IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

In the Matter of the Estate of ) C.A. No. 2022-0088-LM

JOHN L. O’NEILL )

) and 

)

) ROW Folio No. 177444 WF-LM

MAGISTRATE’S POST-TRIAL FINAL REPORT

Final Report: March 28, 2024

Date Submitted: November 17, 2023

Timothy S. Ferry, FERRY JOSEPH, P.A., Wilmington, Delaware; Counsel for 

Petitioner Kathleen O’Neill. 

Jason C. Powell and Thomas J. Reichert, THE POWELL FIRM, LLC, 

Wilmington, Delaware; Counsel for Respondent Kevin O’Neill.

Kenneth O’Neill, Saint Johns, Arizona; pro se Respondent.

MITCHELL, M. 
2

This case arises from the administration of the Estate of John L. O’Neill. John 

O’Neill died testate on December 24, 2020, leaving behind three adult children, and 

two adult grandchildren as beneficiaries of his estate. 

After a two-day trial on the merits, I find: (1) Kenneth O’Neill has breached 

his fiduciary duties; (2) the Respondent should be required to provide an updated 

accounting and updated inventory, but may continue to serve as the personal 

representative of the Estate, with specific requirements as further explained herein; 

and (3) the Petitioner may charge her attorney fees for this litigation to the estate. 

This is my final report.

I. BACKGROUND1

The parties’ disputes concern the late John L. O’Neill and the administration of 

his estate (the “Estate”). The Decedent’s daughter, Kathleen O’Neill challenges the 

administration of the Estate by her brother, Kevin O’Neill.

1 The facts in this report reflect my findings based on the record developed at trial on 

September 13, 2023, and October 3, 2023. See D.I. ____. I grant the evidence the weight 

and credibility I find it deserves. Citations to the trial transcripts are in the form “Tr. #.” 

The Parties’ jointly submitted exhibits are cited as “JX __.” Certain exhibits proffered at 

trial and excluded from the jointly submitted exhibits are cited as “Tr. Ex. __.” 
3

A. The Decedent

John L. O’Neill (the “Decedent”) died on December 24, 2020.2 He was 

diagnosed with dementia and Alzheimer’s and died of COVID.3 At the time of his 

death, the Decedent owned two (2) real properties: 2821 Fawkes Drive, Wilmington, 

Delaware 19808 (“Fawkes Property”), and 11 Edinburgh Court, Newark, Delaware 

19711 (“Edinburgh Property”).4 The Fawkes Property and the Edinburgh Property 

(together the “Two Properties”) are just a couple of miles away from each other.5

The Decedent and his wife spent their lives living in the Edinburgh Property.6

 

However at the time he died, the Decedent was a resident at Serenity Gardens 

Assisted Living in Middletown, Delaware.7

B. The Parties8

The Decedent was survived by three out of four of his biological children: 

Kathleen O’Neill (the “Petitioner”), Kevin D. O’Neill (the “Respondent”), and 

Kenneth O’Neill (“Kenneth”); and two biological grandsons: Kyle O’Neill (“Kyle”) 

2 D.I. 62 at ¶1.

3 Tr. 52:20 – 53:3.

4 D.I. 62 at ¶7.

5 Tr. 125:3-6.

6 Tr. 326:20 – 327:1.

7 D.I. 62 at ¶7.

8 I use first names for Kenneth, Kyle, Cory, and Krystin to avoid any confusion as everyone 

has the same last name; I intend no disrespect or familiarity.
4

and Cory O’Neill (“Cory”); and one granddaughter: Krystin O’Neill (“Krystin” and 

Petitioner’s daughter). The Petitioner and the Respondent had a strained relationship 

for most of their lives.9 In fact, the parties have not communicated since the 

Respondent called the Petitioner when their dad died.10 Currently, the parties only 

communicate through their counsels.11 The Petitioner, through her counsel, has 

made at least forty attempts to communicate with the Respondent about their father’s 

Estate, but the Respondent has been unresponsive.12 

C. Administration of the Estate

The Decedent died testate with a Last Will and Testament (“Will”) dated October 

15, 1990.13 The Will devised the Decedent’s entire estate equally to his children, 

per stirpes, and nominated the Respondent as Executor.14 The Respondent was 

granted letters testamentary on April 19, 2021.15 In accordance with the letters 

testamentary, an inventory was due on or before July 19, 2021. The accounting was 

due on or before April 19, 2022.16 Respondent filed, and was granted an extension 

9 Tr. 386:22 – 388:6 (the parties have not communicated since Petitioner was five years 

old).

10 Tr.385:18-21.

11 Tr. 120:17-22.

12 Tr. 442:9-16. 

13 Id.

14 Id.

15 ROW D.I. 3. 

16 Id. 
5

to file the inventory by September 19, 2021.17 Nonetheless, the inventory was not 

filed until June 30, 2022,18 with an amended inventory filed on July 1, 2022.19 A 

first accounting was filed on May 25, 2023, but was not docketed due to an incorrect 

calculation on the last page of the inventory.20 As such, an amended first accounting 

was filed on June 1, 2023.21 On September 5, 2023, the Petitioner filed exceptions 

to the first accounting, however they have not yet been heard.

22

a. The Edinburgh Property

The Edinburgh property was in danger of foreclosure and the Decedent’s 

estate needed funds.

23 When conducting the inventory, the Respondent realized the 

estate was insolvent.24 The Edinburgh Property was sold in July 2022.25 It sold for 

$525,000,26 and netted approximately $173,000 in proceeds from the sale.

27

17 ROW D.I. 5. 

18 ROW D.I. 10.

19 ROW D.I. 12. 

20 ROW D.I. 15. 

21 ROW D.I. 24. 

22 ROW D.I. 25

23 Tr. 84:7-9; Tr. 228:21 – 229:7.

24 Tr. 104:9-14.

25 Tr. 258:2-3.

26 Tr. 82:7-9.

27 Tr. 230:6-15.
6

When the Respondent filed the first inventory, it listed the Petitioner, the 

Respondent, Kenneth, and equal shares between Cory and Kyle as owners of the 

Two Properties.28 When the Respondent filed an amended inventory a week later, 

he changed the owner of the Edinburgh Property to himself allegedly to sell the 

Edinburgh Property.29 After Petitioner commenced this action, the Respondent 

reached out to a realtor to assist with the sale of the Edinburgh Property.30 The home 

sold within approximately three months and none of the beneficiaries in the Will 

were involved with the sale.31 The beneficiaries have not yet received any of the 

proceeds and have agreed the proceeds should be held pending this litigation.

32

The settlement statement for the sale of the Edinburgh property shows that 

Brian Frederick Funk, P.A. (“Mr. Funk”), the attorney who conducted the sale, 

currently has $300,000 in escrow to settle the mortgage of the Edinburgh property.33 

The settlement statement also indicates that there is an amount of $173,103.91 as 

“Remainder held in Escrow to Brian Frederick Funk, P.A.”34 The Respondent has 

28 Tr. 228:10-18.

29 Tr. 229:22 – 230:8.

30 Tr. 82:10 – 83:13.

31 Tr. 83:23 – 84:2.

32 Tr. 89:2-21; Tr. 314:2-317:19.

33 Tr. 85:5-18; Tr. 86:1-3.

34 Tr. 86:22 – 87:7.
7

not received any updates from Mr. Funk about the payoff of the mortgage of the 

Edinburgh Property or additional escrow.35 Mr. Funk is holding the proceeds in 

escrow until this lawsuit is closed.36

D. Bank Accounts

The accounting mentions three bank accounts: two Artisans’ accounts and a Voya 

Financial Plan (“Voya Account”).37 The combined total of the three accounts was 

$47,451.59.38 Although the three accounts are listed in the inventory, the Respondent 

claims to be the sole beneficiary to the two Artisans’ accounts.39 One of the 

Artisans’ accounts amounted to $4,589.24 while the other amounted to $17,172.20.

40

No documentation was presented to confirm that the Respondent is the only 

beneficiary of those accounts.41 However, none of the interested parties have raised 

this issue as a claim in this litigation. 

There are two estate accounts; one with DEXSTA Federal Credit Union 

(“DEXSTA Account”) and the other is with the Respondent’s counsel (“Counsel 

35 Tr. 230:16-19.

36 Tr. 231:5-9.

37 Tr. 90:5-8.

38 Tr. 90:9-10.

39 Tr. 90:14-22; Tr. 91:17-20.

40 Tr. 91:17-20.

41 Tr. 448:4-21.
8

Account”).42 The Decedent’s Voya Account belongs to the estate.43 The funds from 

the Voya Account were put into the Counsel Account.

44 The DEXSTA account is 

comingled.45 It contains moneys from the Artisans’ accounts, allegedly the 

Respondent’s sole inheritance, the Respondent’s death benefit from the State of 

Delaware, and moneys from the sale of decedent’s personal property.

46 The 

Respondent debited $2,261.00 from the DEXSTA Account on August 13, 2022, to 

retain counsel for this lawsuit.47 The DEXSTA Account was also used to pay

Liberty Mutual to insure the Two Properties and a 2006 Mitsubishi Eclipse (the 

“Car”).48 The Decedent also had IRA accounts at Charles Schwab and PNC.49

E. Miscellaneous Personal Property

The Decedent’s personal property was sold through an estate yard sale and online 

via Facebook Marketplace.50 The Respondent had an estate sale during the summer 

42 Tr. 92:8-15.

43 Tr. 91:21-23.

44 Tr. 91:21–92:7-15.

45 Tr. 119:18-20.

46 Tr. 119:13-17; Tr. 113:3-14.

47 Tr. 160:18-23.

48 Tr. 161:8-14; The Car is valued at $2,200, and it is currently located at the Respondent’s 

residence. Tr. 93:19 – 95:3; Both the Respondent and the Petitioner have expressed interest 

in the Car. Tr. 96:11-13; Tr. 233:23-234:5.

49 Tr. 124:12-14.

50 Tr. 311:23 – 312:2.
9

of 2022 at the Fawkes Property.

51 There, the Respondent with assistance from his 

wife, Theresa, sold some of the Avon bottles, furniture, lamps, stainless steel 

shelving, and extension cords.

52 The Respondent conducted these sales without 

offering any of the personal property to the other beneficiaries of the Decedent’s 

Will.53 The first accounting indicates that personal property sold at the estate sale 

totaled $486.00.

54

The Respondent’s wife helped sell other miscellaneous property online, via 

Facebook Marketplace, which amounted to $686.00.

55 The miscellaneous personal 

property in the inventory consists of coins, jewelry, and furniture, which totals

$6,433.3756 The Respondent hired Frank McCraghan to appraise the items 

sometime after the Petitioner filed her petition.57 

Petitioner was unaware of both the online estate sale and the yard sales.

58 The 

online sales were not reflected in the accounting.59 The sum of the estate yard sale 

51 Tr. 110:11-15.

52 Tr. 306:19 – 307:7.

53 Tr. 101:12-19.

54 Tr. 110:5-8.

55 Tr. 111:22 – 112:6.

56 Tr. 97:10-18.

57 Tr. 97:20 – 98:8.

58 Tr. 347:10 – 350:15.

59 Tr. 112:1-11.
10

and online sales, were kept in a safe in the Respondent’s home before it was 

deposited in the DEXSTA Account two months before the hearing on October 3, 

2023.

60

The Respondent does not have a list of the items sold at the estate sale or the 

items from the online sales.61 When the Decedent died, he owned jewelry such as 

cufflinks, watches, and a compass.62 He also had his wife’s jewelry which consisted 

of a ruby ring, diamond earrings, pearl earrings, yellow diamonds, necklaces, 

bracelets, and sapphires from a war in Germany.63 The Decedent had two safe 

deposit boxes and only the Respondent had access to them.64

F. Procedural Posture

Petitioner filed this action on January 27, 2022 seeking removal of the respondent 

as executor.65 The petition alleged that Respondent failed to marshal and gather the 

assets of the estate, including but not limited to tangible personal property;66 that 

Respondent failed to communicate with Petitioner’s counsel with regard to the 

60 Tr. 113:12-21.

61 Tr. 179:18-23.

62 Tr. 335:7-13.

63 Tr. 335:14 – 336:2.

64 Tr. 338:10-19.

65 D.I. 1.

66 Id. at ⁋ 16.
11

administration of the estate;67 and that Respondent had not taken any action to 

remove Kenneth from the two parcels of real property subject to the estate.68 

Respondent filed his Answer and both a counterclaim against the Petitioner 

and a cross claim against Kenneth on April 25, 2022.69 The counterclaim against 

the Petitioner alleged, in part, that Petitioner and her agents were unduly influencing 

their father who was suffering from Alzheimer’s.

70 Respondent’s counterclaim 

claimed that in the last few years of Decedent’s life, Petitioner exploited Decedent’s 

weakened intellect and begun taking over his financial affairs to enrich herself. He 

also sought declaratory judgment that Kathleen was unfit to serve as a successor 

executrix of Decedent’s estate. The crossclaim sought contribution and liability for 

Kenneth’s frustration of Respondent’s efforts to administer the estate. Kathleen field 

her Answer on May 16, 2022.71

On June 10, 2022, Kenneth O’Neill motioned the Court for an Enlargement 

of Time.72 He claimed to have been living “off the grid” and not received 

67 Id. at ⁋ 17.

68 Id. at ⁋ 18.

69 D. I. 6.

70 Id. at ⁋ 47-49.

71 D. I. 10.

72 D. I. 11.
12

information regarding the matter, he requested a reasonable time to respond.73 

Counsel for Respondent indicate to the Court that he had no objection to Kenneth’s 

request.74 Master Griffin granted Kenneth’s request.75

On August 18, 2022, Respondent filed a Motion for Default against Kenneth 

for his counterclaim because Kenneth had not yet responded.76 A hearing was 

scheduled for September 27, 2022, at 2:00 pm, on the matter.77 At approximately 

10:30 am that day, Kenneth submitted his Answer along with crossclaims against 

the Respondent for undue influence, declaratory judgement that both Respondent 

and Petitioner were unfit to serve as administrator to the Estate, a crossclaim against 

Respondent for any damages relating to the delay in filing of the inventory for the 

Estate, costs of repairs to the Fawkes Drive property, and attorney’s fees.78 Because 

Kenneth filed a response, the Respondent withdrew his motion around noon that day, 

so no hearing was held.79

73 Id.

74 D. I. 12.

75 D. I. 13.

76 D. I. 14.

77 D. I. 15.

78 D. I. 17.

79 D. I 19.
13

On December 14, 2022, this case was reassigned to me.80 On January 25, 

2023, counsel for Respondent requested a teleconference regarding scheduling in 

this matter.81 Counsel for Plaintiff responded shortly thereafter.82 Included in his 

response was a motion to bifurcate the issue of removal with the counterclaims and 

crossclaims.83 I granted a stipulated briefing schedule on the motion to bifurcate on 

February 9, 2023.84 Following a telephonic hearing on the matter, I subsequently 

granted in part the motion on March 8, 2023.

85 

Kenneth and the Respondent engaged in motion practice between July 2023 

and August 2023.86 On August 30, 2023 we held Oral Argument on two pending 

motions and a Pre-Trial conference.87 Kenneth did not show at the hearing.88 On 

September 7, 2023, Respondent motioned for default against Kenneth again.89 This 

time it was granted.90 On September 13th I held an Evidentiary hearing on the 

80 D. I. 20.

81 D.I. 21.

82 D. I. 22.

83 Id.

84 D. I. 25.

85 D. I. 35, 36, 38.

86 D. I. 50-64.

87 D. I. 69.

88 Id.

89 D. I. 71.

90 D. I. 74 (September 13, 2023).
14

bifurcated matter of removal of the executor. We ran out of time and added a second 

date for a few weeks later.91 We continued the hearing on October 3rd and the parties 

agreed to submit post-trial summations simultaneously within three weeks.92 This 

is my Post-Trial Final Report.

II. ANALYSIS

Pursuant to 12 Del. C. § 1541(a), the Court of Chancery may remove an 

administrator or executor who neglects their official duties. An executor of a 

decedent’s estate has many statutory duties. Under 12 Del. C. § 1905 (a), the 

executor is required to file an inventory within three months of the granting of the 

letters testamentary from the Register of Wills. Under section 2301, the executor 

must submit an accounting to the court “every year from the date of their letters until 

the estate is closed... .” Under section 2302, with each accounting filed, the executor 

must provide notice to each beneficiary of the estate. 

Perhaps fundamental to the administration of an estate, Delaware law 

maintains that an executor of an estate stands in the position of a fiduciary.93 As 

such, an executor of an estate owes both a duty of care and a duty of loyalty to the 

91 D. I. 75; D.I. 77.

92 D. I. 90.

93 Vredenburgh v. Jones, 349 A.2d 22, 32 (Del. Ch. 1975) (citing Downs v. Rickards, 1872 

WL 2132, at *8 (Del. Ch. Mar. 1, 1872)).
15

estate and to the beneficiaries of the estate.

94 An executor is held to a standard of 

care that requires him to exercise “ordinary care, prudence, skill and diligence” in 

carrying out her duties.

95 The duty of loyalty requires the executor “to act, at all 

times, in the best interests of the estate.”96

A. The Respondent Breached his Duty of Care to the Estate.

With respect to an executor’s duty of care, Delaware case law indicates that 

the law imposes a strong emphasis on “diligence in all aspects of estate 

administration.”97 Though often glossed over in the estate administration context, 

as opposed to the close attention the duty of care receives in the corporate fiduciary 

context, the duty owed by an executor is to execute its statutory duties and whatever 

other duties as may be prescribed by decedent’s will with ordinary care under the 

reasonable person standard.

98 In particular, the same care that a prudent person 

would exercise in her own affairs.99 Accordingly, the law requires an executor to 

94 Wanamaker v. Wanamaker, 2024 WL 416498, at *3 (Del. Ch. Feb. 5, 2024); In re Est. 

of Newton, 2023 WL 3144700, at *3 (Del. Ch. Apr. 28, 2023).

95 Id. (quoting Est. of Chambers, 2020 WL 3173032, at *2 (Del. Ch. June 12, 2020)).

96 Id. 

97 Madden v. Phelps, 1995 WL 606318, at *13 (Del. Ch. May 15, 1995), aff'd, 671 A.2d 

870 (Del. Ch. 1995).

98 In re Spicer's Est.,120 A. 90, 92 (Del. Orph. 1923) (“...which is now generally held to 

mean that which would be exercised by an ordinarily prudent and careful man in the 

management of his own affairs under similar circumstances...”).

99 Id.
16

marshal, inventory, and possess all the decedent's estate, collect any income from 

the decedent's estate, manage the estate, contest any erroneous claims against the 

estate, pay and discharge out of the estate all expenses of administration, taxes, 

charges, claims allowed by the court, or such payment on claims as directed by the 

court, render accurate accounts, make distributions, and do any other things as

directed by the court or required by law under the terms of the will.

100

Respondent breached his duty of care by failing to properly administer 

his father’s estate. Respondent failed to timely inventory the estate, he failed to gain 

access and safeguard the personal property of the estate, and he failed to timely pay 

bills for the estate. First, I will address the timeliness of the estate’s inventory. 

Respondent opened the estate on April 19, 2021.101 The first inventory was due in 

three months on July 19, 2021.102 Like sometimes is the case, on July 19th, he 

requested an extension for filing the inventory. The Register of Wills (“ROW”) 

granted the extension, giving Respondent an additional two months to complete the 

first inventory for the estate.103 Despite the extension, the Respondent failed to file 

100 See generally 12 Del. C. §§1901-1912, 2101-2109, 2301-2357, 2701-2719, and 2901-

2915; See also In re Spicer's Est., 120 A. at 92.

101 Folio 177444, D. I. 3.

102 Folio 177444, D. I. 5.

103 Folio 177444, D. I. 5.
17

the inventory until nine months later, on June 30, 2022104—five months after 

Plaintiff’s counsel entered an appearance on the ROW docket105 and this petition to 

remove was filed106.

Respondent also failed to gain access to the estate, thereby failing to safeguard 

the property in the estate. Respondent claims he was unable to conduct a proper 

inventory and monitor personal property at the Edinburgh and Fawkes properties 

because his brother, Kenneth, held the only keys to the homes and continued to deny 

him access.107 Because of Kenneth’s behavior, he had no real way to know if there 

are missing items from the estate. At trial, Petitioner described in detail and provided 

a pictured list of items she believed were missing from the homes when she was 

allowed access to the homes to retrieve personal property.108 While most of those 

pictures were from, some 25 years ago, and it would be difficult to determine if those 

items were missing for some other unrelated reasons, I do find that Respondent’s

failure to gain access to the homes contributed to his inability to identify estate 

property and creates ambiguity within the estate inventory. 

104 Folio 177444, D. I. 10.

105 Folio 177444, D. I. 8.

106 D. I. 1.

107 Tr. 210: 1-18.

108 Tr. 330:9-333:6; Tr. 341:3-12; see Tr. 35:11-14; Tr. 188:11-192:10; Tr. EX. 663-668.
18

The Respondent’s choice to not remove Kenneth, was like the executrix in In 

the Matter of the Estate of Rose ("Rose”). In Rose, one of the beneficiaries, the 

grandson of the decedent, moved into the real property and refused to allow anyone 

to enter.109 The property needed to be sold in accordance with the will. The executrix 

consulted with counsel but ultimately decided not to remove the beneficiary from 

the real property and waited until it was sold, which is when he voluntarily left.110

This Court held that “[a]s a fiduciary, [the executor’s] obligations included taking 

care of the Property and taking appropriate actions to remove [a beneficiary] from 

the Property.111

Similar to the Executrix in Rose, the Respondent failed to take appropriate 

action with respect to Kenneth’s occupation of the Two Properties. While I 

empathize and understand that Petitioner may have attempted to avoid conflict with 

his brother and was, at times, under the advice of counsel, Respondent was aware 

that he could have taken action to remove his brother, but chose not to do so.

112 This 

choice left him unaware whether property was missing, making it impossible to 

know what if anything Kenneth took from the properties. For example, Respondent 

109 IMO Estate of Rose, 2019 WL 2996887 (Del. Ch. July 9, 2019).

110 Id. 

111 Id. at *6.

112 JX at 648; Tr 210:20-213:16 (discussing the October 8th email and how evicting Kenneth 

would have been the “hard way”).
19

noted that after he gained access to his father’s home, that there was a pile of stuff 

left in the basement and only a twin bed left in the master bedroom.113 Respondent’s 

decision not to take action regarding the Two Properties, resulted in a loss of 

property (and potentially value) to the estate. 

B. The Respondent Filed an Incomplete Inventory. 

As explained above, when a personal representative files an inventory, it must 

contain, among other things “an inventory of all goods and chattels of the 

decedent[.]”114 The first accounting identifies $486.00 sold at an estate sale. Prior 

to conducting that estate sale, Respondent testified that he noticed items were 

missing from his father’s home.115 Respondent and his wife later sold personal 

property from the estate online via Facebook Marketplace and by conducting a yard 

sale.116 Neither Respondent nor his wife kept track of any of those items he sold.117

While the first accounting says the sales yielded $484.00, Respondent subsequently 

indicated that both sales yielded $646.00. Further, when asked how the Respondent 

113 Tr. 184:12-21.

114 12 Del. C. § 2301(a).

115 Tr. 239:18-23.

116 Tr. 112:3-6.

117 Tr. 179:21-23; Respondent’s wife Theresa, who helped him sell items on Facebook 

Marketplace testified that she didn’t “recall anything” she helped sell on the internet 

marketplace. Tr. 309:17-21.
20

valued the property to be sold, he responded that they “just guessed.”118 The 

Respondent did not keep a list of the items sold, nor did he document prices he sold 

them for.119

The instant dilemma is like that in the Estate of McDowell. In McDowell, the 

executrix failed to itemize household goods on her inventory and instead used a flat 

estimate of $500.00, which did not itemize or account for property gifted, sold, or 

trashed.120 A beneficiary filed exceptions based on undervaluation and the executrix 

argued “the items were not valuable enough to warrant appraisal. The cost of 

appraising such property would only deplete the estate.”121 Vice Chancellor 

Longobardi found that the executrix failed to meet her duty to provide a complete 

inventory.122 

The executrix in McDowell, thus, was “ordered to conduct a new inventory of 

all items . . . in her possession[,]” and “directed to have the items she has stored 

appraised and sold and to apply the amount received to the other assets of the 

estate.”123 As to the items already sold, the executrix was required “to list any and 

118 Tr. 111:13-16.

119 Tr. 111:13-19.

120 In re Est. of McDowell, 1983 WL 103268, at *1 (Del. Ch. Aug. 5, 1983).

121 Id. at *1,

122 Id. at *3. 

123 Id. at *3.
21

all proceeds received from the sale of those items as assets of the estate.”124 And for 

those discarded, trashed, or gifted, those items were also required to be listed on the 

inventory with “a detailed description of each and . . . some reasonable value 

[assigned] to each.”125 From there, beneficiaries could then challenge the valuations. 

Like the executrix in McDowell, the Respondent will be required to file a new 

inventory listing all items of personal property. Any items still in the Respondent’s 

possession should be appraised, sold, and added to the estate account to the extent 

it’s not an item to be given to one of the beneficiaries. Items already sold should be 

listed with a sale price, or closest estimate for the items where the sale price can’t be 

recalled. If there were items given or thrown away, they should be assigned a 

reasonable value and contain a notation regarding to whom, if anyone, they were 

given to or when and where they were disposed of. All interested parties can file 

exceptions to the new inventory. Further, although the Respondent can be removed 

for his breaches of his duty as explained above, I decline to remove him as doing so 

may further interrupt the administration of this estate.

C. Respondent should be surcharged in the form of a reduced 

commission. 

“A surcharge is, essentially, a sanction ... requiring the [executor] to fund (or 

refund) the estate because [he] improperly or poorly handled the estate, engaged in 

124 Id. 

125 Id.
22

self-dealing, or improperly depleted estate assets. The sanction of a surcharge is not 

appropriate, though, when the fiduciary’s failings are harmless or justified under the 

circumstances. Further, surcharges are normally tailored to remedy the specific 

harm caused, rather than to punish[.]”126 Petitioner requests a surcharge to remedy 

Respondent’s mismanagement of the estate. Applicable here, is the late fees127

associated with the Respondent’s lapse on the bills of the estate and the estate’s 

missing personal property.

128 Respondent allowed the mortgage on both homes to 

lapse and car insurance on one of the vehicles to lapse.129 At trial, he acknowledged 

that this caused the estate to incur late payments for that time.130 Moreover, the first 

and only accounting on the docket negates these additional expenses. Accordingly, 

126 In re Estate of Clark, 2019 WL 3022904, at *7 (Del. Ch. July 9, 2019). 

127 Respondent allowed the mortgage on both homes to lapse and car insurance on one of 

the vehicles to lapse. Tr.193:12-15; Tr. 161:20-162:8. At trial, he acknowledged that this 

caused the estate to incur late payments for that time. Tr. 193:12-15; Tr. 161:20-162:8. 

Moreover, the First and only accounting on the docket negates these additional expenses.

128 The issue of missing personal property was raised by the Petitioner. I do not find she 

met her burden to establish that all items from her list were missing from the estate 

following her father’s death. But I do find it is more likely than not that some items are 

missing from the estate because of Respondent’s lack of documentation regarding the 

personal property that was sold, and Kenneth’s occupation of the Two Properties. The latter 

is supported by Respondent’s own admissions in deposition testimony that there were, at 

least, “golf clubs,” that were missing from the estate when Kenneth vacated the Edinburgh 

and Fawkes properties. JX E at 86:4-6.

129 Tr. 193:12-15; Tr. 161:20-162:8.

130 Tr. 193:12-15; Tr. 161:20-162:8.
23

the Respondent shall be surcharged 50% of any commission he was to take from the 

estate.

Commissions represent “compensation to the personal representative for his 

own services in collecting the assets, checking into and paying bills, and performing 

the various duties which may be necessary, and his trouble and [i]ncidental expenses 

incurred thereby.” 131 Because the personal representative did take steps to 

administer the estate by, for example, working with his counsel to finalize and file 

an inventory and accounting, I find that eliminating any commission is not 

reasonable. However, as noted above, the personal representative’s actions caused 

the estate to incur several late fees. In addition, it was the personal representative’s 

decision not to evict Kenneth, and to allow Kenneth to occupy two houses 

simultaneously that lead to the depletion of estate personal property. Although the 

personal representative takes pride in his actions of obtaining a default judgment 

against Kenneth, these same actions, or lack thereof, led to the need to obtain the 

default judgment. So, as a surcharge for this mismanagement the executor’s 

commission will be reduced by 50%.132

131 In re Whiteside, 258 A.2d 279, 282 (Del. 1969).

132 My recommendation to reduce the commission by 50% does not preclude any interested 

party from objecting to the reasonableness of the commission under the Court of Chancery 

Rule 192 when the personal representative submits a request to the Register of Wills. 
24

D. Attorney fees. 

The Petitioner also requests for her attorneys’ fees to be paid from the estate. 

The American Rule dictates that each party is responsible for its own legal fees.133 

This Court does however recognize several exceptions allowing fee shifting, 

including the bad faith conduct of a party to the litigation134 and where fees are 

authorized by statute or common law.135 It is not unheard of for this Court to shift 

attorney fees in estate administration and will contests.

136 To justify a shifting of 

fees onto the estate, the circumstances must be “exceptional” and demonstrate 

“special equities which would make a failure to shift the burden onto the estate 

unfair.”137 Attorney's fees for beneficiaries challenging the administration of the 

estate can be assessed against the estate if their challenges are made on good grounds 

and serve to “potentially benefit the estate as a whole by ensuring that it will be 

administered in the manner intended by the testatrix.”138 Here, I find there were 

exceptional circumstances as the Petitioner’s actions action birthed the forward 

133 Arbitrium (Cayman Is.) Handels AG v. Johnston, 705 A.2d 225, 231 (Del. Ch. 1997).

134 Id.

135 See, e.g., 10 Del. C. § 348(e); In re Pusey, 1997 WL 311503, at *4 (referencing a body 

of case law that permits exceptants to have their attorneys’ fees and expenses covered by 

the estate if the exceptions benefited the estate). 

136 IMO Estate of Rose, 2019 WL 2996887, at *7 (citing In re Tunnell & Raysor, PA v.

Truitt, 1997 WL 257440, at *1 (Del. Ch. May 9, 1997).

137 Id. (citing Scholl v. Murphy, 2002 WL 31112203, at *3 (Del. Ch. Sept. 4, 2002)).

138 Id. 
25

motion on the administration of the estate. It is unclear how long Kenneth would 

have occupied the Two Properties but for this litigation. It is unclear, if and when, 

the Respondent would have filed the inventory but for this litigation. Moreover, the 

Petitioner’s litigation provided the Respondent the opportunity to file his cross claim 

against Kenneth, that resulted in the default judgment that will benefit the Estate. 

As such, I recommend the Petitioner’s attorney’s fees incurred up to the date of this 

Final Report, for the litigation related to the Petition to Remove the Executor, be 

paid from the estate.

III. CONCLUSION

For reasons further explained above, the Respondent shall stay in his position 

as executor for the sole purpose of submitting a final accounting in accordance with 

the above rulings. The Respondent shall prepare a new inventory as specified herein, 

which may be subject to future challenges, and the parties shall bear their owns costs 

and attorneys’ fees for those future challenges. The Respondent’s new inventory 

must be filed within thirty (30) days of this becoming an order of the Court. Any 

exceptions thereto would need to be filed under Court of Chancery Rule 197. 

This is my Final Report, and exceptions may be filed under Court of Chancery 

Rule 144.