In the Matter of Andrea Jacobson

No. 1741, Sept. Term 2021

Opinion by Leahy, J.

Estates & Trusts Law > Wills and Revocable Trusts > Standing > Pre-Mortem Undue 

Influence Contest

To have standing, a plaintiff must have a legally protected interest, whether provided by 

statute or arising out of contract, tort, or property ownership. State Ctr., LLC v. Lexington 

Charles P’ship, 438 Md. 451, 500-02 (2014). Appellant sought to bring a pre-mortem 

contest to her mother’s wills and revocable trust agreements. As merely a presumptive 

heir, however, appellant possessed no property interest in her mother’s assets because it is 

“only after the death of the ancestor that [her] children are entitled to the status of very 

heirs, which will enable them to assert a right to property derived through [her] by 

inheritance.” Sellman v. Sellman, 63 Md. 520, 525 (1885). Accordingly, appellant lacked 

standing to challenge her mother’s wills and revocable trust agreements because she had

no property interest in her mother’s trust assets or potential probate estate.

Estates & Trusts Law > Powers of Attorney > Estates and Trusts Article § 17-103 > 

Standing 

Estates and Trusts Article (“ET”) § 17-103(a)(4) confers standing on a principal’s 

descendant to petition a court to review the actions of an attorney-in-fact and “construe” a 

power of attorney. Considering ET § 17-103’s main purpose to detect and stop agent abuse, 

an action to “construe” a power of attorney under ET § 17-103 must be filed in the context 

of a dispute concerning abuses of power by the attorney-in-fact while the principal is 

incapacitated. Here, although appellant could qualify as a proper party to bring a claim 

under ET § 17-103(a)(4) insofar as she is a descendant, her complaint did not allege any 

misuse or abuse of power by the attorney-in-fact and therefore failed to properly state a 

cause of action under ET § 17-103. Accordingly, under our “cause of action” approach to 

standing, because appellant was not “not entitled to invoke the judicial process in [this] 

particular instance[,]” her claim was properly dismissed for lack of standing. State Ctr., 

438 Md. at 502. 
Circuit Court for Montgomery County

Case No. 171447-FL

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1741

September Term, 2021

______________________________________

IN THE MATTER OF ANDREA JACOBSON

______________________________________

Arthur,

Leahy,

Sharer, J. Frederick 

 (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Leahy, J.

______________________________________

Filed: December 6, 2022
Appellant Amy Silverstone (“Amy”) filed a petition for guardianship on October 2, 

2020, in the Circuit Court for Montgomery County, Maryland, to obtain control over the 

person and property of her mother, Andrea Jacobson (“Andrea”).

1 Amy amended the 

guardianship petition to include claims normally reserved to estate administration while 

her mother was still alive. At its core, this appeal concerns Amy’s effort to set aside her 

mother’s estate planning documents (including several wills, revocable trust agreements, 

and powers of attorney) conferring authority upon appellee/cross-appellant Lisa Jacobson 

(“Lisa”)—Andrea’s sister and Amy’s aunt. Amy contends that these documents were the 

product of undue influence and should therefore be declared null and void. Andrea and 

Lisa insist that Amy lacks standing to contest these estate documents based on undue 

influence because Andrea is still alive. 

Amy challenges two orders issued by the circuit court. First, the order entered on 

November 2, 2021, dismissing the remaining claim in Amy’s Second Amended Petition 

for Guardianship; specifically, Count IV, setting out her undue influence challenge to 

Andrea’s estate planning documents. Second, the order entered on December 13, 2021, 

denying Amy’s motion to reconsider the November 2 order and striking Amy’s Third 

Amended Petition, filed after judgment was entered. In their cross-appeal, Andrea and 

Lisa contest the circuit court’s order denying their joint motion for sanctions entered on

December 17, 2021. 

1

In this opinion, we will refer to the parties by their first names to avoid confusion 

as to which Ms. Jacobson (i.e., Lisa or Andrea) we are referring.
2

Accordingly, the parties present four questions for our review.2 Amy’s questions, 

here consolidated and rephrased based on the issues addressed in her briefing and at oral 

argument, are:

I. Did the circuit court err in dismissing Count IV of the Second 

Amended Petition due to lack of standing and failure to state a claim 

upon which relief can be granted? 

II. Did the circuit court abuse its discretion in denying Amy’s motion for 

reconsideration? 

III. Did the circuit court abuse its discretion in denying Amy leave to 

amend and striking her Third Amended Petition without declaring the 

rights of the parties after her claims had been dismissed? 

Andrea and Lisa’s question condenses to the following:

2

In her principal brief, Amy presented the following three questions for our review: 

I. “The Court dismissed Petitioner’s Second Amended Complaint 

Pursuant to Rule 2-303 (conclusory statement and no facts) and 

because Petitioner’s Complaint was premature and Petitioner was 

without standing. Was this ruling correct?”

II. “Petitioner filed a Third Amended Complaint with alleged new facts 

and a new count, i.e. Declaratory Relief. Petitioner’s Third Amended 

Complaint included a Motion for Leave to Amend and for 

Reconsideration. The Court denied Petitioner’s Motion and Third 

Amended Complaint. Was this ruling correct?” 

III. “Did the Circuit Court err when it dismissed Appellant’s Complaint 

for Declaratory Relief without making a written declaration of the 

parties’ rights? [Sibley v. Doe, Supra, at 649]?”

Andrea and Lisa, in turn, presented the following question for our review in their crossappeal: 

IV. “Did the Circuit Court abuse its discretion in denying Andrea and Lisa 

Jacobson’s joint Motion for Sanctions for filing a wholly deficient 

Motion to Amend and Reconsider and a Third Amended Complaint 

after the Circuit Court dismissed the Second Amended Complaint?”
3

IV. Did the circuit court abuse its discretion in denying Andrea and Lisa’s 

motion for sanctions? 

We discern no error or abuse of discretion by the circuit court. First, we hold that

the court correctly concluded that Amy lacked standing to challenge the validity of 

Andrea’s wills and revocable trust agreements while Andrea is still living because Amy 

has no property interest in her mother’s trust assets or potential probate estate other than a 

remote expectancy as a presumptive intestate heir. Also, because Amy failed to allege any 

misuse or abuse of power by Lisa in her capacity as agent, she was not able to invoke the

judicial process to challenge Andrea’s durable, statutory form, and health care powers of 

attorney. Moreover, the circuit court properly dismissed Count IV because Amy relied 

entirely on bald and conclusory allegations in her pleading. 

Second, we hold that the circuit court did not abuse its discretion in denying Amy’s 

motion to reconsider because Amy’s deficient motion did not bring the court’s attention to 

any errors that it was required to rectify. Instead, Amy simply provided page-length 

quotations from two prior cases setting out black-letter law on undue influence without any 

explanation as to how the court erred in dismissing her petition on grounds of standing. 

Third, we discern no abuse of discretion in the circuit court’s decisions to (1) deny 

Amy leave to amend, and (2) strike Amy’s Third Amended Petition filed after judgment 

was entered and before obtaining leave to file it under Maryland Rule 2-322(c). Nor did 

the circuit court err, as Amy contends, in declining to issue a declaration of the parties’ 

rights by striking the improper pleading without reaching its merits.
4

Fourth, we hold the circuit court did not abuse its discretion in denying Andrea and 

Lisa’s joint motion for sanctions against Amy for filing her motion to reconsider the court’s 

November 2 order. Even if Andrea and Lisa could show that Amy brought her motion to 

reconsider in bad faith or without substantial justification, the circuit court was well within 

its discretion to deny an award of sanctions. 

For these reasons, we affirm the judgment of the circuit court. 

BACKGROUND

Andrea is a 72-year-old woman currently living in Rockville, Maryland. She has 

been diagnosed with dementia, memory impairment, and cognitive impairment. Andrea is 

cared for by a variety of specialists, including a geriatric case manager, neurologist, 

primary-care physician, several financial and tax professionals, and her sister, Lisa. She 

lives primarily off the income produced by a testamentary trust created by her mother (the 

“Virginia Trust”), of which she is co-trustee and lifetime income beneficiary along with 

Lisa.3

Andrea’s immediate family includes Lisa, Amy, and her grandson, Bryce—Amy’s 

son. Amy and Andrea appeared to enjoy a loving relationship that became strained over 

3 Pursuant to a 2011 consent order entered by the Circuit Court for Arlington 

County, Virginia–which has jurisdiction over the trust because it is funded almost 

exclusively by real property located there–the prior trustees tendered their resignations and 

were replaced by Lisa and Andrea. The consent order also specified that Amy, who is a 

remainder beneficiary of the Trust and stands to receive a distribution of the principal upon 

the death of Andrea and Lisa, is to serve as successor trustee for Andrea when she is no 

longer able to serve. Although, as explained below, Amy was removed as a beneficiary 

under the Andrea Susan Jacobson Revocable Trust, the record does not reflect that the 2011 

consent order was ever modified to remove Amy as a beneficiary under the Virginia Trust.
5

time, leading to their eventual estrangement. In particular, following two lengthy

exchanges over text on July 10, 2018, and February 22, 2019, communication between 

Amy and her mother essentially ceased. In Amy’s view, the parties’ falling out stemmed 

over money and various loans from Andrea to Amy. Amy texted Andrea that it was “awful 

and disgusting that money is more important to you than your relationship with Bryce and 

I.” Andrea, in turn, responded that “money is only a part of it” and that she remained 

disappointed that “I never hear from you unless you want something.” As the filial 

relationship turned more and more acrimonious, Andrea had already begun reorganizing 

her affairs. 

In 2015, Andrea executed a series of documents which conferred upon Lisa the 

authority to manage Andrea’s care and finances. On December 2, 2015, Andrea executed 

a durable power of attorney (the “POA”) naming Lisa as her agent and providing her with 

broad powers to manage Andrea’s affairs. The POA also named Julia Lipps-Joachim 

(“Julia”), Lisa’s daughter and Andrea’s niece, as the successor agent in the event Lisa could 

no longer serve. On the same day, Andrea executed a Maryland Statutory Form Financial 

Power of Attorney also naming Lisa and Julia as agent and successor agent respectively.

Along the same vein, Andrea executed an advanced medical directive authorizing Lisa, or 

Julia in her stead, to make end-of-life medical decisions for Andrea. In June of 2019, those 

documents were amended to swap Lisa’s other daughter, Emily Treanor (“Emily”), for 

Julia as the successor agent.

From 2016 through 2019, Andrea also restructured her estate. On April 27, 2016, 

Andrea executed an Amended Trust Agreement for the Andrea Susan Jacobson Revocable 
6

Trust naming Lisa as trustee and remainder beneficiary, with Bryce as contingent 

remainder beneficiary if Lisa were to predecease Andrea. According to its terms, the Trust 

is to pay the income to Andrea for her life and “distribute all right, title, and interest the 

Grantor owns in the Grantor’s condominium” in Silver Spring, Maryland. On the same 

day, Andrea executed a pour-over will devising her remaining assets to the revocable trust

to be held and distributed according to the terms of the trust and naming Lisa and Julia as 

co-personal representatives.

Then, on August 29, 2018, shortly after her falling out with Amy, Andrea executed 

a Second Amended Trust Agreement naming Lisa as remainder beneficiary, with Lisa’s 

heirs (i.e., Julia and Emily) named as contingent remainder beneficiaries. The August 2018 

Trust Agreement, currently in effect, includes a disinheritance clause that states: 

After careful thought and consideration, the Grantor does specifically intend, 

and does hereby by this Trust Agreement, disinherit both AMY and BRYCE. 

For all purposes of this Trust, it shall be assumed that AMY and BRYCE

have both predeceased the Grantor. Neither AMY nor BRYCE shall in any 

way be a beneficiary of or receive any portion of the Trust or the Grantor’s 

estate. 

(Emphasis in original).

At the same time, Andrea executed a second pour-over will devising all remaining 

assets to the revocable trust and adding a parallel clause disinheriting Amy and Bryce and 

providing that they “shall be deemed to have predeceased me.” As with the 2016 pourover will, the August 2018 will devises and bequeaths Andrea’s residuary estate to the 

revocable trust to be held and distributed according to its terms. Effectively cut out of 

Andrea’s estate and affairs, Amy initiated the current litigation.
7

The Guardianship Litigation and Amended Pleadings

On October 2, 2020, Amy filed her initial petition for guardianship over the person 

and property of Andrea in the Circuit Court for Montgomery County. The Petition included

three counts seeking: (I) assumption of jurisdiction by the circuit court over the Virginia 

Trust, (II) guardianship over the person and property of Andrea, and (III) court-ordered 

visitation with Andrea. 

Thereafter, while the guardianship proceeding was pending, on January 19, 2021, 

Amy filed an amended petition (the “First Amended Petition”). The First Amended 

Petition added a fourth count alleging that Lisa unduly influenced Andrea in the making of 

her estate planning documents. Amy requested that those documents “be declared null and 

void and/or revoked as a result of undue influence,” and she sought damages in the amount 

of $75,000 without explanation. On February 2, 2021, Andrea filed a timely motion to 

strike the First Amended Petition in its entirety and dismiss the underlying claims.

On February 25, 2021, Amy filed another amended petition (the “Second Amended 

Petition”) adding Lisa, Emily, Julia, and William Murray—the Arlington County 

Commissioner of Accounts charged with overseeing administration of the Virginia Trust—

as defendants and “real parties in interest.” In her Second Amended Petition, Amy 

included the following allegations in setting out her undue influence challenge: 

40. That the benefactor, Andrea S. Jacobson, and the beneficiary, Lisa Allyn 

Jacobson are involved and have been involved in a relationship of confidence 

and trust. Andrea S. Jacobson and Lisa Allyn Jacobson are sisters. And, Lisa 

Allyn Jacobson is a confidante of Andrea S. Jacobson and is in complete 

control of Andrea S. Jacobson’s medical treatment, health and wealth. That 

Andrea S. Jacobson at all times herein reposed trust and confiden[ce] in Lisa 

Lipps Jacobson. 
8

41. the estate documents of Andrea S. Jacobson contain substantial benefits 

to Lisa Allyn Jacobson- all of Andrea S. Jacobson’s estate is controlled and 

bequeathed to Lisa Allyn Jacobson. In effect an inter-vivos transfer of all 

Andrea S. Jacobson wealth property, and health. 

42. that Lisa Allyn Jacobson caused and/or assisted in effecting the execution 

of Andrea S. Jacobson’s estate planning documents, caused, coerced, exerted 

undue influence, abused and violated her confidential relationship with 

Andrea S. Jacobson 

43. that Lisa Allyn Jacobson has had and continues to have multiple 

opportunities to exert influence on Andrea S. Jacobson and has in fact 

coerced and exerted influence on Andrea S. Jacobson to the financial benefit 

of Lisa Lipps Jacobson, breached her confidential relationship 

44. that the estate planning documents contain unnatural dispositions in that 

Andrea S. Jacobson specifically disinherited her only daughter/ child and 

only grandson to the benefit of Lisa Allyn Jacobson and the daughters of Lisa 

Allyn Jacobson, 

45. that the estate planning documents changed, significantly, the prior estate 

planning documents 

46. that Andrea S. Jacobson was/is highly susceptible to the undue influence 

of Lisa Allyn Jacobson and because of said undue influence executed the 

aforesaid documents disinheriting her child and grandchild and transferring 

all her wealth and health to her sister and sister’s daughters; that Andrea S. 

Jacobson has now been diagnosed as having dementia, which causes 

impairment in cognitive memory and judgment. Her condition has 

progressed and she is presently deemed incapable of managing her financial 

and medical affairs. Dr. Nikar’s letter states that he recommends her POA 

take charge of decisions and actions. 

In response, on March 10, 2021, Andrea again filed a timely motion to strike Amy’s 

Second Amended Petition in its entirety arguing, among other things, that the new 

defendants were not properly served, that the circuit court lacked jurisdiction over both the 

Virginia Trust and the Commissioner of Accounts, and that Amy’s claims were meritless 

aside from the fact that she lacked standing to bring them.
9

The Show Cause Proceedings and Dismissal of Counts II and III 

Following the initial petition, on November 2, 2020, the circuit court issued an order 

to show cause why Andrea should not be examined to determine whether Andrea was in 

need of a guardian under Maryland Rule 10-202(a)(3)(A).4 During the show cause hearing, 

the court heard testimony from Amy, Lisa, and Andrea’s team of physicians, financial 

professionals, and caregivers over two days—March 11 and April 16, 2021.5 At the 

conclusion of the hearing, the court ruled from the bench and discharged the show cause 

order after finding that Andrea was well cared-for and unequivocally not at risk within the 

meaning of Rule 10-202. 

On June 30, 2021, the circuit court entered judgment in favor of Andrea on Counts 

II (guardianship) and III (visitation) of Amy’s Second Amended Petition. With respect to 

4 When seeking a guardianship of an alleged disabled person, the petitioner 

ordinarily must file with the petition signed and verified certificates by at least two 

physicians who have examined the ward. Md. Rule 10-202(a)(1). When such certificates 

are not provided because the petitioner has been unable to access or examine the ward, then 

a show cause proceeding is held. Maryland Rule 10-202(a)(3)(A) provides as follows: 

Refusal to Permit Examination. If the petition is not accompanied by the 

required certificate and the petition alleges that the disabled person is 

residing with or under the control of a person who has refused to permit 

examination or evaluation . . . and that the disabled person may be at risk 

unless a guardian is appointed, the court shall defer issuance of a show cause 

order. The court shall instead issue an order requiring that the person who 

has refused to permit the disabled person to be examined or evaluated appear 

personally on a date specified in the order and show cause why the disabled 

person should not be examined or evaluated. The order shall be personally 

served on that person and on the disabled person. 

5 Pursuant to Maryland Code (1974, 2017 Repl. Vol.), Estates & Trusts Article 

(“ET”), § 13-705(e)(1), Andrea waived her right to be present at the hearings. 
10

Count II, the court found that Amy did not “adduce any proof under Rule 10-202(a)(3) that 

Andrea S. Jacobson may be at risk unless a guardian is appointed” and thus denied her 

petition for appointment as Andrea’s guardian.6 Regarding Count III, the court denied 

Amy’s request for visitation, explaining that it “had no power to order visitation between 

adults with the narrow exception of certain limited cases, not applicable here, when a 

guardian has been appointed.”

7

Court Dismisses all Counts

After Hearing on Motion to Reconsider and Remaining Issues

On July 9, 2021, Amy filed a motion to reconsider the June 30 order claiming, for 

the first time, that several of Andrea’s estate planning documents included signatures 

forged by Lisa. After the parties jointly moved for a continuance, the circuit court deferred 

a ruling on the motion to reconsider and set a hearing date for October 27, 2021, to address 

the remaining issues raised in Counts I and IV of the Second Amended Petition. At the 

hearing, the circuit court heard argument from counsel, dismissed both counts, and 

dismissed as moot the motion to reconsider after Amy’s counsel withdrew it at the hearing. 

As to Count I concerning Amy’s request to assume jurisdiction over the Virginia 

Trust, the court found that “I don’t believe that under any reasonable standard with respect 

to when this court should assume jurisdiction over an estate like this that the standard has 

6 The circuit court mistakenly referred to Count II as Count I, which instead dealt 

with the Virginia Trust. 

7 The circuit court mistakenly referred to Count III as Count II, which instead dealt 

with the guardianship over Andrea. 
11

been met.” With respect to Count IV, the court granted Andrea’s motion to strike and 

dismissed Amy’s undue influence claim finding that: (1) the claim was unsupported by 

sufficient factual allegations, and (2) Amy lacked standing to bring such a claim while 

Andrea remained alive. The court explained its ruling, in relevant part, as follows: 

All right, so I think the last issue before me relates to Count 4 which is the 

claim of undue influence and, with respect to this, I am satisfied that there is 

no standing on the part of Ms. Silverstone to challenge, at this point, the 

revocable trust of Andrea, or the documents related to her present condition. 

Likewise, that with respect to the estate issues, there’s no basis for asserting 

a challenge to the will at this time. There’s a specific process under Maryland 

law for doing that at the time following the death and the opening of an estate 

under the [Estates] and Trust Article [5-207]. It has a specific time for filing 

a petition to caveat a will so the action at this time would be premature. 

But even if I got by the standing issue, I don’t find, based upon the allegations 

that are, while Mr. Paugh is correct with respect to notice pleading, it does 

require some facts to support conclusory and here, or to support the 

conclusions, and here, there are conclusory allegations, but there are no facts 

alleged, in my view, sufficient to support a claim. So I will go ahead and 

grant the motion to strike the Second Amended Petition as related to count 

four, and I think that’s everything. 

On November 2, 2021, the court then entered a corresponding order dismissing 

Counts I and IV and discharging the remaining motions pending before the court.

Post-Dismissal Proceedings 

The very next day, on November 3, 2021, Amy filed a motion to reconsider the 

November 2 order and for leave to amend her Second Amended Petition. Almost bereft of 

any specific argument, that motion contained a brief prayer for leave to amend and recited 

lengthy quotations from two Maryland cases dealing with undue influence; one in the 

context of an inter vivos transfer that was challenged post-mortem, and the other in the 
12

context of a will contest. Without waiting for leave to amend, Amy filed a Third Amended 

Petition on the same day that included a fifth count for declaratory relief based on undue 

influence and the forgery allegations initially included in Amy’s July 9 motion to 

reconsider.8 According to Amy, she retained a document examiner who determined that 

Andrea’s 2015 and 2019 powers of attorney as well as the August 2018 amended trust 

agreement were all forged. On November 5, 2021, Amy re-filed her Third Amended 

Petition with additional factual allegations related to Count IV (undue influence).

Andrea filed a timely motion to strike Amy’s Third Amended Petition, followed by 

an opposition to Amy’s motion to reconsider along with a motion for sanctions against 

Amy for filing the November 3 motion to reconsider without substantial justification. On 

December 13, 2021, the circuit court denied the November 3 motion to reconsider and 

granted Andrea’s motion to strike the Third Amended Petition in its entirety. Then, on 

December 17, 2021, the court denied Andrea’s motion for sanctions. 

Amy filed a timely notice of appeal from the November 2 and December 13 orders

on January 6, 2022.9 Andrea and Lisa filed a timely cross appeal from the circuit court’s 

December 17 order on January 7, 2022. 

8 Perplexingly, Amy’s Third Amended Petition included and restated nearly 

verbatim Counts II-III of her initial petition. At the October 27 hearing, Amy’s counsel 

withdrew her motion for reconsideration of the dismissal of Counts II and III, describing 

them as “moot.” 

9 The appeal from the November 2 order is timely because the November 3 motion 

to reconsider was filed within 10 days of the November 2 order and thus tolled the time to 

file a notice of appeal while that motion was considered. Md. Rule 8-202(c); Johnson v. 

(Continued)
13

DISCUSSION

I.

Failure to State a Claim and Lack of Standing to Bring

Second Amended Complaint

Standard of Review 

The decision to grant a motion to dismiss is a legal question, and therefore we review 

the decision without deference to the trial court. Grueff v. Vito, 229 Md. App. 353, 376 

(2016) (reviewing dismissal of remainder beneficiaries’ challenge to actions of trustee of 

irrevocable trust). In doing so, we must assume “the truth of the complaint’s factual 

allegations and of any reasonable inferences that can be drawn therefrom.” GPL Enter., 

LLC v. Certain Underwriters at Lloyd’s, 254 Md. App. 638, 649 (2022). Dismissal is only 

proper if “the alleged facts and reasonable inferences would fail to afford relief to the 

plaintiff.” Id. Nonetheless, bald assertions and conclusory statements by the pleader will 

not suffice and the court “need not accept the truth of pure legal conclusions.” Id. 

A. Parties’ Contentions 

Amy’s opening brief collects a series of quotations from statutes, rules, and cases 

untethered to the questions as presented on page four of her brief. The first issue, as 

presented in Amy’s brief is: “The Court dismissed Petitioner’s Second Amended 

Complaint Pursuant to Rule 2-303 (conclusory statement and no facts) and because 

Francis, 239 Md. App. 530, 541 (2018) (“Rule 8-202(c) provides for an exception that tolls 

the running of [the thirty-day] appeal period while the court considers certain motions, 

including motions to alter or amend that are filed within ten days of entry of the judgment 

or order” under Rules 2-534 and 2-535).
14

Petitioner’s Complaint was premature and Petitioner was without standing. Was this ruling 

correct?” Although seemingly directed toward the dismissal of her entire four-count 

complaint, Amy’s briefing on this claim of error includes no argument or authority 

whatsoever relating to Counts I (assumption of jurisdiction over the Virginia Trust), II 

(guardianship over Andrea), and III (visitation with Andrea). Under Maryland Rule 8-

504(a)(6), a party is required to present argument on each issue that it intends to raise before 

this Court, or we may decline to consider it. Tallant v. State, 254 Md. App. 665, 677 n.9 

(2022). Consequently, we consider only Amy’s relatively formless arguments relating to 

the dismissal of Count IV. 

Amy maintains that she had standing to challenge the validity of Andrea’s will, 

powers of attorney, and revocable trust, primarily based upon her interest as Andrea’s 

daughter and presumptive heir. By merely quoting Rule 2-303(b) without further 

explanation, Amy appears to argue that the circuit court erred in dismissing Count IV 

because she complied with the minimal pleading requirements of Maryland Rule 2-303.10

Andrea and Lisa respond that Amy’s petition was properly dismissed. First, they 

argue that Amy had no standing to challenge the validity of Andrea’s powers of attorney 

in the absence of any specific abuse of authority by Lisa in her capacity as Andrea’s agent. 

10 Amy’s opening brief also includes an entirely unexplained citation to the threeyear statute of limitations as well as a block quote addressing the doctrines of laches, 

seemingly for the proposition that she was required to bring her undue influence challenge 

because the doctrine of laches and the statute of limitations would have barred her claim 

had she waited until her mother’s death to act. Because this argument was not presented 

to the circuit court below, it is waived, although this Court retains the discretion to consider 

it on appeal to the extent that it concerns jurisdiction of the trial court over the subject 

matter. Md. Rule 8-131(a). In this case, we decline to do so.
15

Second, Andrea and Lisa aver that Amy lacked standing to contest the validity of Andrea’s 

revocable trust because Amy was not a beneficiary of the trust and thus had no interest to 

assert. Third, they point out that while Amy would have standing to caveat Andrea’s will 

upon her death, she did not possess the ability to bring an undue influence challenge until 

that time. Finally, they contend that even if Amy had standing, Count IV was properly 

dismissed because Amy relied entirely on conclusory allegations and failed to plead 

sufficient facts to support her claim.

B. Standing to Contest a Will or Revocable Trust Pre-Mortem

Standing, in its most conventional sense, refers primarily to who may “invoke the 

judicial process in a particular instance.” State Ctr., LLC v. Lexington Charles P’ship, 438 

Md. 451, 502 (2014) (internal quotation marks omitted). To have standing, a plaintiff must 

have a legally protected interest, whether provided by statute or arising out of contract, tort, 

or property ownership. Id. at 500-02. The doctrine of standing is thus designed to ensure 

that a plaintiff “has a sufficiently cognizable stake in the outcome.” Kendall v. Howard 

Cnty., 431 Md. 590, 603 (2013). Under Maryland’s “cause of action” approach to standing, 

a plaintiff lacks standing unless “governing law confers on the plaintiff a right to bring the 

claim to the courts.” State Ctr., 438 Md. at 501; see also id. at 502 (“the appellate courts 

in Maryland have adopted the ‘cause of action’ approach, which groups the traditionally 

distinct concepts of standing and cause of action into a single analytical construct[.]”). 

At the outset of our analysis of this case, we observe that Amy fails to explain 

exactly what cause of action she sought to invoke by her allegations of undue influence. 

That may be because there was no obvious choice considering Amy’s fundamental 
16

justiciability problems. For example, Amy most certainly could not caveat Andrea’s will 

while Andrea remained alive. Maryland Code, (1974, 2017 Repl. Vol.), Estates & Trusts 

Article (“ET”), section 5-207(a)(1) expressly provides that a caveat petition may be filed 

“at any time before the expiration of 6 months following the first appointment of a 

personal representative under a will.” ET § 5-207(a)(1) (emphasis added). Moreover,

section 5-207(b)(1) provides that the filing of a petition to caveat “has the effect of a request 

for judicial probate.” ET § 5-207(b)(1). Both the appointment of a personal representative 

and the opening of judicial probate can only occur after the testator has actually died. See,

e.g., ET § 5-201(b)(1) (providing that a petition for probate must include the decedent’s 

date of death). Although not explicit, the structure of section 5-207 and its place within 

the Title 5 of the Estates & Trusts Article—which lays out the details of probate 

administration—contemplate that a petition to caveat can only be filed after death. See

Witte v. Azarian, 369 Md. 518, 525-26 (2002) (providing that courts may look to other 

indicia of legislative intent such as the structure of the statute and its relation to other laws). 

Although we have not yet had occasion to address the exact issue of pre-mortem 

standing to challenge the validity of a will or revocable trust, our sister courts have done 

so on several occasions. Indeed, several of our sister courts have ably explained that premortem actions seeking to set aside a will are not justiciable for two overriding reasons. 

First, because a will is testamentary in nature, “it operates only upon and by reason 

of the maker’s death” and “[u]ntil then it is ambulatory.” In re Radda, 955 N.W.2d 203, 

211-13 (Iowa 2021). Accordingly, as the Iowa Supreme Court recently explained, 

“[p]redeath challenges to wills may be a waste of time—the testator might replace the will 
17

at issue with a new one, die without property, or the challenger might die before the 

testator.” Id. at 213. Thus, as a matter of ripeness, when the testator is “currently alive, 

issues involving the validity of [the testators’] Last Will and Testament are likely not even 

ripe for adjudication by any court” because “it is premature to interpret or invalidate a will 

that has not yet been admitted to probate because the testator is still alive.” Hodge ex rel. 

Skiff v. Hodge, 78 F. Supp. 2d 29, 33 (N.D.N.Y. 1999) (emphasis supplied in original). 

Second, because a will creates no present interest in the testator’s property, “the 

absence of parties in interest, which results from the rule that a living person has neither 

heirs nor legatees, render impossible the assumption that a court has inherent power to 

determine the validity of a will prior to the death of the maker.” Cowan v. Cowan, 254 

S.W.2d 862, 863-65 (Tex. Civ. App. 1952) (quoting 57 Am. Jur. § 523)); accord Alexander 

v. Walden, 337 S.E.2d 241, 242 (S.C. Ct. App. 1985). This is a venerable principle, one 

which our Court of Appeals similarly recognized—a long time ago—in holding that the 

presumptive heirs of a grantor could not contest an inter vivos transfer of property merely 

based on an expectancy. Sellman v. Sellman, 63 Md. 520, 522-24 (1885). Indeed, in 

Sellman, the Court observed that “the children and grandchildren of the living ancestor 

could not claim a right to maintain a suit in respect to the property of that ancestor while 

their interest in such property was merely an expectancy, depending upon a future 

inheritance that, by possibility, may never occur.” Id. at 522. Rather, “it is only after the 

death of the ancestor that his children are entitled to the status of very heirs, which will 

enable them to assert a right to property derived through him by inheritance.” Id. at 525
18

(emphasis in original). Here, Amy occupies the same position: she possesses no property 

interest in Andrea’s assets other than the remote expectancy of a presumptive intestate heir. 

These principles—while adduced primarily in the context of wills—apply with 

equal force to revocable trusts. At least one court has found that the disinherited 

beneficiaries of a revocable trust lacked standing to challenge trust amendments executed 

by a living settlor. Linthicum v. Rudi, 148 P.3d 746, 747-49 (Nev. 2006). In Linthicum, 

the Nevada Supreme Court held that the dismissal of the plaintiff’s undue influence 

challenge to an amendment removing them as remainder beneficiaries of the trust was 

proper because the settlor was still alive. Id. at 747-49. As the court noted, remainder 

beneficiaries under a revocable trust “have only a contingent interest, at most, while the 

settlor is still alive. That interest does not vest until the settlor’s death.” Id. at 749. That 

logic aligns with our precedent establishing revocable trusts as primarily testamentary 

instruments that convey only a contingent interest that can be revoked at any time. Grueff

v. Vito, 229 Md. App. 353, 380 (2016) (“A revocable trust is a trust that the person who 

creates it . . . can revoke during the person’s lifetime. The beneficiaries’ interest in the trust 

is contingent only, and the settlor can eliminate that interest at any time.”) (quoting Estate 

of Giraldin, 290 P.3d 199, 201 (Ca. 2012)); Upman v. Clarke, 359 Md. 32, 45-48 (2000) 

(finding that a revocable trust was “predominantly testamentary . . . because [Settlor]

reserved the right to revoke the trust, she retained the power, with the stroke of a pen, to 

undo the transfer and recover full legal title to the property, at any time and for any 

reason.”). 
19

We find the foregoing cases persuasive and conclude that Amy cannot bring a premortem contest to a will or revocable trust. Amy lacks standing because she has no 

property interest in her mother’s trust assets or potential probate estate other than a remote 

claim as a presumptive intestate heir. Moreover, Amy’s claims may well be unripe because 

Andrea could, to the extent she is sufficiently lucid, execute another will or trust 

amendment or simply run out of assets, thus making this matter “future, contingent and 

uncertain.” State v. G & C Gulf, Inc., 442 Md. 716, 721 (2015) (quoting State Ctr., 438 

Md. at 591). When Andrea passes, Amy will have statutory standing to contest the validity 

of Andrea’s revocable trust under ET § 14.5-605 and to caveat Andrea’s will under ET § 

5-207. Until that time, however, Amy lacks standing, and the circuit court correctly 

dismissed her undue influence challenge to Andrea’s wills and revocable trust agreements 

on those grounds. 

C. The Powers of Attorney 

Amy points to our opinion in Ibru v. Ibru, in support of her contention that she had 

standing to challenge the validity of Andrea’s powers of attorney, as amended. 239 Md. 

App. 17 (2018). In Ibru, we addressed the meaning of ET § 17-103, which provides 

statutory standing to a broad class of persons to prevent abuses of power by agents 

appointed under a power of attorney. ET § 17-103; Ibru, 239 Md. App. at 42-44. ET §

17-103(a) provides, in relevant part, as follows: 

(a) The following persons may petition a court to construe a power of 

attorney or review the agent’s conduct, and grant appropriate relief:

***

(4) The principal’s spouse, parent, or descendant;
20

(5) An individual who would qualify as a presumptive heir of the 

principal;

(Emphasis added).

In Ibru, we concluded that ET § 17-103(a)(4) conferred standing on the principal’s 

son, Peter, based on a common-sense interpretation of the statute. There, the principal, 

Chief Ibru, traveled to the United States from Nigeria and executed a durable power of 

attorney and general power of attorney appointing his daughter, Janet, as his agent. Ibru, 

239 Md. App. at 24. After Chief Ibru’s health began to deteriorate, Peter filed an action to 

challenge specific actions taken by Janet pursuant to her authority as Chief Ibru’s agent. 

Id. at 26. Peter also sought to declare the powers of attorney null and void on the grounds

of forgery, fraud, and duress. Id. After reviewing the plain meaning of ET § 17-103, we 

concluded that because “Peter is a descendant of Chief Ibru, . . . Peter has standing 

under ET [§ 17-103(a)(4)] to petition the court to review Janet’s actions as an agent and 

construe the validity of the Powers of Attorney.” Id. at 46. 

Amy’s broad reading of the holding of Ibru is divorced from the facts and analysis 

in that case.

11 The circumstances presented in Ibru are relevantly distinguishable. It bears 

repeating that to have standing a plaintiff must present a cause of action and have a legally 

protected interest, whether provided by statute or arising out of contract, tort, or property 

ownership. State Ctr., 438 Md. at 499-502. As Andrea and Lisa correctly point out, in 

Ibru, we confronted a situation where the attorney-in-fact had allegedly diverted substantial 

11 ET § 17-103 does not apply to Andrea’s health care power of attorney pursuant 

to § 17-109, which provides that certain documents are outside the scope of the title, 

including advanced health directives. ET § 17-109(b)(2). 
21

sums from the principal’s accounts. Ibru, 239 Md. App. at 28-30. Here, by contrast, there 

has been no allegation that Lisa engaged in any improper behavior whatsoever in her role 

as Andrea’s agent. Considering the legislative intent behind § 17-103, which we examined

in Ibru, we conclude that a freestanding challenge to the validity of a power of attorney in 

the absence of any evidence of misuse or abuse of authority is not contemplated by the 

statute. 

As we explained in Ibru, ET § 17-103 was modeled verbatim on § 116 of the

Uniform Power of Attorney Act (“UPOAA”). Ibru, 239 Md. App. at 43-45. The drafters’ 

comment to UPOAA § 116 explains that the “primary purpose of this section is to protect 

vulnerable or incapacitated principals against financial abuse” while preserving “the selfdetermination rights of principals.” Ibru, 239 Md. App. at 44; UPOAA § 116 cmt.

background (2006). With respect to the latter objective, UPOAA § 116 requires courts to 

dismiss a petition upon the principal’s motion “unless the court finds that the principal 

lacks the capacity to revoke the agent’s authority.” UPOAA § 116(b). Further, the drafters 

emphasized that UPOAA § 116 acts as “a check-and-balance on § 114(h),” which 

comparatively provides that only a narrow class of persons may request an accounting from 

an agent-in-fact of transactions conducted on the principal’s behalf. UPOAA § 116 cmt.

background; ET § 17-102(a) (adopting verbatim UPOAA § 114(h)). As a result, UPOAA 

§ 116 “provides what, in many circumstances, may be the only means to detect and stop

agent abuse.” UPOAA § 116 cmt. background (emphasis added). 

Extrapolating from these stated goals—which we have previously attributed in Ibru 

to ET § 17-103 as the verbatim corollary to UPOAA § 116—we perceive that the provision 
22

was intended to address a very specific situation: an incapacitated principal standing at the 

mercy of a rogue attorney-in-fact who has actually abused their fiduciary position. If the 

overarching purpose of UPOAA § 116 is to serve as “a means to detect and stop agent 

abuse,” then a petition must be filed in the context of a dispute concerning abuses of power

by the attorney-in-fact while the principal is incapacitated. After all, one cannot detect or 

stop agent abuse when it has not yet occurred.

Considering the foregoing precepts, we hold that Amy could qualify as a proper 

party to bring a claim under ET § 17-103(a)(4) insofar as she is Andrea’s descendant, but 

because her complaint fails to allege any misuse or abuse of power by Lisa, Amy is “not 

entitled to invoke the judicial process in [this] particular instance” under ET § 17-103(a)(4). 

Bank of N.Y. Mellon v. Georg, 456 Md. 616, 657 (2017) (“‘[o]ne requirement of

justiciability is that the plaintiff have standing in the sense that the person is entitled to

invoke the judicial process in a particular instance.’”) (quoting Adams v. Manown, 328 Md.

463, 480 (1992)); see also State Ctr., 438 Md. at 502 (“the appellate courts in Maryland 

have adopted the ‘cause of action’ approach, which groups the traditionally distinct 

concepts of standing and cause of action into a single analytical construct[.]”).

Amy does not argue, nor does the record suggest, that Lisa committed any abuse of 

her powers as Andrea’s agent-in-fact pursuant to Andrea’s powers of attorney. As a result, 

the circuit court did not err in dismissing Amy’s freestanding undue influence challenge to 

Andrea’s powers of attorney due to lack of standing because Amy did not plead facts 

sufficient to invoke ET § 17-103 in this particular instance.
23

D. Failure to State a Claim 

Amy’s failure to state a cause of action and her lack of standing are fundamental

and overlapping defects in this case. We affirm the court’s determination that Amy failed 

to state a cognizable claim for relief based on her bald allegations of undue influence that 

fell short of invoking a recognizable cause of action. 

Undue influence “amounts to physical or moral coercion that forces a [person] to 

follow another’s judgment instead of his own.” Zook v. Pesce, 438 Md. 232, 248 (2014). 

In the context of a will contest, the Court of Appeals has identified seven factors to examine 

in determining the existence of undue influence upon a testator: (1) the benefactor and 

beneficiary are involved in a relationship of confidence and trust; (2) the will contains 

substantial benefit to the beneficiary; (3) the beneficiary caused or assisted in effecting 

execution of will; (4) there was an opportunity to exert influence; (5) the will contains an 

unnatural disposition; (6) the bequests constitute a change from a former will; and (7) the 

testator was highly susceptible to the undue influence. Moore v. Smith, 321 Md. 347, 354 

(1990) (citations omitted). The plaintiff “need not prove the presence of all seven of these 

factors, but the first and seventh factors (relationship of confidence and trust, and high 

susceptibility to undue influence) do appear to be necessary conditions for a finding of 

undue influence.” Green v. McClintock, 218 Md. App. 336, 369 (2014), cert denied, 440 

Md. 462 (2014) (cleaned up). 

The plaintiff’s quantum of proof also varies dramatically depending upon the nature 

of the challenged transaction. See Upman v. Clarke, 359 Md. 32, 42-44 (2000). If the 

issue concerns an inter vivos gift, the burden of proof shifts to the defendant upon a 
24

showing that the defendant and the donor were in a relationship of confidence and trust.

Id. at 42. Accordingly, once a confidential relationship is established, the plaintiff need 

not even show the actual exercise of undue influence. Id. Rather, the defendant has the 

burden of showing that “the transfer of the property was the deliberate and voluntary act 

of the grantor and that the transaction was fair, proper and reasonable under the 

circumstances.” Id. at 42-43 (quoting Sanders v. Sanders, 261 Md. 268, 276-77 

(1971)). As a result, when the donee in a confidential relationship “exerts any influence 

on [the donor] to obtain an inter vivos transfer of the person’s property, for less than full 

value, that influence is regarded, at least presumptively, as undue and requires an 

explanation.” Id. at 44 (emphasis in original). 

By comparison, for a testamentary gift the plaintiff maintains a heavy burden of 

proof to set aside a will or revocable trust. Indeed, the Court of Appeals has observed that: 

undue influence which will avoid a will must be unlawful on account of the 

manner and motive of its exertion, and must be exerted to such a degree as 

to amount to force or coercion, so that free agency of the testator is 

destroyed. The proof must be satisfactory that the will was obtained by this 

coercion ... or by importunities which could not be resisted, so that the motive 

for the execution was tantamount to force or fear. Mere suspicion that a will 

has been procured by undue influence, or that a person had the “power unduly 

to overbear the will of the testator” is not enough. It must appear that the 

power was actually exercised, and that its exercise produced the will.

Upman, 359 Md. at 43 (quoting Koppal v. Soules, 189 Md. 346, 351 (1947)). Ultimately, 

however, the test for undue influence in setting aside a will maintains some flexibility 

because “the quantum of proof necessary to establish undue influence varies according to 

the susceptibility of the testator.” Green, 218 Md. App. at 368 (quoting Moore v. Smith, 

321 Md. 347, 360 (1990)). 
25

With these principles in mind we return to the present case and quickly dispose of 

Amy’s claim that the circuit court erred in dismissing her allegations of undue influence 

with respect to Andrea’s testamentary documents. Amy’s bald allegations fail to state a 

claim even under a loose application of the Moore factors—mostly because her claim is 

not ripe given that Andrea is still alive and this is not a will contest. As we said above, 

once Andrea passes away, Amy will have standing to challenge the testamentary 

documents, assuming she is able to state a claim.12 

Amy’s arguments regarding the powers of attorney fall equally wide of the law for 

several reasons. First, we do not agree with Amy’s contention that the powers of attorney 

are inter vivos gifts. It is indisputable that a power of attorney is an inter vivos instrument, 

but it is a stretch, at the very least, to construe it as an inter vivos gift. A power of attorney, 

at its core, is a contract of agency which creates a fiduciary relationship. King v. Bankerd, 

303 Md. 98, 105 (1985). It does not effectuate any gratuitous transfer of any property, 

though the ability to do so on the principal’s behalf can be part of the agent’s authority 

when so provided.

Second, Amy structured her Second Amended Petition and arguments on appeal to 

set aside the powers of attorney around the Moore framework, but the Moore seven-factor

12 The circuit court’s dismissal in this case does not bar Amy from bringing a 

subsequent action once Andrea has passed away. We note that the circuit court did not 

specify in its November 2, 2021, order that Amy’s undue influence challenge to Andrea’s 

wills and revocable trust agreements was dismissed with prejudice. Moreover, as the Court 

of Appeals has stated, a dismissal “based merely on formal or technical defects and raising 

only a question of pleading or want of jurisdiction” is not considered a judgment on the 

merits for purposes of res judicata. Cassidy v. Bd. Educ. Prince George’s Cnty., 316 Md. 

50, 58 (1989) (quoting Moodhe v. Schenker, 176 Md. 259, 267 (1939)).
26

test has, at best, wooden application as applied to a power of attorney. Amy makes no 

effort to address this problem and simply makes the incorrect contention that there was an 

inter vivos gift in this case that shifted the burden of proof to Lisa. That is indisputably 

incorrect. Even if we apply the ill-fitting Moore framework, Amy’s Second Amended 

Petition falls short under the Moore factors. For example, with respect to the confidential 

relationship factor, Amy simply stated that “the benefactor, Andrea S. Jacobson, and the 

beneficiary, Lisa Allyn Jacobson are involved and have been involved in a relationship of 

confidence and trust” because they were sisters and Lisa was appointed as Andrea’s agentin-fact. Those allegations were insufficient considering that (1) the premise that Andrea 

and Lisa “are involved and have been involved in a relationship of confidence and trust” 

simply stated a legal conclusion; (2) the fact that Andrea and Lisa are sisters does not 

demonstrate the existence of a confidential relationship because familial ties standing alone

do not suffice, see Upman, 359 Md. at 42; and (3) Amy could not bootstrap her way to a 

confidential relationship by pointing to a fiduciary association created by the very 

document that she is challenging. With respect to the remaining factors, the deficiencies 

in Amy’s Second Amended Petition turn on the fact that the allegations, if relevant, were 

entirely conclusory. 

In sum, we hold that the circuit court did not err in dismissing Count IV of Amy’s 

Second Amended Petition for failure to state a claim upon which relief can be granted. 

Amy relied entirely on conclusory allegations and failed to articulate a recognizable cause 

of action. As a result, because those legal conclusions and unsupported bald assertions 

were not sufficient to state a claim, dismissal was proper. 
27

II.

Motion for Reconsideration 

A. Parties’ Contentions 

Although Amy again declines to elaborate, the thrust of her argument appears to be 

that the circuit court abused its discretion in denying her motion to reconsider because it 

proceeded upon an error of law. 

Andrea and Lisa counter that the circuit court properly denied Amy’s motion for 

reconsideration because Amy failed to identify any legal error or specify any grounds for 

reconsideration. Even if that were not the case, Andrea and Lisa contend that the circuit 

court could not have abused its discretion in denying the motion because Amy lacked 

standing and there was no legal error to correct. 

B. The Motion to Reconsider Was Properly Denied 

Under Md. Rule 2-534, a party may file a motion to reconsider within ten days after 

the entry of judgment. Md. Rule 2-534. We review a circuit court’s decision to deny a 

motion to reconsider for abuse of discretion. Wilson-X v. Dep’t Hum. Res., 403 Md. 667, 

674-75 (2008). An abuse of discretion occurs when “no reasonable person would take the 

view adopted by the [circuit] court,” or “when the court acts without reference to any 

guiding rules or principles.” Id. at 677 (cleaned up). However, a “court’s discretion is 

always tempered by the requirement that the court correctly apply the law applicable to the 

case.” Schlotzhauer v. Morton, 224 Md. App. 72, 84 (2015) (quoting Arrington v. State, 

411 Md. 524, 552 (2009)). Indeed, the Court of Appeals has emphasized that “an error in 

applying the law can constitute an abuse of discretion, even in the context of a motion for 
28

reconsideration made pursuant to Maryland Rule 2-534.” Morton v. Schlotzhauer, 449 Md. 

217, 232 (2016). Thus, if a trial court “fails to rectify a judgment based on a 

misunderstanding of the law applicable to the case or the procedural posture of the case, 

especially when that error is brought to its attention in a timely manner, [it] abuses its 

discretion.” Id.

We conclude that, even under more searching review, the circuit court acted 

properly in denying Amy’s motion for reconsideration. At a minimum, Amy was required 

to bring to the circuit court’s attention the particular legal errors that the court was duty 

bound to rectify. For example, in Morton, the trial court abused its discretion in denying 

the plaintiff’s motion to reconsider when she specifically brought to the court’s attention 

that she had gained standing due to the re-vesting of her claim. Morton, 449 Md. at 234. 

Similarly, in Williams v. Housing Authority of Baltimore City, the trial court abused its 

discretion in denying a motion to reconsider after the court was “reliably informed” that its 

ruling was based on a clear error of law and that another party had not received proper 

notice of a hearing. 361 Md. 143, 153 (2000); see also Garliss v. Key Fed. Sav. Bank, 97 

Md. App. 96, 105 (1993) (finding abuse of discretion in denying motion to reconsider after 

court was informed that movant was entitled to a credit against judgment). Here, Amy 

simply did not carry her burden of demonstrating to the circuit court that it had misapplied 

the law. 

In her motion to reconsider, Amy quoted at length from two undue influence cases, 

Moore v. Smith, 321 Md. 347 (1990), and Figgins v. Cochrane, 403 Md. 392 (2008), 

without explaining how those cases connected to the facts at hand or established that the 
29

court erred in dismissing her Second Amended Petition. Moreover, even if the circuit court 

were able to extrapolate her argument, the cases cited by Amy were largely inapposite and 

failed to address her standing to challenge Andrea’s estate planning documents. In Moore, 

for example, the Court of Appeals established the seven-factor test for undue influence in 

will contests and observed that because undue influence can often be difficult to detect, it 

may be proven by circumstantial evidence. Moore, 321 Md. at 354. Amy’s reliance on 

Moore was unavailing for many reasons, including that her Petition did not concern a postmortem dispute, and, unlike in Moore, her Petition was not dismissed due to a lack of direct 

evidence, but because of a wholesale failure of proof and reliance on conclusory 

allegations. 

Likewise, in Figgins, the Court of Appeals found that the existence of a confidential 

relationship in the context of an inter vivos transfer of property shifted the burden of proof 

to the agent to demonstrate the fairness of the transaction. Figgins, 403 Md. at 414. As 

Andrea and Lisa ably point out, there was no inter vivos gift in this case. Amy’s reliance 

on Figgins was thus misplaced, especially considering that she would have retained the 

burden of proof on her undue influence challenge to Andrea’s will and revocable trust even 

if she could prove a confidential relationship between Andrea and Lisa. See Upman, 359 

Md. at 43 (holding that the burden of proof on undue influence remains with caveator of a 

will); Zook v. Pesce, 438 Md. 232, 247-48, 250 (2014) (concluding that the burden of proof 

on an undue influence challenge to decedent’s living trust remains with the plaintiff even 

where a confidential relationship exists). 
30

At bottom, the circuit court did not abuse its discretion in denying Amy’s motion to 

reconsider its dismissal of her Second Amended Petition. Amy was required to timely 

bring some legal error to the court’s attention in her motion to reconsider. She did not.

Instead, Amy simply recited Moore and Figgins without any elaboration as to how those 

holdings established an error that the circuit court was required to correct. In fact, Amy 

failed to even address standing—the primary rationale for dismissal—in any appreciable 

way. As a result, the circuit court did not abuse its discretion in denying her motion to 

reconsider because Amy’s deficient motion did not bring the court’s attention to any errors 

that it was duty bound to rectify. 

III.

Post Judgment Motions

A. Parties’ Contentions 

Amy contends that the circuit court abused its discretion in denying her leave to 

amend because Rule 2-341(A) permits amendments without leave of court by the date set 

forth in a scheduling order or at least 30 days before trial. Amy avers that her Third 

Amended Petition thus should have been permitted because “there is no scheduling order” 

and “the Third Amended Petition added new facts in Paragraph 47 through 65 and a new 

Count V[.]” Finally, Amy posits that the new count for declaratory relief justified leave to 

amend because it set out new evidence “detailing the non-genuine signatures” on Andrea’s 

estate planning documents.

In response, Andrea and Lisa point out that the Second Amended Petition had 

already been dismissed in its entirety before Amy filed the Third Amended Petition. They 
31

point out that although leave to amend is freely granted before dismissal on the merits, that 

is not the case after judgment. Further, Andrea and Lisa posit that the amendment would 

have been futile because the declaratory relief requested by Amy was not ripe for review 

and her claims were irreparably flawed. 

B. Leave to Amend Was Properly Denied

The decision to grant leave to amend pleadings is committed to the sound discretion 

of the circuit court. Bord v. Balt. Cnty., 220 Md. App. 529, 565 (2014). Under the 

Maryland Rules, an amended pleading may be filed either with or without leave of court 

depending upon the procedural posture of a case. Pursuant to Md. Rule 2-341(a), a party 

may file an amended pleading without leave of court “by the date set forth in a scheduling 

order or, if there is no scheduling order, no later than 30 days before a scheduled trial date.” 

Md. Rule 2-341(a). Thereafter, any other party to the action may file a motion to strike 

“setting forth reasons why the court should not allow the amendment” within 15 days after 

service of the amended pleading. Md. Rule 2-341(a). Conversely, under Md. Rule 2-

341(b), a party “may file an amendment to a pleading after the dates set forth in [Rule 2-

341(a)] only with leave of court.” Md. Rule 2-341(b). Rule 2-341(b), in turn, works in 

conjunction with Md. Rule 2-322(c), which provides that after a claim has been dismissed, 

“an amended complaint may be filed only if the court expressly grants leave to amend.”

Md. Rule 2-322(c) (emphasis added). 

Nevertheless, when leave is requested, it should ordinarily be freely granted “to 

prevent the substantial justice of a cause from being defeated by formal slips or slight 

variances.” Prudential Secs., Inc. v. E-Net. Inc., 140 Md. App. 194, 232 (2001) (quoting 
32

E.G. Rock, Inc. v. Danly, 98 Md. App. 411, 428 (1993)). Under Md. Rule 2-341(c), 

amendments to pleadings “shall be freely allowed when justice so permits.” Md. Rule 2-

341(c). Accordingly, an amendment should be permitted “so long as the operative factual 

pattern remains essentially the same, and no new cause of action is stated invoking different 

legal principles.” Hartford Acc. & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 109 

Md. App. 217, 248 (1996) (quoting Gensler v. Korb Roofers, Inc., 37 Md. App. 538, 543 

(1977)). As a result, “leave to amend complaints should be granted freely to serve the ends 

of justice” and “it is the rare situation in which a court should not grant leave to amend.” 

RRC Northeast, 413 Md. at 673. 

Nonetheless, an amendment “should not be allowed if it would result in prejudice 

to the opposing party or undue delay, such as where amendment would be futile because 

the claim is flawed irreparably.” Id. at 673-74. Prejudice is especially likely to result when 

a party attempts to add claims late in the litigation. For example, in E.G. Rock, we found

no abuse of discretion when the trial court denied the defendant leave to amend to set out 

a counterclaim after the close of evidence at trial. E.G. Rock, 98 Md. App. at 429. 

Similarly, in Mattvidi Assocs. Ltd. P’ship v. NationsBank of Va., N.A., we affirmed the 

denial of leave to amend on the day of trial as any such amendment would have prejudiced 

the defendant absent “the opportunity for additional discovery” and “necessary additional 

discovery would have delayed the trial, and, of course, resulted in much more complicated 

litigation.” 100 Md. App. 71, 84-85 (1994). 

Especially after a claim has already been resolved, the plaintiff’s ability to amend 

thereafter is significantly curtailed. See RRC Northeast, 413 Md. at 674-75. In RRC 
33

Northeast, the Court of Appeals found no abuse of discretion when the circuit court denied 

the plaintiff leave to amend after the plaintiff failed to identify any terms in the parties’ 

contract “that, if pled, would have improved the twice-dismissed breach of contract claims 

by answering the key question” of which sublease term the defendant had breached. Id. at 

674. As a result, because of the plaintiff’s “continued inability to proffer facts that would 

improve its complaint,” the circuit court properly denied leave to amend since “any such 

further amendment would have been futile and would have resulted in undue delay.” Id.

at 674-75; see also Beyond Sys., Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 29 

(2005) (affirming circuit court’s striking of amended complaint after claims were dismissed 

and plaintiff failed to produce evidence that personal jurisdiction existed over the 

defendants). 

Returning to the case before us, two points are immediately clear. First, Amy’s 

contention that she had leave to amend under Rule 2-341(A) because there was no 

scheduling order is completely without merit. As Andrea and Lisa correctly observe, Amy 

ignores the fact that her claims had been dismissed before she sought leave to amend. Thus, 

as provided by Rule 2-322(c), an amended complaint could only have been filed if the court 

expressly granted leave to amend. Second, to the extent that Amy sought leave to amend 

to reprise her undue influence challenge to Andrea’s estate planning documents, the circuit 

court did not abuse its discretion in denying her motion. As in Beyond Systems, such an 

amendment would have been futile because Amy still lacked standing to bring those claims

even with her additional allegations of forgery and request for declaratory relief. When 

Amy filed her Third Amended Petition, Andrea was still alive and no abuses of Lisa’s 
34

authority as Andrea’s agent had come to light. In essence, the status quo had not changed 

in any way. Accordingly, we discern no abuse of discretion in the circuit court’s decision 

denying leave to amend when Amy’s claims remained non-justiciable, thus rendering any 

amendment futile. 

C. Propriety of Striking an Amended Pleading Following Dismissal 

While an amended complaint can in some circumstances be filed following the 

dismissal of a case, the Maryland Rules create a specific procedure for doing so. As

provided by Md. Rule 2-322(c): 

If the court orders dismissal, an amended complaint may be filed only if the 

court expressly grants leave to amend. The amended complaint shall be filed 

within 30 days after entry of the order or within such other time as the court 

may fix. If leave to amend is granted and the plaintiff fails to file an amended 

complaint within the time prescribed, the court, on motion, may enter an 

order dismissing the action.

In Bacon v. Arey, we clarified that the grant of leave to amend, as clearly 

contemplated by Rule 2-322(c), functions as a precondition to filing an amended 

complaint. 203 Md. App. 606, 670-71 (2012). In Bacon, while the case was on remand 

from this court following the dismissal of the plaintiff’s third amended complaint, the 

plaintiff filed, without express leave, a fourth amended complaint. Id. at 670. We found 

that the plaintiff was without the power to do so under Rule 2-322(c) and that the circuit 

court properly struck the fourth amended complaint as a result. Id. at 670-71. As we

emphasized, the plaintiff “must seek” and presumably be granted “leave to amend before

filing another complaint.” Id. at 671 (emphasis added). 
35

We review the circuit court’s grant of a motion to strike for abuse of discretion. Id. 

at 667. In the present case, the logic of Bacon easily controls. Amy was required to have 

obtained leave before filing her Third Amended Petition. As a result, as in Bacon, the 

Third Amended Petition was not filed in compliance with Rule 2-322(c) and the circuit 

court did not abuse its discretion in granting Andrea and Lisa’s motion to strike the Third 

Amended Petition in its entirety. Nor, as Amy contends, was the circuit court required to 

provide a “written declaration of the parties’ rights” in striking a pleading that was not 

properly before it. It is true that a declaratory judgment must be rendered when a 

“controversy is appropriate for resolution by declaratory judgment.” Harford Mut. Ins. Co. 

v. Woodfin Equities Corp., 344 Md. 399, 414 (1997). But that is only the case when the 

court is actually addressing the merits of a properly justiciable controversy, which was not 

the case here. We hold that the circuit court did not abuse its discretion in striking an 

improper pleading without expressing any opinion as to the merits of the pleading, 

including Amy’s declaratory claims.

IV.

Denial of the Motion for Sanctions 

A. Parties’ Contentions

Andrea and Lisa argue that the circuit court abused its discretion in failing to impose 

sanctions on Amy due to her filing of the November 3 motion to reconsider without 

substantial justification. They point out that Amy failed to comply with Maryland Rule 2-

311(c) by not stating with particularity the grounds for reconsideration. Instead, they 

stress, Amy simply “repeated two long quotations from undue influence cases covering 
36

four of the documents’ five pages, without reference to the rule or the standard relevant to 

leave to amend or for reconsideration.” 

Amy responds, again by rote recitation of authority without elaboration, that the 

circuit court did not abuse its discretion. Extrapolating from the passages quoted from 

various cases and Rules Commentary in her briefing, Amy appears to argue that (1) she

had a reasonable basis for bringing the undue influence action and (2) the circuit court 

could have simply decided not to impose sanctions in its discretion.13

B. The Circuit Court Did Not Abuse Its Discretion

Maryland Rule 1-341 permits an award of attorneys’ fees when an action was 

brought by the offending party in bad faith or without substantial justification. Md. Rule 

1-341; Christian v. Maternal-Fetal Med. Assocs. Md., LLC, 459 Md. 1, 18 (2018). The 

rule primarily functions as a deterrent against abusive litigation and is “a mechanism to 

place ‘the wronged party in the same position as if the offending conduct had not 

occurred.’” Id. at 19 (quoting Major v. First Va. Bank-Cent. Md., 97 Md. App. 520, 530 

(1994)). Because of that narrow purpose, an award of attorneys’ fees under Rule 1-341 is 

considered “an ‘extraordinary remedy’ which should be exercised only in rare and 

exceptional cases.” Barnes v. Rosenthal Toyota, Inc., 126 Md. App. 97, 105 (1999) 

(quoting Black v. Fox Hills N. Cmty. Ass’n, Inc., 90 Md. App. 75, 83 (1992)). 

13 Amy also attempts to justify several other actions taken in this case which are 

outside the scope of this appeal. To be fair, these issues were cited by Andrea and Lisa in 

their brief as evidence of Amy’s bad faith throughout the litigation. Regardless, because 

these issues were not raised in the original motion for sanctions and were not passed on by 

the circuit court, they are not properly before this Court on appeal. Md. Rule 8-131(a); 

State v. Bell, 334 Md. 178, 188 (1994).
37

To award attorneys’ fees under Rule 1-341, the circuit court must wind its way 

through a two-step process. First, the court must make a factual finding as to whether the

challenged action was brought in bad faith or without substantial justification. Christian, 

459 Md. at 20-21. We review the court’s factual finding for clear error. Legal Aid Bureau, 

Inc. v. Bishop’s Garth Assocs. Ltd. P’ship, 75 Md. App. 214, 220-21 (1988). 

Second, the court must, within its discretion, “separately find that the acts 

committed in bad faith or without substantial justification warrant the assessment of 

attorney’s fees.” Christian, 459 Md. at 21. Nonetheless, “even if the circuit court 

determines that a party has acted in bad faith or without substantial justification,” it can

“decline to impose sanctions, in the exercise of its discretion.” Blitz v. Beth Isaac Adas 

Israel Congregation, 115 Md. App. 460, 489 (1997), rev’d on other grounds, 352 Md. 31 

(1998) (emphasis added); Blanton v. Equitable Bank Nat’l Ass’n, 61 Md. App. 158, 166 

(1985). Indeed, the circuit court’s judgment call will not be disturbed unless it is “so far 

off the mark as to amount to an abuse of discretion.” Century I Condo. Ass’n, Inc. v. Plaza 

Condo. Joint Venture, 64 Md. App. 107, 120 (1985). 

On this record, we discern no abuse of discretion in the circuit court’s denial of the 

joint motion for sanctions. Even if Andrea and Lisa could show that Amy brought her 

November 3 motion to reconsider in bad faith or without substantial justification, the circuit 

court was well within its discretion to deny an award of sanctions as a matter of judicial 

economy. Though the circuit court did not go into detail about why it denied the joint 

motion for sanctions, we observe that the court could have easily concluded that granting 

the motion would have only spawned further litigation. Instead, the circuit court—
38

justifiably, in our view—simply allowed this case to mercifully come to an end after it 

struck Amy’s Third Amended Petition. Even if Amy’s motion to reconsider was deficient, 

we hold that the circuit court did not abuse its discretion in denying the imposition of 

sanctions. 

JUDGMENT OF THE CIRCUIT COURT

FOR MONTGOMERY COUNTY

AFFIRMED; COSTS TO BE PAID BY

APPELLANT.