MAINE SUPREME JUDICIAL COURT                                                          Reporter of Decisions
Decision: 2014 ME 10
Docket:   Cum-13-164
Argued:   December 18, 2013
Decided:  January 28, 2014

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


                                  ESTATE OF GLORIA P. HALL


SAUFLEY, C.J.

         [¶1] We are asked in this appeal to determine whether the Cumberland

County Probate Court (Mazziotti, J.) properly admitted to probate the 2004 will of

Gloria P. Hall despite a 2007 separation agreement, reached in settlement of a

divorce action, providing that neither Gloria nor her husband would modify the

wills that each had executed in 1993, as modified by one codicil to the husband’s

will executed in 2002. Jonathan S. Hall and Eastern Bank appeal from the court’s

judgment admitting to probate the 2004 will and appointing Jeffrey H. Hall as

personal representative of the Estate. They contend that the 2007 agreement,

which was incorporated into a judgment by the Massachusetts Probate and Family

Court and, due to Gloria’s dementia, was executed on her behalf by a temporary

guardian, is enforceable in this proceeding and must be given the effect of

revoking Gloria’s 2004 will and reviving her 1993 will. We affirm the judgment.


   *
       Silver, J., sat at oral argument but did not participate in the development of the opinion.
2

                                I. BACKGROUND

      [¶2] The following facts are not in dispute. In 1993, Gloria P. Hall executed

a will in Massachusetts that devised all personal and real property to her husband if

he survived her by thirty days. Otherwise, the personal property would be divided

equally among those of her four children—Jeffrey, Jonathan, Jennifer, and

Bonnie—who survived her.        The real estate would be sold and the proceeds

distributed among three of her children—Jonathan, Jennifer, and Bonnie—if

living, with a share going to the living issue of any who were deceased. The

residue of the estate would be distributed in a specified manner among all four

children if alive and the then living issue of any who were deceased.

      [¶3] In August 2002, Gloria and her husband separated, and Gloria moved

into the home of her daughter, Bonnie, in Kennebunk, Maine. That November,

Gloria’s husband filed for divorce in Massachusetts.

      [¶4] In 2004, Gloria executed a new will in Massachusetts revoking all

earlier wills and codicils and devising all tangible personal property to two of her

children, Jeffrey and Bonnie, in equal shares. The residue and remainder of the

estate she devised to The Gloria Partridge Hall Trust unless it had been revoked

before her death, in which case the residuary estate would go to Jeffrey and Bonnie

or their estates. The will expressly provided that two of her children, Jonathan and

Jennifer, would be deemed to have predeceased her without issue.
                                                                                  3

      [¶5] Gloria was diagnosed with dementia in 2005, and the Massachusetts

Probate and Family Court appointed a temporary guardian for her on July 8, 2005.

In 2007, the temporary guardian signed a separation agreement with Gloria’s

husband by which the parties agreed, among other things, that neither would

“modify or change any provision for the other party in his or her estate plan

executed while represented by Ropes & Gray in Boston, Massachusetts,” including

Gloria’s 1993 will. The agreement represented that the parties had “no other estate

documents in place other than those prepared by Ropes & Gray.” The resulting

Massachusetts judgment in the divorce matter required the parties to comply with

the agreement and incorporated it by reference.

      [¶6] Gloria died in Maine on November 27, 2008. In 2009, in the York

County Probate Court, Jonathan and Eastern Bank filed a petition for formal

probate of the 1993 will, and Jeffrey and Bonnie filed an application for informal

probate of the 2004 will. Each side objected to the probate of the will supported by

the other. Due to a judicial recusal, the matter was transferred to the Cumberland

County Probate Court for all further proceedings.

      [¶7] Jonathan and Eastern Bank moved for summary judgment in July 2009

on the ground that the 2007 separation agreement nullified the 2004 will. The

court entered a summary judgment against Jonathan and Eastern Bank in which it

concluded that the 2004 will could not have been revoked by an agreement entered
4

into by a temporary guardian who lacked the power to make or revoke a will on

behalf of his ward. Jonathan and Eastern Bank appealed from that judgment, but

we dismissed the appeal as interlocutory because the parties had yet to fully litigate

the validity of the 2004 will. Estate of Hall, Mem-11-44 (Mar. 17, 2011).

      [¶8] In October 2012, Jonathan filed a new motion for summary judgment,

this time on the ground that the Massachusetts judgment was entitled to full faith

and credit and required enforcement of the 1993 will.          The court denied the

motion.

      [¶9] The parties stipulated to the admission of exhibits, and they stipulated

both that Gloria had testamentary capacity when she executed the 2004 will and

that claims of undue influence would not be pursued in this probate proceeding.

After considering all of the evidence, the court entered a judgment, later amended

to correct a clerical error, admitting the 2004 will to probate based on a finding that

there were no defects affecting the validity of the 2004 will. Jeffrey and Eastern

Bank appealed from this judgment.         See 18-A M.R.S. § 1-308 (2013); M.R.

App. P. 2.

                                  II. DISCUSSION

      [¶10] We review a grant of summary judgment de novo. Bell v. Dawson,

2013 ME 108, ¶ 15, --- A.3d ---. We also review the interpretation of a statute de
                                                                                      5

novo, applying the statute’s plain meaning if it is unambiguous. See Cent. Me.

Power Co. v. Devereux Marine, Inc., 2013 ME 37, ¶ 8, 68 A.3d 1262.

      [¶11] Jonathan and Eastern Bank argue primarily that the doctrine of full

faith and credit requires Maine courts to accept the separation agreement’s

reference to the 1993 will as effecting a revocation of Gloria’s 2004 will and

revival of the 1993 will. See LeBlanc v. United Eng’rs & Constructors Inc., 584

A.2d 675, 677-78 (Me. 1991) (discussing the requirement, in a system of

cooperative federalism, not to infringe on a sister state’s sovereignty).          This

doctrine does not, however, negate or supersede the requirements for revoking a

will pursuant to the Massachusetts statute in effect when the separation agreement

was executed in that state in 2007.

      [¶12] The Massachusetts statute in place at that time provided that a will

could be revoked only by certain acts:

      No will shall be revoked except by burning, tearing, cancelling or
      obliterating it with the intention of revoking it, by the testator himself
      or by a person in his presence and by his direction; or by some other
      writing signed, attested and subscribed in the same manner as a will;
      or by subsequent changes in the condition or circumstances of the
      testator from which a revocation is implied by law.
6

Mass. Gen. Laws Ann. ch. 191, § 8 (West 2004) (emphasis added).1 To make a

valid will in Massachusetts at that time, the person making the will was required to

be of sound mind and to sign it, or have someone else sign it at her direction and in

her presence, in the presence of two or more competent witnesses:

        Every person eighteen years of age or older and of sound mind may by
        his last will in writing, signed by him or by a person in his presence
        and by his express direction, and attested and subscribed in his
        presence by two or more competent witnesses, dispose of his property,
        real and personal, except an estate tail, and except as is provided in
        this chapter and in chapters one hundred and eighty-eight and one
        hundred and eighty-nine and in section one of chapter two hundred
        and nine.

Mass. Gen. Laws Ann. ch. 191, § 1 (West 2004) (emphasis added).

        [¶13] Here, whether or not a court’s judgment ordered compliance with the

separation agreement, that agreement itself failed to comply with the plain terms of

the statute governing will revocation. Specifically, the summary judgment record

before the Probate Court when it decided this issue failed to demonstrate that

(1) Gloria was of sound mind, (2) the separation agreement was executed in her

presence and at her direction, and (3) the separation agreement was attested and

subscribed in her presence by two or more competent witnesses.                              See id.

Accordingly, the facts set forth in this matter fail to demonstrate that the separation

agreement revoked the 2004 will and revived the 1993 will. See id. §§ 1, 8; see
    1
     Revocation by implication “is limited to a very small number of cases at common law, as for
example subsequent marriage and birth of children without provision in the will to cover such events.”
Meyerovitz v. Jacobovitz, 160 N.E. 331, 332 (Mass. 1928).
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also Meyerovitz v. Jacobovitz, 160 N.E. 331, 332-33 (Mass. 1928) (rejecting a

claim that a will had been revoked when, despite some indication of a purpose to

revoke, “the agreement contained no reference to the will and was not signed and

attested as required for a will”).

      [¶14] No issues related to full faith and credit arise in these circumstances

because, whether or not the Massachusetts judgment is valid and enforceable,

neither that judgment nor the referenced separation agreement meet the statutory

requirements for will revocation.

      [¶15] Because the parties stipulated that the 2004 will was validly executed

by a person with testamentary capacity and it was not shown to be the subject of

undue influence in this proceeding, and because it could not be revoked by the

separation agreement—whether or not a court ordered compliance with the

agreement’s terms—the Probate Court did not err in admitting the 2004 will of

Gloria Hall to probate.

      The entry is:

                      Judgment affirmed.
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On the briefs:

        Dana E. Prescott, Esq., Prescott, Jamieson, Nelson & Murphy,
        LLC, Saco, for appellants Jonathan Hall and Eastern Bank

        James B. Smith, Esq., and Michael J. O’Toole, Esq., Woodman
        Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for
        appellee Jeffrey H. Hall

        Gregory O. McCullough, Esq., Sanford, for appellee Bonnie
        Hall


At oral argument:

        Dana E. Prescott, Esq., for appellants Jonathan Hall and Eastern
        Bank

        Michael J. O’Toole, Esq., for appellee Jeffrey H. Hall

        Gregory O. McCullough, Esq., for appellee Bonnie Hall



Cumberland County Probate Court docket number 2009-737
FOR CLERK REFERENCE ONLY
