Failure To Treat Children Equally Is Insufficient Grounds To Set Aside A Will For Lack Of Capacity Or Undue Influence

As an elder law attorney, I receive many inquires from potential clients asking me to evaluate a potential lawsuit against a sibling involving a deceased parent’s estate plan. The claim typically seeks to set aside a deceased parent’s will as invalid, the result of undue influence by a sibling. Typically, the potential client seeking a judgment declaring a will invalid was treated less favorably under the will than other siblings. The potential client also usually claims that the deceased parent always told the potential client that the parent wanted to treat his or her children equally under the will and, thus, would never have agreed to an unequal division of estate assets. Based upon facts which are usually very similar to these, the potential client wants to know whether he or she has a viable claim and the likelihood of success were taken to trial.

The Superior Court of New Jersey, Appellate Division, recently issued an opinion in a case which examined whether a valid claim to set aside a parent’s will for undue influence and lack of testamentary capacity could be asserted based on the disparate treatment between the adult children in the will. In Matter of Sand, Docket No. A-1856-08T1 (App. Div., November 1, 2010), the decedent, Lucille Sand, executed a will and codicil in which she bequeathed the sum of $25,000 to her daughter, Sandra Singer, while leaving the balance of her $2 million estate in equal shares to Sandra’s three sisters, Thea, Paula, and Candice. Thea and Paula were named as co-executors. The co-executors moved to admit the will and codicil to probate. Sandra objected, contending that the alleged will and codicil were “against everything the decedent said she stood for” and consequently “[o]nly a person lacking testamentary capacity” or subjected to undue influence or fraud could have left a will in which Sandra was bequeathed only $25,000 of a $2 million estate.

Thereafter, the co-executors moved for summary judgment. In support of their summary judgment motion, Thea and Paula submitted affidavits from the attorneys who prepared the will and codicil. Both attorneys affirmed that Lucille was competent and not subject to undue influence at the time she signed the estate documents. In opposition to the motion, Sandra repeated the same claims she had previously advanced.

The trial court granted summary judgment in favor of Thea and Paula. The order admitted the will and codicil to probate, directed the issuance of testamentary letters to Thea and Paula as co-executors, and dismissed the objection to the will Sandra filed alleging undue influence, lack of testamentary capacity and other claims. On the issue of the validity of the will and codicil, the court found that Sandra’s claim was “essentially . . . that a person such as her mother [writing] a will . . . treating her . . . so differently than . . . her sisters, is evidence of an insane delusion, and therefore the lack of capacity.” The judge concluded that the mere unequal treatment of one’s offspring, standing alone, is insufficient proof of lack of capacity.

Sandra appealed. The appellate court affirmed.  The appellate court found that the trial judge properly concluded that Sandra’s claim of undue influence rested on nothing more than the disparate treatment of herself and her sisters, which was insufficient. The appeals court also concluded that the proofs submitted by Sandra were not sufficient to overcome the presumption in favor of testamentary capacity in light of the uncontroverted evidence presented by the two lawyers.

The case is attached here – Matter of Sand