In re Estate of Washburn
| Decision Date | 30 January 2020 |
| Docket Number | Docket: And-19-47 |
| Citation | 225 A.3d 761 |
| Parties | ESTATE OF David H. WASHBURN |
| Court | Maine Supreme Court |
Laura P. Shaw, Esq. (orally), Camden Law, Camden, for appellant Laurie Kennedy
Matthew P. Mastrogiacomo, Esq. (orally), The Mastrogiacomo Law Office, PA, Lewiston, for appellee Michelle Washburn
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.*
[¶1] Laurie Kennedy appeals from an order of the Androscoggin County Probate Court (Dubois, J. ) denying her petition for formal adjudication of intestacy and appointment of personal representative of the estate of her former husband, David H. Washburn, on behalf of their minor son. Laurie contends that the Probate Court erred in finding that (1) David Washburn had the requisite testamentary capacity to execute a will, and (2) there was insufficient evidence to support a claim of undue influence. We affirm the judgment.
[¶2] The following facts are derived solely from the court's explicit factual findings. See Klein v. Klein , 2019 ME 85, ¶ 6, 208 A.3d 802. David Washburn died in 2016 at the age of fifty-one, survived by his wife, Michelle Washburn, and his son. Laurie Kennedy is the mother of David's son. David and Laurie are both deaf. Despite his disability, David lived an active and independent life, working as a welder at Bath Iron Works (BIW) for more than twenty-seven years. He owned his own home and engaged in multiple financial transactions, including real estate transactions and the purchase of automobiles on credit. He listed Michelle as the beneficiary of his BIW retirement account. These transactions were accomplished without the aid of sign language interpreters.
[¶3] Laurie and David's son was born in 2002. Sometime thereafter, David and Laurie litigated a parental rights and responsibilities action concerning their son, and David retained attorneys William Cote and Heather Seasonwein to represent him in that matter. During the course of that representation, sign language interpreters were employed at court events, but were not used during meetings or consultations between David and his attorneys.
[¶4] David and Michelle met in 2007 or 2008 and were married a short time thereafter. Michelle is not deaf and, at the beginning of their relationship, did not know how to communicate using American Sign Language (ASL). Michelle learned some sign language over the course of her marriage to David, and took a formal class on the subject in 2012. Although Michelle does not speak ASL well enough to qualify as an interpreter, she was able to communicate adequately with David using ASL, notes, lip reading, and text messages.
[¶5] In 2014, Michelle and David retained the services of Attorney Seasonwein, this time in connection with their petition to adopt Michelle's grandson. The Probate Court requested that David and Michelle execute wills incident to the adoption proceedings. Accordingly, David and Michelle executed wills prepared by Seasonwein. Seasonwein met with Michelle and David to draft the wills and communicated in her usual manner with David, while also enlisting Michelle to interpret via ASL. David made clear to Seasonwein, through these mixed forms of communication, that he wanted Michelle to have his house in the event of his death and that, if she predeceased him, the house should go to his son and Michelle's grandson. In addition, David wanted specific bequests set aside for his son. Seasonwein was certain that David knew what assets made up his estate. The parties stipulated to the fact that David's will was duly executed.
[¶6] Not long after they executed their wills, David and Michelle separated. Despite their separation, they did not divorce and remained friends. David did not amend or revoke his will, nor did he change the beneficiary designation on his retirement account.
[¶7] On September 22, 2016, shortly after David's death, Michelle filed with the Androscoggin County Probate Court an application for informal probate of David's will and appointment of her as personal representative. She was duly appointed as personal representative of David's estate on October 10, 2016. Laurie later filed a petition on behalf of her and David's son to remove Michelle as the personal representative and for formal adjudication of intestacy, seeking to invalidate the will that Michelle had submitted for probate on the grounds of lack of capacity and undue influence. See 18-A M.R.S. § 3-401 (2018). The court held a two-day hearing on the petition. At the close of Laurie's case-in-chief, Michelle moved for a judgment as a matter of law on both the capacity and undue influence issues. The court granted the motion in part, entering judgment in favor of Michelle with regard to Laurie's claim that Michelle had exerted undue influence over David when he executed his will, but the court denied the motion as to Laurie's claim that David lacked testamentary capacity.
[¶8] On December 11, 2018, following the completion of the bench trial, the court entered an order denying Laurie's petition, "finding that [David] had the requisite testamentary capacity to execute his last will and testament." According to the court, "[there] is nothing that suggests [David] did not understand the terms of [his] will ...." Laurie filed a motion for additional findings, which the court also denied. See M.R. Prob. P. 52 ; M.R. Civ. P. 52(b). Laurie timely appeals from the denial of her petition pursuant to 14 M.R.S. § 1851 (2018) and M.R. App. P. 2.
[¶9] Laurie first argues that the Probate Court erred in finding that David had sufficient testamentary capacity to create a valid will. "Testamentary capacity is an issue of fact that we review for clear error," and because Laurie bore the burden of proof in the Probate Court, we "will not disturb the Probate Court's findings unless the evidence compels a different result." Estate of O'Brien-Hamel , 2014 ME 75, ¶¶ 26-27, 93 A.3d 689. Because Laurie filed a motion for further findings of fact, see M.R. Civ. P. 52(b) ; M.R. Prob. P. 52, we will not infer any findings from the record. See Klein , 2019 ME 85, ¶ 6, 208 A.3d 802. Sulikowski v. Sulikowski , 2019 ME 143, ¶ 11, 216 A.3d 893.
[¶10] The party that contests the validity of a will bears "the burden of establishing lack of testamentary intent or capacity." 18-A M.R.S. § 3-407 (2018). Such a lack of capacity must be proved by a preponderance of the evidence. Estate of O'Brien-Hamel , 2014 ME 75, ¶ 21, 93 A.3d 689. We have described testamentary capacity as follows:
A disposing mind involves the exercise of so much mind and memory as would enable a person to transact common and simple kinds of business with that intelligence which belongs to the weakest class of sound minds; and a disposing memory exists when one can recall the general nature, condition and extent of his property, and his relations to those to whom he gives, and also to those from whom he excludes, his bounty. He must have active memory enough to bring to his mind the nature and particulars of the business to be transacted, and mental power enough to appreciate them, and act with sense and judgment in regard to them. He must have sufficient capacity to comprehend the condition of his property, his relations to the persons who were or should have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them.
Id. ¶ 28 (quoting Estate of Siebert , 1999 ME 156, ¶ 5, 739 A.2d 365 ); see also Estate of Record , 534 A.2d 1319, 1321 (Me. 1987). "This standard requires only a modest level of competence and a general knowledge of one's assets." Estate of O'Brien-Hamel , 2014 ME 75, ¶ 28, 93 A.3d 689 ; see also Estate of Dodge , 576 A.2d 755, 757 (Me. 1990) ; Estate of Record , 534 A.2d 1319, 1321 (Me. 1987).
[¶11] We have not previously addressed the impact, if any, of deafness upon testamentary capacity, nor is there a well-established body of case law in other jurisdictions. However, in a majority of those cases that have reached this issue, deafness alone has been deemed insufficient to conclude that the testator lacked testamentary capacity—the focus is still on the mental capacity to understand the will.
See, e.g. , Estate of Domenica G. Halsey , 2008 N.Y. Misc. LEXIS 4957, at *10 (N.Y. Sur. Ct. July 25, 2008) (); Estate of Johnson , No. A05-2262, 2006 WL 2599750, at *2–3, *4, *4–5, 2006 Minn. App. Unpub. LEXIS 1041, at *7-8, *11, *13 (Minn. Ct. App. Sept. 12, 2006) (no abuse of discretion in finding that testamentary capacity existed despite the decedent's "frail physical health and deafness," Parkinson's disease
, and fourteen medications); Hayward v. Hayward , 299 So. 2d 207, 210 (Miss. 1974) (); Teegarden v. Webster , 304 Ky. 18, 199 S.W.2d 728, 729 (Ky. Ct. App. 1947) (); Tidholm v. Tidholm , 391 Ill. 19, 62 N.E.2d 473, 477 (1945) (...
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