MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision: 2020 ME 18
Docket:   And-19-47
Argued:   November 4, 2019
Decided:  January 30, 2020

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



                              ESTATE OF DAVID H. WASHBURN


JABAR, J.

         [¶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.

                                         I. BACKGROUND

         [¶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


  *   Although Justice Hjelm participated in the appeal, he retired before this opinion was certified.
2

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,
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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.
4

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
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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.

                                II. DISCUSSION

A.    Testamentary Capacity

      [¶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. “When a party’s motion for further findings, M.R. Civ. P. 52(b), has been

denied, we cannot infer findings from the evidence in the record. We confine

our review to the court’s explicit findings and determine whether those
6

findings are supported by the record.” 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
                                                                                 7

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) (“Old age, forgetfulness,

deafness, blindness, illiteracy, or alcoholism, standing alone, do not establish

that the testator lacked testamentary capacity.”); Estate of Johnson,

No. A05-2262, 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) (“Neither deafness, blindness nor the infirmities of

old age, if they do not destroy or gravely impair the mental faculties, are

sufficient to deprive one of the valuable right to dispose of his property by will,
8

according to his own wishes.”); Teegarden v. Webster, 199 S.W.2d 728, 729 (Ky.

Ct. App. 1947) (“Deafness and retarded speech are physical and not mental

handicaps.”); Tidholm v. Tidholm, 62 N.E.2d 473, 477 (Ill. 1945) (“Old age,

deafness and infirmity do not of themselves constitute proof of lack of mental

capacity.”).

      [¶12] In this case, the court’s factual findings are grounded in competent

evidence in the record and fully support a conclusion that David had the

requisite capacity to execute a valid will. Laurie does not argue that David was

suffering from a cognitive deficiency or did not understand the natural objects

of his bounty. Rather, she argues that the methods of communication employed

at the meeting among David, Michelle, and Seasonwein were so inadequate that

he could not possibly have understood the contents of the will he signed.

      [¶13] The court was not persuaded that the communication barrier

between David and Seasonwein was as significant as Laurie contends. The

court explicitly found that David “had engaged in multiple financial

transactions, to include purchasing real estate, mortgaging property, and

financing automobiles . . . . No evidence was presented to establish that [David]

engaged in these transactions with the assistance of any sign language

interpreters.” The ability to engage in such significant financial transactions
                                                                              9

despite purported communication barriers demonstrates that David possessed

a “disposing mind . . . 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 . . . .” Estate of O’Brien-Hamel, 2014 ME 75, ¶ 28, 93 A.3d 689.

These facts were supported by competent evidence in the record and

corroborated by multiple witnesses.

      [¶14] Not only was David able to conduct financial business of significant

magnitude without an interpreter, but the court also found that David had

collaborated with Seasonwein successfully without a sign language interpreter

in the past.   Using the combination of communication methods she had

employed in her previous dealings with David, Seasonwein understood that

David wanted his home to go to Michelle or, if she predeceased him, for the

house to eventually be sold and the proceeds split between his son and

Michelle’s grandson. Seasonwein incorporated these bequests into a draft will

and went through the document with David, giving him an opportunity to

indicate his understanding as to each element of the will. The court concluded,

“Seasonwein was confident that [David] was aware of the assets of his estate

and that part of his wishes provided for specific bequests to Christopher.”

These findings fully support a conclusion that David understood the natural
10

objects of his bounty and possessed “sufficient active memory to collect in his

mind . . . the particulars or elements of the business to be transacted . . . and be

able to form some rational judgment in relation to them.”                Estate of

O’Brien-Hamel, 2014 ME 75, ¶ 28, 93 A.3d 689.

      [¶15] The court’s findings are fully supported by the record evidence and

do not compel a result contrary to the court’s ultimate determination that

Laurie had not proved by a preponderance of the evidence that David lacked

testamentary capacity.

B.    Undue Influence

      [¶16] Laurie also argues that the court erred by granting Michelle’s

motion for judgment as a matter of law regarding the issue of undue influence.

In reviewing a disposition of a motion for judgment as a matter of law, we “view

the evidence together with all justifiable inferences in the light most favorable

to the party opposing the motion.” Lewis v. Knowlton, 1997 ME 12, ¶ 6, 688 A.2d

912. If “any reasonable view of the evidence could sustain a verdict for the

opposing party pursuant to the substantive law that is an essential element of

the claim,” then “[t]he motion should not be granted.” Id. (quotation marks

omitted). Our review of this issue is different than our review of the court’s

finding of mental capacity following the conclusion of the bench trial. Because
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Laurie’s undue influence claim was disposed of in a judgment as a matter of law,

we review the entire evidentiary record before the trial court at the time of the

motion in the light most favorable to the nonmoving party.1 Chapman v.

Robinson, 2012 ME 141, ¶ 9, 58 A.3d 1123.

       [¶17] The party contesting the will on the basis of undue influence has

the burden of establishing by clear and convincing evidence that the will was

the result of undue influence. 18-A M.R.S. § 3-407; Estate of Lewis, 2001 ME 74,

¶ 7, 770 A.2d 619. Undue influence has been defined as

       [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.




   1  We again note that in a jury-waived proceeding, when a defendant moves for judgment as a
matter of law at the close of the plaintiff’s case, a court has two options. It may review the evidence
in the light most favorable to the nonmoving party and, on that basis, determine whether that party
has presented evidence that could support a judgment in that party’s favor. Alternatively, the court
may make provisional factual findings based on the evidence presented to that point in the
proceedings and rule on the defendant’s motion based on those findings. See Nightingale v. Leach,
2004 ME 22, ¶ 2, 842 A.2d 1277; Smith v. Welch, 645 A.2d 1130, 1132 (Me. 1990). The court’s election
between these two approaches will have a significant effect on our standard of review. If the court
proceeds with the former alternative and grants the defendant’s motion, we examine the record to
determine if the record contains any evidence and justifiable inferences that would allow the plaintiff
to survive the motion. Nightingale, 2004 ME 22, ¶ 2, 842 A.2d 1277. If, on the other hand, the court
proceeds with the latter alternative, on appeal we will accept the facts as found by the court if
supported by the record and determine if those findings support the court’s ruling on the motion. Id.
Here, the court made clear that it was examining the evidence in the light most favorable to Laurie,
thus invoking the former approach, and the resulting standard of review is more favorable to Laurie.
12

Estate of Horne, 2003 ME 73, ¶ 18, 822 A.2d 1177 (quotation marks omitted).

“The most prominent circumstances regarded as evidence of undue influence

are: (1) the existence of a confidential relationship between the testator and the

one who is asserted to have influenced him; [and] (2) the fact that the testator

has disposed of his property in an unexpected or unnatural manner.” Estate of

Bridges, 565 A.2d 316, 317 (Me. 1989); see also Estate of Dodge, 576 A.2d 755,

757 (Me. 1990). The presence of these circumstances gives rise to a permissive

inference:

      [P]roof of such circumstances does not raise a presumption of
      undue influence. It simply permits the drawing of an inference that
      such was present. Furthermore, that inference must be based on
      more than mere suspicion and conjecture, and mere opportunity,
      interest or inequality in distribution is insufficient proof of undue
      influence.

Estate of Bridges, 565 A.2d at 317 (quotation marks omitted). We have noted

that “undue influence by its nature . . . is difficult to establish through direct

evidence and must admit of proof by circumstantial evidence and the

inferences to be drawn therefrom.” North Am. Life & Casualty Co. v. Butler, 623

A.2d 180, 182 (Me. 1993) (quotation marks omitted).

      [¶18] In this case, the evidence presented to the court at hearing, viewed

in the light most favorable to Laurie, could not support a finding that David and

Michelle were in a confidential relationship. Knowlton, 1997 ME 12, ¶ 6, 688
                                                                               13

A.2d 912. In arguing that a confidential relationship did exist, Laurie relies

heavily on the fact that Michelle acted as a nonprofessional sign language

interpreter for David during their meetings with Seasonwein, describing

Michelle as “the conduit of [David’s] desired testamentary disposition.”

However, the evidence demonstrates that David also communicated with

Seasonwein via gestures, notes, and lip reading.            Further, David had

successfully consulted with Seasonwein on other legal matters without any

interpreter present, with no evidence of having had any difficulty doing so. The

evidence cannot support a conclusion that Michelle was an informational

gatekeeper for David, using her ability to hear and speak to exert her influence

over David. Further, the evidence does not indicate that Michelle held explicit

or implicit power over David. She did not have power over his finances or hold

a power of attorney. Cf. Butler, 623 A.2d at 182; In re Will of Fenwick, 348 A.2d

12, 14 (Me. 1975). David was not enfeebled mentally or physically. Id. The

evidence before the court at hearing, even when viewed in the light most

favorable to Laurie, could not sustain a finding of a confidential relationship of

the sort that normally underpins cases of undue influence. Knowlton, 1997 ME

12, ¶ 6, 688 A.2d 912.
14

        [¶19] Viewing the record in the light most favorable to Laurie, we

conclude that the court did not err in determining that there was no evidence

that could sustain a finding of undue influence by a clear and convincing

standard.

        The entry is:

                           Judgment affirmed.



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


Androscoggin County Probate Court docket number 2016-394
FOR CLERK REFERENCE ONLY
