Estate of Kerwin, 100120 MESC, Kno-19-492

Docket Nº:Kno-19-492
Opinion Judge:MEAD, J.
Attorney:Barbara K. Wheaton, Esq., Joshua D. Dunlap, Esq., and T. Griffin Leschefske, Esq. (orally), Pierce Atwood LLP, Portland, for appellant Sandra K. Smith Matthew Warner, Esq. (orally), Preti Flaherty Beliveau & Pachios, LLP, Portland, for appellee Lorraine C. Kerwin
Case Date:October 01, 2020
Court:Supreme Judicial Court of Maine

2020 ME 116


No. Kno-19-492

Supreme Court of Maine

October 1, 2020

Argued: September 15, 2020

Barbara K. Wheaton, Esq., Joshua D. Dunlap, Esq., and T. Griffin Leschefske, Esq. (orally), Pierce Atwood LLP, Portland, for appellant Sandra K. Smith

Matthew Warner, Esq. (orally), Preti Flaherty Beliveau & Pachios, LLP, Portland, for appellee Lorraine C. Kerwin



[¶1] Sandra K. Smith appeals from a judgment of the Knox County Probate Court [Emery, J.) granting in part her petition for discovery of property pursuant to 18-C M.R.S. § 3-110 (2020)1 but limiting the scope of the examination of Lorraine C. Kerwin. Smith asserts that (1) she timely filed her notice of appeal and (2) the court erred in limiting the scope of the examination. We conclude that the notice of appeal was timely, and we affirm the judgment.


[¶2] The underlying facts are not contested and are drawn from the Probate Court record. Robert W. Kerwin (the decedent), who had an adult daughter, Smith, from a previous marriage, married Kerwin in 2005. In 2006, Kerwin and the decedent established a trust through which real estate in Knox County was held and for which Kerwin was a trustee. The decedent's will provided that any of his property not already in the trust would pour over to the trust at his death; it provided nothing for Smith.

[¶3] After the decedent died in 2018, Kerwin filed in the Probate Court an application for informal probate of a will and appointment of a personal representative. Smith filed a claim against the estate concerning the Knox County real estate in February 2019. Kerwin, as the estate's personal representative, disallowed the claim on March 18, 2019. Two months later, Smith filed a petition for discovery of property, pursuant to 18-C M.R.S. § 3-110. In that petition, Smith asserted that the transfer of real estate to the trust was potentially the result of undue influence or fraud, and she asked the court to require Kerwin to appear for examination under oath and produce certain documents relating to a coin collection and the decedent's transfer of the Knox County real estate to the trust.

[¶4] On September 11, 2019, the Probate Court entered an order granting in part Smith's petition requesting examination about the creation of the decedent's trust. It set a date for the hearing but limited Smith's examination of Kerwin: Examination shall not be allowed regarding Ms. Kerwin's knowledge of circumstances relating to decedent's decision to transfer real property into a trust. One of the few Maine cases relating to the predecessor of this section of the law states:

". . . [an] executor may be held to answer under oath respecting the existence of the will, his appointment as executor, the nature and value of the estate of which the testator died possessed, and any facts relative to his administration, and the existence of any munimont [sic] touching the estate; but not respecting any conveyance of real estate to him in trust, by the testator, prior to his decease." O'Dee v. McCrate, 7 Greenl. 467 (1831).

The court was "reluctant to grant the petition because it probe[d] circumstances that occurred thirteen (13) years ago" and stated that the Maine Rules of Probate Procedure gave it authority to place reasonable limitations on the examination.

[¶5] On November 20, 2019, the Probate Court held the hearing on Smith's petition, and Kerwin appeared for examination. At the end of the hearing, Smith confirmed with the court that the hearing was the last opportunity for her to question Kerwin. The court entered on the docket, "Hearing on 3-110 held." Smith filed a notice of appeal, dated December 9, 2019, from the "final judgment entered on November 20, 2019, and ... the Court's interlocutory, procedural order of September 11, 2019." We issued a show cause order directing Smith to explain whether this appeal was justiciable given that it was unclear whether the Probate Court had entered an order, finding, or judgment on November 20. After Smith responded, we allowed the appeal to proceed, notified the parties that the issue of justiciability should be addressed in their briefs, and permitted the Probate Court to act on any motion filed to supplement the record or correct the docket.

[¶6] Smith subsequently filed a motion in the Probate Court asking it to clarify that the November 20 hearing concluded the proceedings. On February 10, 2020, the court granted Smith's motion and directed the Register of Probate to supplement the record and enter on the docket the following: "On November 20, 2019, the Court held a hearing and examination of Lorraine C. Kerwin on Sandra K. Smith's Petition for Discovery of Property Pursuant to 18-A M.R.S. §3-110. The action under the Petition concluded at the end of said hearing and examination and all orders entered in connection therewith became final."


A. Timeliness

[¶7] First, we must address whether the notice of appeal was timely filed from a final judgment. The parties disagree about what constitutes the final judgment: Smith asserts that the judgment was the court's oral statement on the record at the conclusion of the November 20 hearing, and...

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