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COURT OF CHANCERY

OF THE

STATE OF DELAWARE

KIM E. AYVAZIAN

MASTER IN CHANCERY

CHANCERY COURTHOUSE

34 The Circle

GEORGETOWN, DELAWARE 19947

AND

NEW CASTLE COUNTY COURTHOUSE

500 NORTH KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19980-3734

April 20, 2015

Gary A. Bryde, Esquire

Gary A. Bryde, P.A.

Stone Mill Office Park

724 Yorklyn Road, Suite 100

Hockessin, DE 19707

Paul E. Weber

#162469

1181 Paddock Road

Smyrna, DE 19977

RE: Paul E. Weber v. Charles J. Weber, Jr.

C.A. No. 8213-MA

Dear Counsel and Mr. Weber:

Pending before me are Defendant Charles J. Weber, Jr.’s Motion for 

Summary Judgment and Plaintiff Paul E. Weber’s Motions for Partial Summary 

Judgment, to Suppress Deposition, and to Amend and/or Bifurcate. For the 

reasons that follow, I recommend that all motions be denied, and this case be 

rescheduled for trial.
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Charles1and Paul are the two surviving children of the late Margaret M. 

Weber (hereinafter “the decedent”), who died on December 23, 2009, a resident of 

Delaware. In her Last Will and Testament dated March 19, 2004 (the “2004 

Will”), the decedent left her entire estate, including real property located at 14 

Winnwood Road, in Newark, to her oldest son, Charles. The 2004 Will was 

admitted to probate by the Register of Wills in and for New Castle County on 

January 11, 2010. Paul subsequently filed a Statement of Claim at the Register of 

Wills for $528,000.00. This amount included three separate claims: (a) 

$163,800.00 for care services Paul had provided to decedent; (b) $85,000.00 for a 

promise of decedent to pay for Paul’s legal costs; and (c) $280,000 for a promise 

of decedent to give the property at 14 Winnwood Road to Paul. Paul’s Statement 

of Claim was rejected by Charles and, on March 16, 2011, Paul filed a complaint 

in this Court under 12 Del. C. § 2102,2seeking approval of his claims.3 On 

 

1

I mean no disrespect by using the parties’ first names, but do so for the sake of 

clarity. 

2

12 Del. C. § 2102(c) provides: 

Any claim not barred under subsections (a) and (b) of this section which has 

been rejected by an executor or administrator shall be barred forever unless 

an action or suit be commenced thereon within 3 months after the executor 

or administrator has notified the claimant of such rejection by writing 

delivered to the claimant in person or mailed to the claimant’s last address 

known to the executor or administrator; provided, however, in the case of a 

claim which is not presently due or which is contingent or unliquidated, the 

executor or administrator may consent to an extension of the 3-month 

period, or to avoid injustice the Court of Chancery, on petition, may order an 
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November 9, 2012, Paul’s action was dismissed without prejudice for lack of 

prosecution under Court of Chancery Rule 41(e).

On January 14, 2013, Paul filed his current complaint against Charles,4

seeking specific performance of an oral contract to share their mother’s estate. On 

February 17, 2014, I approved a case scheduling order that, among other things, set 

a discovery deadline of July 7, 2014, gave the parties until August 11, 2014 to file 

any motions, and scheduled a two-day trial to commence on January 13, 2015.5 

On August 11, 2014, Charles filed a motion for summary judgment.6 After a 

briefing schedule was established, both parties subsequently requested, and were 

granted, extensions of time to file their briefs. On November 5, 2014, Paul not 

only filed his Answering Brief in opposition to Charles’ Motion for Summary 

Judgment, but Paul also filed the other three motions that are now pending before 

me. 

 

extension of the 3-month period, but in no event shall the extension run 

beyond the applicable statute of limitations. 

3

Paul Weber v. Charles Weber, Executor of the Estate of Margaret M. Weber, 

C.A. No. 6284-MA (Del. Ch.). 

4 Michael Christopher Monds (minor); Paul E. Weber v. Charles J. Weber, Jr.,

C.A. No. 8213-MA (Del. Ch.). Michael is Paul’s minor son, and Paul signed the 

complaint both on his own behalf and as Michael’s “Trustee.” 

5 Docket Item (“DI”) 11. The progress of this case has been slowed by the fact that 

Paul is representing himself while in the custody of the Department of Correction 

at the James T. Vaughn Correctional Center. 

6 DI 37. 
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In his complaint, Paul alleges that their mother had wanted to renounce the 

2004 Will and create a new will leaving Paul the family home and 50 percent of 

her remaining estate; however, she was prevented by Charles from doing so. After 

their mother’s death, Paul confronted Charles about his actions, and Charles agreed 

to honor their mother’s wishes and share her estate with Paul in exchange for 

Paul’s agreement not to contest the 2004 Will. 

In seeking summary judgment, Charles raises the following arguments: (1) 

Paul’s claim is barred by the doctrines of res judicata and collateral estoppel; (2) 

the alleged contract between Paul and Charles was not supported by consideration; 

(3) Michael is not a proper party; (4) this action is actually a petition for review of 

the 2004 Will, which is time-barred by 12 Del. C. § 1309; and (5) Paul’s complaint 

is barred by the doctrine of unclean hands because he breached the agreement 

when he filed his Statement of Claim in the Register of Wills Office and then filed 

suit in C.A. No. No. 6284-MA.7 In his motion for partial summary judgment, Paul 

is seeking a judgment of $86,000.00, which he claims was the amount of money 

set aside in a legal defense fund for his benefit by his mother, and an order 

excluding this amount from the decedent’s estate when calculating Paul’s one-half 

share of the estate. 

 

7 Charles has not raised a Statute of Frauds defense to this action. See 6 Del. C. §§ 

2714, 2715.
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Under Court of Chancery Rule 56, summary judgment will be granted where 

the moving party demonstrates that there are no genuine issues of material fact in 

dispute and the moving party is entitled to judgment as a matter of law.8 In 

performing this review, I must review all evidence in the light most favorable to 

the non-moving party. 

The doctrine of res judicata, on which Charles primarily relies, is designed 

to prevent unnecessary and burdensome litigation about facts and theories that 

have been or should have been litigated previously. There are five elements that 

must be satisfied in order to establish res judicata,

9

but I need only cite the one 

element relevant in this case, i.e., the prior adjudication must be final.10 The prior 

action, C.A. No. 6284-MA, was dismissed without prejudice. A dismissal without 

prejudice, while otherwise a final judgment, does not operate as a res judicata bar 

to preclude a subsequent suit on the same cause of action.11 

Similar to the doctrine of res judicata, collateral estoppel is designed to 

prevent a party who litigated an issue in one court from later relitigating that same 

 

8 Court of Chancery Rule 56. 

9

See Sussex County v. Sisk, 2014 WL 3954929, at *3 (Del. Ch. Aug. 13, 2014) 

(Master’s Report). 

10 Id. (citing Bailey v. City of Wilmington, 766 A.2d 477, 481 (Del. 2001)). 

11 Braddock v. Zimmerman, 906 A.2d 776, 784 (Del. 2006).
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issue in another court.12 The elements of collateral estoppel are: (1) the same issue 

is presented in both actions; (2) the issue was litigated and decided in the first 

action; and (3) the determination was essential to the prior judgment.13 Collateral 

estoppel does not apply here because no issues were ever litigated and decided in 

C.A. No. 6284-MA. That action was simply dismissed by the Court for lack of 

prosecution. 

Charles’ contention that the contract was not supported by any consideration 

is based on the following excerpts from Paul’s deposition. In response to counsel’s 

question, Paul agreed that the deal was to split everything equally, but that Charles 

was going to sell the house and buy a smaller house for Paul and, after subtracting 

the cost of that smaller house from Paul’s half of the estate, pay the remainder of 

Paul’s half in cash to Paul.14 When asked if that was the “whole agreement,” Paul 

said, “Yes.”15 Charles now argues that since Paul did not mention during his 

deposition what actions he would or would not take, the most Paul would be able 

to show is an oral promise unsupported by consideration, which would be 

unenforceable. 

 

12 Tumulty v. Schreppler, 2015 WL 1478191, at *11 (Del. Ch. March 30, 2015) 

(citing Yucaipa Am. Alliance Fund I, LP v. SBDRE LLC, 2014 WL 5509787, at 

*11 (Del. Ch. Oct. 31, 2014)). 

13 Id. (citing Zutrau v. Jansing, 2014 WL 3772859, at *41 (Del. Ch. July 31, 

2014)). 

14 Defendant Charles J. Weber Jr’s Opening Brief in Support of his Motion for 

Summary Judgment, at Ex. C. DI 40.
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Paul argues that this exchange during the deposition is being taken out of 

context, and does not reflect an accurate description of the contract between the 

parties. Paul now moves to suppress the deposition, arguing that it does not 

conform to the Court’s rules because he never had the opportunity to examine a 

transcript of his deposition or make any changes, and he never accepted the 

deposition. Charles responds by arguing that it was Paul’s responsibility as a party 

to coordinate with the court reporter for his reading of the transcript and 

completion of an errata sheet. In addition, Charles argues that this motion is 

untimely because the deadline for filing all motions including discovery was 

August 11, 2014. 

The verified complaint contains allegations that Charles coerced his mother 

into signing the 2004 Will and, after she voiced regret over her actions and 

renounced the will orally to family and friends, Charles then threatened and 

emotionally abused his mother to keep her under his control. Paragraph 13 of the 

complaint, which contains numerous hearsay statements, alleges that inquiries by 

law firms and an investigative agency uncovered the decedent’s intention for Paul 

to inherit the family home and half of the remaining estate, Charles’ emotional 

 

15 Id.
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abuse of the decedent, and his hatred of Paul, among other “facts.”16 In Paragraph 

14, Paul alleges:

14. Paul confronted Charles with many of the aforementioned facts as set 

for [sic] in ¶ 13. Charles acquiesced to the probability of a successful 

challenge of the 2004 will. Charles then agreed to honor his Mother’s 

wishes and share her estate with Paul and, by extension, Michael. Paul, in 

turn, agreed not to contest the will.17 

A promise to forbear from contesting the probate of a will can provide 

consideration sufficient to support a contract, assuming the promisee has a legal 

right to contest the will.18 The record before me consists of the pleadings and the 

two-page excerpt from Paul’s deposition. Since this case involves an alleged oral 

contract, the outcome will hinge upon the credibility of the witnesses. Viewing the 

record in a light most favorable to the non-moving party, I find that a genuine issue 

of material fact exists whether an oral contract was created. 

Charles argues that Michael is not a proper party because no guardian ad 

litem has been appointed for him, nor has any claim been alleged on his behalf. In 

response, Paul argues that the record reveals that the decedent sought to revoke her 

will because of her wish to have her grandson inherit a portion of her estate, and 

the lack of an order for the appointment of a guardian ad litem for Michael can be 

remedied without prejudice to Charles. Under Court of Chancery Rule 17, “the 

 

16 Complaint, at ¶ 13. DI 1. 

17 Id. at ¶ 14. DI 1. 

18 3 Williston on Contracts § 7:46 (4th ed.); 17 C.J.S. Contracts § 145. 
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appearance of an infant ... shall be by a general guardian or a trustee, if there be 

such and if the guardian or trustee be not otherwise interested in the cause, but 

otherwise by a guardian ad litem.” Paul claims to be Michael’s trustee. As alleged 

in paragraph 14 of the complaint,19 Michael appears to be a third-party beneficiary 

of the alleged oral contract and, as such, would be an interested person who may be 

joined as a party plaintiff under Court of Chancery Rule 20. 

Charles argues that he is entitled to summary judgment as a matter of law 

because this action is, in reality, a petition for review of a will that is time-barred 

under 12 Del. C. § 1309 because it should have been filed no later than six months 

after the 2004 Will was admitted to probate on January 11, 2010. However, even 

though this action is premised on Paul’s apparent belief that the 2004 Will was 

invalid and did not reflect the testamentary wishes of the decedent, this action is 

not a will contest. It is a suit for specific performance of an oral contract. 

Therefore, the six-month limitation period of Section 1309 does not apply here. 

Finally, Charles argues that, assuming there was an agreement between the 

parties, Paul breached that agreement by filing his prior action in this Court on 

March 16, 2011. According to Charles, C.A. No. 6284-MA was, in effect, a will 

contest since the estate residuary estate had been left to Charles in the 2004 Will. 

In response, Paul argues that he reasonably believed that Charles would breach the 

 

19 Complaint, at ¶ 14. DI 1.
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agreement by non-performance, and that he viewed Charles’ failure to provide 

assurances that he (Charles) would abide by the agreement as an anticipatory 

breach of the contract. 

Simply filing a statement of claims against a testamentary estate is not a 

challenge to the validity of the will. Every claim against an estate, if satisfied, has 

the effect of reducing the residuary estate. Moreover, I cannot decide at this stage 

of the proceeding whether Paul or Charles first breached the contract because the 

existence of the contract is still an issue in dispute.20 

Paul’s motions for partial summary judgment and to amend and/or bifurcate 

pertain to the alleged existence of a legal defense fund in the amount of 

$86,000.00. Both motions were filed 12 weeks after the deadline for filing 

motions had passed. Paul now argues that he only learned of the existence of this 

alleged fund when he received documents from the defendant during discovery. 

The record reveals that Charles’ response to Paul’s request for production of 

documents was served on July 11, 2014.21 The deadline for filing motions was 

August 11th. Paul could have filed a motion to extend the deadline, but did not. 

All three of Paul’s motions are untimely and should be denied. 

 

20 Generally, this Court does not apply the unclean hands doctrine in gardenvariety breach of contract cases. See Smithkline Beecham Pharmaceuticals Co. v. 

Merck & Co., Inc. 766 A.2d 442, 449-450 (Del. 2000) (affirming Court of 

Chancery’s refusal to invoke the doctrine of unclean hands where particular breach 

of contract was not “repugnant”).
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For the reasons stated above, I recommend that the Court deny Charles’ 

motion for summary judgment and deny Paul’s motions for partial summary 

judgment, to suppress deposition, and to amend and/or bifurcate. I am waiving a 

draft report and issuing this as a final report. The parties are referred to Rule 144 

for the process of taking exception to a Master’s Final Report. When this report 

becomes a final order of the Court, the parties shall contact my assistant who will 

schedule a pretrial conference and trial as soon as possible. 

Sincerely,

/s/ Kim E. Ayvazian

Kim E. Ayvazian

Master in Chancery

KEA/kekz

 

21 DI 31.