Delaware Business Lawyer Blog

Wills, heirs, disagreements and lawsuits. It’s bad enough your family has lost you, now they’re fighting among themselves over who gets what, and how much.

Many times an argument occurs simply because the Will was written in a way that’s subject to more than one interpretation. Let’s take a look at an actual lawsuit that was litigated in Delaware’s Court of Chancery.

Husband and Wife had no children. Wife had 3 brothers, each of whom had children. One of the brothers died.

Wife prepares a Will leaving everything to her husband if he survives her. Wife’s Will goes on to say that if her husband predeceases her, she leaves everything to brother #1, brother #2, and the children of her deceased brother (brother #3).

Wife’s husband, brother #1 and brother #2 were all alive at the time Wife signed her Will. After she signed her Will, her husband died, brother # 1 died, and brother #2 died. After these 3 deaths, Wife could have changed her Will by removing brother # 1 and brother # 2 as beneficiaries and substituting their children (just like she did for brother #3's children). For whatever reason, Wife did not change her Will, which means that upon Wife’s death, the only beneficiaries named in her Will who were still living were the children of brother #3.

After Wife’s death, the children of brother #3 claimed that they were entitled to receive 100% of Wife’s estate. As you can imagine, the children of brother #1 and brother #2 claimed that they were entitled to receive the shares that their deceased fathers would have received had they survived Wife.

The purpose of this article is not to discuss what the law is in Delaware about the interpretation of Wills. Instead, this article is intended to show how easily a dispute can arise, and how easily it could have been avoided. All Wife had to do was to say in her Will that in the event brother #1 or brother #2 predeceased her, their share would go to their children. Having already provided what would happen if her husband died before she did, it’s somewhat strange that her Will failed to explain her wishes in the event either of her brothers failed to survive her.

As a Delaware attorney who writes Wills, one of the most common dilemmas parents have to deal with is who they should name as the guardians of their children should both parents die. As they rack their brains to think of someone who would make the ideal guardians, I remind them that the only answer to that question is themselves. So when parents are having a tough time coming up with the best possible candidates for the job, it sometimes helps to think of why it's so important for them to come up with the names. After all, imagine the alternative. Various people - relatives and friends - come forward and volunteer to be the guardians. The Court will then have to choose among them with no input from the parents. It's entirely possible that the Court will pick someone who the parents feel is the worst person for the job.

Once you make the decision on who will raise your children if both of you should die, there are some other things to think about. Here are a few to consider.

1. Let's say you decide to name your brother and his wife as the guardians of your children. If your brother's wife is no longer living at the time for the guardianship to begin, is it okay with you if your brother does the job by himself? What if your brother and his wife get divorced? Would you rather have your brother be the sole guardian, or would you rather name another husband and wife to be the alternate guardians? Also, what if your brother dies? Is it your wish that your sister-in-law raise your children?

2. Will their children move to the guardians' home, or will the children stay in their own home and the guardians will move in with them?

3. Remember, the guardianship remains in effect only until your child reaches the age of 18. Hopefully, you can name someone whom your children respect and will continue to have a relationship with long after their 18th birthday.

Choosing a guardian for your children can be a difficult thing to do, but it's probably the most important decision you'll have when you write your Will.

The parents of a high school student with learning disabilities has filed a lawsuit in Connecticut against the Board of Education and various school officials as a result of repeated acts of bullying which included slamming the child’s face and head against a locker and throwing food at her. These bullies ridiculed, harrassed and physically abused this child. After one particular act of violence, teachers and other students found this girl lying on the floor in her own blood.

Bullying frequently occurs when there is a lack of supervision in the hallways, the lunchroom, at dismissal time and even in the classroom. In this case, the bullying continued despite the fact that the parents had reached out many times to the school principal and other administrators for help protecting their child. According to the lawsuit papers, this girl suffered a concussion, depression, anxiety, a broken nose, and a sprained neck

In Wisconsin, the parents of a high school student who is deaf, has limited vision and tremors has filed a lawsuit against the school district due to repeated acts of bullying by older students. Despite the fact that the parents repeatedly informed school officials of what was happening, nothing was done. To protect their child, the parents had him transferred to a different school.

A Tennessee family has filed suit against school officials because their son was repeatedly bullied with physical and emotional abuse in elementary school and in middle school. As seems to be an all too often complaint, the parents filed suit only after school officials failed to take action to stop the bullying. Interestingly, the parents are seeking not only money damages, but also a Court order requiring the school to follow its bullying policies and adhere to the law.

A 6th grade student from the Southeast Delco School District in Darby Township, Pennsylvania is in a coma at A.I. DuPont hospital after classmates who had been bullying him hit him multiple times in his face, fracturing his nose and causing him to fall in the schoolyard. The initial diagnosis was a concussion, and he received treatment at the hospital and was allowed to go home. Whenever a child suffers a concussion, parents are instructed to watch their child carefully for certain warning signs.

At home, his parents began to notice signs that showed their son “wasn’t quite right.” Then he began to have seizures, and his parents rushed him back to the hospital, where he was admitted. Because the seizures continued, the doctors chose to put the child in a medically induced coma.

A medically induced coma is temporary and it’s used by doctors to allow the brain to function at a very low level of alertness. A medically induced coma was used about a year ago for a baseball fan who was beaten at a Dodgers game and began to have seizures.

Interestingly, about 10 years ago, this school district received money from a Safe Schools grant for a bully-proofing program. They planned on using the money for a mentoring program and for video cameras.

Last year, representatives from the Philadelphia 76er’s, as a part of an anti-bullying campaign, visited one of the schools in the Southeast Delco School District to teach students what they should do if they are bullied or if they witness another student being bullied.

And yet, the bullying continues.

I've been asked to help a Delaware homeowner appeal from the New Castle County Board of Adjustment's decision denying his application for a variance. Although an attorney was not required when he submitted his application or when he appeared at the public hearing to present his application to the Board, his chances of success would have been greatly enhanced had he been represented by counsel.

In New Castle County, the zoning laws can be found it what's known as the Unified Development Code (or UDC).

When you apply for a variance, you are asking for permission to use your property in a way that is either prohibited or restricted under the zoning law. In Delaware, there are two kinds of variances. One is a "use" variance. The other is an "area" variance. A use variance allows a property to be used in a way that is completely prohibited. For example, you may wish to seek permission to use a former residential mansion site for commercial office space.

On the other hand, an area variance allows you to use your property in a way that complies with the zoning restrictions, but you are alllowed to deviate from building restrictions such as setback requirements or height restrictions.

If you apply for a use variance, you must show "unnecessary hardship." The test for an area variance is "exceptional practical difficulty." In my next article, I'll discuss the differences between these two tests.

As a Delaware attorney who helps kids who are bullied in school or on the school bus, I am happy to see that there are some rather clever attempts being made around the country to help stop bullying.

One that recently caught my eye is a high school in California. They created an app to report bullying. To make it user friendly, they put a logo on the app which is labeled “Bully Button.” This allows students to use their smart phone to report bullying. All they have to do is click on the button and fill in a form that pops up. The form asks for the victim’s name and gender, the bully’s name and gender, where the bullying incident occurred and when.

This app allows students who witness bullying in school or on the school bus to report the incident anonymously. The hope is that this will encourage more students to report bullying.

This is the 4th article in a series of articles about Delaware’s at-will employment doctrine and the exceptions to this doctrine under the implied covenant of good faith and fair dealing. In my last article, I focused on the public policy exception to the doctrine. This article will discuss the misrepresentation exception to the doctrine.

In Delaware, this exception applies when the employer misrepresents an important fact, and the misrepresentation is relied on by the employee in deciding whether to stay in his present position or accept a new position. The following example will illustrate how this exception works.

David Mimm was employed by a company called Vanguard. His job consisted of training employees at car dealerships. One of these dealerships was Martin Honda. At one point, the general manager of Martin Honda offered Mimm a position as a finance and insurance manager. Mimm said that he was interested, but he wanted some time to mull over this job offer. A few days later, Mimm informed Martin Honda that he was accepting the job offer, and that they could take their ad our of the newspaper. When Mimm told his present employer that he was leaving to work for Martin Honda, they told him that if he left, he would be violating his noncompete agreement with Vanguard. Mimm then told Vanguard that he would stay with them. When he contacted Martin to let them know that he had to stay with Vanguard, Martin told him that they had spoken with Vanhuard and still wanted to hire him. Under these circumstances, Mimm told Martin that he would work for them. Unfortunately, before his start date with Martin, he received a call from Martin telling him that they were rescinding their job offer.

Mimm sued Martin Honda for breaching his employment agreement with them. He claimed that the termination of his employment fell under the second exception under the covenenat of good faith and fair dealing, namely, misrepresentation by an employer and reliance on that misrepresentation by the employee in deciding whether to accept a new job or stay with his current job. According to Mimm, Martin Honda misrepresented their intent to hire him, and then breached the agreement by rescinding the job offer.

In my next article, I will discuss the third exception, which is when an employer deprives the employee of compensation that has already been earned but not yet paid.

When it comes to employment, Delaware is an “at-will” State. This means that an employer in Delaware has the right to fire an employee at any time, for any reason. But this rule does have some exceptions. One of these exceptions applies when the firing of the employee is found to violate public policy. Under the public policy exception, the employee can sue the employer for breach of what is known as the “implied covenant of good faith and fair dealing.”

In Delaware and many other States, every contract contains an implied covenant of good faith and fair dealing. An implied covenant is a promise that’s not actually expressed in a contract, but is nevertheless a part of the contract just as if the parties included it as one of the terms in their contract. Therefore, in every written or oral contract is a promise that each party to the contract will act in good faith when dealing with the other party to the contract.

Where an employee's termination violates public policy, Delaware courts have held that the employer can be held liable for breach of the implied covenant of good faith and fair dealing.
In order to establish such a breach, the employee has to prove two things. First, the employee has to show a public interest. This will be explained in the example from an actual lawsuit described below. Second, the employee has to show that he held a position with his employer which gave him the responsibility for furthering that public interest.

A manager of the SPCA was fired after helping an injured employee file a worker’s compensation claim. The reason he was fired is that his boss had told him not to submit a worker’s comp claim because their insurance would go up. The Court found that in Delaware, there is a public interest of encouraging injured employees to file worker’s comp claims. This finding satisfied the first step. The Court also found that the employee satisfied the second part of the test because as a manager, the employee had the responsibility of helping to carry out that public policy.

In my next article, I’ll discuss another exception to Delaware’s “at-will” doctrine.

In Delaware, if there isn’t a written employment contract and the duration of employment is indefinite, the employee is considered an “at-will employee,” which means the employer can fire the employee at any time without cause and regardless of the motive. That’s the general rule, and if you think about it for a minute, it’s actually fair. After all, if an employee can quit at any time and for any reason, why can’t an employer terminate the employee at any time and for any reason? But as with most general rules, there are exceptions. And the exception that’s recognized in Delaware is based on the concept that in every contract of employment, written or oral, there’s an implied covenant of good faith and fair dealing.

The Delaware courts that have looked at this issue have decided that an employee can claim a breach of implied covenant of good faith and fair dealing in any one of the following 4 situations:
(1) if the termination violates public policy;
(2) if there’s been misrepresentation by the employer and the employee relied on it;
(3) if the employer used its position to deprive the employee of compensation that has already been earned but not yet paid; and
(4) if the employer falsified its records to create fictitious grounds for the employee’s termination.

In a future article, we’ll take a closer look at these exceptions.

If you believe you were fired improperly, contact a Delaware litigation attorney to discuss your rights.

A small business owner in Delaware recently asked about the steps he has to take before he can fire one of his employees. His questions included how many warnings the law requires him to give the employee, how much time he has to give his employee to improve his performance, and once the decision to terminate employment has been made, how much advance notice must the employee be given.

If there’s a written employment contract with the employee, then the contract will provide the answers to these questions. However, assuming there’s no contract, an employer in Delaware can fire an employee without warning, without an opportunity to improve, and without notice. In fact, the employer doesn't even have to explain why the employee is being fired. This is what’s meant by an “at-will employee.” An exception to this rule is that the employer can't fire an employee for reasons that discriminate based on such things as age, gender or race, or which violate the Americans With Disabilities Act. Another exception is that in Delaware, an employer can't engage in conduct that amounts to fraud, deceit or misrepresentation. For example, an employer can't falsify employment records to provide a false reason for firing an employee.

This past week my paralegal, April (also my wife) and I met with a mother and father, and their son, who has been the victim of bullying at a high school here in Delaware. Name-calling, threats, and the like finally escalated into a physical attack. The victim is a bright and articulate child, and his parents are naturally concerned for his safety. The bully has been disciplined numerous times, and nothing seems to work.

While discussing a course of action with the parents, my paralegal came up with something I think is a great idea. And it's simple, too. Any student who bullies other students should be required to wear a visible ID that says "I AM A BULLY." They have to continue wearing this ID until they successfully go through an anti-bullying course and apologize to the victim.

In-school and out-of school suspensions don't seem to work. Maybe a label will.

If you’re a Delaware corporation or a Delaware limited liability company, you already have a registered agent located in the State of Delaware. As year end approaches, it makes sense to take a look at your Delaware registered agent’s fee, the services they provide, and decide whether it’s time to make a change.

The fees can really vary. The range seems to from $50 per year to $235 per year. The registered agent fee charged here at the Snyderman Law Firm is $100 per year. Not only do you get a registered agent, you also automatically establish a relationship with Chuck Snyderman, a Delaware business attorney. Traditional legal services are of course not included in the registered agent fee, but a quick call to discuss a legal question is always welcome at no charge.

For more information about the services we provide, please check out my website.