Representation Virtually Required in Trust Litigation in Delaware
In the September 2, 2020 decision in Tigani v. Director, et al., C.A. No. N19C-10-014, the Delaware Superior Court recently declined to address substantive claims made by a purported beneficiary of a trust because the individual asserted the claims on behalf of a trust and was not represented by a Delaware attorney. Of interest, along with Robert F. Tigani, Sr., the trust at issue is an owner of NKS, a well known Delaware alcoholic beverage distributorship.
The Superior Court noted that the initial complaint was filed on behalf of the trust. The filer of the complaint, Christopher J. Tigani, “explicitly purports to bring this claim on behalf of the Trust.” In response to the complaint, the defendants moved to dismiss the case in part because the trust is an artificial entity and therefore must be represented by counsel. In support of that position, the Court summarized the defendants citation to caselaw: “even a trustee cannot appear pro se.” In finding that counsel was required, the Superior Court quoted the Chancery Court, “in Delaware artificial entities must be represented by counsel.” A trust is an artificial entity and thus could only be represented by an attorney. The Superior Court declined to address the merits of the case.
Although in certain circumstances, limited to JP Court, an artificial entity may be represented by a designated agent, when there is the possibility of any litigation on the horizon, it is best to obtain the assistance of counsel as soon as possible. As the Tigani case illustrates, in some cases, an attorney must appear on behalf of an artificial entity or risk dismissal case without any review of the merits of the case.