Updated: Apr 20
So, you’re going to sue your sister who is the Executor of your mother’s estate or is perhaps the Trustee of the Trust holding your mother’s assets. Here’s the reality of that decision, at least here in Delaware. A beneficiary is free to sue a fiduciary and allege most anything. Then the defendant is forced to defend themselves regardless of the suit’s merits. In Delaware, the court with jurisdiction is the Chancery Court.
In America, each party to the case is responsible for their own costs and attorney fees. You should expect that if the case actually goes to trial, the costs and attorney fees will approach $200,000 for each party to the suit. Most Chancery Court attorneys will require a retainer for $50,000 on an evergreen basis (when the first retainer gets low, another like installment is due).
The Court considers the motivations of the parties, as well as the conduct of the parties and their counsel during the case. In some cases, though rare, where the motivations or conduct of a party amount to bad faith, the Court has shifted the responsibility for opposing counsel’s attorney fees and costs to the bad actor.
The lesson here is: Be careful what you wish for when you threaten to sue. The same goes for when you carelessly utter, “if you don’t like it, sue me”.