You’ve recently opened an estate in which the decedent, Mary, was an elderly woman, cared for by her niece for some years. The niece held Mary’s power of attorney. One day into your office arrives the decedent’s brother, bearing a fistful of checks written by the niece to herself from Mary’s account. The checks are in large, round numbers, and bear no apparent relationship to Mary’s needs or the niece’s service.
Your probate of an elderly man’s estate is proceeding quite normally when a caregiver calls you in tears to tell you she has photos of bruising and welts on the deceased. She has long suspected physical abuse by a relative.
Mr. and Mrs. Smith were married for twenty years. Both have children by their first marriages. Mr. Smith had cancer as well as early Alzheimer’s. Six months before he dies Mrs. Smith drives him to your office, where he executes a will leaving everything to her outright. His previous will left Mrs. Smith the estate in trust, and upon her death to his children. Now his children are petitioning for probate of the previous will.
And you thought a probate practice would keep you out of the courtroom? Chances are a probate practice will eventually land you in court, whether representing a party or as a witness. Here’s a road map and some ideas for litigating a probate case.
Pure probate litigation is commenced in Probate Court, in accordance with Rule 4. Typically, the deputy will serve the Notice (akin to a summons, form N-101) and the petition on the defendant, in hand if possible, or by some other means calculated to give the defendant actual notice of the action. You will have either filed the petition previously or you will file the petition and the Notice (showing the deputy’s proof of service) with the Register when you receive the deputy’s endorsed Notice.
At the point you may face a choice: Either continue to litigate in Probate Court, or remove to Superior Court.
Bear in mind that an action to set aside will must be brought and must remain in Probate Court.18-A MRSA §1-3-1, 1-302, 3-105. See Plimpton v. Gerraro, 668 A.2d 882 (Me. 1995). (Probate Ct. has “exclusive jurisdiction of informal and formal proceedings to determine how decedent’s estates are to be administered, expended and distributed.” )
Probate Court is faster – you will get to hearing in six to eight months. Thus it is inexpensive compared with Superior Court. In Superior Court there are trailing dockets, while in Probate Court you will probably have a date certain for trial, a huge advantage. The judge will have good familiarity with issues common in such litigation. You will be working within the familiar confines of the Register’s office. The hearing will be jury-waived, for better or worse. Because the trial will be to the judge alone, a practitioner who might not have the experience to perform a jury trial can, with care and work, do a good job for his or her client.
Superior Court, conversely, will be much slower: you cannot expect to get to trial short of eighteen months from filing the complaint. The discovery period alone will be six months or more. The court may be more adept at addressing discovery disputes and related issues. The trial may be jury-waived, although on most issues any party can elect to try the case to a jury, provided the election is timely made. There will be a scheduling order, and failure to adhere to the order can be disaster – for example, if you do not timely designate an expert witness, you may well be prevented from presenting that witness’s testimony, possibly resulting in your inability to make your case. Trial scheduling orders appear now in the Probate Court as well, but perhaps motions to enlarge may be met with more sympathy by a probate judge.
The characteristics of each court may dictate your choice of forum. Is your case factually complex, demanding a long investigation, and are the facts such that no deep expertise in probate law is required to appreciate the argument? Try the case in Superior Court. But if the case is simpler and turns on issues closely identified with probate law – e.g., the typical will contest – perhaps the Probate Court is your forum of choice.
Within twenty days of the matter being filed in Probate Court, either party can remove to the Superior Court of the same county, or to another county if the Superior Court can assert personal jurisdiction over the defendant in that county. If the Probate Court pleading (acting as the complaint) is amended by either party, either party has another opportunity to ask for removal. Rule 71A, M.R.P.P.
The Will Contest
A will contest is a little like a murder trial: the most important witness is dead. Perhaps because the author of the will is not around to defend it, the cases reveal a societal bias in favor of giving effect to wills unless there is the strongest evidence of incapacity. The person seeking to overturn a will faces a major challenge.
There are two primary grounds for challenging a will: lack of testamentary capacity and undue influence. Challenges on the basis of mistake and fraud occur very rarely.
Keep in mind that there is no presumption of testamentary capacity. If you are the proponent of any will, whether or not challenged, you must make your prima facie case that the will was executed in accordance with law by an individual possessed of testamentary capacity. In the normal course the will is “self-proving” of execution and capacity, in accordance with Title 18-A M.R.S.A. §§ 2-502, 2-504, and all you need to do is proffer the original will for administration. If the will is challenged, your entry into evidence of a self-proving will is sufficient to shift to the petitioner the burden of proving, by preponderance of the evidence, that the will should not be allowed. But don’t forget that the initial burden of proof is on the proponent of the challenged will. Estate of Mary Dodge, 576 A.2d 755 (Me. 1990).
Testamentary capacity is very different from contractual capacity. Estate of Marquis, 822 A.2d 1153 (ME. 2003). An insane person can execute a will, as can a drunk or someone demented with Alzheimer’s or other disease. What is required is that the testator be able to understand in a general way the contours of his estate (what he is proposing to devise), that he know to whom he is giving the estate, and those whom, although they be the “natural objects of his bounty”, he is excluding. Therefore, a man lacks testamentary capacity who is incapable of comprehending that he owns 800 acres on Northeast Harbor, that such land is worth millions, and that he also owns liquid assets commensurate with such wealth. The same man would lack testamentary capacity who understands the scope of his wealth but who cannot keep straight in his head that he has three children, one of whom is dead but whose children survive.
On the other hand, take the same man with the same mental deficits but possess him of nothing more than a simple house on a town lot and a few thousand in the bank, and a court might well deem him to have the power to devise by will, at least to the natural objects of his bounty.
It follows that testamentary capacity may turn on the complexity of the proposed will. One may possess the testamentary capacity to understand that he is omitting a child with a long prison record in favor of two others less criminally inclined, yet lack the capacity to execute a will creating a tax avoiding trust which funds a complex scheme of inheritance. The practitioner considering the drafting of a will for an individual whose capacity may reasonably be challenged must bear this principle in mind: the more complex the instrument, the more likely there is to be a successful challenge to testamentary capacity.
Accessory to this precept is that the court will consider any will which “sounds in folly” as tending to evidence an absent of testamentary capacity. If Aunt Ida leaves her savings bonds to a home for wayward cats, be prepared to demonstrate rather well that she intended to do exactly that.
How does one prove testamentary capacity? Given that the central issue of any will contest is the testator’s state of mind, one might assume that evidence of what the testator said about the will, in and about the time of execution, would be relevant to the testator’s state of mind, and therefore admissible as a Rule 803(3) exception to the prohibition against hearsay testimony. Indeed, the Advisory Committee notes say that “[Rule 803(3)] also removes from the generalization excluding statements of memory or belief to prove the fact remembered or believed statements relating to the execution, revocation, or identification of the terms of the declarant's will, thus making such statements admissible.” The notes then go on to say, however, “This rule does not affect the Maine cases holding that oral testimony of the testator's intentions is inadmissible. Bryant v. Bryant, 129 Me. 251, 151 A. 429 (1930); First Portland Nat'l Bank v. Kaler-Vaill, 155 Me. 50, 151 A.2d 708 (1959).”
The bottom line is that you generally cannot offer the testator’s hearsay testimony that he or she intended to make the will offered for probate. The challenge, therefore, is to prove that the testator had such mental capacity that he or she must have intended to execute the offered will.
The starting point is the will itself. A will suggesting testamentary capacity is clear, devises to the natural objects of the decedent’s affections, and otherwise demonstrates a logical estate plan. On the other hand, perhaps the will contains a scrivener’s error, one which a lucid testator might be expected to catch on review of drafts or at execution. That the error survived to be in the published will may be evidence that the testator lacked capacity to understand or perhaps even to read the will. If you will allow such an error into a will you draft, let it not be in the will of one whose capacity may be challenged.
An earlier will may also be evidence, if it suggests that the challenged will represents a logical evolution in the estate plan.
Testimony of changes in the decedent’s personality, mood swings, habits and lifestyle all suggest the possibility of mental disease.
The opinion of the decedent’s doctor is almost always of extreme importance. In fact, one former southern Maine probate judge asserted, when on the bench, that if there is a doctor’s mental capacity evaluation on the same day as the will execution, and if the evaluation credibly demonstrates testamentary capacity, the issue is essentially determined.
Because the doctor’s opinion is so determinative, do more than simply write to the doctor with a request for an opinion. Instead, visit the doctor, provide the background in a light sympathetic to your client, and explain why the doctor’s opinion is so important. Remember, once a doctor has offered an opinion in writing he or she will feel obliged to provide further testimony consistent with that all important first opinion. Interviewing nurses and aides is likewise critical, of course.
If the decedent consulted with other professionals, such as bankers or investment advisers, in and around the time of the will’s execution, their testimony may be useful. In fact, any evidence of the decedent’s consulting with people about important matters – banking and investing, but also house or car repairs and the like – is important.
Most of us remember the phrase “lucid interval” from law school. A person can be demented or insane, and yet if he or she can for a few moments possess testamentary capacity, he or she can execute a will during that interval. In Re Loomis, 133 Me 81, 174 A. 38 (1934); Estate of Rosen, 447 A.2d 1220, 1222 (Me. 1982). The doctrine most often comes into play where a putative testator has “good days and bad days.” If you can elicit testimony that the decedent’s dementia varied widely from day to day, or even within each day, you may be able to make the case that execution occurred during a lucid interval. Perhaps there is evidence that mornings were when this person was at his or her best, and that is when the will execution occurred. Similarly, a drunk may possess testamentary capacity if execution occurs early in the day – another lesson for the practitioner preparing a will for a person who drinks to excess.
There are other ways you can minimize the possibility of a will being contested. One I have already mentioned, obtaining a doctor’s evaluation prior to execution. Occasionally, when a will contest is a real possibility but the testator presents him or herself well, the execution may be videotaped. The obvious peril of video is that the testator may come off looking not at all well, and then the video becomes damning rather than supporting. And it looks hardly better that the family or attorney decided to dispose of an unflattering videotape.
A common and sensible alternative is a detailed, factual memorandum written by the attorney immediately after the will signing ceremony and showing the basis for the assertion of testamentary capacity. The subscribing witnesses’ testimony will also be important, and they should be asked to make memoranda as well. If you suspect a will contest may occur, perhaps the execution should be witnessed by three witnesses and a notary (if the will will be self-proving).
The witnesses should have no interest whatsoever in the property disposed of in the will. Each witness should actually see the signature occur. The testator should initial page margins. A witness should read aloud the attestation language. Rather than mere publication (“Yes, that is my will”), the testator should be asked “Is this your will?” and “Have you read it?” and “Do you understand it?”, and finally, “Does it dispose of your property in accordance with your wishes?”
A plea asserting lack of testamentary capacity is almost always accompanied by a plea of undue influence. This is logical when one considers that a person who is getting on in years, becoming forgetful and even a bit feeble, is surely more susceptible to influence that rises to the level required to sustain a will challenge. Therefore any investigation of undue influence should undertake a thorough investigation into the physical and mental condition of the testator.
Any person making a will is influenced. Influence rises to a level which will void a will when the influence is coercive, or destructive of free agency. In Re Crockett, 147 Me. 173, 84 A.2d 808 (1951). A comprehensive definition is “[i]nfluence in connection with the execution of the will, and operating at the time the will is made, amounting to moral coercions, destroying free agency, or opportunity which could not be resisted, so that the testator, unable to withstand the influence, or too weak to resist it, was constrained to do that which was not his actual will but against it.” Estate of Bridges, 565 A.2d 316, 317 (Me. 1989).
+A person may be pressured to make a will, and it may be clear that without someone’s pressure the will would not have been made, but that is not by itself undue influence. Id. “[K]indness, entreaty, the offer of inducement to gain the making of a will in one’s favor, is legitimate, so long as he who made the will had the free choice to make it or not.” In Re Will of Fenwick, 348 A.2d 12 (Me. 1975).
Circumstances frequently seen in cases of undue influence include:
- The existence of a confidential relationship between the testator and the one said to have influenced him or her, and the presence of opportunity on the part of the “influencer”. Domineering behavior on the part of the suspect may also be seen.
- That the challenged will disposes of the property in an illogical manner, or in a manner which departs from the previous will or previous declarations of intent.
- Evidence that the testator was unusually susceptible to influence, perhaps because of illness (especially mental illness) or loneliness.
- Circumstantial evidence of an effort to gain undue influence, such as persuading the testator to keep from others the fact that he changed his will.
- Unusual circumstances surrounding the execution of the will, such as the will not having been executed under the supervision of a lawyer (but perhaps in the presence of the influencer), or the alleged influencer insisting on remaining in the room while the testator is being counseled.
In Re Will of Fenwick, 348 A.2d 12 (Me. 1975); Estate of Turf, 435 A.2d 1087 (Me. 1981).
The person challenging the will must prove undue influence by clear and convincing evidence. Russo v. Miller, 559 A.2d 354, 357 (Me. 1989); Estate of Langley, 586 A.2d 1270 (Me. 1991). Therefore the fact finder “must be convinced of the essential elements [of undue influence] to a high probability.” Taylor v. Commissioner of Mental Health, 481 A.2d 139 (Me. 1984). The burden is high; to see just how high, you may want to read Estate of Horne, 822 A.2d 1177 (Me. 2003).
As a practice note, if you want to avoid a challenge based on undue influence, please insist that the person who might be alleged to be the “influencer” stay out of the room when you are counseling the testator. I would go so far as to suggest that, at least on the day of execution, the testator not even get a ride to your office with the person who might be alleged to be the “influencer.”
Breach of Fiduciary Duty
If you suspect breach of fiduciary duty, get releases from the Personal Representative and obtain the financial records of the victim. Then put together a paper trail showing income into the estate and out. If the funds are commingled, you must of course show in whose account the funds were held. The assistance of an accountant will likely be required, either simply to assist your investigation of for eventual use as an expert witness.
If it’s a big case and you are confident of your facts you can commence the action in Superior Court, with the Estate as the plaintiff. Your causes of action may include breach of fiduciary duty, conversion, and fraud. Keep in mind also that Maine’s Improvident Transfers of Title Act allows the avoidance of property transfers which were made not for value by an elderly person without a lawyer. Title 33 M.R.S.A. §1021 et seq. Property, for purposes of this law, includes not only real estate but “major transfer[s] of personal property or money.”
On the other hand, if you are less certain of the facts or the amount is small, you may wish to cite the defendant to appear before the Probate Court, under Title 18-A M.R.S.A. §3-110. This useful section provides that the Personal Representative “or other person interested in the Estate” may petition the Probate Court to cause persons suspected of taking property of the Estate to appear and be examined under oath. The individual may be commanded to bring documents, and the section provides for interrogatories as well. Perhaps a useful technique would be to serve interrogatories and a request for production in advance of the examination. Although §3-110 does not expressly provide for documents to be produced in advance of hearing, the individual might nonetheless respond, and in any event the Citation to Appear will be accompanied by the requirement that the cited person bring with him or her that same list of documents.
Some courts provide for the examination to be before the court. Others, including Cumberland County, generally provide that the examination is in the nature of an out of court deposition. Either way the section provides a means of inexpensively placing a suspected person under oath for examination.
Sometimes the person suspected of foul play has become the personal Representative, or is otherwise disinclined to discharge his or her duty to marshal the assets of the estate. Short of moving to disqualify that person, §3-110 allows another heir to cite the suspect into court for examination, at small cost.
If the person will be cited for fraud against the decedent or the estate, the action must be commenced within six years of the commission of the fraud but within two years of the fraud’s discovery. Title 18-A M.R.S.A. §1-106.
If you suspect physical or emotional abuse of the decedent, you will probably be made aware of whether the Department of Human Services has investigated. If there has been an investigation, and if a civil action alleging the abuse is pending (in Superior Court), obtain the D.H.S. file by filing a Motion for Clifford Order. In the normal course records of D.H.S. investigations are confidential. The Clifford Order motion asks the D.H.S. to review the file and determine which aspects are relevant to your inquiry. D.H.S. will transfer those portions of the file to the court, after redacting the names of informants. The court will then arrange for your review, at the clerk’s office, of the redacted file. Copies are generally not available, although if specific need exists for a specific document you may apply to the court. Clifford Order motions, although perhaps not typically seen in elder law, are a common feature of litigation of Child Protective Order petitions. I attach an exemplar motion and proposed order, together with an exemplar complaint alleging both financial and physical abuse.
Lost Will Cases
In Maine, as in most jurisdictions, a will copy may be probated even if the original is lost. However, probate of a will copy requires a petition for formal probate and an opportunity for interested parties to object. That’s where is can get interesting.
By ancient law, a will known to be in the testator’s possession, but which cannot be located, is presumed to have been revoked by destruction of the will by the testator. Title 18-A M.R.S.A. §2-507 (will may be revoked by "being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction”; In re Estate of Richard, 556 A.2d 1091, 1092 (Me. 1989) (where will which was last known to be in testator’s possession, and is not found after death, there is raised the presumption of revocation by destruction); also see In Re Thorpe’s Will, 141 N.Y.S.2d 30 (1955)(incumbent upon proponent of will copy to exclude every possibility that original was revoked by destruction.)
The presumption of revocation may be rebutted by evidence that the testamentary intent of the testator did not change between his execution of the will and his death. It is the proponent of the will copy’s burden to demonstrate the sustained testamentary intent, and the evidence of sustained testamentary intent must be “clear and convincing.” Liberty v. Haines, 103 Me. 182, 192, 68 A. 738 (Me. 1907).
Therefore, a lost will case demands a thorough investigation.
What did the testator say to his friends, relatives, siblings etc. about estate planning? These comments, although hearsay, come is to show the testator’s state of mind.
Is there any physical evidence of destruction, whether intentional or inadvertent? See 79 Am.Jur.2d Wills §606 (relevant whether others had access to the will, who might have destroyed it).
Sometimes an issue is whether the decedent, perhaps bedridden in the final months, possessed the ability to get at a will stored in his or her home. If the chief beneficiary of the lost will was in the home, perhaps as a caretaker, the burden of proof may shift a bit. Annotation, Sufficiency of Evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980 §5 (where the lost will’s custodian is its chief beneficiary, strong evidence is required to prove the will’s inaccessibility to the decedent); In Re Thorpe’s Will, 141 N.Y.S.2d 30 (1955)(incumbent upon proponent of will copy to exclude every possibility that original was revoked by destruction.)
 Richardson v. Travelers Insurance Co., 109 Me. 117, 119, 82 A. 1005 (1912). Title 18-A M.R.S.A. §3-407 states “proponents of a will have the burden of establishing prima facie proof of due execution” and “contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation.”
 Some of the cases are Chandler Will Case, 102 Me. 72, In Re Loomis, 133 Me. 81, 174 A. 38 (Me. 1934), and In Re Siebert, 1999 ME 156, 739 A.2d 365. Page on Wills, 2003 ed., Volume One beginning in chapter 12 is also excellent.
 Rule 803(3) states: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
 More than in many areas of probate litigation, hearsay and other evidence of a testator’s intent is an area of rapid change, and good research is demanded if the evidence you seek to admit or exclude may be excludable.
 See Wills, Trusts and Estates, J. Dukeminer and S.M. Johanson (Little, Brown 1984).
 Title 33 M.R.S.A. §1022(1) reads: “In any transfer of real estate or major transfer of personal property or money for less than full consideration or execution of a guaranty by an elderly person who is dependent on others to a person with whom the elderly dependent person has a confidential or fiduciary relationship, it is presumed that the transfer or execution was the result of undue influence, unless the elderly dependent person was represented in the transfer or execution by independent counsel. When the elderly dependent person successfully raises the presumption of undue influence by a preponderance of the evidence and when the transferee or person who benefits from the execution of a guaranty fails to rebut the presumption, the elderly dependent person is entitled to avoid the transfer or execution and entitled to the relief set forth in section 1024.”
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