In re: the Matter of the Estate of Rita J. Francisco, deceased
Submitted: July 5, 2018
Charles J. Durante, Esquire Daniel R. Stranek, Esquire
Connolly Gallagher LLP
R. Elgart, Esquire Mattleman, Weinroth & Miller, P.C.
matter began as a petition to sell real estate to pay debts.
Pending before me is the petitioner's motion for leave to
amend that petition. For the reasons that follow, I recommend
the Court grant the motion. This is a final report.
Rita L. Alexander ("Petitioner") is the personal
representative of the estate of Rita J. Francisco
("Decedent"), who died intestate on December 8,
2016. Petitioner and Respondent Douglas Francisco
("Respondent") are Decedent's intestate heirs.
On June 5, 2017, Petitioner filed a petition to sell real
estate to pay Decedent's debts pursuant to 12 Del.
C. §§ 2701, et seq. On July 6, 2017,
Respondent filed an objection and petitioned to remove
Petitioner as personal representative for allegedly
neglecting to perform her official duties, including failing
to gather all assets of the estate and claiming expenses that
are not part of the estate. After a hearing on July 10, 2017,
Petitioner and Respondent reached a nonjudicial resolution,
whereby the property at issue was sold on December 22, 2017,
and the proceeds were divided equally between Petitioner and
Respondent. After the Court requested a status update
on March 1, 2018, Petitioner sought and received two
extensions of time to address additional information about
Decedent's estate and confer with Respondent.
18, 2018, Petitioner filed a motion to amend her petition,
seeking to add a claim that Respondent misappropriated assets
from Decedent while Decedent was living, as well as from
Decedent's estate. Petitioner alleges she discovered
Respondent's alleged misappropriation during the pendency
of this case. On July 5, 2018, Respondent filed an opposition
to the motion to amend, asserting justice does not require
the amendment and that amendment would further delay the
administration of the estate. Petitioner did not file a
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
requires giving Petitioner leave to amend. Respondent has not
asserted Petitioner's claims are futile. I see no basis
to infer bad faith or dilatory motive. I accept
Petitioner's explanation that she formed her allegations
after examining Decedent's estate in more detail while
this case was pending, and that she devoted additional time
to attempting to confer with Respondent before seeking leave
Petitioner's new allegations expand the scope of this
action beyond the original petition to sell real estate to
pay debts, a Court vested with the power of ordering that
sale has authority to hear all matters necessary and proper
to a just determination.  If proven, Petitioner's amended
allegations may inform the distribution of the proceeds from
that sale. It is therefore proper for this Court to hear
those allegations in this action. Further, Respondent already
expanded the action in his answer by requesting the Court
remove Petitioner as personal representative for failure to
perform her duties. Finally, requiring Petitioner to file a
new action would be inefficient and duplicative.
recommend the Court grant Petitioner's motion to amend.
This is a final report pursuant to Court of Chancery Rule
T. ZURN, ...