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In re IMO Kalil Trust and Estate

Court of Chancery of Delaware

January 23, 2017

IMO Kalil Trust and Estate

          Date Submitted: November 23, 2016

          David J. Ferry, Esquire Rick S. Miller, Esquire Ferry Joseph P.A.

          Neil Lapinski, Esquire Gordon Fournaris & Mammarella, P.A.

          Thomas A. Uebler, Esquire

         Dear Counsel and Mr. Kalil:

         Petitioner 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.[1] 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.

         James 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.[2] 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.

         On 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.

         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.[3]

         This 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.[4]

         I read 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.

         James 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 ...

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