In a November 5, 2010 blog post, I discussed the Superior Court of New Jersey, Appellate Division decision in Matter of Sand, Docket No. A-1856-08T1 (App. Div., November 1, 2010). In that case, the appellate court affirmed the trial court’s ruling that the decedent’s daughter’s attempt to set aside her mother’s will, claiming undue influence and lack of testamentary capacity, must be based on more than the disparate treatment between the adult children in the will.

The Appellate Division was recently given a second look at the Sand matter. In the Matter of the Estate of Lucille Sand, Deceased, Docket No. A-4524-10T4 (App. Div., Feb. 1, 2013). While her earlier appeal had been pending, the plaintiff-daughter also filed a complaint in the Family Part, using fictitious names. In that complaint, the plaintiff asserted a host of allegations, including that her mother’s will was in breach of a prenuptial agreement; that she was entitled to child support as an adult because she could not support herself; and that her deceased mother had committed embezzlement, physical and emotional abuse, and other wrongdoing, including killing the family dog, Blackie.

The Family Part trial judge granted summary judgment against the plaintiff. Although the defendant siblings had not moved to enforce the in terrorem clause of the mother’s will, the Family Part judge ordered that it be enforced, finding there had been no probable cause to contest the will. The judge also assessed fees based on the frivolous litigation statute, N.J.S.A. 2A:15-59.1.

On appeal, although it affirmed the family court grant of summary judgment, the Appellate Division reversed the lower court’s enforcement of the in terrorem clause. It found that there was no reason to vacate the probate judge’s earlier decision, which had found that the clause was likely unenforceable based upon statute, N.J.S.A. 3B:3-47, and had admitted the will to probate.

The Appellate Division also reversed the assessment of counsel fees. Although it found that the plaintiff’s claims were “fanciful in nature,” it noted that the probate judge had informed the plaintiff that she could file claims against the estate in the Family Part; moreover, the defendants had not provided the plaintiff with the safe harbor letter required by R. 1:4-8(b)(1) and N.J.S.A. 2A:15-59.1.

A copy of the February 1, 2013 opinion can be found here: In the Matter of the Estate of Lucille Sand