Appendix — Valentine-Staats v. Elliott

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Supreme Couwt,

FILER

No, 98 692 Nov 4 - 2003

In The

Supreme Court of the United States

Edna J. Valentine-Staats,

The United States Bankruptcy Trustee, and

Their Successors In Interest

Petitioners

¥.

The Government of The District of Columbia,

The Estate of Daniel B. Delaney,

Lawrence Elliott In His Personal Capacity

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

APPENDIX, VOLUME 1!

Walter T. Charlton

Counsel of Record

Walter T. Charlton and Associates

230 Kirkley Road

Annapolis, Maryland, 21401

Telephone 410 571 8764

| RECEIVED —

NOV ~ 5 2003

OFFICE OF THE CLER

C CLERK

|__ SUPREME COURT, U.S.

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Table of Contents to Appendix

Page

1. January 24", 1997, Order 1-3

2. January 27", Order Appointing Private Auditor

and Assessing Costs Against Valentine 4-5

3. Order Denying Rehearing, August 6", 2003 6-7

4. Opinion of the District of Columbia Court of

Appeals, March 27, 2003 10-57

5. Order Denying Rehearing, Court of Appeals

August 6", 2003 58-59

6. Findings of Fact, Conclusions of Law and Order,

March 28", 1999 60-83

7. Judgment Order of Superior Court Probate

Division, October 20,1999. -- - 84-85

8. Judgment, Superior Court Probate Division

October 20, 1999 86

9. Memorandum Opinion, Finding Jurisdiction Based

Upon Alleged Tortious Conduct in the District

Of Columbia December 14", 1995 87-93

10. Order, Denying Plaintiff Estate’s Motion for

Summary Judgment, March 31, 1997 94-97

11. Order of June 27, 1997 Dismissing All of

Defendant’s pleading as violating six month

Time Limit 98-104

10. Amended Answer, Verified, Filed By Valentine

March 17, 1997 105-125

11. Opinion, Kittel Former FBI

Documents Examiner 126-128

eee ee ee

SUPERIOR COURT OP THE DISTRICT OF

COLUMBIA

OFFICE OF THE REGISTER OP WILLS

PROBATE DIVISION

Daniel A . D

Boone WAN 24 1997

Delaney,

This matter came before the Court on

January 23, 1997, on a scheduled status

hearing for Plaintiff's Motion for Summary

Judgment filed herein on September 4,

1996, by Lawrence M. Elliott, Personal

Representative of the above-captioned

estate, and all subsequent pleadings filed

after September 4, 1996 Lawrence M.

Bliliott,

Plaintiff and Edna J.Valentine,

Defendant.

The Court heard oral representations from

the following individuals who were

present: Edna J. Valentine, Defendant,

Lawrence M. Elliott, Personal

Representative and Plaintiff, Jason

Green, counsel for the Personal

Representative, Raymond Benzinger,

counsel for the Defendant.

The Court after hearing representation

Ordered Edna J. Valentine to deposit

proceeds in the amount of $704,794.00 that

relates to the Merrill Lynch Account into

an Escrow Account with the Register of

Wills Office on or before February 7,

1997, with certification and receipt

evidencing said deposit. Ms. Valentine is

Ordered not to transfer any monetary funds

that she holds on her person or in safe

]

keeping, any funds in any Bank account

that she also currently holds,

individually or jointly with any other

party, until further Order of this Court.

Ms. Valentine is also Ordered not to sell,

transfer, or give away or encumber any

real and personal property for which she

holds the title individually or is co-

owner, enter into any sales agreement on

said property, or negotiate any mortgages

on said property, or negotiate any loans

or liens against said property until

further Order of this Court. The Court

further Ordered Ms. Valentine to file a

detailed accounting from the date of death

to January 23, 1997, as it relates to the

decedent's estate by no later’ than

February 28, iSS;. Lastiy, the Court

Ordered Ms. Valentine to observe that if

she fails to obey the Court's

PYF Gay Cf directive she will be in

violation of this Court's Order and held

in contempt of court, with a possible a

fine and/or incarceration.

; dna“ws-Valentine is

Ordered to deposit into an Escrow Account

with the Register of Wills Office the sum

of $704,794.00 that relates to the :

Merrill Lynch Account on or before

February 7, 1997; and it is further

ORDERED, that Edna J. Valentine shall

not transfer any monetary funds that she

holds on her person or in safe keeping,

any funds in any Bank account that she

currently holds, individually or jointly

with any other party, until further Order

of this Court; and it is further

ORDERED, that Edna J. Valentine shall

not sell, transfer, or give away or

encumber any real and personal property

for which she holds the title individually

Or iS co-owner, entered into any sales

agreement on said property, or negotiate

any mortgages on said _ property, or

negotiate any loans or liens against said

property until further Order of this

Court; and it is further

ORDERED that Edna J. Valentine is

directed to file a detailed accounting

from the date of death to January 23,

1997, of any and all proceeds that relates

to the above-captioned estate no later

than February 28, 1997; and it is further

ORDERED, that if Edna J. Valentine

fails to obey the Court's directive she

will be in violation of this Order and

held in contempt of court, subject to a

fine and/or incarceration.

SO ORDERED.

7 ce

Sborian

Signed in chambers

J Signed on the bench

cc;

Jason P. Green, Esquire 4301 Verplanck

Place, N. W. Washington, DC 20016

Raymond B. Benzinger, Esquire 209 N

SUPERIOR COURT OF THE DISTRICT OF

COLUMBIA OFFICE OF THE REGISTER OF WILLS

PROBATE DIVISION WASHINGTON, DC 20001

RE: Estate of

Daniel B. Delaney, deceased

Admn.No. 1809- 2

= mn.No r = 5p

ee Oe

Lawrence M. JAN SF M7

Elliott

Plaintiff

wes

Edna J. Valentine

Defendant Register Of Wills Clerk Of

The Probate Division

ORDER

This matter came before the Court on January 23, 1997, on

the status hearing of the above-captioned estate.

The Court heard oral representation from all parties and

directed the Plaintiff and defendant to submit at least two names

of Accountants to audit the assets of the Estate of Daniel B.

Delaney, deceased, from the date of death to January 23, 1997.

WHEREFORE, it is by the Court this day of 1997

ORDERED, that Charles R. Goldstein, CPA, CIRA, CFE of

the firm of C. W. Amos and Company, PLLC is to audit the

assets of the Estate of Daniel B. Delaney, deceased from the

date of death to January 23, 1997; and it is further

ORDERED, that the accounting is to be submitted no later

than February 28, 1997; and it is further

ORDERED, that the expense of said audit is to be borne by

Edna J. Valentine; and it is further

ORDERED, that this matter is continued for further status on

March 11, 1997, at 10:30 a.m., in Courtroom 215.

SO ORDERED.

cc:

Jutige Kéye K. Christian

Calendar Clerk

Raymond Benzinger, Esquire 2009 N 14th Street Arlington,

VA 22201

Jason P. Green, Esquire 4301 Verplanck Place, N. W.

Washington, DC 20016

Charles Goldstein

C.W.. Amos & Company, LLC 901 15th Street, N.W. Suite

5 “* . ~ yt

Pr seg yohisc Hany = i oer Wa as

seta aN iS Si ltt

370 Washington, DC 20005

Mistrict of Columbia ie AUG SS

Court of Appeals ——

Nos. 97-PR-1217, 98-PR-934, 98-PR-1104, 98-PR-1771, 99-

PR-531, 99-PR-1392 &

99-PR-1619 IN RE: ESTATE OF DANIEL B.

DELANEY

EDNA J. VALENTINE,

Appellant,

ADM 1809-93

LAWRENCE M. ELLIOTT,

Appellee.

Nos. 00-PR-71, 00-PR-768 & 00-PR-808

IN RE: ESTATE OF DANIEL B. DELANEY

LAWRENCE M. ELLIOTT and R. ELIOT ROSEN,

Appellants,

“2

CHRISTOPHER G. HOGE,

Appellee.

Nos. 00-PR-873, 00-PR-904 & 00-PR-905 IN RE:

ESTATE OF DANIEL B. DELANEY

CHRISTOPHER G. HOGE,

Appellant,

EDNA J. VALENTINE,

Appellee.

No. 01-PR-1469

IN RE: ESTATE OF DANIEL B. DELANEY

LAWRENCE M. ELLIOTT,

Appellant,

CHRISTOPHER G. HOGE,

Appellee.

BEFORE: Wagner, Chief Judge; Terry, Steadman,

Schwelb, Farrell, Ruiz, Reid, Glickman, and

Washington, Associate Judges.

ORDER

On consideration of appellants’ petition for

rehearing en banc; and it appearing that no judge of this

court has called for a vote on the petition for rehearing

en banc, it is

ORDERED that the petition for rehearing en banc is

denied.

PER CURIAM

Copies to:

Honorable Cheryl M. Long Honorable Kaye K. Christian

Clerk, Superior Court

Walter T. Charlton, Esquire 230 Kirkley Road

Annapolis, MD 21401

Jason P. Green, Esquire 4301 Verplanck Place, NW

Washington, DC 20016

William J. Bethune, Esquire 8280 Greensboro Drive

Suite 800 Tysons Corner, VA 22102-3807

Mary Gale Holden, Esquire

Foley & Lardner :

3000 K Street, NW Suite 500

Washington, DC 20007-5143

Christopher G. Hoge Crowley, Hoge & Fein, P.C. 1710

Rhode Island Avenue, NW Seventh Floor Washington,

DC 20036-3125

Page 8 of this document has been OMITTED

| Page 9 of this document has been OMITTED

Notice: This opinion is subject to formal revision before

publication in the Atlantic and Maryland Reporters.

Users are requested to notify the Clerk of the Court of

any formal errors so that corrections may be made

before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

IN RE ESTATE OF DANIEL B. DELANEY.

No. 97-PR-1217

EDNA J. VALENTINE,

APPELLANT,

LAWRENCE M. ELLIOTT, APPELLEE.

Nos. 98-PR-934, 98-PR-1 104, 98-PR-1771,

99-PR-531, 99-PR-1392 & 99-PR-1619

EDNA J. VALENTINE, APPELLANT,

LAWRENCE M. ELLIOTT, APPELLEE.

Nos. 00-PR-71, OO-PR-768 & 00-PR-808

LAWRENCE M. ELLIOTT and R. ELIOT ROSEN,

APPELLANTS,

¥e

CHRISTOPHER G. HOGE, APPELLEE.

Nos. OO-PR-873, 00-PR-904 & 00-PR-905

Christopher G. HOGE, APPELLANT,

EDNA J. VALENTINE, APPELLEE.

No. 01-PR-1469

LAWRENCE M. ELLIOTT, APPELLANT,

CHRISTOPHER G. HOGE, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(ADM1809-93)

(Hon. Cheryl M. Long, Motions Judge) (Hon. Kaye K.

Christian, Motions and Trial Judge)

(Argued November 18,2002 Decided March 27, 2003)

Walter T. Charlton for appellant/appellee Valentine.

Jason P. Green for appellant/appellee Elliott and appellee

Rosen.

William J. Bethune for appellant/appellee Hoge.

Before FARRELL and WASHINGTON, Associate Judges, and

BELSON, Senior Judge.

BELSON, Senior Judge: These fourteen consolidated appeals

arise out of the probate proceedings for the estate of Daniel B.

Delaney (decedent). The central issues to be decided are: (1)

whether a challenge to the will and a claim for status as

common law wife were properly dismissed as time-barred; (2)

whether certain disputed accounts were correctly determined to

be part of the estate; (3) whether compensation was properly

denied to the original personal representative and reduced for

tax counsel to the estate; (4) whether attorneys' fees were

properly denied to the estate and the residuary beneficiaries; and

(5) whether the original personal representative was properly

removed. We affirm all the challenged orders and judgments.

Since these appeals involve a multitude of facts not all of

which are pertinent to every appeal, we begin with a brief

exposition of the underlying facts. We will provide the salient

facts specific to each appeal as we take up the various appeals

in turn.

Mr. Delaney died on August 6, 1993, leaving behind a

valuable estate; a long-time acquaintance, Edna J. Valentine,

who described herself as Delaney's companion, and later in the

course of litigation described herself as his common law wife;

and several cousins, including Lawrence M. Elliott. Among Mr.

Delaney's effects at the time of his death was a sizable account

with a Virginia office of Merrill Lynch that appeared to be

jointly held with Valentine.

A will, signed by Delaney on July 18,1993 ("July 18 will") and

naming Valentine as sole beneficiary, was filed shortly after

Delaney's death with the Register of Wills of the District of

Columbia. Elliott, designated by the will to serve as executor,

mailed notice of his appointment as personal representative to

Valentine on August 25,1993, and the Register of _ Wills

admitted the July 18 will to probate on September 9, 1993.

In March of 1994, the personal representative discovered a

later will, dated July 31, 1993, ("July 31 will" or "after-

discovered will") and filed it with the Register of Wills.

Valentine was to receive a relatively minor cash bequest under

the July 31 will, with the bulk of the estate going to the

National Association for the Advancement of Colored People

("NAACP"), the American Heart Association, and two other

charities (collectively "residuary beneficiaries").

~ The July 31 will named Lawrence M. Elliott (original personal

representative) as Executor, as had the July 18 will. After filing

the July 31 will, Elliott published the requisite notice of after-

discovered will and notice of appointment and mailed a copy of

the notice (along with a form known as General Information to

Heirs and Legatees) to all those named in the July 31 will,

including Valentine. At the time, Elliott was unaware of several

other relatives of Delaney, and so did not mail the notice or

general information forms to them until much later. Valentine

received her copy of the notice on March 28, 1994. The July 31

will was admitted to probate by order dated April 4, 1994,

which vacated that portion of the earlier order which had

admitted the July 18 will to probate. Jn re Estate of Delaney,

ADM 1809-93.In August of 1997, Valentine learned "quite by

accident" that Delaney had living cousins who were potential

heirs. On August 13, 1997, Valentine brought this to the

attention of the trial court. The trial court then stayed the case

to give the newly-discovered relatives an opportunity to object

to the wills. Elliott duly notified the cousins and, in September

of 1997, the cousins filed a complaint to contest the validity of

both wills. Patton v. Elliott, ADM 1809-93, order dated

September 3, 1998. After being granted leave to intervene in the

cousins' will contest, the NAACP located and deposed two of

the witnesses to the July 31 will. Based on their testimony, the

NAACP moved for summary judgment on the issue of the

validity of the July 31 will. The trial court (Christian, J.) granted

the motion in an erder entered September 8, 1998, which was

not appealed.

SECTION I: APPEAL NO. 97-PR-1217

1. Appeal-Specific Facts and Procedure

Valentine took this appeal from the trial court's order dated

June 27, 1997, barring her challenges to the will as time-barred

by the probate statute. D.C. Code, Title 20, §§ 20-101 through

20-1305 (1980, as amended in 1995, 1996, and 1997).

Valentine is the appellant, and Elliott (personal representative

at the time of the appeal) is the appellee, As Valentine later

explained in a deposition, when she received her notice of the

after-discovered will in March of 1994, she read the will and

was immediately suspicious as to its authenticity. She felt this

way because she thought Delaney was so ill that he was unable

to write on the day the will was purportedly signed, and because

she felt that Delaney "would never have said [what was said in

the will] about me." Valentine did not act on her suspicions,

however, until much later.

In June of 1995, Elliott brought a subsidiary proceeding

against Valentine within the probate proceeding to recover the

jointly-registered accounts as assets of the estate, claiming that

the accounts were not joint accounts but simply convenience

accounts. 'Elliott v. Valentine, ADM 1809-93. On February 1,

1996, almost two years after receiving the notice as to the July

31 will, Valentine filed an answer in Elliott v. Valentine which

"assert[ed]," inter alia, that the will was "a forgery and a fraud."

This is the only allegation made of fraud and/or forgery in

Valentine's answer.

Sometime in late 1996 or early 1997, Valentine hired a

handwriting expert to examine Delaney's signatures on both the

July 18 will and the July 31 will. The expert told Valentine that

_both signatures were forged. Valentine then filed, in Elliott v.

Valentine, a motion for leave to file amending and dispositive

motions, including, inter alia, a motion to vacate probate order

based on new evidence of fraud and common law marriage. She

filed this motion on March 17, 1997, almost three years after

she received the notice of appointment. In this filing, Valentine

' This issue is also the subject of these consolidated appeals.

made extensive claims of forgery regarding the July 31 will. By

order dated March 31, 1997, the court rejected Valentine's

challenge to the July 31 will as time-barred. In the order, the

court noted that in oral argument held on January 23, 1997, in

Elliott v. Valentine, as well as in the February 1,1996, answer

Valentine filed in that case, Valentine challenged the July 31

will as a forgery and fraudulent.

Notwithstanding the court's ruling of March 31,

1997,Valentine filed, on April 7, 1997, a complaint in the

nature of a caveat attacking the validity of both the July 18 will

and the July 31 will on the grounds of fraud and/or forgery. She

also realleged that she was decedent's common law wife. By

order entered June 27, 1997, the tnal court dismissed

Valentine's renewed claims of forgery and her claim to be

decedent's common law wife as time-barred under D.C. Code

§ 20-903 (a)(1) (1981)? Valentine took appeal No. 97-PR-1217

from this order; Elliott (personal representative at the time of

the appeal) is the appellee.

* In its order dismissing the fraud/forgery claim as time-barred, the trial

court reffered to D.C. Code 20-93 (a)(1) as the “controlling statue.”

Section 20-903 (a)(1) states:

(1) all claims against a decedent's estate, whether due or to become due,

absolute or contingent, liquidated or unliquidated, founded on contract or

other legal basis, shall be barred against the estate, the personal

representative, and the heirs and legatees, unless presented within 6

months after the date of the first publication of notice of the appointment

of a personal representative.

Thus, § 20-903 (a)(1) refers only to claims by creditors, not challenges to

the validity of the will brought by heirs and legatees. /n re Estate of

Derricotte, 744 A.2d 535 (D.C. 2000). Cf District of Columbia v. Gantt,

558 A.2d 1120 (D.C. 1989) (allowing claim against decedent husband's

estate for care and maintenance of decedent's wife at public mental health

hospital); /n re Estate of Phillips, 532 A.2d 654 (D.C. 1987) (allowing claim

for attorneys’ fees against estate). The court apparently intended to refer to

D.C. Code § 20-305, which we discuss below.

2. Discussion

A. Jurisdiction

Although appeal No. 97-PR-1217 may have been premature

when filed? a final judgment was entered in Elliott v. Valentine

on October 20, 1999. This had the effect of ripening the instant

appeal thereby giving this court jurisdiction to act because the

trial court had entered a final judgment on the entire case.

Super. Ct. Civ. R. 54; West v. Morris, 711 A.2d 1269, 1271

(D.C. 1998); Dyer v. William S. Bergman &Assocs., Inc., 635

A.2d 1285, 1286-87 (D.C. 1993); Robinson v. Howard Univ.,

455 A.2d 1363, 1366 (D.C. 1983).

B. Standard of Review

The trial court's ruling rejecting appellant Valentine's

challenge to the will as time-barred constituted an adjudication

of that issue. Although her challenge to the July 31 will arose in

the context of Elliott v. Valentine, it was properly a part of Jn re

Estate of Delaney because the issue in Elliott v. Valentine

concerned the nature of the jointly-registered accounts. The

validity of the July 31 will had no bearing on the nature of those

accounts, Had Valentine lodged her complaint against the July

* This court does not have jurisdiction to hear an appeal

unless the order appealed from is a final order. D.C. Code §

11-721 (a)(1) (1981). Appeal No. 97-PR-1217 was filed

immediately after the entry of the trial court's June 27,1997,

order dismissing as time-barred appellant Valentine's

renewed claims of forgery and her claim to be decedent's

common law wife. Although the June 27 order was not the

final order in Elliott v. Valentine, it might have been

construed as final under the collateral order doctrine. Because

the appeal has since ripened with the entry of final judgment

in Elliott v. Valentine, we will not consider the applicability

of the collateral order doctrine here.

31 will within the probate proceeding itself (/n re Estate of

Delaney), rather than in a subsidiary proceeding, the order

denying her caveat to the will would have functioned as a

summary judgment that the July 31 will was properly admitted

to probate. We make

an independent, de novo review of the record in deciding

appeals from summary judgment. See, e.g., Jn re Burleson, 738

A.2d 1199,1203-04 (D.C. 1999); Knight v. Furlow, 553 A.2d

1232,1233 (D.C. 1989). In so doing, we use the trial court's

standard of review for motions for summary judgment. Knight,

supra, 553 A.2d at 1233. Summary judgment is appropriate

when there is no genuine issue as to a material fact and the

movant is entitled to a ruling as a matter of law on the issue in

question. Super. Ct. Civ. R. 56 (c). The court must view the

record in the light most favorable to the party opposing the

motion for summary judgment and resolve any doubts as to the

existence of a factual dispute in that party's favor. Duggan v.

Keto, 554 A.2d 1126, 1131 (D.C. 1989). Thus, we_review the

record de novo, resolving any doubts as to the existence of a

factual dispute in favor of appellant Valentine.

.C. Appellant Valentine's Challenge to the Validity of the

July 31 Will

On appeal, appellant Valentine presents three alternative

theories under which her challenge to the July 31 will is not

time-barred. First, she suggests that because she is claiming that

the will is a fraud, she should be given the benefit of the

discovery rule. Alternatively, she suggests that the three-year

civil statute of limitations for fraud should be applied rather

than the six-month limitation on bringing challenges to a will.

Asa final option, she proposes that the late notification of after-

discovered heirs of Delaney "restarted" the time for appellant

Valentine's caveat as of the date of the late notification.

(1) The Discovery Rule

D.C. Code § 20-305 states "any person may file a verified

complaint to contest the validity of a will within 6 months

following notice by publication of the appointment of a

personal representative.'" D.C. Code § 20-305 (emphasis

added). Appellant Valentine does not dispute the fact that she

received the notice pertaining to the July 31 will in March of

1994. To excuse the length of her delay, she seeks to toll the

will contest statute of limitations by invoking the discovery

rule. In support of her theory, appellant Valentine cites Johnson

v. Martin, 567 A.2d 1299,1302 (D.C. 1989), where we dealt

with the discovery rule in the context of a late objection to an

accounting in a probate case.

Valentine is correct that we have allowed the use of the

discovery rule in the probate context. Within probate cases the

discovery rule has been applied with regard to (1) contesting a

personal representative's power to pay expenses relating to

devised realty from the residuary estate, see id.; (2) claims of

fraud and breach of fiduciary duty under a testamentary trust,

see Interdonato v. Interdonato, 521 A.2d 1124(D.C. 1987); and

(3) a dispute over two paintings claimed to be estate assets, see

In re Estate of McCagg, 450 A.2d 414 (D.C. 1982). We have

not applied the discovery rule to will contests involving claims

of fraud. /nterdonato, however, appears to leave open the

possibility of such a use of the discovery rule. One of the

many claims brought in Jnterdonato was an allegation that the

decedent's will had been altered before it was offered for

probate - essentially a challenge to the will on the basis of

fraud. We ruled that the claim (which was brought nineteen

years after the will had been admitted to probate) was barred by

laches, rather than by any time bar within the statute.

Interdonato, supra, 521 A.2d at 1138. A laches determination

includes an analysis of whether or not the delay was excusable.

This examination is quite similar to a discovery rule analysis.

Although the probate codes of many jurisdictions contain

tolling exceptions for fraud to extend the time limit on

contesting wills, ours does not. Other jurisdictions have dealt

with statutes similar to ours in a variety of ways. See Eliot J.

Katz, Annotation, Fraud as Extending Statutory Limitations

Period for Contesting Will or Its Probate, 48 A.L.R. 4th 1094

(1986). Some have hewn strictly to the statutory language and

refused to grant late challenges on the grounds of fraud. These

courts reasoned that because the right to contest a will existed

only by statute, any challenge to a will could be exercised only

within the time limits prescribed by the statute. In addition,

these courts considered that the best way to carry out the

statute's purpose, which was to ensure the prompt and orderly

settlement of estates and to avoid confusion and consequences

injurious to the rights and titles of interested parties, was to

abide strictly by the statutory deadline regardless of the type of

fraud alleged. See, e.g., Criscoe v. Derooy, 384 A.2d 627 (Del.

Ch. 1978); Robinson v. First State Bank of Monticello, 454

N.E.2d 288 (111. 1983); Ruffing v. Glissendorf, 243 N.E.2d 236

(111. 1968); Jn re Estate of Thompson, 346 N.W.2d 5 (lowa

1984).

Other courts have allowed application of the discovery rule

for claims of fraud under a probate statute that contained no

express tolling provision for fraud. Reasoning that time

limitations in the will contest statute did not strip the probate

court of its authority to review its own orders of probate, and

that a will signed with a forged signature or obtained by undue

influence works a fraud on the Register of Wills and on the

court, these courts have allowed the use of the discovery rule

for claims of intrinsic fraud brought after the statutory time

limit for contesting a will.* See, e.g., Padgett v. Estate of

Padgett, 318 So. 2d 484 (Fla. Dist. Ct. App. 1st Dist. 1975);.

Estate of Colucci, 492 A.2d 1155 (Pa. Super. Ct. 1985).

We find persuasive the reasoning of this last line of cases. The

probate of a will that is a product of intrinsic fraud such as

forgery practices a fraud on the probate court and oni at least

* Although the terms “intrinsic fraud" and "extrinsic fraud" are sometimes

employed loosely, "intrinsic fraud" is generally used to describe fraud

which arises within the court proceeding and concerns an issue that speaks

directly to a determination on the merits. Examples would be undue

influence, fraud in obtaining the will and a forgery within the will.

"Extrinisic fraud," however, usually refers to the manner in which a

judgment is obtained and concerns matters not directly in issue. An

example would be fraud practiced on a party to the proceeding which

prevents him or her from presenting a case. See, e.g., In re Will of Evaiis,

264 S.E.2d 387, 389 (N.C. Ct. App. 1980).

some of the parties to the case. Although the District of

Columbia has a strong interest in prompt and efficient probate

for estates, it has an even stronger interest in ensuring that a will

admitted to probate is not the result of fraud. Thus it seems

appropriate to allow the use of the discovery rule for belated

will contests based on claims of intrinsic fraud.

Although we hold that the discovery rule can be used to bring

a late will contest based on a claim of intrinsic fraud, our

holding does not help appellant Valentine. Valentine claims to

have "discovered the forgery" in "late February 1997" when she

received an expert opinion report that the signature on the July

31 will was a forgery. She filed her "Objection in the Form of

a Motion Alleging Fraud and Request for an Evidentiary

Hearing" less than a month later, on March 7, 1997. Application

of our precedents to what transpired in this case demonstrates

that Valentine was chargeable with notice of any alleged fraud

from before February of 1997.

"When one person defrauds another, there will be a delay

between the time the fraud is perpetrated and the time the

victim awakens to the fact." Kropinski v. World Plan Executive

Council-US, 272 U.S. App. D.C. 17, 19, 853 F.2d 948, 955

(1988). Because of this inherent delay, "a cause of action [for

fraud] accrues for purposes of the statute of limitations when

the plaintiff has either actual notice of her cause of action or is

deemed to be on inquiry notice because if she had met her duty

to act reasonably under the circumstances in investigating

matters affecting her affairs, such investigation, if conducted,

would have ied to actual notice." Diamond v. Davis, 680 A.2d

364, 372 (D.C. 1996). See also Kropinski, supra, 272 U.S. App.

D.C. at 19, 853 F.2d at 955 ("[I]n a fraud case, the statute of

limitations will not begin running until the date the fraud is

discovered, or reasonably should have been."); Mullin v.

Washington Free Weekly, Inc., 785 A.2d 296,299 (D.C. 2001)

(citing Colbert v. Georgetown Univ., 641 A.2d 469,472-73

(D.C. 1994)) ("the statute of limitations will not run until

plaintiffs know or reasonably should have known that they

suffered injury due to the defendants' wrongdoing"). "The

discovery rule does not, however, give the plaintiff carte

blanche to defer legal action indefinitely if she knows or should

know that she may have suffered injury and that the defendant

may have caused her harm." Colbert, supra, 641 A.2d at 473.

What constitutes acting reasonably under the circumstances to

investigate the problem is a "highly factual analysis," Diamond,

supra, 680 A.2d at 372, but usually requires that the injured

party. be ignorant of the fraud through no "fault or want of

diligence or care on his part." /d. at 373 (internal citations

omitted). Thus, "the focus of the rule is on when [the plaintiff]

gained general knowledge [that she had been injured], not on

when she learned of the precise legal remedies [for the injury].

East v. Graphic Arts Indus. Joint Pension Trust, 718 A.2d 153,

157 (D.C. 1998) (emphasis in original). See also Ray v. Queen,

JA] A.2d 1137,1142 (D.C. 2000) (distinguishing between

discovery rule and tolling doctrine).

Turning to the timing of relevant events in this case, we see

that Valentine received notice of the July 31 will on March 28,

1994. In a deposition, she admitted reading the will and having

immediate suspicions as to its authenticity because, she said,

Delaney was no longer able to write on the day the will was

purportedly signed, and because she felt that Delaney "would

never have said [what was said in the will] about me."

Valentine's immediate suspicions about the will placed upon her

the obligation to move promptly and with reasonable diligence

to inquire further into the matter. Instead of making a

reasonable, prompt, and diligent inquiry, Valentine did nothing

from March 28, 1994, until the end of 1996 or early 1997 when

she engaged the services of a handwriting expert. This hardly

constitutes reasonable diligence on her part. For our purposes

here, we need not determine precisely how soon after March 28,

1994, Valentine, for the purposes of reasonable diligence,

should have concluded her inquiry into the circumstances

surrounding the execution of Delaney's will of July 31, 1993,

for it is clear that a reasonably diligent inquiry could have been

completed substantially more than six months before Valentine

filed her

attack on the will in March of 1997. Under the probate statute,

that statutory clock ran out six months after such inquiry could

have been concluded. Therefore, even allowing full play for the

discovery rule in applying § 20-305, Valentine's attack on the

will in March of 1997 came far too Iate.

(2) Statute of Limitations for Civil Fraud

As an alternative theory for allowing her to mount a will

contest, Valentine argues that the presence of fraud in the

making of the will, e.g.; securing Delaney's signature on it at a

time when he could not write, invokes the probate court's equity

jurisdiction and allows it to use the statute of limitations for

civil fraud. Under D.C. Code § 12-301, the time limit for

bringing an action for forgery or fraud is three years. D.C. Code

§ 12-301 (8). Many courts have held that a provision in the

general statutes of limitations for fraud does not apply to a will

contest when the statute governing wills contains its own

limitations provision. This is because a will contest is purely a

creature of statute, is not derived from common law causes of

action, and therefore should be governed by statutes of

limitations provisions in its creating statute rather than those

derived from the common law. See, e.g., Riddell v. Edwards, 32

P.3d 4, 8 (Alaska 2001) ("[W]ill contests are unknown to the

common law and exist only as permitted by statute." (internal

quotations omitted)); Estate of Kitterman v. Pierson, 661

N.E.2d 1255, 1257 (Ind. Ct. App. 1996) ("The right to contest

a will is statutory."); Jn re Estate of Thompson, 346 N.W.2d 5,

7 (Iowa 1984) (declining to apply doctrine of fraudulent

concealment so as to extend time for challenging wills which

have been admitted to probate); Miller v. Munzer, 251 S.W.2d

966 (Mo. Ct. App. 1952); In re Peterson, 9 P.3d 845, 850

(Wash. Ct. App. 2000) ("Will contests are statutory proceedings

and courts must be governed by the provisions of the applicable

statutes," rather than by the rules of civil procedure (internal

quotations and citations omitted)).

Other courts have shown themselves reluctant to

apply civil statutes of limitation to probate proceedings because

to do so would run directly counter to the state's strong interest

in the orderly settlement of estates. See, e.g., Pedersen v.

Dempsey, 93 N.E.2d 85, 86 (111.App. 1950).°

On the whole, it seems most reasonable to us to use only the

will-contest statute of limitations for probate cases. Since the

probate_code itself sets forth a period of limitations for

contesting a will, there is neither need nor reason to look

elsewhere for a different time limitation. Furthermore, if we

read the three-year statute of limitations for civil fraud into the

probate statute, that three-year period might be further extended

by application of the discovery rule. This could unleash grave

uncertainty into the world of probate. Under this approach, a

plaintiff conceivably could reopen a probate case years after it

was closed and after the estate had been distributed. This is

directly contrary to the District's strong policy interest in the

orderly settlement of estates. We hold that the statute of

limitations for fraud embodied in D.C. Code § 12-301 (8) does

not apply to will contests under the probate code. Therefore, the

six months limitation period of the probate statute applies.

(3) Restarting the Statutory Clock

As a final alternative theory for allowing her challenge to the

July 31 will, Valentine proposes that the late notification of

after-discovered heirs of Delaney "restarted" the time for the

filing of her caveat as of the date of the late notification.

However, Valentine cites no support for this proposition, and

we are aware of none. The relevant statute clearly states that the

interested party has six months from the time of publication of

the notice of appointment within which to challenge the will.

Valentine refers us to nothing in our cases or the statute that can

* We take note of few cases where courts have applied the statute of

limitations for civil fraud, but also note that they were not will contests and

did not involve allegedly forged or fraudulent wills. See, e.g., Succession of

Hearn, 415 So. 2d 215 (La. 1982) (testator's daughter not provided with

notice of probate proceedings because executrix filed false documents

regarding existence of descendants); Schoen v. Burns, 321 So. 2d 908 (La.

App. 1975) (fraudulent concealment of existence of an heir).

ES ST Asean ee

be read to mean that if the notice is published again for the

benefit of other interested parties, the later publication becomes

a new publication date for parties who already received notice.

D. Common Law Wife Claim

In addition to challenging the will as the product of fraud,

Valentine's motion dated March 17, 1997, also claimed, for the

first time, that she was Delaney's common law wife. This claim

is not barred under D.C. Code § 20-305 because it does not

contest the validity of the will.° Presumably, Valentine asserted

that she was decedent's common law wife so that she could

claim a spouse's statutory share of the estate, a claim she could

make regardless of the validity of the will.

D.C. Code § 19-113 (a) provides a six-month period from the

time the will is admitted to probate for a surviving spouse to

renounce "any devise or bequest made ... by the last will of my

husband" and to "elect to take in lieu thereof my legal share of

the real and personal estate of my deceased spouse." This period

does not begin to run until the end of any action to construe the

will of the decedent (D.C. Code §19-113 (c) (2001)), but that is

the only tolling provision provided in the statute. In other

words, the statute is not tolled for an individual who suddenly

"discovers" that she was the decedent's common law wife three

years after a will is admitted to probate.’ Since appellant

Valentine could be attempting to claim common law wife status

only for the purpose of electing a statutory share of the estate,

and since any election of the statutory share is clearly time-

Late i A Feet oe ee

RLS

* D.C. Code § 20-305 stated , “any person may file a verified

complaint to contest the validity of a will within 6 months following

notice by publication of the appointment... of a personal representative."

D.C. Code § 20-305 (2001).

’ The discovery rule has no application here. Appellant Valentine is not

claiming that her delay in discovering that she might be Delaney's common

law wife was caused by fraud or that facts about her relationship with

Delaney, unknown to her during his lifetime, came to her attention well after

his death.

23 .

barred, appellant Valentine's assertion of common law wife

status is time-barred as well.

In light of the foregoing, we affirm the trial court's order dated

June 27, 1997, dismissing both the challenge to the will and the

common law wife claim as time-barred.

SECTION II: APPEAL NOS. 98-PR-934; 98-PR-1104;

98-PR-1771; 99-PR-531; 99-PR-1392 & 99-PR-1619

1. Appeal-Specific Facts and Procedure

This set of six appeals stems from various aspects of the trial

court's decisions as to the disputed Virginia accounts. As noted

above, Elliott filed a subsidiary proceeding within the probate

proceeding against Valentine in June of 1995 (Elliott v.

Valentine) to recover funds in two accounts on behalf of the

estate. The accounts in question were a credit union account and

a Merrill Lynch cash management account. Both accounts were

maintained in Virginia and established with funds contributed

entirely by decedent Delaney. The credit union account was

opened in 1986. Although the names of both Delaney and

Valentine appear on the account card filled out by Valentine,

Delaney's social security number was the only personal

identification number to appear on the account. Delaney, the

sole depositor, never signed the card entitled "joint account"

and never made a joint account election. Quarterly statements

were sent only to Delaney, who was the sole taxpayer on the

income from the account.Delaney had opened the Mermill Lynch

account in 1962, and it contained the bulk of his liquid assets.

This account was registered solely in Delaney's name until four

days before his death on August 6, 1993. On July 19, 1993, the

day Delaney was transferred to a different hospital to undergo

a new round of treatment, he executed a power of attorney

appointing Valentine as his attorney in fact for convenience in

maintaining his property and to use his property for his care,

support and maintenance. Merrill Lynch did not honor this

power of attorney, and Valentine could not use it to write

checks on that account to pay Delaney's bills. With her

assistance, on July 28, 1993, Delaney completed the paperwork

to change the Merrill Lynch account to a joint account, by

establishing a new, joint account, in his name and hers so that

she could pay his bills. Three days later, on July 31, 1993,

decedent signed the will that was eventually admitted to

probate, which stated "all I own in any form is my property,

with no pre-death gift intended." Valentine transferred the funds

from Delaney's original Merrill Lynch account to the new joint

account on August 2,1993, three days before his death.

Immediately after Delaney's death, Valentine transferred the

funds again, this time to a new joint account in the names of

Valentine and her daughter. Valentine then began spending the

funds and transferring funds to her children.

As personal representative, Elliott sued Valentine on behalf

of Delaney's estate, contending that the Virginia accounts were

not joint accounts but simply convenience accounts and

therefore part of the estate. After Valentine answered Elliott's

complaint, Elliott filed a motion seeking a summary judgment

that the estate was entitled to the return of the proceeds of the

Merrill Lynch and credit union accounts, ordering an

accounting, directing Valentine to divest herself of all funds and

other assets that had been Delaney's or were acquired with his

funds, and for other relief. Elliott filed this motion one day after

the deadline for such filings, and the court rejected it. Elliott

then filed a motion for consideration of his motion for summary

judgment which was, in effect, a motion to permit the filing of

the motion after the deadline. When the parties appeared before

the court for a hearing on January 23, 1997, and the court

undertook to hear argument on Elliott's motion for summary

judgment, Valentine's counsel indicated that he had understood

that the hearing was not on the motion for summary judgment,

to which he had not filed an opposition, but merely on Elliott's

motion to permit the late filing of the motion for summary

judgment.* While counsel's reading of the court's order

* Oddly, on the day after the hearing, Valentine's counsel filed with the court

a "Summary of Status of Pending Motions," in which he indicated that the

January 23 hearing would deal with Elliott's motion for consideration of his

motion for summary judgment. Valentine's counsel certified that he had

served the summary on Elliott's counsel on the day of the hearing. Yet

Valentine's counsel never mentioned the summary to the judge during the

scheduling the hearing was plausible, the court intended its

order to schedule a hearing on the motion for summary

judgment itself. Without seeking a continuance or leave to file

a written opposition, Valentine's counsel argued against

granting the motion for summary judgment. Valentine prevailed

in her o opposition to summary judgment on the merits of the

issue of the estate's entitlement to a return of the proceeds of the

two Virginia accounts. The court, however, granted the estate's

motion with respect to an accounting and the creation of an

escrow account.

Following the hearing, on January 24, 1997, the trial

court issued an order requiring Valentine to place the disputed

funds in the court registry. On January 27, 1997, the court

issued an order in Elliott v. Valentine appointing an auditor and

requiring an accounting of the disputed funds.

On August 13, 1997, Valentine brought Delaney's newly-

discovered relatives to the attention of the trial court. Once the

court learned of Delaney's additional relatives, it stayed-Elliott

v. Valentine (the action instituted by Elliott to procure the

Virginia accounts) to give the newly-discovered relatives an

opportunity to object to the wills. The cousins were duly

notified by Elliott and, in September of 1997, the cousins filed

a complaint to contest the validity of both wills (Patton v.

Elliott). Two of the charities that are beneficiaries under the

July 31 will sought to intervene in Patton v. Elliott. By orders

issued February 4 and February 20, 1998, the trial court allowed

the American Cancer Society and the NAACP to intervene in

Patton vy. Elliott. Sometime after that order was issued,

Valentine sought to intervene in Patton v. Elliott, but the court

denied her motion to intervene 1n an order dated May 20, 1998.

This order was subsequently appealed (No. 98-PR-] 104). On

the same day, the tral court ordered Valentine to pay the

auditor's fees in Elliott v. Valentine, and Valentine appealed that

order as well (No. 98-PR-934).

In the summer of 1998, the NAACP moved for summary

judgment in Patton v. Elliott. By order issued September 8,

hearing. The circumstances raise the question of when the summary was

prepared.

1998, the trial court granted the NAACP's motion. This order

was not appealed. In November, the trial court issued a consent

order requiring Valentine to pay the auditor's fees, and

Valentine noted yet another appeal (No.98-PR-1771).

On March 23, 1999, the trial court issued its findings of fact

and conclusions of law on the issue of whether or not the

accounts were a part of the Delaney estate. Valentine noted an

appeal from the trial court's findings of fact and conclusions of

law (No. 99-PR-531). (Although it was premature, this appeal

has since ripened.) On October 20, 1999, the trial court issued

its order of judgment which Valentine appealed (No. 99-PR-

1392). Valentine also moved for a stay of enforcement of the

judgment pending the results of appeal No. 99-PR-1392, but the

trial court denied the stay in an order dated November 1, 1999.

Valentine appealed the order denying the stay as well (No. 99-

PR-1619).

Valentine has failed to address the issues raised in some of

her multitude of appeals in the briefs she submitted, as is

required by our rules. D.C. App. Ct. R. 28 (a)(5). Not

addressed are: the appeal from the order to pay auditor's fees

(No. 98-PR-934), the appeal from the denial of Valentine's

motion to intervene in Patton v. Elliott (No. 98-PR-| 104), the

appeal of the consent order requiring payment of auditor's fees

(No. 98-PR-1771), and the appeal from the denial of the request

for a stay of enforcement (No. 99-PR-1 619). We deem these

appeals abandoned and dismiss them. D.C. App. R. 14. What

remain are Valentine's appeals from the March 23, 1999, -

findings of fact and conclusions of law (No. 99-PR-531), and

the October 20, 1999, judgment and judgment order (No. 99-

PR-| 392). Christopher Hoge (successor personal

representative) is the appellee in those appeals.

Valentine argues that the trial court: (1) lacket jiurisdiction to

determine whether the accounts were part of the estate: (2) erred

in its choice of law determination: (3) erred in determining that

the accounts were part of the estate: and (4) violated her

constitutional due process rights and freedom of contract rights

when it required her to deposit the disputed funds into the court

registry.”

2. Discussion

A. Standard of Review

This court reviews choice of law questions de novo. Herbert

v. District of Columbia, 808 A.2d 776, 779 (D.C. 2002);

Vaughan v. Nationwide Mut. Ins. Co., 702 A.2d 198, 200 (D.C.

1997) (citing Hercules & Co. v. Shama Rest. Corp., 566 A.2d

31,40(D.C. 1989)); Atkins v. Industrial Telecomms. Ass'n, 660

A.2d 885, 888 (D.C. 1995).

B. Trial Court's Jurisdiction to Determine Whether the

Accounts were Part of the Estate

Valentine asserts that the trial court had no-jurisdiction to

determine whether the accounts maintained in Virginia were

part of the estate. We cannot agree. The Probate Division of the

Superior Court has subject matter jurisdiction over the estate of

any decedent who was domiciled in the District at the time of

death. Lipscomb v. Lipscomb, 105 U.S. App. D.C. 240,265 F.2d

822 (1959) (unless decedent was domiciled in District of

'° Valentine also claims there was a conspiracy among the probate clerk,

the judges of the probate court and Elliott in violation of 42 U.S.C. 1983,

1985 and 1986. This issue is being raised for the first time on appeal, and

we need not consider it. Barrera v. Wilson, 668 A.2d 871 (D.C. 1995).

The only exceptions to this rule are extraordinary cases where the

possibility of injustice exists. Wagshal v. District of Columbia, 430 A.2d

524 (D.C. 1981). Arguments that have little, if any, merit are not

sufficient to create an exception. Eastern Indem. Co. v. Content, 543 A.2d

1361, 1363 (D.C. 1988). Appellant Valentine recites only unsupported

allegations and provides no showing that she was entitled to use the funds

that were placed into the court registry. Since no injustice will result from

refusing to hear this belated § 1983 claim, we decline to address it.

Columbia, District courts are without jurisdiction to probate

will); In re Estate of Dapolito, 331 A.2d 327 (D.C. 1975)

(jurisdictional issue related to whether decedent was domiciled

in District of Columbia). See also REPORT OF THE COMMITTEE

ON THE JUDICIARY RE: DISTRICT OF COLUMBIA PROBATE

REFORM ACT OF 1980, p. 11 (explaining that Superior Court

“may exercise jurisdiction over the estate of a person domiciled

in the District"). Clearly, the trial court had subject matter

jurisdiction over the estate.

Since the court had general subject matter jurisdiction over

the estate, it also had more specific subject matter jurisdiction

over the dispute as to ownership of the funds from the jointly-

registered accounts because the dispute was a "claim. . .

existing between" the executor and a legatee. D.C. Code §11-

921 (a)(5)(A)(vi). Indeed, Valentine's counsel at the time

conceded the court's general subject matter jurisdiction at the

January 23, 1997, hearing when he said "I don't think we've

ever disagreed with this Court's right to determine... and

jurisdiction to determine who is the owner of those funds."

Valentine also argues on appeal that the court erred in failing

to hold an evidentiary hearing on the issue of its jurisdiction

over the accounts prior to making any other determinations. Her

brief cites five cases in support of this proposition, only two of

which have even limited relevance. Both of these cases hold

that in probate matters where there is a dispute as to the

domicile of the decedent, the court must address the question of

subject matter jurisdiction first. See Lipscomb, supra, 105 U.S.

App. D.C. at 240, 265 F.2d at 822; Dapolito, supra, 331 A.2d

at 327. There was no dispute here as to Delaney's domicile at

the time of his death. Furthermore, far from contesting

jurisdiction, Valentine conceded it at the January 23, 1997

hearing. The court was not required ‘to hold a hearing on the

matter of its jurisdiction over the estate.

28 C. The Choice of Law Determination

(1) Preliminary Matter

Faced with a conflict of law situation, a court's first step must

be to determine which area of law is presented by the

underlying issue (torts, property, contracts, etc.). Appellant

Valentine has asserted that the conflict of law issue should be

resolved as though the dispute over the accounts involved

property rights or, alternatively, as though the case were a

contract case. This is not, however, a case involving property,

nor is it acontract issue. Although the forms relating to the joint

accounts constituted a contract between Delaney and Merrill

Lynch, we are not being asked to construe or enforce that

contract. The issue here is one of probate law - whether or not

the accounts in question pass within the estate or outside the

estate. Thus it is appropriate to begin by considering whether

there is aconflict between District of Columbia probate law and

Virginia probate law on the manner in which they treat joint

accounts.

(2) The District's Choice of Law Principles

In determining which jurisdiction's law will apply to

substantive issues, District of Columbia courts use a

government interest analysis which requires first a court

evaluation of the governmental policies underlying the

applicable conflicting laws and_ then a determination as to

which jurisdiction's policy would be most advanced by having

its law applied to the facts of the case. See Felch v. Air Florida,

Inc., 275 U.S. App. D.C. 403, 866 F.2d 1521, 1523 (1989)

(citing Williamsy. Williams, 390 A.2d4,5-6(D.C. 1978)).

Seealso Stutsman v. Kaiser Found. Health Plan of Mid-Atlantic

States, Inc., 546 A.2d 367, 372 (D.C. 1988); Rong Yao Zhou v.

Jennifer Mall Rest., Inc., 534 A.2d 1268, 1270-71 (D.C. 1987);

Gaither v. Myers, 131 U.S. App. D.C. 216,404 F.2d 216,222-24

(1968). "When the policy of one state would be advanced by

application of its law, and that of another state would not be

advanced by application of its law, a false conflict appears and

the law of the interested state prevails. Where each state would

have an interest in the application of its own law to the facts, a

true conflict exists and the law of-the jurisdiction with the

stronger interest will apply." Biscoe v. Arlington County, 238

U.S. App. D.C. 206, 738 F.2d 1352, 1360 (1984) (footnote

omitted), cert, denied, 469 U.S. 1159 (1985). Using this

analysis, "this Court applies another state's law when (1) [the

other state's] interest in the litigation is substantial, and (2)'

application of District of Columbia law would frustrate the

clearly articulated public policy of that state." Herbert, supra,

808 A.2d at 779 (citing Kaiser-Georgetown Cmty. v. Stutsman,

491 A.2d 502, 509 (D.C. 1985)).

In an effort to avoid creating a "ready means of producing

fraud and injustice," Jmirie v. Imirie, 100 U.S. App. D.C. 371,

372,246 F.2d 652,653 (1957), the District of Columbia

presumes that a joint account opened by an individual for

himself and another, where the individual who opened the

account provided all the funds therein deposited, was opened

for the convenience of the decedent-depositor. Davis v.

Altmann, 492 A.2d 884, 885 (D.C. 1985). This presumption

holds true even where the printed bank cards signed by both

parties recite a right of survivorship. Jmirie, supra, 100 U.S.

App. D.C. at 372, 246 F.2d at 653.

In contrast, Virginia, in a departure from its common law, has

created statutory presumptions that (1) sums of money "on

deposit at the death of a party to a joint account belong to the

surviving party... as against the estate... unless there is clear and

convincing evidence of a different intention at the time the

account is created," VA. CODE ANN. §6.1-125-5.A (2002), and

(2) any joint tenancy of real or personal property functions as a

tenancy in common upon the death of one of the tenants. Va.

CODE ANN. § 55-20.'' This last section does not apply,

however, "when it manifestly appears from the tenor of the

instrument. .. that it was intended the part of the one dying

should then belong to the others." Va. CODE. ANN. § 55-21

(2002). Both § 55-20 and § 55-21 have been held to apply to

' Virginia's code states, "When any joint tenant dies ...

whether the estate is real or personal... his part shall descend

to his heirs, or pass by devise, or go to his personal

representative, subject to debts or distribution, as if he had

been a tenant in common." VA. CODE ANN. § 55-20.

investment accounts.'? Buck v. Jordan, 508 S.E.2d 880, 883

(Va. 1998). Thus, while Virginia starts with a presumption of

either joint tenancy with survivorship (for cash in bank

accounts) or tenancy in common (for property and brokerage

accounts), it is willing to look at the language of the forms

creating the account and surrounding circumstances to

determine whether the decedent-depositor intended a joint

account with right of survivorship. Virginia did this to meet the

expectations of parties signing the forms to create a joint

account (when those forms include survivorship language),"’

create consistency in its law, and protect its financial

institutions."

Since there is a clear conflict between the public policies of

the two jurisdictions, and since both jurisdictions have an

interest in applying their law to the facts in this case, "a true

conflict exists and the law of the jurisdiction with the stronger

interest will apply." Biscoe, supra, 238 U.S. App. D.C. at 214,

738 F.2d at 1360 (footnote omitted). The District has a strong

' It seems clear that Virginia Code § 6.1-125.5 applies to the credit union

account. It is less clear whether Virginia Code § 6.1-125.5 or § 55-20

would apply to the Merrill

Lynch account. This is because the Mermill Lynch account was a

brokerage account in addition to being a cash management account, and

brokerage accounts do not qualify as accounts for the purposes of § 6.1-

125.5 under § 6.1-125.1(1) (the definitional section). VA CODE ANN. §§

6.1-125.1 and 6.1-125.5. See also Bennet v. First & Merchants Nat'l

Bank,

(continued...)

'’ See Barbara M. Rose, Multiple-Party Accounts: Does

Virginia's New Law Correspond with the Expectations of the

Average Depositor?, 14 U. RICH. L. REV. 851,856

n.29 (1980) (citing Report of the Multiple-Party Deposit

Accounts Committee of the Virginia Bar Association,

Meeting of September 18, 1978, at 2 (Sept. 18, 1978)).

'* Id. At 865.

interest in preventing "fraud and injustice," Jmirie, supra, 100

U.S. App. D.C. at 372, 246 F.2d at 653. Indeed, "the public

policy considerations for the presumption of a convenience

account are of the highest magnitude." Davis v. Altmann, supra,

492 A.2d at The District also has a strong interest in the orderly

completion of probate for the estate of a decedent who is a

domiciliary of the District.

Virginia's interest is less pronounced since the expectation

interests of the parties and the convenience of estate

administration cannot readily be characterized as being of the

"highest magnitude." Indeed, the Virginia Code essentially

acknowledges that Virginia's interest is weaker, because it

releases Virginia's jurisdiction over property such as the two

accounts here so long as certain procedures are followed. Under

the Virginia Code, the administrator of a nonresident decedent's

estate may claim "stocks, bonds, securities, money or tangible

personal property located in" Virginia after following

notification procedures. VA. CODE ANN. § 64.1-130 (2002).

On balance, then, the District's interests are substantially

stronger, and its law governs. Biscoe, supra, 238 U.S. App.

D.C. at 214, 738 F.2d at 1360 (footnote omitted). The trial court

was correct in applying District of Columbia law to determine

whether or not the accounts were part of the estate.

D. Status of the Accounts Under the Law of the

District of Columbia

In the District of Columbia, "[wJhere a party opens a joint

account for himself and another without consideration, the

account is presumed opened for the convenience of that party."

Davis v. Altmann, supra, 492 A.2d at 885. See also Murray v.

Gadsden, 91 U.S. App. D.C. 38,44,197 F.2d 194,200 (1952);

Edstrom v. Kuder, 351 A.2d 506,509 n.7 (D.C. 1976). This

convenience account presumption always applies where the

funds were deposited by only one of the parties, even where the

printed bank card signed by the parties recites a right of

survivorship. /mirie, supra, 100 U.S. App. D.C. at 372, 246

F.2d at 653. The presumption puts the person who is claiming

that the account carried a right of survivorship in the position of

claiming that the account funds were an inter vivos gift, and

ms <

LL SS

shifts the burden of proof to that person. Harrington v.

Emmerman, 88 U.S. App. D.C. 23, 27, 186 F.2d 757, 761

(1950); Duggan, supra, 554 A.2d at 1 \34;Davis vy. Altmann,

supra, 492 A.2d at 885. When the claim of an inter vivos gift

comes after the alleged donor had died, the gift must be proven

oy clear and convincing evidence. Uckele v. Jewett, 642 A.2d

119, 123 (D.C. 1994); Duggan, supra, 554 A.2d at 1134; Estate

ofPresgrave v. Stephens, 529 A.2d 274,280 (D.C. 1987).

Both the credit union and the Mernill Lynch accounts were

presumptively convenience accounts since all the funds on

deposit in both accounts were provided by Delaney. This left

appellant Valentine in the position of having to prove, by clear

and convincing evidence, that the accounts were intended as

inter vivos gifts. The requisites of a valid inter vivos gift are

delivery, intention on the part of the donor to make a gift, and

absolute disposition of the subject of the gift. Uckele, supra,

642 A.2d at 123; Duggan, supra, 554 A.2d at 1134. Appellant

Valentine simply did not have such evidence to present as to

either account.

The credit union account agreement lacked signatures for the

joint and survivor election, and the July 31 will specifically

bequeathed the account to Valentine, a clear indication that

Delaney did not think he had given her the account during his

lifetime. The Merrill Lynch account funds were never delivered

to Valentine, but were simply shifted by ledger entry into the

account Valentine had opened with Delaney's power of

attorney. There is no evidence that Delaney intended to make a

gift of these funds, nor did he have a habit of presenting

Valentine with large or expensive gifts while he was alive. The

trial court was correct in finding that both accounts were

convenience accounts, rather than joint accounts with a right of

survivorship, and that no inter vivos gift had been made as to

either account.'®

'S Neither appellant nor any other party has argued that the District of

Columbia's Uniform Nonprobate Transfer on Death Act, D .C. Code § §

19-601 -603.11, adopted in 2091, applies to this case. Accordingly, we do

not consider whether that statute might apply to the 1999 judgment at

issue here, or, if it should apply, what its application would be.

E. Constitutional Due Process Rights and "Freedom of

Contract Rights"

The last of Valentine's many claims in this set of appeals is

that the trial court violated her Constitutional due process and

"freedom of contract" rights when it required her to deposit the

disputed funds into the court registry. With respect to due

process, Valentine's claim is that she received inadequate notice

of the hearing and that the hearing itself was also inadequate.

(1) Due Process

The requirement of procedural due process prevents the

government from arbitrarily depriving persons of their property.

Due process contemplates a fair process or procedure which

requires at least an opportunity to present objections to the

proposed action to a fair, neutral decision-maker when the

government undertakes to deprive an individual of property.

The order to deposit the funds in question into the court

registry was issued orally at a hearing held January 23, 1997,

and in written form on January 27, 1997. The court had

scheduled the hearing to consider the estate's motion for

summary judgment. The trial court recognized that the estate's

motion for summary judgment presented several separate but

related requests for relief, including a motion for summary

judgment on the issue of whether the accounts were part of the

estate, a motion for an accounting of the funds, and an

embedded motion to bring the funds into the court's "domain"

pending resolution of the underlying dispute. This was a

reasonable interpretation of the motion and its accompanying

proposed order (which required deposit of disputed funds into

escrow account).

At the hearing, Valentine’ s then attorney stated that he was

not fully prepared to argue _— the merits of the motion for

summary judgment and had not filed an opposition because he

had been awaiting a ruling on his objection to the timeliness of

the motion. However, Valentine and her attorney had clearly

received notice that the court planned to hold a hearing that day,

and both she and her attorney were present. As we note above,

Valentine's attorney's reading of the scheduling order was not

implausible. Counsel, however, neither sought a continuance

nor asked leave to file an opposition after the hearing. At the

hearing, counsel argued on the merits against the granting of

summary judgment on the estate's claim that it was entitled to

have Valentine return to it the proceeds of Delaney's two

Virginia accounts, and prevailed on that point. The court,

however, granted the estate's motion as it pertained to an

accounting and the placing of the proceeds of the accounts in

escrow. Valentine did not seek reconsideration. Under these

circumstances, we cannot hold that the results of the hearing

were affected by Valentine's claimed lack of notice.

Nor can we agree that Valentine's due process rights were

denied her by the nature of the hearing. Under Super. Ct. Civ.

R. 12-1 (f), the court, within its discretion, may decide whether

or not to hold a hearing on a motion. See Headspeth v.

Mercedes-Benz Credit Corp., 709 A.2d717,721 n.6(D.C. 1998)

(citing Pagan v.Horton, 464 A.2d 146,148 (D.C. 1983)).

Although counsel for Valentine stated that he had believed the

motion for summary judgment would not be considered until a

later date, he did in fact argue the matter, with some success. He

did not seek a continuance, leave to file additional materials, or

reconsideration. Thus, he did not utilize all the procedures

available to him. Considering all that transpired, we are

satisfied that Valentine received notice and a hearing sufficient

to satisfy Constitutional due process requirements.

(2) Freedom of Contract

Appellant Valentine also claims her Constitutional rights

under the "Freedom of Contract Clause" of the Constitution

were denied to her by the trial court. Assuming she is referring

to the Contract Clause of the Constitution (U.S. CONST, art. I,

§10, cl. 1), Valentine is incorrect in her assertion. The Contract

Clause applies not to court decisions, but only to state

legislation that retroactively impairs contract rights. Tida/ Oil

v. Flanagan, 263 U.S. 444(1924).

The trial court's March 23, 1999 findings of fact and

conclusions of law and October 20, 1999 judgment and

judgment order are affirmed in all respects.

SECTION III: Appeal Nos. 00-PR-71; OO-PR-768 & OO-

PR-808 1. Appeal-Specific Facts and Procedure

This group of three appeals is made up of appeals from two

orders. The first order denied compensation sought by Elliott

(the original personal representative of the estate). The second

order disallowed in part the attorneys’ fees sought by R. Eliot

Rosen, Esq., tax advisor to the estate. The order as to Elliott was

appealed by Elliott (No. 00-PR-71). The order as to Rosen was

appealed by Rosen (OO-PR-808) and by Valentine (OO-PR-

768), whoasserted that Rosen is entitled to no fees. As to the

appeals from both orders, the appellees are the residuary

beneficiaries including, inter alia, the NAACP and the American

Heart Association.

A. Elliott

The July 31 will contains the following clause:

Item XV: My Executor is entitled to receive

compensation for daily expenses from time to time and

any unusual costs deemed reasonable by the court. I ask

that he serve for no Executor fee from anyone.

On April 26, 1994, Elliott filed a request for compensation as

Executor. The court (J. Long) denied this request on two bases

on August 16, 1994 (the "1994 order"). First, the court noted

that Elliott's request did not comport with Superior Court

Probate Rule 124.'* Second, and more important, the court

noted that Eliott was seeking payment for personal time rather

than "daily expenses" or "unusual costs," and that under Item

XV of the will, Elliott was entitled to none of the customary

and substance that a request for compensation must meet.

fees paid for the services of personal representatives. The court

then denied Elliott's request and ordered that he not file "any

such further petitions." Elliott did not appeal this order.

Appellees assert that instead of appealing he received an

advance from the $365,000 cash bequest to him set forth in

Item V of the will.

Elliott made a second request for compensation on October

12, 1999, to which he filed an addendum on November 14,

1999. In his 1999 request, Elliott acknowledged that the 1994

order controlled, but asserted that the 1999 claim was different

because he was seeking reimbursement for litigation expenses

as "unusual costs." Specifically, Elliott was seeking expenses

for work as a paralegal for the estate's tax attorney, Rosen. After

a hearing on December 10, 1999, the trial court (J. Christian)

issued an order denying Elliott's second request for

compensation (the "1999 order"). In so doing, the court first

noted that Elliott had requested compensation for personal

expenses, not unusual costs or expenses, and that Elliott could

not seek payment for personal expenses under the will. The

court then took note of the 1994 order and stated that it found

the language of that order "controlling" as to its interpretation

of Item XV of the will. The appeal before us now is from the

1999 order.

B. Rosen

During the course of the probate of the July 31 will, Elliott

hired Rosen as tax counsel for the estate. On October 7, 1999,

as Elliott v. Valentine was coming to a close, Rosen submitted

a request for compensation in the amount of $74,125.00. After

a hearing on December 10, 1999, the trial court issued an order

on May 15, 2000, disallowing some of Rosen's line-item

compensation requests and reducing others. The result was an

award of $38,815.43, of which $750.00 had already been paid.

2. Discussion

A. Discussion as to Elliott

(1) Standard of Review

The governing statute is D.C. Code § 20-751 (1981) which

was in effect when Delaney died, when the will was admitted to

probate and when Judge Long issued her 1994 order.'’ The

1993 version of § 20-751 (a) reads: "Reasonable compensation

for work performed by a personal representative . . . with

respect to administration of the estate pursuant to this title may

be paid upon approval by the Court...." D.C. Code § 20-751 (a)

(1981) (emphasis added). Since the probate court had complete

discretion as to whether or not to approve requests for

compensation payments from personal representatives, we

review for abuse of discretion. See generally Johnson v. United

States, 398 A.2d354 (D.C. 1979).

(2) Level of Discretion Available to the Trial Court

The law of the case doctrine "bars a trial court from

reconsidering the same question of law that was submitted to

and adjudicated by another court of coordinate jurisdiction."

Weinberg v. Johnson, 518 A.2d 985, 987 (D.C. 1986). This

doctrine applies if the first ruling is "sufficiently final" and is

not "clearly erroneous in light of newly presented facts or a

change in substantive law." Williams v. Board of Trustees of

Mount Jezreel Baptist Church, 589 A.2d 901, 907 ( D.C.)

(internal quotations and citation omitted), cert, denied, 502 U.S.

865(1991).

(i) Finality

’ The 1993 version of § 20-751 was enacted June 24, 1980 and

remained in effect until enactment of the current version of the probate

statute. See Legislative History notes after D.C. Code §§20-101,-751

(1993). Although the current version of § 20-751 became law well before

appellant Elliott filed his second request for compensation, it was part of

the Probate Reform Act of 1994 which applied only to estates of

decedents dying after July 1, 1995. See In re Estate of King, 769 A.2d

771, 777 n.7 (D.C. 2001). See also Probate Reform Act of 1994

Emergency Amendment Act of 1995, D.C. Act 11-79, 42 D.C. Reg.

3452(1995). Delaney died on August 6, 1993.

When the 1994 order was entered, there was no probate rule

defining the types of orders that were final and appealable."*

Instead, finality of orders in probate proceedings was governed

by the general principles used in other civil proceedings.

Murphy v. McCloud, 650 A.2d 202,203 (D.C. 1994) (citing

D.C. Code § 11-721 (1989)). In Murphy, we held that a probate

order would be final if it conclusively disposed of or decided

the issue or controversy for which that particular part of the

proceeding was brought. This would be so even if the decision

did not fully and finally dispose of the entire probate

proceeding. "In other words, a probate order is appealable if it

finally adjudicates a substantial right; on the other hand, if it

merely leads to further hearings on the issue, it is interlocutory."

Vineyard v. Irvin, 855 S.W.2d 208,210 (Tex. App. 1993) (cited

with approval in Murphy, supra, 650 A.2d at 203). The 1994

order met this standard of finality. The issue of the personal

representative's compensation under the will is separate from

administration of the estate, and was conclusively disposed of

by the 1994 order. Elliott could have appealed, but did not.

Thus, we must consider whether Elliott has made the requisite

showing of clear error. :

(ii) "Clearly Erroneous"

The 1994 order was not clearly erroneous when entered, as it

was based on an entirely reasonable interpretation and

application of Item XV of Delaney's July 31 will. Appellant

Elliott presented no additional facts that might establish that the

court's 1994 interpretation of the will was clearly erroneous, nor

did he bring to light a change in substantive law that rendered

the 1994 order clearly erroneousSince the 1994 order was

sufficiently final and not clearly erroneous, it was binding on

the trial court in 1999 under the law of the case doctrine.

'* Super. Ct. Prob. R. 8 (c)(2) now expressly provides that a determination

of the nghts of interested persons through construction of a will is a final

order, but was not effective until February 1, 1997.

Therefore, in 1999, the trial court had no discretion to award

expenses for personal services to Elliott. The only discretion

left to the trial court in this area was in determining whether the

additional expenses for which Elliott was requesting

compensation were for personal services or for "daily expenses"

or "unusual costs," since the latter were allowed

under the will's Item XV.

‘ (3) Trial Court's Exercise of Its Limited Discretion

When Elliott filed his second request for compensation, he was

seeking an award for the litigation Support services he

personally performed for the attorneys hired by the estate.

Elliott implicitly acknowledged the trial court's limited

discretion in his second request by requesting compensation for

services which he couched as "unusual costs,” rather than as

personal services, on the ground that Delaney could not have

anticipated that Elliott would find himself embroiled in the

extensive litigation of Elliott v. Valentine and Patton v. Elliott.

Throughout his request, however, Elliott consistently referred

to the paralegal work he did under the direction of the estate

attorneys as "services." (Elliott never claimed that his paralegal

services constituted "daily expenses," which may be

compensated under the will.) Furthermore, there was nothing in

the second request or its addendum that clearly delineated what

was unusual about the costs Elliott had listed.

We find no abuse of the trial court's limited discretion in its

ruling that the costs sought in the second request were for

Elliott's "personal services," and that therefore the request was

barred under both the July 31 will and the 1994 order. The trial

court's order of December 13, 1999, denying appellant Elliott's

request for compensation is affirmed.

B. Discussion as to Rosen's Appeal of Compensation

Order

(1) Standard of Review

We review the trial court's award of attorneys' fees for abuse

of discretion. /n re Estate of King, supra, 769 A.2d at 780. The

trial court is to consider specific statutory factors in arriving at

its decision, but "failure to make appropriate findings of fact is

itself an abuse of discretion." /d. at 777.

(2) Court's Denial of Some of the Compensation

Requested

Appellant Rosen's compensation request was governed by §

20-751 of the 1993 version of the D.C. Code. The request was

to include documentation which showed: (1) a reasonable

relationship between the fees being requested and the nature of

the services performed; (2) the reasonableness of the time spent;

(3) the number of hours expended; (4) the applicant's usual

hourly compensation; and (5) the results actually achieved.'°

In its May 15, 2000 order, the trial court addressed each of

the relevant factors in reaching its decision. It also made

findings and explained how it arrived at each of the reductions

it ordered. The court went on to state the precise number of

hours that should be compensated for various types of work,

and the hourly rate at which those hours should be

compensated. See Williams v. Ray, 563 A.2d 1077 (D.C. 1989)

(reversing trial court for failure to specify number of hours that

should be compensated and at what rate). Certain entries were

rejected because they were not adequately documented, and the

court was careful to explain this as well. Similarly, the court

explained the ten percent reduction that it applied to Rosen's

gross award.”’ Since the trial judge considered the proper

statutory facters; made findings as to those factors, see Lemp v.

Keto, 678 A.2d 1010, 1021 (D.C. 1996), and clearly articulated

what hours should be compensated, why some time charged

was disallowed, and the appropriate hourly rate for the time

allowed, there was no abuse of discretion.

(3) Due Process

'’ These factors are now listed under § 20-753, but they remain

the’same as those in force in 1993 when Delaney died and in 1994 when

the Delaney estate entered probate. D.C. Code §20-753 (2001).

Rosen claims he was denied due process because the judge

did not hold an evidentiary hearing on the validity of the line

items in his compensation request. As discussed in

connection with for appeals 99-PR-531 and 99-PR-1392 above,

the requirements of due process are flexible and depend on the

private and governmental interests implicated by a particular

case. See Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

Superior Court Civil Rule 12-1 (f), applicable to probate

proceedings pursuant to Superior Court Probate Rule 1 (f),

provides that whether or not to hold an oral hearing on a motion

is within the discretion of the assigned judge.

In this case, Rosen was afforded notice and a hearing before

the judge ruled on his compensation request. He filed a detailed

request for compensation, was represented by counsel at the

hearing, and had an opportunity to respond to objections raised

by other parties. Rosen never requested a hearing specifically to

adduce evidence on each line item listed in his request for

compensation and cites no cases in support of his assertion that

he was entitled to present evidence.

Rosen has failed to establish that an evidentiary hearing

would have added anything to the information available to the

trial court when it made its ruling on his compensation request.

Presumably, Rosen gave the court all the information he

thought would support his position when he filed his initial

request, and thus an evidentiary hearing would have added

nothing to the data available in a way that would have reduced

the risk of an erroneous deprivation. Rosen received all the

process due to him.

Since Rosen received due process, and since the trial court

did not abuse its discretion in determining Rosen's

compensaiion, the trial court's May 15, 2000 order as to Rosen's

compensation is affirmed.

C. Discussion of Valentine's Appeal of the Rosen

Compensation Order

The trial court's findings of fact, conclusions of law and order

of March 23, 1999, stated that Valentine "has forfeited her

bequest under the [July 31] will."”' The trial court so ordered

because appellant Valentine's attempted contest of the July 31

will in Elliott v. Valentine stripped her of her status as legatee

by operation of the no-contest clause in the July 31 will.”? Since

she 1s no longer a legatee, appellant Valentine is no longer an

interested person under the probate code,” and therefore cannot

possibly be aggrieved by any decision of the trial court that does

not relate directly to her. Only a party aggrieved by an order or

judgment may appeal as of right to this court. D.C. Code § 11-

721 (b) (2001). Valentine has no standing to appeal any of the

trial court's decisions made after October 20, 1999, which do

not concern her directly. Therefore, we need not consider the

merits of her appeal from the May 15, 2000, order on the issue

of appellant Rosen's compensation.

SECTION IV: APPEAL NOS. 00-PR-873; 00-PR-904 & 00-

PR-905

These three appeals are taken from a June 6, 2000, order

requiring Valentine to pay attorneys' fees to the Delaney estate

and the charitable beneficiaries. The Delaney estate appealed

from the order to the extent that it was denied attorneys’ fees

that it sought (No. 00-PR-873). Christopher Hoge, Esa.,

successor personal representative, is the appellant on behalf of

the estate in Appeal No. 00-PR-873, and Valentine is the

appellee. Valentine cross-appealed the June 6, 2000, order to

the extent that it required her to pay fees to the estate and the

*! This order was finalized in the trial court's judgment order of October

20, 1999.

2 Item XVI of the July 31 will reads: "If any beneficiary or my Executor

challenges my bequests, any amount due them will be cancelled and revert

back to my estate, to be

distributed to the above named charities."

*’ The probate code defines an interested person as "any legatee in being,

whether such legatee's interest is vested or contingent, until the legacy is

paid in full." D.C. Code § 20-101 (d)(1)(C) (2061).

charitable beneficiaries (Nos. 00-PR-904 and 00-PR-905). She

abandoned theese cross-appeals, and they are hereby dismissed.

D.C. App. R. 14. This leaves only the estate's appeal from the

June 6, 2000, order denying, in part, its request for attorneys’

fees.

1. Appeal-Specific Facts and Procedure

During the course of the Elliott v. Valentine and Patton v.

Elliott subsidiary proceedings, Valentine made two attempts to

challenge the July 31 will (one of which came after the March

31, 1997, order denying her caveat as time-barred), made an

extremely belated attempt to assert common law wife status,

attempted to intervene in Patton v. Elliott, and was accused by

the personal representative (Elliott) and the residuary

beneficiaries of interfering with a trial witness. She also filed

multitudes of motions, many of which had scant legal basis, and

at least four premature appeals The facts surrounding the

challenges to the July 31 will and the assertion of common law

wife status are fully discussed above.

Valentine also was the subject of a contempt hearing because

she failed to comply with an order requiring her to pay the fees

of the court-appointed auditor. The court held another contempt

hearing as to one of the trial witnesses because the witness

violated a court order prohibiting her from discussing her trial

testimony with anyone other than her legal counsel. The witness

and Valentine were friends and lived in the same town.

Valentine drove the witness to and from the hearings. During

those car trips, the witness discussed her testimony with

Valentine in violation of the tnal court's admonition to discuss

her testimony with no one but her lawyer. The witness also

changed her testimony after discussing her previous day's

testimony with Valentine while riding with Valentine to and

from the court. As a result of these activities, the trial court held

a hearing with regard to whether to hold the witness in

contempt. In a March 23, 1999, order discharging the show

cause order as to this witness, the trial court noted both that the

witness was forthright in admitting that she had discussed her

testimony with others, and that she might have been

manipulated by individuals involved in the litigation.

The estate and the charitable beneficiaries, by separate

motions, sought more than $450,000 as their costs in

responding to Valentine's method of litigation. In their motion,

the estate and charitable beneficiaries asserted that many of

Valentine's litigation maneuvers were either unreasonable or

were made in bad faith, and that both contempt hearings

resulted from Valentine's unreasonable conduct. The trial court

responded to this motion with a June 6, 2000, order requiring

Valentine to pay a total of $6,138 to the Delaney estate and the

charitable beneficiaries for attorneys' fees incurred as a result of

the contempt hearing on her failure to pay the auditor. On

appeal, the estate and charitable beneficiaries assert that the trial

court erred in declining to award attorneys' fees (1) incurred in

opposing claims that were foreclosed by court order, (2)

incurred in opposing claims that Valentine advanced without a

good faith basis in law and in fact, and (3) arising from the

interference with a trial witness.

2. Discussion

A. Standard of Review

Where a trial court has refused to impose sanctions, the

standard of review is whether the tnal court abused its

discretion. Kennedy v. District of Columbia, 654 A.2d 847

(D.C. 1994). When the party seeking sanctions has alleged bad

faith as a basis for seeking those sanctions, "the predicate

finding of bad faith velnon is a factual one which we review

under the clearly erroneous standard." Schlank v. Williams, 572

A.2d 101,111 (D.C. 1990) finter alia citing D.C. Code § 17-

305 (a) (1989)). See also Synanon Found., Inc. v. Bernstein,

517 A.2d 28, 38 (D.C. 1986); and Trilon Plaza Co. v. Allstate

Leasing Corp., 399 A.2d 34, 40 (D.C. 1979). Therefore, we

review the tral court's order of June 6, 2000, under a

combination of the abuse of discretion and clearly erroneous

standards.

B. Discussion

Under Super. Ct. Civ. R. 11 (c), a court may impose

sanctions on attorneys responsible for violations of section (b)

of the Rule. Super. Ct. Civ. R. 11 (b) states, in part, that by

presenting a pleading to the court, the presenter is certifying

"that to the best of the person's knowledge, information and

belief, formed after an inquiry reasonable under the

circumstances ... the claims, defenses and other legal

contentions [in the pleading] are warranted . . ." and that "the

allegations and other factual contentions have evidentiary

support or... are likely to have evidentiary support after

reasonable opportunity for further investigation or discovery."

A trial court also has an inherent sanctioning power that

transcends specific statutes or rules and extends to the full range

of litigation abuses. Chambers v. NASCO, 501 U.S. 32, 46

(1991). Thus, while a court's rules may reach only specified

conduct, the court's inherent power fills the gaps. Jd. Just as

Rule 11 gives the court discretion in imposing sanctions, Super.

Ct. Civ. R. 11 (c), courts are to exercise their inherent powers

to sanction by awarding attorneys' fees with "restraint and

discretion." Roadway Express, Inc. v. Piper, 447 U.S. 752, 764

(1980).

A court may award attorneys’ fees against a party who has

acted "in bad faith, vexatiously, wantonly, or for oppressive

reasons" in connection with the litigation. Roadway Express,

supra, 447 U.S. at 766 (internal citation omitted). See also

Synanon, supra, 517 A.2d at 28. This "bad faith exception is

intended to punish those who have abused the judicial process

and to deter those who would do so in the future." Synanon,

supra, 517 A.2d at 37. See also Kasachkoff v. Ross H. Finn,

Co., 408 A.2d 993 (D.C. 1979) (per curiam). Courts also may

award attorneys' fees against a party who exhibits a "willful

disobedience of a court order." Chambers, supra, SQALLS. at 45

(internal quotation and citation omitted). See also Roadway

Express, supra, 447 U.S. at 752; Synanon, supra, 517 A.2d at

36.

In awarding attorneys' fees, however, "a party is not to

be penalized for maintaining an aggressive litigation posture,

nor are good faith assertions of colorable claims or defenses to

be discouraged." Lipsig v. National Student Mktg. Corp., 214

U.S. App. D.C. 1,4,663 F.2d 178, 180-181 (1980). "In

attempting to deter bad faith litigation through attorney fee

awards, the court must scrupulously avoid penalizing a party for

a legitimate exercise of the right of access to the courts."

Synanon, supra, 517 A.2d at 37. For this reason, "[t]he

standards of bad faith are necessarily stringent." Adams v.

Carlson, 521 F.2d 168, 170 (7" Cir. 1975).** Under these

stringent standards, the awarding of attorneys' fees for bad faith

litigation is proper only under "extraordinary circumstances or

when dominating reasons of fairness so demand." Synanon,

supra, 517 A.2d at 37 (citing Launay v. Launay, Inc., 497 A.2d

443 (D.C. 1985)); Andrews v. District of Columbia, 443 A.2d

566 (D.C. 1982); Kasachkoff, supra, 408 A.2d at 993.

(1) Costs Associated with Appellee Valentine's Attempted

Challenges to the Will

The estate asserts that Valentine acted in bad faith by

violating two orders barring a will contest. First, the estate

maintains that the April 4, 1994, order admitting the July 31

will to probate acted as a bar to Valentine's attempted caveat in

March of 1997 because by the time Valentine brought this

challenge, the six-month statutory time period for bringing a

caveat had expired. Second, the estate points to Valentine's

pleading filed in early April 1997, which also challenged the

July 31 will, and maintains that this filing was also in bad faith

since it had been barred by the trial court's order of March 31,

1997, dismissing Valentine's challenges to the will as time-

barred. Finally, the estate asserts that Valentine's attempt to

—

*4 This stringency is consistent with the American Rule regarding

attorneys' fees which requires each party to bear its own attorneys' fees.

The American Rule serves to ensure that no individual will be deterred

from bringing legal action for fear of losing and being forced to pay

substantial legal fees for the other side. Rule 11 sanctions and a trial

e—ourt's inherent sanctioning powers form a narrow exception to the

American Rule.

intervene in Patton v. Elliott was a violation of the order

admitting the will to probate, and the March 31, 1997 and June

27, 1997 orders dismissing Valentine's various challenges to the

will.

Even if Valentine's first challenge to the will could be

construed as a violation of the order admitting the will to

probate, it is not at all clear that any of Valentine's attempted

challenges to the will were "entirely without color and...

asseried wantonly, for purposes of harassment or delay, or for

other improper reasons." Browning Debenture Holders'Comm.

v. DASA Corp., 560 F.2d 1078, 1088 (2d Cir. 1977). This is

because a claim is colorable for purposes of a bad faith analysis

when it has “some legal and factual support." Nemeroff v.

Abelson, 620 F.2d 339, 348 (2d Cir. 1980) (per curiam)

(emphasis added). "The question is whether a reasonable

attomey could have concluded that facts supporting the claim

might be established, not whether such facts actually had been

established." /d. Sanctions should not be imposed unless it is

"patently clear that a claim ha[d] absolutely no chance of

success" prior to filing. Schwartz v. Franklin Nat 'IBank, 718

A.2d 553,555 (D.C. 1998) (citation omitted); Green v. Louis

Fireison & Assocs., 618 A.2d 185, 188-189 (D.C. 1992).

As shaky as they were, none of Valentine's challenges to the

will sank to such a level as to compel a finding of bad faith and

require a court to either award sanctions or risk abusing its

discretion. Valentine's initial pleadings were based on some

facts that tended to support her claim of a forged will. Her

pleadings after the March 31,1997, order argued for either

application of the discovery rule to probate statutory time

limitations or use of the fraud statute of limitations in this

probate proceeding. Thus she either had some factual support

for her pleadings or was arguing for a modification of existing

law. The trial court did not commit error when it did not find

bad faith on Valentine's part and did not abuse its discretion in

refusing to award attorneys' fees for the various challenges to

the will.

2) Costs Associated with Valentine's Common Law Wife

Claim

The estate also claims the court should have awarded

sanctions because Valentine did not have a good faith basis in

bringing her common law spouse claim. According to the

estate, Valentine lacked this basis because she could not

establish the facts necessary to prove her claim. The claim was

advanced by Valentine's recently retained replacement attorney

who did not have a transcript of the much earlier deposition of

Valentine in which she gave testimony that undercut her

common law spouse claim. Predecessor counsel had not had the

deposition transcribed. Replacement counsel relied on

information given him by Valentine in constructing the

common law spouse claim. It is not sanctionable behavior for

an attorney to file a complaint based solely on the oral

representation of his client without the benefit of independent

corroboration. Gray v. Washington, 612 A.2d 839 (D.C. 1992).

We are not persuaded that the trial court committed clear error

when it did not find bad faith on Valentine's part and conclude

that it did not abuse its discretion by refusing to sanction

Valentine for bringing this particular claim.

(3) Costs Associated with Valentine's Interference

with a Witness

Lastly, the estate asserts that Valentine should have been

assessed attorneys' fees because her interference with a

witness resulted in a contempt hearing against the witness

which in turn caused unnecessary delay and expense.

While it is true that Valentine may have attempted to

interfere with the witness by discussing the witness'

testimony with her, it is also true that the trial court's

prohibition on such discussions was directed at each

individual witness, not at the parties to the proceedings.

The witness in question was the CEO of a small credit

union and a responsible adult who was capable of obeying

the court's order not to discuss her testimony with anyone.

We cannot conclude that it was unreasonable for the trial

court to hold this witness fully responsible for the

contempt hearing that resulted from her violation of the

court's prohibition on discussing her testimony with others.

Since the trial court did not act unreasonably in so holding,

it did not abuse its discretion by declining to require

Valentine to pay attorneys' fees for the witness' contempt

hearing.

SECTION V: APPEAL No. 01-PR-1469

The last of the appeals before us was noted from the

order removing Elliott as personal representative of the

estate. Elliott is the appellant and Christopher Hoge, Esq.,

successor personal representative, is the appellee on behalf

of the estate.

1. Appeal-Specific Facts and Procedure

In July of 1994, Elliott was appointed personal representative

of the Delaney estate in accordance with Item XIII of the July

31 will which reads:

I hereby nominate, constitute and appoint

Lawrence Elliott as Executor and trustee of my Will and

ask that he be allowed to serve with no bond. If

Lawrence cannot serve for any reason, I nominate

Celestine, his wife, to be Executrix with nominal bond.

While serving as personal representative, Elliott failed to

locate all of decedent's relatives and provide them with the

required notice of his appointment. He also failed to file the

estate's District of Columbia fiduciary tax returns for the years

1993-1997 in a timely manner, as a result of which the estate

had to pay penalties and interest charges on amounts owing for

each of those tax years.” Elliott offered two explanations for the

late filing of the 1993 return. First, he stated that he purposely

did not file the 1993 return on time because it was anticipated

that litigation expenses incurred in subsequent years could be

** All these returns were eventually filed, and the corresponding taxes

were paid, in 1999.

a 2

allocated to earlier years thereby lowering or eliminating the

amount of tax due for 1993. Then, when that proved to be

legally impossible, Elliott maintained that he delayed payment

so he couid use the 1993 tax payment to reduce the federal

fiduciary income tax due in 1999. All of this information came

to light in 2000 after Elliott filed an Amended Eighth, Ninth

and Tenth Accounts for the estate.

The charitable beneficiaries objected to the Eighth and Ninth

accounts on the grounds that the late-filed income tax returns

had resulted in avoidable penalty and interest charges to the

estate. After Elliott responded to those objections, the trial court

issued an order on March 8, 2001, declining to approve the

account and noting several concerns with the strategy as to the

1993 taxes. The trial court then ordered Elliott to file detailed

documentation addressing the court's concerns.

By July of 2001, Elliott still had not complied with the trial

court's requirement of additional documentation. On July 6,

2001, the Register of Wills sent Elliott notice of a summary

hearing, scheduled for August 15, 2001, on the question of

Elliott's removal for delinquency. Successive hearing dates of

October 3 and October 10, 2001, were thereafter noticed and

postponed. On October 10, 2001, over the objection of the

charitable beneficiaries, the removal hearing was postponed

again and rescheduled for November 14, 2001. Notice for all

these hearing dates was provided to Elliott. On November 5,

2001, Elliott finally responded to the trial court's March 8,

2001, order to provide further documentation on the 1993 taxes.

The removal hearing was held on November 14, 2001.

Later that same day, the tnal court issued an order

removing Elliott as the personal representative for the

Delaney estate. Elliott noted his appeal on November 27,

2001. Two days later, the charitable beneficiaries moved to

amend the order to include an explanation of why the trial

court did not appoint Elliott's wife as successor personal

representative. The next day, November 30, the court

issued its amended order.

In his appeal, Elliott asserts that (1) his removal was

improperly based solely on failure to perform his duties,

(2) he was denied due process in being removed, and (3)

the trial court erred by not appointing Elliott's wife as

successor personal representative.

2. Discussion

A.. Jurisdiction and Standard of Review

(1) Jurisdiction

Appellee Hoge contends that since appellant Elliott

appealed from the November 14, 2001, order rather than

the November 30, 2001 amended order, he did not appeal

a "final order" and therefore this court does not have

jurisdiction to hear the appeal. See D.C. Code § 11-721

(a)(1). Hoge posits that a ruling on a pending inotion by a

trial court cures prematurity only where the court "later ruled

upon the pending motion without modifying the judgment being

appealed." Circle Liquors, Inc. v. Cohen, 670 A.2d 381, 385 n.8

(D.C. 1996). See also D.C. App. R. 4 (a)(2) ("The running of

time for filing a notice of appeal is terminated as to all parties

by the timely filing of [a motion] ... to amend the order.") Hoge

contends Circle Liquors means that this court does not have

jurisdiction to hear Elliott's appeal because the trial court

modified the order from which Elliott appealed.

In Circle Liquors, the motion in question was a "Motion to

Amend Judgment." /d. The timely filing of such a motion

renders the judgment in the case non-final and that, in turn,

denies this court jurisdiction to hear any appeal from that

particular judgment. Dyer, supra, 635 A.2d at 1288. However,

when a requested amendment "raises issues that are, for all

practical purposes, ‘collateral to and separate from the decision

on the merits," the order disposing of the merits remains

appealable. Weaver v. Grafio, 595 A.2d 983, 986 (D.C. 1991)

(citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200

(1988)). See Words, Inc. v. Singer, 810 A.2d 910 (D.C. 2002).

Moreover, if the trial court later rules on "the pending motion

without modifying the judgment being appealed," Circle

Liquors,-supra, 670 A.2d at 385 n.8, the premature filing of the

appeal does not divest this court of jurisdiction.

The charitable beneficiaries' motion to amend the order

requested only the addition of explanatory material. It did not

ask the trial court to modify either the portion of the judgment

removing Elliott, or the portion of the judgment appointing

Hoge. The motion merely sought an explanation as to why there

was good cause for removing Elliott and for not appointing his

wife as his successor. Therefore, the order Elliott appealed from

was immediately appealable and remained so. See, e.g.,

Budinich, supra, 486 U.S. at 196 (holding that a judgment

disposing of the merits but leaving open the question of

attorneys' fees is a final, appealable order); Weaver, supra, 595

A.2d at 983 (holding that judgment disposing of all issues

except Rule 11 sanctions should be treated as immediately

appealable). Since that is so, Elliott's appeal was not premature,

and this court has jurisdiction.

(2) Standard of Review

In an appeal arising from a matter tried without jury, "we

must decide independently whether the trial judge committed

‘errors of law," Hopkins v. Akins, 637 A.2d424,426-27 (D.C.

1993), or "the judgment was plainly wrong or without evidence

to support it." D.C. Code§ 17-305(1989).

(i) Removal of a Personal Representative

Under D.C. Code § 20-526 (b), the trial court must remove

the personal representative if it finds, after a hearing, that he or

she has committed one of several infractions enumerated

therein. We may not set aside a judgment of a trial court in a

matter tried without jury except for errors of law unless it

appears that the judgment is plainly wrong or without evidence

to support it. D.C. Code § 17-305. See Conner v. 1747 Pa. Ave.

Assocs., L.P., 669 A.2d 693 (D.C. 1995); Walker v. District of

Columbia, 656 A.2d 722 (D.C. 1995). Since the court has no

discretion, but is statutorily bound to remove the personal

representative if it finds that he or she has committed an

infraction of a personal representative's fiduciary duties, we

review only the finding of an infraction.

(ii) Appointment of a Personal Representative

By contrast, review of a trial court's appointment power

should be conducted under an "abuse of discretion" standard

since the Code allows the trial court to vary from the statutorily

prescribed order of preference in appointing a successor

personal representative. D.C. Code § 20-303 (d) (2001) (the

court "may, for good cause shown, vary from the order of

priority"). The decision on whom to appoint is therefore

“committed to the discretion of the trial court and is reviewable

by this court only for an abuse in its exercise." Johnson v.

United States, 398 A.2d 354, 367 (D.C. 1979).

B. Issues on Appeal

(1) Elliott's Removal

D.C. Code § 20-526 states that "a personal representative

shall be removed from office upon a finding by the Court that

such representative: ... (5) has failed, without reasonable

excuse, to perform any material duty of such office." D.C. Code

§ 20-526 (a)(5) (2001). In its summary hearing order of

November 14, 2001, the trial court found that appellant Elliott

had not filed proper accounts and that he had not fulfilled his

duties and responsibilities as the personal representative for the

estate.

The record shows that Elliott had failed to perform his

fiduciary duties in that he was extremely late in paying the taxes

for the estate and his tardiness cost the estate substantial IRS

penalties. At the hearing, the trial court noted that paying the

taxes on time was an elementary fiduciary duty. Although, as

explained above, Elliott attempted to defend his tardiness, the

ti.al court found his excuse for the delay questionable at best.

The trial court also noted that in managing the estate, Elliott had

the assistance of both legal counsel and a tax expert which

made his tardiness even less reasonable. We are satisfied that

the trial court committed no error. There was a sufficient factual

basis for the trial court's underlying factual determination that

appellant Elliott had failed to perform a material duty of his

office and that appellant Elliott had no reasonable excuse for

that failure.

(2) Due Process in the Removal Process

Elliott claims he was denied notice and a hearing as required

~ by due process, but the record demonstrates otherwise. He was

notified, as required under Super. Ct. Prob. R. 121, that he faced

removal if his failures to carry out his fiduciary duties were not

corrected. He then requested and received at least one

postponement of the summary hearing. Finally on the reset date

of November 14, 2001, Elliott received a hearing on his

removal. There was no violation of appellant Elliott's due

process rights.

(3) Appointment of Successor Personal Representative

Hoge contends that once appellant Elliott was removed as

personal representative, Elliott no longer had standing to contest

the appointment of Hoge as successor personal representative.

Under D.C. Code § 11-721 (b) (2001), only a party "aggrieved"

may appeal from an order or judgment of a trial court. See also

Super. Ct. Prob. R. 8 (a) ("[a]ny person who is aggrieved" by an

order or judgment and who participated in the trial court's

determination may take an appeal). A person is "aggrieved"

when that person's legal nights have been infringed or denied. /n

re CT., 724 A.2d 590, 595 (D.C. 1999). Ifa person has suffered

no injury to his legal mghts or to some legally protected

relationship, he has no standing to appeal. Jn re Estate of

Jacobson, 387 A.2d 590, 591 (D.C. 1978). Although he remains

an interested party (because he is still a legatee), appellant

Elliott sustained no injury to his legal rights or to any legally

protected relationship from the appointment of appellant Hoge

as successor personal representative. An appeal may be

dismissed if the appellant lacks standing as an aggrieved party.

In re CT., supra, 724 A.2d at 595. Since Elliott has no standing

to appeal Hoge's appointment as _ successor personal

representative, we dismiss Elliott's appeal of that portion of the

November 14, 2001 summary order.

Therefore, the trial court's summary hearing order of

November 14, 2001 is affirmed.

SECTION VI: SUMMARY

As to the order dismissing Valentine's renewed claims of

forgery in the July 31 will and her claim to be Delaney's

common law wife, we hold (1) that a challenger may use the

discovery rule to bring a belated will contest based on intrinsic

fraud, but that Valentine's attack on the will coming, as it did,

three years after the will was admitted to probate, reflected a

lack of diligence on her part and came too late, and (2)

Valentine's assertion of common law wife status was statutorily

time-barred. Therefore, we affirm the trial court's order of June

27, 1997, dismissing both the challenge to the will and the

common law wife claim as time-barred.

As to the trial court's March 23, 1999, findings of fact and

conclusions of law and its October 20, 1999 order of judgment,

both of which related to the ownership of the two Virginia

accounts, we affirm in all respects. Because Valentine

abandoned them, we dismiss Valentine's appeals from the

court's orders (1) denying her motion to intervene in Patton v.

Elliott, (2) requiring payment of auditor's fees, and (3) denying

a request for a stay of enforcement.

We also affirm the trial court's compensation orders as to

Elliott (issued December 10, 1999) and Rosen (issued May 15,

2000), and the trial court's order of June 6, 2000, requiring

Valentine to pay attorneys' fees to the Delaney estate and the

charitable beneficiaries. Finally, we affirm in all respects the

trial court's order of November 30, 2001, removing Elliott as

personal representative and appointing Hoge as the successor.

So ordered.

District of Columbia Es ie

Court of Appeals aa: |

Nos. 97-PR-1217, 98-PR-934, 98-PR-1104, 98-PR-1771, 99-

PR-531, 99-PR-1392 &

99-PR-1619 IN RE: ESTATE OF DANIEL B.

DELANEY

EDNA J. VALENTINE,

Appellant,

ADM 1809-93

LAWRENCE M. ELLIOTT,

Appellee.

Nos. 00-PR-71, 00-PR-768 & 00-PR-808 =

IN RE: ESTATE-OF DANIEL B. DELANEY

LAWRENCE M. ELLIOTT and R. ELIOT ROSEN,

Appellants,

CHRISTOPHER G. HOGE, .

Appellee.

Nos. 00-PR-873, 00-PR-904 & 00-PR-905 IN RE:

ESTATE OF DANIEL B. DELANEY

CHRISTOPHER G. HOGE,

Appellant,

EDNA J. VALENTINE,

Appellee.

No. 01-PR-1469

IN RE: ESTATE OF DANIEL B. DELANEY

LAWRENCE M. ELLIOTT, |

Appellant,

¥.

CHRISTOPHER G. HOGE,

Appellee.

BEFORE: Wagner, Chief Judge; Terry, Steadman,

Schwelb, Farrell, Ruiz, Reid, Glickman, and

Washington, Associate Judges.

ORDER

On consideration of appellants' petition for

rehearing en banc; and it appearing that no judge of this

court has called for a vote on the petition for rehearing

en banc, it is

ORDERED that the petition for rehearing en banc is

denied.

PER CURIAM

Copies to:

Honorable Cheryl M. Long Honorable Kaye K. Christian

Clerk, Superior Court

Walter T. Charlton, Esquire 230 Kirkley Road

Annapolis, MD 21401

Jason P. Green, Esquire 4301 Verplanck Place, NW

Washington, DC 20016

William J. Bethune, Esquire 8280 Greensboro Drive

Suite 800 Tysons Corner, VA 22102-3807

Mary Gale Holden, Esquire

Foley & Lardner

3000 K Street, NW Suite 500

Washington, DC 20007-5143

Christopher G. Hoge Crowley, Hoge & Fein, P.C. 1710

Rhode Island Avenue, NW Seventh Floor Washington,

DC 20036-3125 i

SUPERIOR COURT OF THE DISTRICT OF

COLUMBIA PROBATE DIVISION

In Re: Estate of

DANIEL B. DELANEY, deceased

Admin. No. 1809-93

Lawrence M. Elliott, Personal Representative,

Plaintiff

-V- : 7

Edna J. Valentine, FILED apd

Defendant a

pesum ttt’

Cips ce Le ee

Findings of Facts, Conclusion of Law and

Order

This matter came before the Court for an Accounting bench

trial. The Court commenced trial on July 3, 1997, with the

testimony of Charles Goldstein, court appointed auditor. The

testimony of Mr. Goldstein could not be concluded on July 3.

1997 and was resumed on July 7, 1997. At the conclusion of

Mr. Goldstein's testimony, the Defendant, Edna J. Valentine,

through counsel, brought to the Court's attention individuals

who were alleged to be heirs of the Estate of Daniel B. Delaney

who had not been notified of the Probate Proceeding by the

personal representative. Based upon those representations, the

accounting trial was stayed to allow for the participation of the

alleged heirs who thereafter filed a Complaint _ contesting the

validity of the decedent's Last Will and Testament. Following

the entry of Summary Judgment on September 3, 1998,

dismissing the contest of the Last Will and Testament with

prejudice, the accounting bench trial resumed on October 27,

1998, with the testimony of S. Henry Harris Agent for Merml]

Lynch and the testimony of Peggy Custis, CEO, for Virginia

State University Federal Credit Union. On October 28, 1998,

the Court concluded the testimony of Peggy Custis and heard

testimony from Stephanie Harris, tax preparer. The testimony

of Stephanie Harris was concluded on October 29, 1998. On

November 2, 1998, the Court heard the testimony of Lawrence

Elliott, personal representative. On November 3, 1998,

testimony was again provided by Peggy Custis, CEO, for

eee

Virginia State Federal Credit Union and the Court heard

testimony of Sally Johnston, friend of the decedent and

defendant. The Court heard further testimony of S. Henry

Harris, Agent for Merrill Lynch. The Court heard the testimony

of the defendant, Edna J. Valentine on November 9, 1998, and

was concluded on November 13. 1998. Upon consideration of

the sworn testimony of the witnesses, the Court's assessment of

each witness's credibility, the arguments of counsels, the review

of the exhibits admitted into evidence, and a review of the

applicable law, the Court makes the following:

Findings of Fact

Daniel B. Delaney, the decedent, died on August 6, 1993 at

Washington Hospital Center at 6:40 a.m., in the District of

Columbia following a bout with cancer. Prior to his death.

Daniel B. Delaney was transferred from Providence

Hospital to Washington Hospital Center or: July 19, 1993 to

undergo radiation and chemotherapy. Upon Mr. Delaney's

admittance to Washington Hospital Center, a hospital physician

observed that Mr. Delaney "has some degree of cognitive

impairment; and memory becomes intermittently confused." On

that same date, July 19, 1993, the decedent executed a power of

attorney appointing the defendant, Edna

J. Valentine, as his attorney in fact for "the general purposes of

convenience i maintaining his real and personal property and

to use such property for his support, maintenance, care and

attention."

Daniel B. Delaney was a resident and domiciliary of the District

of Columbia who died testate with a Last Will and Testament

dated July 31, 1993. The decedent's Last Will and Testament

was admitted to Probate by Order of this Court dated April 4,

1994 and docketed April 5, 1994. The decedent's Last Will and

' As stated in the defendant's pre-trial statement.

* The Court notes that a document dated July 18, 1998, purporting to be the

decedent's Last Will and Testament was admitted to Probate on September

7, 1993. That admission was vacated on April 4, 1994. The defendant

contested the July 31, 1993, Last Will and Testament. The defendant's

complaint was dismissed as time barred pursuant to the Court's Order of

June 27, 1997, which included defendant's claim to be the decedent's

common law spouse.

Testament nominated Lawrence Elliott as personal

representative who was issued Letters of Administration on

April 8, 1994. Mr. Elliott is Plaintiff in his fiduciary capacity in

this matter.

Daniel B. Delaney was a schoolteacher by profession and

believed that with limited spending and careful investment he

could become a millionaire on a teacher's salary.

During his lifetime, the decedent was extremely thrifty,

spending little on necessities and luxuries. His purchases were

usually of second-hand or used items. The decedent was an avid

saver and investor. He was a conservative investor. His

financial objective was to accumulate assets.

During his lifetime, the decedent gave gifts of extremely small

monetary value. For example, he gave the defendant's daughter

a wedding gift of less than fifty dollars. The decedent would

accompany the defendant to social events and on trips, but

would routinely refuse to pay the expense.

6. The National Association for the Advancement of Colored

People (NAACP), The American Heart Association (AHA),

The American Cancer Society (ACS), The National Arthritis

Foundation, Lawrence Elliott, Celestine Elliott. Edna J.

Valentine, Stephanie Harris. Charles James, and Andre

Michalak are beneficiaries under the decedent's Last Will and

Testament.

6. Edna J. Valentine, a long time close and personal friend of

the decedent, is the defendant in this action. The defendant.

Edna Valentine, met the decedent in the 1930's. She was a high

school student and he was a junior in college. They dated for a

while. The defendant eventually married a classmate of the

decedent in 1946. She remained married until the death of her

husband in 1962. The defendant resumed her relationship with

the decedent in 1965. The decedent and the defendant shared a

personal relationship for many years and traveled together. The

decedent had occasional over-night stays at the defendant's

home. The relationship continued until 1982, when the

relationship broke off. The defendant and decedent became

close again and resumed their relationship in 1985.

On July 19, 1993, while at Providence Hospital, the decedent

gave the defendant a financial Power of Attorney to provide her

with access to the Merrill Lynch account in order to pay his

bills and to generally act for his convenience. On

that same day, July 19, 1993, the Decedent was transferred to

Washington Hospital Center where he remained until his death.

Prior to the execution of the July 19, 1993 Power of Attorney,

the decedent had attempted to execute a power of attorney that

was not recognized by financial institutions with which he

wished Ms. Valentine to deal.

On the date of his death. August 6, 1993, the decedent owned

real property in the District of Columbia and was a note holder

on property in Pennsylvania. The decedent owned a bank

account with Virginia State University Federal Credit Union

and he owned a brokerage account with Merrill Lynch.

As of August 6, 1993, the date of the decedent's death, the

balance of the Merrill Lynch Brokerage Account no. 795-

12D39 was $0.00. Assets from account no. 795-12D39 had

been transferred to account no. 795-60Y12. which had a

balance of $706,352.68 as of the date of the decedent's death.

10. As of August 6, 1993, the date of the decedent's death, the

balance of the Virginia State University Federal Credit Union

Account No. 3339 was $84,689.69.

11. The Merrill Lynch Brokerage Account was opened in the

District of Columbia in 1962.The decedent held the Merrill

Lynch Account as owner on the date of his death. All of the

money used to fund the Merrill Lynch Account came from

funds belonging to the decedent.

12. The Virginia State Federal Credit Union Account was

opened on September 23, 1986, in Petersburg, Virginia. The

decedent held the Credit Union account as owner on the date of

his death. All of the money used to fund the Virginia State

Federal Credit Union Account came from funds belonging to

the decedent. As of the date of the decedent's death, August 6,

1993, the total assets of the Estate were approximately $1,

814,868.19, consisting of real property in the District of

Columbia, a mortgage on property in Philadelphia,

Pennsylvania, some personal property, various bank accounts,

various government and municipal bonds, investment funds and

insurance annuities, and the Merrill Lynch account no. 795-

60Y 12 and the Virginia State University Federal Credit Union

account no. 3339.

MERRILL LYNCH BROKERAGE ACCOUNT

The Mermill Lynch brokerage account was opened in the District

of Columbia in 1962, at the Connecticut Avenue, NW,

Washington, D.C. branch office of Merrill Lynch. The account

constituted the bulk of the decedent's liquid assets.

The decedent's Merrill Lynch account was essentially a bond

account. The address of record for the decedent's Merrill Lynch

account, account no. 795-12D39, was 620 Nicholson Street,

NW, Washington, DC, the decedent's home of many years. The

. decedent's security positions, or assets, were held in a "street

name." Meaning that they were titled in the name of the

brokerage firm and held as house stock, with the decedent's

interest in the assets journalized to his account. The Merrill

Lynch brokerage account was held solely in the decedent's name

from the date it was established until four days before his death.

Samuel Henry Harris was the decedent's financial consultant

with Merrill Lynch. Mr. Harris assisted the decedent with his

Merrill Lynch Account in 1962 and remained the decedent's

financial consultant until his death in 1993. Mr. Harris worked

at the Merrill Lynch Office located in the District of Columbia

when he inherited the decedent's account from another financial

consultant. Mr. Harris

remained in the District of Columbia until he was transferred to

another office located in Tysons Corner, Virginia. Mr. Harris

took the decedent's account file with him when he relocated and

he continued to serve as the decedent's financial consultant.

Over the course of his financial dealing with the decedent, Mr.

Harris never met the decedent in person.

15. The Power of Attorney given by the decedent to the

defendant on July 19, 1993 was not consistently honored by all

financial institutions and the decedent was concerned that his

financial affairs could go unattended. Thus, the defendant

testified, the decedeit was motivated to create a means by

which the defendant would have access to his Mermill Lynch

account in order to handle his financial affairs. In her

deposition, the defendant stated that the Merrill Lynch account

had to be changed because " I could not write any checks or do

anything that he [the defendant] was asking me." During his

hospitalization, the decedent received checks, by mail, that were

made payable to the decedent as sole payee. On July 27, 1993,

the defendant took those checks to Merrill Lynch to be‘

deposited in the decedent's account. The decedent ultimately

changed his Mermill Lynch account to a joint account in his

name and the name of the defendant so that she could pay bills.

16. On July 27, 1993, defendant Edna Valentine came to Mr.

Harris's office seeking general information about the decedent's

account. Over the twenty-nine year history of working with Mr.

Delaney. Mr. Harris had never heard of the

defendant. Edna Valentine, until she came to his office seeking

information about Mr. Delaney's account. Mr. Harris refused to

provide or release information about Mr. Delaney's account to

Ms. Valentine without Mr. Delaney granting him permission to

do so. Mr. Harris would not recognize the July 19, 1993 Power

of Attorney presented by Ms. Valentine.

17. In response to Mr. Harmis's refusal to provide her

information regarding the decedent's account, the defendant

telephoned the decedent at the hospital and coordinated a

telephone conversation between the decedent and Mr. Harris.

Mr. Harris recalled tha. during that conversation, the decedent's

voice was weak. Prior to that conversation, Mr. Harris was not

aware of the decedent's illness. The decedent gave Mr. Harris

permission to only discuss his affairs with the defendant. Mr.

Delaney did not provide Mr. Harris with oral permission to

transfer his account. Mr. Delaney made no oral request for a

change in his account nor was there a request for an address

change.

During the discussion with Ms.Valentine regarding the

decedent's account, Mr. Harris explained asset transfer options,

including transfer by Last Will and Testament, available to the

decedent. Ms. Valentine requested that Mr. Harris explain any

and all options other than by Last Will and Testament.

Based on the discussion with Ms. Valentine, Mr. Harris

suggested that a joint account be set up.”

° Mr. Harris stated in his Disposition Testimony on July 31, 1996 at p. 36

and 37, "when it become apparent that the only realistic way to change the

ownership would be through a medium of a joint account and I know of

On that same date, July 27, 1993, Ms. Valentine filled out forms

with Mr. Harris's assistance. The forms included: (a) an asset

transfer form, authorizing the transfer of assets from the

decedent's account number 795-12D39 to a" new

account;" (b) a "new account" agreement; and (c) a check

information form. The defendant, Edna Valentine, signed the

"new account" agreement on July 27, 1993. as secondary

account holder.

21. On that same date, the defendant took the forms back to the

decedent's hospital room. The decedent refused to sign them

because he was angry. The defendant returned to the decedent's

hospital room the following morning of July

28, 1993, placed the papers before him and asked him to sign.

After a two-hour period the decedent signed the documents.

After obtaining the decedent's signature

on July 28, 1993, the defendant had her daughter-in-law return

the signed documents to Mr. Harris while she , the defendant,

returned to her home in Petersburg, Virginia. The decedent

signed the document unaided by his glasses.

On August 2, 1993, Edna Valentine transferred all of the assets

from the decedent's Merrill Lynch Account #795-12D39 to a

new account #795-60Y12 in her name and the name of the

decedent. The decedent's Merrill Lynch Account

remained in his sole name from 1962 to August 2, 1993. The

defendant, Edna J. Valentine, signed papers on July 27, 1993

initiating this transfer process. By August 3, 1993, all security

positions formerly held in the decedent's sole account were

transferred to the joint account by journal entries.

23. After the decedent's death, the balance of the brokerage

account no. 793- 60Y 12, was transferred to a new account at the

same institution in the joint names of the defendant and her

no other way that it could have been done except through his Will, and I

have not seen his Will, and I don't recail whether she had a copy of it with

her, but for us to change the ownership, the only way we could have done

it was to be if we had gone through some legal procedure other than just

the adding of her name as a joint tenant, and then she would become the

survivor upon his death."

daughter.

VIRGINIA STATE FEDERAL CREDIT UNION

ACCOUNT

24. The Virginia State Federal Credit Union Account, No.

3339, was opened on September 23, 1986, in Petersburg,

Virginia. The account was carried under the decedent's name

and social security number. The decedent's social security

number, SS No. 422-29-9937, was the only personal

identification number to appear on the credit union account.

25. The decedent was the source of the funds that made up the

Credit Union Account. A total of four deposits were made to

the Credit Union account. The last deposit to the account was

made in 1990. No withdrawals were made from the

account during the decedent's lifetime.

26. Quarterly statements were mailed to the decedent's address

in the District of Columbia. Interest on the account was reported

under the decedent's social security number, and he was the sole

taxpayer on the income.

27. The Court is unable to credit the defendant's assertion that

she deposited any of her own funds into the credit union

account because she lacks supporting documents to prove what,

if anything, she may have deposited into the account. The Court

accepted Charles Goldstein, the Court -appointed auditor, as an

expert in forensic accounting. The court-appointed auditor was

not able to account for any deposits made by the defendant into

the Credit Union account.

28. The Court-appointed auditor further found that Ms.

Valentine did not contribute any funds to the Mermill Lynch

account. Ms. Valentine admitted to the Court-appointed auditor

that she had no holdings or investments with the decedent.

29. The defendant Edna Valentine is a resident of Petersburg,

Virginia. Peggy Custis is the CEO of the Virginia. State

University Federal Credit Union located in Petersburg, Virginia.

Ms. Custis is a friend of the defendant, Edna

Valentine. The defendant provided Ms. Custis transportation in

her automobile to and from Petersburg, Virginia to the District

of Columbia to testify in the above-captioned case. Ms. Custis

discussed her testimony with the defendant and her family

during these car trips in violation of the Court's admonition

against such discussions.

30. Peggy Custis changed her testimony in Court after

discussing her previous day's testimony with the defendant and

her family during the car trips to and from Court.

31. The testimony of Ms. Custis failed to establish that the

account was opened as a joint account. Ms. Custis abandoned

normal and customary Credit Union banking practices when

dealing with Edna Valentine. There were numerous '

irregularities connected with the handling of the decedent's

Virginia State Federal Credit Union account. Routine banking

practices were suspended or simply ignored because of Ms.

Custis's familiarity with Ms. Valentine.

32. The credit union account was opened in the name of

Daniel B. Delaney but with incomplete signatures. There was

no joint account election made by decedent. The decedent did

not sign the card entitled "Joint Account." Although the names

of the decedent and the defendant appear on the account card,

both names were filled in by the defendant. There is no

signature of the decedent authorizing the opening of a joint

account with or without right of survivorship. Nor was there

evidence to show that the Certificates of Deposit which funded

the account, in part, were titled jointly.

33. The Court finds that the credit union account was, in fact,

a single account in the decedent's sole name. The Court finds

that the assets funding the account were the decedent's sole

property. At most, the evidence shows that the defendant acted

as a courier and depositing agent for the decedent, except in the

case of the largest deposit of $50,000.00, which was made by

the decedent directly to the credit union by mail. The decedent

was the primary account party and was regarded as "owner" of

the credit union account.

34. The Court does not credit the defendant's testimony that

the Virginia State University Federal Credit Union account was

a joint account. The defendant termed the credit union account

as " our account" and as " our nest egg for making joint

purchases such as automobiles, or a house." There is no

evidence, however, that the decedent nor the defendant treated

the account as having joint ownership. No funds were ever

withdrawn from the account by either the decedent or Edna

Valentine during the decedent's lifetime. Although the

defendant testified that she could have used the account at any

time she wanted, she made no such use. Even

when the decedent allegedly reneged on his promise to

contribute to the 1991 purchase of defendant's Dodson Road

residence in Petersburg, Virginia, the defendant did not access

the account to fund the down payment. Rather, according to her

testimony, she "had to borrow money" from her daughter to

complete the purchase.

35. The Court finds that no inter vivos gifts of the account

assets were made by the decedent. No gift tax returns were filed

for any of the deposits into the account, although two of the

deposits exceeded the annual $10,000.00 gift tax exclusion.

36. The Court discredits the defendant's testimony that the

decedent made a gift of his accounts to her to avoid probate

which is negated by the fact that the decedent executed a Last

Will and Testament dated July 31, 1993.4

37.The decedent's Last Will and Testament provided that "all I

own in any form is my property, with no pre death gift

intended." The Court finds that the decedent viewed both the

credit union account and the brokerage account as his sole

property.

38. After the decedent's death, the balance of the credit union

account was transferred to another account at the same

institution in the defendant's sole name.

39. The defendant transferred the balances of both the credit

union account and the brokerage account to other accounts in

her soie name or under her control, where funds were expended

and distributed to other members of her family.

40. The court-appointed auditor has reviewed the history of

both accounts subsequent to August 6, 1993 and has filed

reports with the Court. The auditor also testified during two

days of trial in 1997. The final report of the auditor was filed

with the Court on September 2, 1997. The Court accepts and

fully credits thecontent of that report.

* The record of this case reflects that the decedent executed at least three

Last Wills and Testaments

41. The disputed accounts are the property of the Estate of

Daniel B. Delaney. The Estate is entitled to a judgment against

defendant in an amount that reflects what monies are still

retained by the defendant. The court-appointed auditor

calculated the estate assets held by the defendant as of August

27, 1997, page 4 of the Auditor's Final Report, as follows:

Balance remaining in the ML Accnt #91 as of

January 23, 1997 $ 604,546.95

Add: Net withdrawals from ML Acct #91

Over the audit period $ 304,134.94

Add: Income lost due to withdrawals

From the account over the audit .

period $ 28,422.99

Total amount for ML Accnt #91 as of

January 23, 1997 $ 937,104.88

Balance remaining in VSUFCU Accnt

#3339 as of August 6, 1993 $ 84,689.69

Add: Interest & Deposits earned in

This account over audit period $ 1,574.93

Add: Income lost over the audit period

Due to closing account $ 14,941.29

Total amount for VSUFCU Accnt

#3339 as of January 23,1997 $ 101,205.91

Total assets held by the defendant

As of January 23, 1997 $ 1,038,310.80

Less: Amount deposited by the

Defendant on February 11,1997 ($ 595,245.75)

Add: Interest lost on Merrill Lynch

Accent #91 withdrawals from

January 23, 1997 through August 27, 1997

$ 16,668.66

Add: Interest lost on VSUFCU Accnt

#3339 closing from January 23, 1997

through August 27,1997 $ 3,023.25

Total estate assets held by defendant as

Of August 27, 1997 $ 462,756.96

42. The Court accepts the foregoing calculation.

43. The decedent's Last Will and Testament contained a

forfeiture clause in Article XVI which addressed challenges to

the Last Will and Testament and the consequences thereof.

——<_£_<_$_<_$_$<$<_$<_$_$_$<—— |

Nee

44. The defendant, Edna Valentine, challenged the decedent's

Last Will and Testament.

CONCLUSIONS OF LAW

Daniel B. Delaney died a domiciliary of the District of

Columbia on August 6, 1993. During his life, Mr. Delaney,

resided at his home located at 620 Nicholson Street, NW.

Washington, DC. This Court has jurisdiction over the instant

probate matter, as it is a long-standiig principle that where the

decedent was domiciled in the District of Columbia, the

Superior Court has jurisdiction to probate the estate. See In re

EstateofDapolito. 331 A.2d 327 (D.C. 1975).

This case involves a dispute over ownership of two accounts:

Virginia State University Federal Credit Union Account No.

3339 and Mermill Lynch, Pierce. Fenner & Smith, Incorporated

Account No. 95-60Y12. The decedent's credit union account,

established in 1986, is located in Virginia. The decedent's

original brokerage account at Merrill Lynch was established in

the District of Columbia in 1962, at the Connecticut Avenue,

NW branch office of Merrill Lynch, and it remained there until

1989 when the stockbroker assigned to the account moved to a

Virginia office. The decedent was the source of all funds

deposited in both accounts. The Personal Representative of the

Estate of Daniel B. Delaney, and certain interested parties who

participated at trial, claim that the date of death balances in both

accounts are assets of the estate. Defendant Edna J. Valentine

claims that the balances at death belong to her as the surviving

joint tenant.

Choice of Law

The Defendant argues that the law of Virginia applies to

both the credit union account and the brokerage account. Upon

consideration and analysis of choice-of-law principles, this

Court finds that District of Columbia law applies to this case for

the following reasons: (1) the burden of proof to rebut the

presumption of a convenience account is a procedural matter

governed by the law of the forum; (2) there is no true conflict

with the law of Virginia, thus the forum law applies by default;

and (3) under a choice of law analysis, the District of Colmbia

has a greater interest than Virginia in applying its law to this

case. First, procedural matters are governed by the law of the

forum. Huangv. D'Albora, 644 A.2d 1, 4(D.C. 1994); Fowler

v.A & A Co.. 262 A.2d 344, 347 (D.C. 1970). Presumptions

and burden of proof involve matters of procedure, and like other

matters of procedure, they too, are governed by the law of the

forum. See Koehne v. Price 68 A.2d 806 (D.C. 1949). Likewise,

the principles applicable to the quality and degree of evidence

are governed by the law of the forum. Osborne v. Osborne, 134

A.2d 438 (D.C. 1957); see also Vernon v. Aubinoe. 269 A.2d

620 (Md. 1970); Vicars v. Atlantic Discount Co.. 140 S.E. 2d

667 (Va. 1965). Thus, the law of the District of Columbia

governs the burden of proof and the standard of proof in this

case. ;

Secondly, where there is no true conflict with the law of

Virginia, the forum law applies by default. A "true conflict"

exists only where two jurisdictions have an interest in applying

their law to the case and the law of each is different. GEICO v.

Fetisoff. 958 F.2d 1137, 1141 (D.C. Cir.1992). Under the law

of the District of Columbia, the individual claiming that there

was a gift of the account funds is charged with the burden of

proof to rebut the presumption of a convenience account. Davis

v. Altmann. 492 A.2d 884 (D.C. 1985). On the other hand,

Virginia statutory law’ created a presumption, contrary to

Virginia's common law, that any joint account is a survivorship

account unless it is proven by clear and convincing evidence

that at the time the account was opened the devedent-depositor

had a different intent than to create a survivorship account. Va.

Code Ann. §6.1 -125.5 (Michie 1993); Higgins v. Bowdoin.

380 S.E. 2d 904 (Va. 1989). This Court notes that the law of

this forum and the statutory law of the foreign jurisdiction

differ. Nevertheless, no "true conflict" exists because Virginia

has no interest in applying its law to this case.

The Virginia presumption of survivorship for joint

> Virginia Code section 6.1-125.5 states that sums remaining on deposit at

the death of a party to a joint account belong to the surviving-party or

parties as against the estate of the decedent unless there is clear and

convincing evidence of a different intention at the time the account is

created.

deposits at financial institutions does not apply, by its own

terms, to the credit union account nor to the brokerage account

in the instant matter. The Virginia State Credit Union account

was not, in fact, a joint account; thus the Virginia statutory

presumption as to "joint accounts" would not apply to the credit

union assets.

The Virginia statutory presumption does not apply to the

Mernill Lynch brokerage account. The brokerage account does

not appear to qualify as an "account" under the Virginia statute.

The Virginia statute defines an "account" as a contract of

deposit of funds between a depositor and a financial institution.

See Va. Code Ann. §6.1-125.1. According to Virginia case law.

"the relationship between a financial institution and its

depositor is that of debtor and creditor.. this relationship is

prerequisite to the existence of any ‘contract of deposit' or

checking account... [or] other like arrangement' included within

the definition of 'account' in this section." Bennet v. First &

Merchants Nat'l Bank. 335 S. E.2d 888 (Va. 1987)(emphasis

added). In the instant case, the relationship between the

decedent and the stock brokerage firm was that of principal and

agent, not that of debtor and creditor. The decedent managed his

investments through the services of the stock brokerage firm.

Furthermore, according to Virginia case law, investments

purchased with the decedent's funds are assets which remain a

part of the decedent's estate. See Bennet, 335 S.E. 2d at 891

(where the decedent had contributed all the funds on deposit in

the joint account, the funds withdrawn from the account during

his lifetime to purchase the Treasury Bill belonged solely to

him.) The decedent's Merrill Lynch brokerage account was an

investment account. The assets in the decedent's Merrill Lynch

brokerage account were used to purchase investment holdings.

Therefore, since the decedent's assets do not meet the Virginia

definition of an "account" protected by the statutory

presumption, Virginia has no interest in applying its law.

This Court notes that the Virginia statutory law is

inapplicable to accounts created prior to the statute's effective

date. According to the Virginia Code:

“nothing herein shall affect the common-law presumption

of convenience now existing between persons not

marmied to each other in joint accounts that were created

prior to July 1, 1980, insofar as the ownership of the

funds, whenever deposited... and such cases shall

continue to be decided pursuant to the precedents of the

Virginia Supreme Court."

Va. Code Ann. §6.1-125.16. The original Merrill Lynch original

account, opened in 1962, was established approximately 18

years prior to the Virginia Code's effective date, was opened

solely in the name of the decedent with the decedent's sole

funds and the decedent and the defendant were never married.°

The "new" account was created on August 2, 1993, four days

before the decedent died. This Court further notes, that where

the Virginia statutory presumption is irrelevant, Virginia

common law would apply. See Higgins v. Bowdoin. 380 S.E.

2d at 907. The case law of Virginia is the same as that of the

District of Columbia. In both jurisdictions, a joint account

established without consideration is presumed to be for the

convenience of the depositor and the surviving joint tenant has

the burden of establishing ownership by inter vivos gift. Davis

v. Altmann. 492 A.2d at 885; Higgins v. Bowdoin. 380 S.E. 2d

at 907(stating but not applying the common law rule); Wrenn

v. Daniels. 106 S.E. 2d 126, 131 (Va. 1958) (presumption of

convenience is strengthened by the illness or infirmity of the

depositor).

The Court further finds that the protection of Virginia

institutions 1s not an issue in this matter. This case presents

claims against a Virginia resident arising from transactions

involving personal property of a District of Columbia decedent.

Moreover, in cases involving the ownership of a decedent's

personal property. Virginia courts recognize and apply the law

of the decedent's domicile. Kettler v. Greeley, 176 S.E. 2d 332

(Va. 1970); French v. Short. 151 S.E. 2d 354 (Va. 1966)(under

Virginia law. a decedent's personal property passes according to

the law of the state where he was domiciled at his death).

This Court finds that there is no true conflict between the

law of the forum and the law of the foreign jurisdiction. See

® The Court notes that the decedent's death certificate indicated that the

decedent was never married and the Court notes that the defendant was the

informant of the information contained in the decedent's death certificate.

Kaiser-Georgetown Community Health Plan. Inc. v. Stutsman.

491 A.2d 502, 509 (D.C. 1985)(even in the event of a "true

conflict," the forum law will be applied unless the foreign state

has a greater interest in the controversy). The District of

Columbia has a greater interest than Virginia in applying its law

to this case. Under District of Columbia conflicts of law

principles, the court is required to evaluate the governmental

policies underlying the applicable conflicting laws in order to

determine which jurisdiction's policy would be most advanced

by having its law applied to the facts of the case. Williams v.

Williams, 390 A.2d 4, 5-6 (D.C. 1978); Rafferty v. Nynex

Corp.. 60 F.3d 884 (D.C. Cir. 1995). It appears that the Virginia

statute creates a presumption of survivorship in order to

minimize confusion and inconvenience to financial institutions.

The District of Columbia has an overriding governmental

interest in applying its law to this case. The District of

Columbia Court of Appeals has opined that "the public policy

considerations for the presumption of a convenience account are

of the highest magnitude. They are the need to prevent fraud,

overreaching, and deceit, often culminating after the other party

to the transaction is dead." Davis v. Altmann. 492 A.2d at 887.

Thus, this Court finds that the District of Columbia has the

greatest interest in resolving the question of ownership in the

instant probate matter.

District of Columbia law

Under District of Columbia law, the individual who

claims that there was a gift of the account funds is charged with

the burden of proof to rebut the presumption of a convenience

account. Davis v. Altman, 492 A.2d at 885. The burden of

proving that a transfer was an inter vivos gift falls upon the

person asserting the gift. 492 A.2d at 885; Dugean v. Keto, 554

A.2d 1126, 1134(D.C. 1989). Because the allegation of an inter

vivos gift followed the death of the alleged donor, the gift must

be proven by clear and convincing evidence. Uckele v. Jewett,

642 A.2d 119, 123 (D.C. 1994); Duggan v. Keto. 554 A.2d at

1134; Estate of Presgrave v. Stephens. 529 A.2d 274, 280 (D.C.

1987).

Thus, the Court finds that the defendant, Edna Valentine,

has the burden of proving, by clear and convincing evidence,

eee

that the accounts in question were not convenience accounts.

Likewise, Edna Valentine has the burden of proof, by clear and

convincing evidence, that the accounts in question were infer

vivos gifts to her from the decedent in order to support her

assertion that she has a nght of survivorship in the accounts.

The Court will first address the Merrill Lynch account.

The Court finds that the defendant Edna Valentine has failed to

rebut the presumption that the Mernll Lynch account was a

convenience account. The defendant offers no evidence that

convinces this Court that the decedent did not intend to create

the account merely for his own convenience, nor does the

defendant offer clear and convincing evidence that the decedent

made an inter vivos gift of the assets.

The Court finds that the account was created in response to

the decedent's desire to give Ms. Valentine access to his funds

for the purpose of handling his financial affairs on his behalf

while he was hospitalized. The Court finds that on at least two

instances prior to the creation of the "new" Mernll Lynch

account, Mr. Delaney had attempted to give Ms. Valentine a

power of attorney so that she could act on his behalf in

reference to his financial affairs. The first "power of attorney"

had no effect, in that it was not recognized by institutions with

which Mr. Delaney — desired Ms. Valentine to handle his

concerns. The second "power of attomey*' was executed on July

19, 1993, while Mr. Delaney was at Providence Hospital, and

on that same day, the decedent was transferred to Washington

Hospital Center for chemotherapy and radiation. Thus, the

Court finds that Mr. Delaney desired to create a means by

which the defendant (a) would be recognized, as his agent, by

the financial institutions with which he held his accounts; and

(b) would have authority to access his accounts: and (c) could

handle his financial affairs on his behalf.

The original Merrill Lynch account, opened in 1962. was

solely in the name of the decedent for approximately 30 years

until four days before his death. The "new™ Mermnll Lynch

account, account no. 795-60Y12, was opened as a "Joint

Account with Right of Survivorship." The defendant, therefore,

claims a right of survivorship in the Mermll Lynch account

assets. Nevertheless, where a party opens a joint account for

himself and another without consideration, the account is

presumed opened for the convenience of that party. Davis v.

Altmann, 492 A.2d at 885: Edstrom v. Kuder. 351 A.2d 506,

509 n.7 (D.C. 1976). In this case, there is no evidence of any

consideration given on the part of the defendant. The Court

finds that the decedent and the defendant had a long-term

relationship, expanding over approximately sixty years. The

defendant was not employed by the decedent, nor was there

evidence of any arrangement in which the defendant was to

perform tasks in exchange for compensation.

The record shows that the "new" Merrill Lynch account

was funded solely by the decedent's assets. As indicated on the

Mermill Lynch transfer form submitted

in evidence, "all assets" and "all cash" from the decedent's

account number 795-12D39 were transferred into the new

account now in question. There is no evidence

that the defendant contributed to the decedent's original

account, nor is there evidence that the defendant contributed

any assets to the "new account."

Furthermore, in accordance with the holding of the

District of Columbia Court of Appeals, the presumption of a

convenience account applies in all cases where the funds have

been contributed by one of the parties even where the printed

bank card signed by the parlies recites a right of survivorship.

Davis v. Altmann, 492 A.2d at 885 (emphasis added); Imirie v.

Imirie. 100 U.S. App. D.C. 371, 372, 246 F.2d 652, 653 (1957).

In the instant case, the application form creating the joint

account at Mermill Lynch, signed by the decedent as primary

account holder and signed by the defendant as the secondary

holder, indicates a joint account with right of survivorship. All

of the funds were Mr. Delaney's transferred funds. Thus, the

Court finds that the presumption of convenience applies to this

case, even though the account was set up as a joint account with

right of survivorship. The Defendant has failed to meet her

burden of proof that the Merrill Lynch account was anything

other than an account of convenience.

The Court further finds that the defendant has failed to

prove, by clear and convincing evidence that the decedent made

an inter vivos gift of the Merrill Lynch assets. The requisites of

a valid inter vivos gift are delivery, intention on the part of the

donor to make a gift, and absolute disposition of the subject of

the gift. Uckele v. Jewett, 642 A.2d 119,123 (D.C. 1994);

Duggan v. Keto. 554 A.2d 1126, 1134 (D.C. 1989). The funds

were never delivered to the defendant; rather, the funds were

transferred by ledger entry to the new account initiated by the

defendant herself. There is no evidence that the decedent

intended to make a gift; rather, the record shows that the

decedent was of the mind that all assets he owned remained his

at his death, as he so stated in his Last Will and Testament.

There is no credible evidence of the decedent ever giving a

large gift to the defendant. The Court finds that the Merrill

Lynch account was an account of convenience.

The Court now turns to the status of the Virginia State

University Federal Credit Union account. The Court finds that

the defendant Edna Valentine has failed to rebut the

presumption that the Credit Union account was a convenience

account. The defendant offers no evidence that convinces this

Court that the decedent did not intend to create the account

merely for his own convenience, nor does the defendant offer

clear and convincing evidence that the decedent made an inter

vivos gift of the assets.

The decedent was the sole source of all funds deposited

to the credit union account. A total of four deposits were made

to the credit union account. No withdrawals were made during

the decedent's lifetime. The account was carried under the

decedent's name and social security number and the decedent

was the sole taxpayer of taxes levied on the account. The

defendant made no contribution of funds to this account, nor is

there evidence of any consideration given on the part of the

decedent.

The defendant asserts that the credit union account was a

joint account. As discussed above, the presumption of a

convenience account applies in all cases where the funds have

been contributed by one of the parties even where the printed

bankcard signed by the parties recites a right of survivorship.

Davis v. Altmann. 492 A.2d at 885 (emphasis added). Thus, the

presumption of convenience extends to joint accounts with right

of survivorship. In the instant case, however, the credit union

account is blanketed by the presumption of convenience, with

room to spare, as this Court finds that the credit union account

is not a joint account. As stated in the Findings of Fact, the

evidence shows, at most, that the defendant had acted as a

courier and depositing agent for the decedent.

In effort to meet her burden of rebutting the presumption

of aconvenience account, the defendant presented the testimony

of Peggy Custis, CEO of the Virginia State University Federal

Credit Union. A presumption is never overcome by testimony,

even if uncontradicted, if the [fact finder] disbelieves the

testimony. Uckele v. Jewett. 642 A.2d at 124; Davis v.

Altmann. 492 A.2d at 887(quoting Koehne v. Price. 68 A.2d

806, 887 (D.C. 1949). Ms. Custis testified that the decedent's

credit union account was created as a joint account with the

defendant, Ms. Valentine, as joint owner of the funds.

Nevertheless, where evidence presented to rebut a presumption

raises an issue of credibility, it is for the trier of fact to

determine whether the presumption has been defeated. Uckele

v. Jewett. 642 A.2d at 124 (citing Rametta v. Kazlo, 418

N.Y.S.2d 113, 114-115(1979). This Court discredits the

testimony of Ms. Custis because she altered her testimony in

Court after discussing her previous day's testimony with the

defendant and her family in violation of the Court's admonition

against such discussion. Thus, the presumption of a

convenience account is not defeated.

The Court further finds that the defendant failed to prove,

by clear and convincing evidence, that the decedent made an

inter vivos gift of the credit union account assets. See Duggan

v. Keto. 554 A.2d at 1134 (the burden of proving that a transfer

was-an inter vivos gift falls upon the person asserting the gift).

Furthermore, "the evidence must show that the gift took effect

immediately; a gift intended to take effect in the future is not an

inter vivos gift." Id. The defendant, however, has failed to

prove intent and delivery, requisites of a valid inter vivos gift.

There is no evidence that Daniel Delaney intended to give the

credit union funds to the defendant during his lifetime. The

decedent never surrendered power of dominion and control over

the credit union account. The address of record was the

decedent's Washington. D.C. address to which all statements

were mailed. No withdrawals were made during his life. The

defendant herself testified that she never thought that she had

the authority to make a withdrawal from the account while the

decedent was alive. The defendant testified that the decedent

refused to help her to pay for her house on Dodson Road,

Petersburg, Virginia. There was no delivery of the credit union

funds, or any portion thereof, to the defendant. The decedent

carried all tax liability, whereas the defendant had no tax

consequences in connection with the credit union account. No

gift tax was ever paid even though amounts deposited to the

account exceed the $10,000 annual limit. The Court finds that

there was no inter vivos gift of credit union funds.

Finally, the Court will address the in terrorem clause in

the decedent's Last Will and Testament. Item XVI of the Last

Will and Testament of Daniel B. Delaney states:

If any beneficiary or my Executor challenges my bequests,

any amount due them will be cancelled and revert back to

my estate, to be distributed to the above named charities.

By inclusion of such clause, the Will provided for forfeiture

of interest of any person contesting the will and, under the

doctrine of in terrorem, said interest shall be disposed of as

though the challenger's name had not been mentioned in the

Will. See Barry v. American Security & Trust Co.. 77 U.S.

App. D.C. 351: 135 F. 2d 470 (1943); Sullivan v. Bond, 198

F.2d 529 (D.C. Cir. 1952). The defendant, Edna J. Valentine,

challenged the Will two years after the probate of the Will and

commencement of the administration of the decedent's estate,

proceedings of which she had notice. The Court notes that

"actions for construction of a will or declarator)' relief should

not be construed as a contest of the will." Wachovia Bank and

Trust Co.. N.A. v. Buchanan. 346 F. Supp. 665, 671 (D.D.C.

1972). In the instance case, however, the defendant did not seek

legal interpretation of the Will, nor did she seek declaratory

relief; rather the defendant untimely chailenged the bequests as

memorialized in the Will by asserting an argument of fraud.

Thus, the Court finds that the defendant contested the Will,

therefore, the in terrorem clause applies.

WHEREFORE, it is on this 23rd day of March, 1999, hereby

ORDERED, that the Merrill Lynch account, account no.795-

60Y 12 is the sole property of the decedent, and an asset of the

Estate of Daniel B. Delaney; and iti is further

ORDERED, that the Virginia State University Federal Credit

Union account, account no. 3339, is the sole property of the

decedent, and an asset of the Estate of Daniel B. Delaney; and

it is further

ORDERED, that the assets held in escrow, are the assets of

the Estate of Daniel B. Delaney; and it is further

ORDERED, that the defendant Edna J. Valentine has forfeited

her bequest under the decedent's Will; and it is further

ORDERED, that the property specifically bequethed to the

defendant, Edna J. Valentine, reverts to the estate, to be

distributed to the named charities, in accordance with the Last

Will and Testament of Daniel B. Delaney; and it is further

ORDERED, that judgment is entered against the defendant

Edna J. Valentine in the amount of $462,756.96, plus post-

judgment interest, in favor of the Estate of Daniel B. Delaney;

and it is further

ORDERED, that the defendant Edna J. Valentine, shall

restored said funds to the Estate of Daniel B. Delaney on or

beiore, April 30, 1999; and it is further

ORDERED, that the failure to restore said funds, in full, may

result in a finding of contempt of Court and may result in the

issue of a bench warrant for the arrest of Edna J. Valentine.

SO ORDERED.

- ,

a 4; A =

Wi F

AAMAS Kes io Nes

KAYE K. CHRISTIAN

Copies to:

Jason P. Green, Esq. Verplanck Place, NW

Washington, DC 20016

Lawrence M. Elliott Personal Representative

C/O Jason P. Green, Esq.

Verplanck Place, NW Washington, DC 20016

Walter T. Charlton, Esq. 23

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