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In re Estate of Sand

November 1, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Union County, Docket No. 0-9820.

Per curiam.


Submitted October 13, 2010

Before Judges Baxter and Koblitz.

This is a probate matter, in which appellant Sandra Singer appeals from an October 7, 2008 order that granted summary judgment to her two sisters, Thea and Paula Singer, and denied Sandra's cross-motion. The order admitted to probate the December 4, 2002 last will and testament of their mother Lucille Sand (decedent), as well as the February 2, 2005 first codicil; directed the Surrogate of Union County to issue letters testamentary to Thea and Paula as co-executrixes; and dismissed the caveat to the will filed by Sandra in which she alleged undue influence, fraud, lack of testamentary capacity and forgery. We affirm.


Lucille Sand died on March 12, 2008, survived by four daughters and two stepchildren. She left a will dated December 4, 2002, in which she bequeathed the sum of $25,000 to Sandra. With the exception of a bequest to her stepchildren of her interest in a mutual stock fund, decedent's will left the balance of her estate in unequal shares to Sandra's three sisters, Thea, Paula, and Candice. Decedent nominated and appointed Thea and Paula as co-executrixes. In the will, decedent expressly acknowledged that she had four adult children, Thea, Paula, Candice and Sandra. The will contained an in terrorem clause, which provided that if any beneficiary should contest the probate or validity of the will, then all benefits provided for such beneficiary were revoked and the legacy would be redistributed to the remaining beneficiaries, regardless of whether any such challenge was instituted in good faith.

In the presence of two witnesses, Marie Santucci and Lisa Wagman, decedent acknowledged the will as her "last will and testament" and she swore that she "signed it willingly and voluntarily for the purposes expressed therein." She also certified that she was over the age of eighteen, "of sound mind," and was "not acting under any constraint or undue influence." Santucci and Wagman each certified that in the presence of each other, they had witnessed Lucille sign the will and had heard her declare the document to be her last will and testament. They also swore that to the best of their knowledge, the testatrix was "over the age of eighteen and of sound mind, and not acting under any constraint or undue influence." The February 2005 codicil amended the will by changing the distribution of the residual estate to make the bequests to Thea, Paula and Candice equal one-third shares.

In their complaint seeking to admit their mother's December 2002 will to probate, Thea and Paula asserted that their mother had been estranged from Sandra ever since 1973, their mother was of sound mind when she signed the will and all bequests were the product of her own free will.

In her answer to her sisters' complaint, Sandra asserted that the alleged will and codicil were forgeries, or decedent lacked testamentary capacity when she prepared the will or had been subjected to undue influence. Sandra also maintained that her mother had made a "contract" with her, in which she agreed to bequeath to Sandra twenty-five percent of the family home in Westfield, along with twenty-five percent of her jewelry and other personal property. Sandra contended that the alleged will was "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. Finally, Sandra's answer asserted that the will was rendered void because it contained an in terrorem clause in violation of the applicable statute, N.J.S.A. 3B:3-47.

Sandra also asserted a nine-part counterclaim, which included her contentions that: 1) the "alleged will is invalid" because it "breach[ed] [the] contracts" made by decedent guaranteeing her a twenty-five percent share of the estate; 2) the will was "void on its face" because the will did "not show that the decedent comprehended who is a natural object of her bounty" and the will made no statement "explain[ing] the unnatural and abnormal statements in this alleged will"; 3) the "issue of [the] validity of [the] will is moot" as she was owed more from the estate than the entire estate corpus was worth; 4) she was "owed money by [the] estate" and Thea and Paula were acting in bad faith by refusing to satisfy that claim; 5) Thea and Paula were "not fit to be executors" because they were "conspiring to maliciously steal [her] share of the estate for themselves," thereby creating a conflict of interest, and Thea "admitted that she knew the contents of the alleged will before the decedent died" and "was present when the alleged will was signed," thereby demonstrating "undue influence"; 6) her two sisters and the law firm representing them had engaged in abuse of process and malicious prosecution; 7) her sisters and the law firm had intentionally inflicted emotional distress upon her; 8) her sisters and the law firm had engaged in an "unfair or deceptive business practice"; and 9) Thea and Paula committed "other wrongful acts . . . outside of the will for which they are liable."

In support of their summary judgment motion, Thea and Paula submitted an affidavit from Eliot M. Goldstein, the attorney who prepared Lucille's December 2002 will. Goldstein certified that in October 2002, he met with Lucille, her accountant and financial adviser for approximately two hours to discuss modifications to her estate planning documents, all of which had been prepared for Lucille six years earlier by a member of Goldstein's firm. In relevant part, Goldstein's certification stated:

Although Lucille was suffering from emphysema, I remember her to be an articulate woman in clear possession of her ...

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