Green v. McClintock

• Decision Date: 01 August 2014
• Docket Number: No. 929,Sept. Term, 2013.,929
• Citation: 97 A.3d 198,218 Md.App. 336
• Parties: Andrew A. GREEN v. Betty J. McCLINTOCK.
• Court: Court of Special Appeals of Maryland

218 Md.App. 336

97 A.3d 198

Andrew A. GREEN

v.Betty J. McCLINTOCK.

No. 929, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Aug. 1, 2014.

Michael A. Llewellyn (Geppert, McMullen, Payne & Getty, on the brief), Cumberland, MD, for appellant.

Stephen C. Wilkinson, Cumberland, MD, for appellee.

Panel: WRIGHT, KEHOE, ARTHUR, JJ.

ARTHUR, J.

This case concerns a challenge to a last will and testament of the late Kenneth Green, as well as a contention that Maryland lacks jurisdiction to consider the challenge.

In 2003, the decedent executed a will in which he made his friend, Betty McClintock, the prime beneficiary. In 2009, when he was terminally ill, regularly taking opiates for pain, and completely dependent upon his brother, who had taken him from Maryland to Kentucky and held him there incommunicado, he executed a second will in which he revoked the earlier will and gave all of his assets to his brother.

McClintock challenged the second will, contending that it had been procured by fraud and undue influence. After a bench trial that extended over five days, the Circuit Court for Allegany County agreed. As a consequence of that decision, the earlier will, which favored McClintock, became the decedent's last will and testament. We shall affirm.

Factual and Procedural History

The multi-volume record in this case discloses few areas of agreement between the contending parties. Our obligation, however, is not to review and weigh the parties' respective contentions, but to recount the facts in the light most favorable to McClintock, the party who prevailed below. L.W. Wolfe Enters., Inc. v. Maryland Nat'l Golf, L.P., 165 Md.App. 339, 343, 885 A.2d 826 (2005). Those facts are as follows:

A. The Parties

1. The Testator, Kenneth Green. The testator, Kenneth Green (“Kenneth”), was born on May 20, 1934, and died on January 19, 2010. Kenneth was raised on a farm that was owned by his parents in Lonaconing, Maryland. His only sibling was his brother Albert Green (“Albert”). Kenneth never married and had no children.

Except for a few brief periods (when he was in the military, when he moved to Ohio for a job, and at the very end of his life), Kenneth spent the entirety of his life on or near the Green farm. For much of his life, he worked for Westvaco in Allegany County.

Before his father died, Kenneth lived on the farm with his parents, to whom he was devoted. After his father's death, Kenneth remained on the farm alone, raising cattle and hay. Aside from his mother, the farm and his cattle were the most important things in Kenneth's life.¹

2. The Beneficiary, Albert Green. Kenneth's brother Albert also worked for Westvaco for many years, but moved to West Virginia, near the border with Garrett County, in 1987. Kenneth's and Albert's mother, Ida, joined Albert in West Virginia after their father died. In 1998, a few years after his mother died, Albert retired and moved to Kentucky, where his sons lived.

3. The Personal Representative, Andrew Green. Albert's son, Andrew Green (“Andrew”), is the personal representative under the will that has been challenged in this case. Andrew, who lives in Kentucky, had only limited contact with his uncle Kenneth for many years.

4. The Caveator, Betty McClintock. Betty McClintock was one of Kenneth's co-workers at Westvaco. During the time when she and Kenneth worked for Westvaco, she spoke with him regularly, on almost a daily basis. Kenneth admired her because she had raised four children on her own after her husband died in an automobile accident in the 1970s.

The circuit court found that, from the late 1980s onward, Kenneth and McClintock had a long-term, stable, caring, and supportive relationship.

B. Ida Green's Death and the Litigation Over Her Estate

The roots of the present dispute can be traced back to May 1995, when Kenneth's and Albert's mother, Ida, died, without a will to direct who would inherit the Green farm or her other assets. For several years, no one opened an estate on her behalf. Instead, Kenneth continued to live on the farm and to raise cattle and engage in other farming activities there.

In about 2000 or 2001, Kenneth approached James Oberhaus, the president of Maryland Fuel Corporation, which owned the mineral rights under the Green farm. Kenneth asked Oberhaus for assistance in obtaining sole title to the Green farm. Oberhaus hired John Robb, a local attorney familiar with real estate matters, to assist Kenneth. With Robb's assistance, Kenneth opened an estate for his mother in August 2002, more than seven years after her death.

The estate proceedings prompted a dispute between Kenneth and his brother Albert. Kenneth contended that the farm was his and that the $192,000.00 in assets in Ida's estate were to be divided equally between the brothers; Albert, on the other hand, contended that the farm and the other assets should be divided evenly between the two brothers. In October 2003, the orphans' court agreed with Albert that the farm should go to the brothers as tenants in common, and Kenneth appealed.

C. Kenneth's First Will, in 2003

In the midst of the legal dispute between Kenneth and his brother, Oberhaus (of Maryland Fuel) suggested to Kenneth that he should have a will. Oberhaus was motivated, in part, by the prospect of obtaining title to the surface rights to the Green farm ( i.e., the right to strip-mine the farm), which he had previously attempted to obtain from Kenneth. Oberhaus referred Kenneth to Maryland Fuel's lawyer, Donald Nelson, for the purpose of drafting a will.

Oberhaus arranged Kenneth's first meeting with Nelson. The meeting took place in Oberhaus's office, and Oberhaus was present for the first 10 to 15 minutes of it.

Kenneth told Nelson that he wanted his entire estate to go to McClintock because she was a hard worker and had devoted a great deal of effort to raising her children after her husband's death. Neither Nelson nor Oberhaus knew McClintock at the time.

Kenneth specifically told Nelson that he did not want Albert or Albert's wife, Stella, to get any of his property. Consistent with that directive, the will makes no provision for Albert or any member of Albert's family.

On Nelson's advice, Kenneth agreed to have the will include a provision that gave Maryland Fuel the option to purchase the Green farm from his estate after his death. The provision contained a mechanism to establish the purchase price. In addition, it directed that if Maryland Fuel exercised the option, the purchase price would go to McClintock.²

Kenneth executed the 2003 will at an M & T Bank branch office on March 5, 2003. According to Oberhaus's employee, Linda Malamis, who was a witness to the will, Kenneth told a bank employee at the time that he wanted to take care of McClintock. In addition, according to the bank employee, Kenneth stated that he disliked Albert's wife because she wanted all of his money and property and that he did not want Albert's wife to receive any of his assets.

D. The Settlement of the Litigation Concerning Ida Green's Estate

In April 2004, a little over a year after he had executed his will, Kenneth traveled to Kentucky to take Albert's deposition in his appeal in the litigation concerning their mother's estate. Kenneth had never previously gone to Kentucky in his life.

Before any substantive questioning began in the deposition, Kenneth and Albert met privately and reached an agreement. Under the terms of the agreement, Kenneth would receive the Green farm, while Albert would receive all the money in their mother's estate, except for an advance that Kenneth already received.

While he was in Kentucky in connection with the deposition and the settlement discussions, Kenneth did not go to Albert's farm or meet with any of Albert's family members, including Albert's son, Andrew, the personal representative under the will that has been challenged in this case.

E. After the Settlement With Albert

After the settlement with Albert, the personal representatives of the estate conveyed the Green farm to Kenneth. Kenneth later told his neighbor, Jeremy Kiddy, that he had had a hard time getting the farm.

Over the next several years, Kenneth continued to live alone on the farm and to work the farm. He remained close to a small circle of friends and had no meaningful contact with Albert, Albert's wife Stella, or Albert's son Andrew. Kenneth's friends included Kiddy, who helped him on the farm and saw him on almost a daily basis from 2004 until late July 2009, and McClintock, who accompanied Kenneth on errands and saw him on at least a weekly basis from March 2006 until late July 2009.

In addition to the farm, Kenneth owned a number of annuities, savings bonds, bank accounts, and brokerage accounts. Beginning in 2004, Kenneth started making McClintock the beneficiary on his accounts. In addition, he enlisted the aid of Oberhaus's employee, Linda Malamis, to make McClintock the payee on his savings bonds upon his death.

F. Kenneth's First Serious Illness, in 2006, and Its Aftermath

In May 2006, Kenneth was diagnosed with rectal cancer. Several months earlier, he had given McClintock a healthcare power of attorney.

After undergoing a colostomy in Morgantown, West Virginia, Kenneth stayed with his niece (Albert's daughter) Amy Thompson. While he was staying with the Thompsons, however, Kenneth asked McClintock to take him to his chemotherapy treatments.³

Kenneth became distrustful of Thompson's family, suspecting that someone had gone through the personal papers that he kept in the trunk of his car. He told Malamis that he did not want his family to know his financial situation. He requested that McClintock keep all of his banking and investment records, which she did until September 2009.

G. The Period from Late 2006 to Early 2009

After several months with the Thompsons, Kenneth returned to the Green farm. Thereafter, McClintock and Kenneth would meet at least weekly, and she would accompany him on his errands. On one of those...