Appellate Division reversed trial court’s decision to invoke in terrorem clause and assess counsel fees

On February 1, 2013, in the Matter of the Estate of Lucille Sand, Docket No. A-4524-10T4, the New Jersey Appellate Division reversed the trial court’s decision as to the invocation of the in terrorem clause of the Decedent’s will and assessment of counsel fees.

By way of background, the Decedent executed a Will on December 4, 2002and a codicil on February 2, 2005.  The Decedent died on March 12,  leaving four children.  The Plaintiff brought suit naming her three siblings as Defendants, and also filed a caveat alleging undue influence, fraud, lack of testamentary capacity and forgery.  Two siblings filed to have the Will admitted to probate and to be appointed co-executrices.  The probate judge granted summary judgment in favor of the defendants and ordered the Will and codicil admitted to probate.

The Plaintiff then filed a nine-count Complaint in the Family Part using fictitious names for all the parties.  She alleged that her mother’s will breached a prenuptial agreement, sought past and present child support and alleged embezzlement and fraud.  She also alleged her mother stole and misused funds left to her by her father and grandmother.  She alleged that one sister committed a tort because of an arrest and conviction of criminal behavior.  She alleged another sister committed intentional infliction of emotional by sending cards expressing love for the Plaintiff while she was actually conspiring to deprive the Plaintiff of her inheritance.  Another count involved the death of a dog.

A series of motions were filed with the trial judge treating the Defendant’s motion to dismiss as a motion for summary judgment which was granted.  The motion judge also decided to enforce the in terrorem clause in the Will and revoked the $25,000 bequest to Plaintiff on the ground that Plaintiff had no probable cause for contesting the will.  The motion judge also held that the Defendants were entitled to counsel fees under N.J.S.A. 2A:15-59.1 due the frivolous nature of the litigation.  On appeal the Plaintiff raised twenty-nine issues.

Noting that the vast majority of the issues lacked sufficient merit to warrant extended discussion in a written opinion, the Appellate Division found that the motion judge erred in two aspects.  The opinion found that since the Will had already been admitted to probate, the Family Part judge should not have enforced the in terrorem clause.  The probate judge had relied upon N.J.S.A. 3B:3-47.  Second, the Appellate Division held that the motion judge also erred in assessing fees for frivolous litigation against the Plaintiff.  Although the Plaintiff’s claims were fanciful in nature, the Defendants did not send the required safe harbor letter. R. 1:4-8(b)(1); N.J.S.A. 2A:15-59.1.

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