In re Estate of O'brien-Hamel

• Decision Date: 10 June 2014
• Docket Number: Docket No. AND–13–440.
• Parties: ESTATE OF Ruth E. O'BRIEN–HAMEL.
• Court: Maine Supreme Court

93 A.3d 689

2014 ME 75

ESTATE OF Ruth E. O'BRIEN–HAMEL.

Docket No. AND–13–440.

Supreme Judicial Court of Maine.

Argued: April 8, 2014.

Decided: June 10, 2014.

William H. Childs, Esq., Childs, Rundlett, Fifield & Altshuler, LLC, Portland, for appellant Jennifer Edmondson.

Jason Dionne, Esq., Isaacson & Raymond, P.A., Lewiston, for appellee Donald Hamel.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.

SILVER, J.

[¶ 1] Jennifer Edmondson appeals from an order of the Androscoggin County Probate Court ( Dubois, J.) denying her petition for a formal adjudication of intestacy and for appointment as personal representative of the estate of her mother, Ruth E. O'Brien–Hamel. Jennifer contends that the Probate Court abused its discretion in permitting Donald F. Hamel Sr., Ruth's current personal representative, to present the testimony of Ruth's hospice-care physician despite failing to timely or properly designate the physician as an expert. Jennifer further contends that the Probate Court erred in finding that Ruth had the requisite capacity to make a will. We affirm the judgment.

I. BACKGROUND

[¶ 2] The following facts, which are supported by competent evidence in the record, are drawn from the Probate Court's factual findings and are viewed in the light most favorable to the court's judgment. See Estate of Greenblatt, 2014 ME 32, ¶ 2, 86 A.3d 1215.

[¶ 3] Ruth E. O'Brien–Hamel died on October 27, 2012, at the age of fifty-five. Ruth is survived by her three children, Jennifer Edmondson, Sean O'Brien, and Erin O'Brien. She is also survived by Donald F. Hamel, whom Ruth married the day before her death ¹ and to whom she left all of her property by a will executed the same day.

[¶ 4] Ruth and Donald met in November 2005, and soon thereafter began living together at Ruth's home in Auburn. In addition to the residence where she and Donald lived, Ruth partially owned a farm that had been in her family for many years.

[¶ 5] Ruth was estranged from her children in the final years of her life. With the exception of an unsuccessful attempt to reconnect at a family funeral in February 2011, Ruth had not seen Jennifer since Christmas 2005 or 2006. Although Jennifer and Ruth spoke over the phone one or two years before Ruth's death, that conversation caused Ruth to become sad, and when Donald intervened Jennifer said, “[Y]ou deal with it,” and hung up. In 2011, while Erin was residing with Ruth and Donald, she got into an argument with Ruth. After giving Ruth an “ultimatum” requiring Ruth to choose between her and Donald, Erin moved out and did not return. Ruth had no contact with Sean or his children after 2011.

[¶ 6] Ruth was admitted to Central Maine Medical Center (CMMC) on October 4, 2012. Ruth was initially diagnosed with pneumonia, but it was later determined that she had untreatable, stage-four lung cancer. During her stay at CMMC, Ruth had difficulty breathing, grimaced in pain after procedures were performed to remove fluid from her body, and was prescribed morphine, which caused her to go into a deep sleep.

[¶ 7] Ruth's brother, David Hunnewell, visited Ruth twice daily and kept Ruth's children apprised of her condition. Ruth spent part of her hospitalization in the intensive care unit. While Ruth was in the ICU, she was heavily medicated, was not lucid, and had a tube in her throat. Ruth became more lucid and communicative after she was transferred out of the ICU; at that time, she told David that she wanted to make a will and wanted Donald to have her home, but said that she did not want to bother Donald with the farm property. David testified, however, that Ruth said that she wanted her home to pass to her children and Donald's children from another relationship after Donald's death.

[¶ 8] On October 19, 2012, Ruth was discharged from the hospital, but was readmitted to CMMC the next day and remained there until October 25, 2012. Medical records from Ruth's second hospitalization indicate that Ruth had difficulty communicating, and although she was mostly lucid, had periods of delirium and hallucinations.

[¶ 9] On October 25, 2012, Ruth was discharged from CMMC and taken by ambulance to Androscoggin Home Care and Hospice. Hospice records indicate that, upon admission, Ruth was lethargic, minimally responsive, and unable to speak. The records also indicate that Ruth expressed her desire to marry Donald before she died, but the records do not explain how Ruth communicated that information to the staff. A nurse noted in the medical records that Donald “need[ed] to marry [Ruth] so he does not lose the home to her children.” Ruth was administered morphine during her stay at the hospice and suffered periods of delirium.²

[¶ 10] On October 26, 2012, Jaime Eller, a social worker and notary employed by the hospice, met with Ruth after being told by an intern that Ruth wanted to prepare a will. Eller prepared a will that Ruth signed the same day with the assistance of another person in a “hand-over-hand” fashion. The will provided: “I, Ruth O'Brien, leave all remaining aspects of my estate, including any personal property, insurance matters, and financial holdings to Donald F. Hamel Sr. to dispose of as he sees fit.” ³

[¶ 11] Eller testified that Ruth indicated that she wanted Donald to have everything and for him be the personal representative of her estate, but Eller could not recall how Ruth communicated this information, whether Ruth's eyes were open, or whether she had a conversation with Ruth about the will or its effect on her children. Eller's notes indicate that Ruth was “lethargic, but of sound mind and able to complete [a] simple will and sign it,” and that Ruth said “I want Don to have everything.” Eller testified that Ruth did not sign the first document presented to her, but did not testify to the substance of any adjustment made to the document before Ruth signed it. Lucienne Hamel, Donald's mother and the only attesting witness who appeared at the hearing, testified that Ruth did not speak or open her eyes during the execution of the will, but nodded her head in the affirmative when Eller read her the will.

[¶ 12] On October 26, 2012, the same day that the will was executed, Ruth and Donald were married. Ruth died the following day.

[¶ 13] None of Ruth's children visited her during her hospitalizations in October 2012. Erin gave birth at CMMC during the period that Ruth was hospitalized there, but did not visit Ruth or arrange for Ruth to visit with her newborn grandchild. Ruth had been unaware of the pregnancy until that time. Ruth's children did visit her at the hospice on October 26, 2012, the day before she died.

[¶ 14] On November 26, 2012, Donald filed an application for informal probate of the will and for his appointment as personal representative. The following day, Donald was appointed personal representative and the will was informally admitted to probate. On December 3, 2012, Jennifer filed a petition for a formal adjudication of intestacy and for her appointment as personal representative. In her petition, Jennifer alleged that Ruth lacked the capacity to execute the will.

[¶ 15] The Probate Court entered a scheduling order requiring that the parties designate expert witnesses no later than April 22, 2013. On May 7, 2013, Donald designated Dr. Roger Austin, Ruth's hospice physician, as an expert on the issue of testamentary capacity. Jennifer filed a motion in limine to exclude Dr. Austin's testimony on the grounds that the expert designation was untimely and inadequate pursuant to Maine Rule of Civil Procedure 26(b)(4)(A)(i), which is applicable to formal probate proceedings through Maine Rule of Probate Procedure 26. Donald subsequently moved to enlarge the time to designate an expert.

[¶ 16] The court held an evidentiary hearing on Jennifer's petition on May 29, 2013. At the beginning of the hearing, the court reserved its ruling on Jennifer's motion to exclude Dr. Austin's testimony, indicating that it was not inclined to grant the motion because “the Court doesn't believe that [Jennifer] would be surprised to the extent there is any prejudice.” The court indicated, however, that Jennifer could renew her motion at the appropriate time if “the testimony unfolds, and it turns out that there is some surprise.”

[¶ 17] Dr. Austin testified that he did not conduct an evaluation of Ruth's capacity. He had done so for hospice patients in the past when Eller asked him to do so, but he had no recollection of receiving such a request in this case. Dr. Austin testified that he was therefore unable to render an opinion as to Ruth's capacity at the time she executed the will, and indicated that it would be very difficult to assess a patient's capacity based only on medical records without direct observation of the patient.

[¶ 18] Dr. Austin acknowledged that certain aspects of the medical records raised concerns as to Ruth's capacity. He conceded that Ruth experienced some delirium while at the hospice, but testified that delirium would not necessarily render a person incapable of knowing what his or her assets are. He testified that morphine can affect cognitive abilities, but that it does not do so for most patients, and that the dosages administered to Ruth were low. Dr. Austin also acknowledged that Ruth's sodium level was low upon her discharge from CMMC, that her oxygen level was low at certain points on October 26, 2012, and that these levels could have had an impact on her capacity.

[¶ 19] Jennifer presented testimony from Dr. Kevin Kendall, who opined that the synergistic effects of Ruth's sodium level, blood pressure, oxygen level, medications, pain, and imminence of death resulted in Ruth being incapable of normal judgment and reasoning during her stay at the hospice. In forming his opinion, Dr. Kendall reviewed the CMMC and hospice records, along with depositions taken in the case. He did not personally observe Ruth or speak to any hospice...