his Answer that James Sr. paid for James
Jr.'s legal defense. James Jr.'s original Answer
attacked a "claim" in the "will" that
James Sr. paid $200, 000.00 in James Jr.'s legal fees. In
response to Petitioner's allegations regarding the 2014
amendment to the 1997 trust, James Jr. pled:
forfeiture clause was another manipulation by the Petitioner
due to the fact of James Sr.'s ill health, mental state
(eyesight & hearing) along with the stress and other
factors brought on by his Leukemia do to these issues the
petitioner was able to change the terms for his benefit. In
the will it is claimed that $200, 000 was paid for James
Jr's lawyer when in fact as stated James Jr. paid all his
attorney fee out of his ...