MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision: 2014 ME 75
Docket:   And-13-440
Argued:   April 8, 2014
Decided:  June 10, 2014

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


                        ESTATE OF RUTH E. O’BRIEN-HAMEL

SILVER, J.

         [¶1]    Jennifer Edmondson appeals from an order of the Androscoggin

County Probate Court (Dubois, J.) denying her petition for a formal adjudication of

intestacy and for appointment as personal representative of the estate of her

mother, Ruth E. O’Brien-Hamel. Jennifer contends that the Probate Court abused

its discretion in permitting Donald F. Hamel Sr., Ruth’s current personal

representative, to present the testimony of Ruth’s hospice-care physician despite

failing to timely or properly designate the physician as an expert. Jennifer further

contends that the Probate Court erred in finding that Ruth had the requisite

capacity to make a will. We affirm the judgment.

                                    I. BACKGROUND

         [¶2] The following facts, which are supported by competent evidence in the

record, are drawn from the Probate Court’s factual findings and are viewed in the

light most favorable to the court’s judgment. See Estate of Greenblatt, 2014 ME

32, ¶ 2, 86 A.3d 1215.
2

        [¶3]    Ruth E. O’Brien-Hamel died on October 27, 2012, at the age of

fifty-five.    Ruth is survived by her three children, Jennifer Edmondson, Sean

O’Brien, and Erin O’Brien. She is also survived by Donald F. Hamel, whom Ruth

married the day before her death1 and to whom she left all of her property by a will

executed the same day.

        [¶4] Ruth and Donald met in November 2005, and soon thereafter began

living together at Ruth’s home in Auburn. In addition to the residence where she

and Donald lived, Ruth partially owned a farm that had been in her family for

many years.

        [¶5] Ruth was estranged from her children in the final years of her life.

With the exception of an unsuccessful attempt to reconnect at a family funeral in

February 2011, Ruth had not seen Jennifer since Christmas 2005 or 2006.

Although Jennifer and Ruth spoke over the phone one or two years before Ruth’s

death, that conversation caused Ruth to become sad, and when Donald intervened

Jennifer said, “[Y]ou deal with it,” and hung up. In 2011, while Erin was residing

with Ruth and Donald, she got into an argument with Ruth. After giving Ruth an

“ultimatum” requiring Ruth to choose between her and Donald, Erin moved out

and did not return. Ruth had no contact with Sean or his children after 2011.
    1
      The Probate Court made no findings regarding the marriage ceremony itself, and concluded that it
lacked subject matter jurisdiction as to the validity of the marriage. The parties do not dispute that a
marriage ceremony was performed at the hospice on October 26, 2012, and the validity of the marriage is
not at issue in this appeal.
                                                                                  3

      [¶6] Ruth was admitted to Central Maine Medical Center (CMMC) on

October 4, 2012. Ruth was initially diagnosed with pneumonia, but it was later

determined that she had untreatable, stage-four lung cancer. During her stay at

CMMC, Ruth had difficulty breathing, grimaced in pain after procedures were

performed to remove fluid from her body, and was prescribed morphine, which

caused her to go into a deep sleep.

      [¶7] Ruth’s brother, David Hunnewell, visited Ruth twice daily and kept

Ruth’s children apprised of her condition. Ruth spent part of her hospitalization in

the intensive care unit. While Ruth was in the ICU, she was heavily medicated,

was not lucid, and had a tube in her throat.        Ruth became more lucid and

communicative after she was transferred out of the ICU; at that time, she told

David that she wanted to make a will and wanted Donald to have her home, but

said that she did not want to bother Donald with the farm property. David testified,

however, that Ruth said that she wanted her home to pass to her children and

Donald’s children from another relationship after Donald’s death.

      [¶8] On October 19, 2012, Ruth was discharged from the hospital, but was

readmitted to CMMC the next day and remained there until October 25, 2012.

Medical records from Ruth’s second hospitalization indicate that Ruth had

difficulty communicating, and although she was mostly lucid, had periods of

delirium and hallucinations.
4

        [¶9] On October 25, 2012, Ruth was discharged from CMMC and taken by

ambulance to Androscoggin Home Care and Hospice. Hospice records indicate

that, upon admission, Ruth was lethargic, minimally responsive, and unable to

speak. The records also indicate that Ruth expressed her desire to marry Donald

before she died, but the records do not explain how Ruth communicated that

information to the staff.          A nurse noted in the medical records that Donald

“need[ed] to marry [Ruth] so he does not lose the home to her children.” Ruth was

administered morphine during her stay at the hospice and suffered periods of

delirium.2

        [¶10]    On October 26, 2012, Jaime Eller, a social worker and notary

employed by the hospice, met with Ruth after being told by an intern that Ruth

wanted to prepare a will. Eller prepared a will that Ruth signed the same day with

the assistance of another person in a “hand-over-hand” fashion. The will provided:

“I, Ruth O’Brien, leave all remaining aspects of my estate, including any personal

property, insurance matters, and financial holdings to Donald F. Hamel Sr. to

dispose of as he sees fit.”3




    2
       Ruth was also administered Haloperidol, an antipsychotic medication used to treat nausea and
delirium.
    3
     The Probate Court made no specific findings as to the contents of the will, but the parties do not
contest that the will purports to leave Ruth’s entire estate to Donald.
                                                                                  5

        [¶11] Eller testified that Ruth indicated that she wanted Donald to have

everything and for him be the personal representative of her estate, but Eller could

not recall how Ruth communicated this information, whether Ruth’s eyes were

open, or whether she had a conversation with Ruth about the will or its effect on

her children. Eller’s notes indicate that Ruth was “lethargic, but of sound mind

and able to complete [a] simple will and sign it,” and that Ruth said “I want Don to

have everything.”     Eller testified that Ruth did not sign the first document

presented to her, but did not testify to the substance of any adjustment made to the

document before Ruth signed it. Lucienne Hamel, Donald’s mother and the only

attesting witness who appeared at the hearing, testified that Ruth did not speak or

open her eyes during the execution of the will, but nodded her head in the

affirmative when Eller read her the will.

        [¶12] On October 26, 2012, the same day that the will was executed, Ruth

and Donald were married. Ruth died the following day.

        [¶13] None of Ruth’s children visited her during her hospitalizations in

October 2012.     Erin gave birth at CMMC during the period that Ruth was

hospitalized there, but did not visit Ruth or arrange for Ruth to visit with her

newborn grandchild. Ruth had been unaware of the pregnancy until that time.

Ruth’s children did visit her at the hospice on October 26, 2012, the day before she

died.
6

      [¶14] On November 26, 2012, Donald filed an application for informal

probate of the will and for his appointment as personal representative.       The

following day, Donald was appointed personal representative and the will was

informally admitted to probate. On December 3, 2012, Jennifer filed a petition for

a formal adjudication of intestacy and for her appointment as personal

representative. In her petition, Jennifer alleged that Ruth lacked the capacity to

execute the will.

      [¶15]   The Probate Court entered a scheduling order requiring that the

parties designate expert witnesses no later than April 22, 2013. On May 7, 2013,

Donald designated Dr. Roger Austin, Ruth’s hospice physician, as an expert on the

issue of testamentary capacity.   Jennifer filed a motion in limine to exclude

Dr. Austin’s testimony on the grounds that the expert designation was untimely

and inadequate pursuant to Maine Rule of Civil Procedure 26(b)(4)(A)(i), which is

applicable to formal probate proceedings through Maine Rule of Probate Procedure

26. Donald subsequently moved to enlarge the time to designate an expert.

      [¶16]   The court held an evidentiary hearing on Jennifer’s petition on

May 29, 2013. At the beginning of the hearing, the court reserved its ruling on

Jennifer’s motion to exclude Dr. Austin’s testimony, indicating that it was not

inclined to grant the motion because “the Court doesn’t believe that [Jennifer]

would be surprised to the extent there is any prejudice.” The court indicated,
                                                                                    7

however, that Jennifer could renew her motion at the appropriate time if “the

testimony unfolds, and it turns out that there is some surprise.”

      [¶17] Dr. Austin testified that he did not conduct an evaluation of Ruth’s

capacity. He had done so for hospice patients in the past when Eller asked him to

do so, but he had no recollection of receiving such a request in this case.

Dr. Austin testified that he was therefore unable to render an opinion as to Ruth’s

capacity at the time she executed the will, and indicated that it would be very

difficult to assess a patient’s capacity based only on medical records without direct

observation of the patient.

      [¶18] Dr. Austin acknowledged that certain aspects of the medical records

raised concerns as to Ruth’s capacity. He conceded that Ruth experienced some

delirium while at the hospice, but testified that delirium would not necessarily

render a person incapable of knowing what his or her assets are. He testified that

morphine can affect cognitive abilities, but that it does not do so for most patients,

and that the dosages administered to Ruth were low.                 Dr. Austin also

acknowledged that Ruth’s sodium level was low upon her discharge from CMMC,

that her oxygen level was low at certain points on October 26, 2012, and that these

levels could have had an impact on her capacity.

      [¶19] Jennifer presented testimony from Dr. Kevin Kendall, who opined

that the synergistic effects of Ruth’s sodium level, blood pressure, oxygen level,
8

medications, pain, and imminence of death resulted in Ruth being incapable of

normal judgment and reasoning during her stay at the hospice. In forming his

opinion, Dr. Kendall reviewed the CMMC and hospice records, along with

depositions taken in the case. He did not personally observe Ruth or speak to any

hospice personnel. Dr. Kendall acknowledged that he could not determine, based

on the medical records, Ruth’s sodium level, oxygen level, blood pressure,

orientation to time and place, or pharmacological side effects at the time of the

execution of the will.

      [¶20] On September 4, 2013, the Probate Court entered an order denying

Jennifer’s petition for an adjudication of intestacy and admitting the will to

probate. The court also denied Jennifer’s motion in limine to exclude Dr. Austin’s

testimony because (1) Dr. Austin did not offer an opinion on the issue of capacity,

(2) Jennifer did not renew her objection as the court had instructed her to do, and

(3) there was no surprise or prejudice to Jennifer because she had access to

Dr. Austin’s records well in advance of the hearing.

      [¶21] The court concluded that Donald had sustained his burden of showing

due execution of the will, thereby raising a presumption of testamentary capacity.

The court further concluded that Jennifer had failed to prove the absence of

testamentary capacity by a preponderance of the evidence. The court found that,

while at CMMC, Ruth “was lucid, was interacting with the healthcare providers,
                                                                                   9

understood her situation, was aware of the need to execute a will, [and] discussed

with her brother some specifics regarding her assets and possible plans of

distribution.”    The court further determined that although Ruth’s “ability to

verbalize was significantly impaired and she was in a much weakened state” after

her discharge from CMMC, there was evidence that Ruth interacted with hospice

personnel and “there was no persuasive evidence that [Ruth] was unable to

rationally think and make sound reasoned decisions while she was in hospice

care.” The court also noted the absence of evidence as to Ruth’s sodium level,

oxygen level, blood pressure, orientation to time and place, or pharmacological

side effects at the time of the execution of the will. Jennifer timely appealed.

                                  II. DISCUSSION

A.    Expert Testimony

      [¶22]      Jennifer contends that the Probate Court abused its discretion in

denying her motion in limine to exclude Dr. Austin’s testimony based on Donald’s

failure to timely and adequately designate Dr. Austin as an expert. Specifically,

Jennifer contends that the Probate Court should have required that Donald show

excusable neglect, pursuant to Maine Rule of Civil Procedure 6(b), which is

applicable to probate proceedings through Maine Rule of Probate Procedure 6.

Jennifer argues that Donald’s untimely and inadequate designation caused her

surprise and prejudice.     We review the Probate Court’s admission of expert
10

testimony for an abuse of discretion. See Bray v. Grindle, 2002 ME 130, ¶¶ 9-10,

802 A.2d 1004; Chrysler Credit Corp. v. Bert Cote’s L/A Auto Sales, Inc.,

1998 ME 53, ¶¶ 19, 23, 707 A.2d 1311.

      [¶23] Maine Rule of Civil Procedure 6(b) provides that the court may grant

an enlargement of time after the expiration of the applicable time period if “the

failure to act was the result of excusable neglect.” See also Johnson v. Carleton,

2001 ME 12, ¶¶ 7-10, 765 A.2d 571 (upholding the trial court’s denial of a motion

for enlargement of time to designate expert witnesses where the moving party

failed to show excusable neglect pursuant to Rule 6(b)). Under circumstances

similar to this case, however, we have held that a court did not abuse its discretion

in permitting an undesignated expert to testify, absent a showing of excusable

neglect, because the opposing party was not “unfairly surprised” by the expert’s

testimony. See Bray, 2002 ME 130, ¶ 9, 802 A.2d 1004 (concluding that the trial

court did not abuse its discretion in permitting an expert to testify because, despite

the proponent’s failure to formally designate the expert, the opposing party “knew

long before trial” that the expert had been retained, and was not “unfairly

surprised”).

      [¶24] Here, the court did not abuse its discretion in determining that there

was no unfair surprise to Jennifer because Dr. Austin was designated on

May 7, 2013, approximately three weeks before the hearing. Jennifer also had
                                                                                                     11

access to the hospice records containing Dr. Austin’s notes well in advance of the

hearing; her own expert reviewed them in forming his opinion as to Ruth’s

capacity. Even if the court had abused its discretion in denying Jennifer’s motion

in limine, any error was harmless because Dr. Austin did not offer any opinion

regarding Ruth’s testamentary capacity, and the court based its findings on this

issue on other evidence.4 See M.R. Civ. P. 61; M.R. Prob. P. 61; Tolliver v. Dep’t

of Transp., 2008 ME 83, ¶ 39, 948 A.2d 1223; DiPietro v. Boynton, 628 A.2d

1019, 1024 (Me. 1993).

B.       Testamentary Capacity

         [¶25] Jennifer next argues that the Probate Court erred in concluding that

Ruth had the capacity to execute a will. Specifically, Jennifer contends that the

court failed to properly weigh “[a]ll of the medical evidence, the inability of . . .

Eller to give an explanation of how the contents of the will were given to her, the

inconsistency between Ruth’s stated intentions and the will prepared by Ms. Eller,

[and] the collective inability of the witnesses to recall essential details.”



     4
      Jennifer suggests that she was unfairly surprised and prejudiced by Dr. Austin’s testimony that he
was unable to form an opinion as to Ruth’s capacity because Dr. Austin’s designation indicated that he
would offer such an opinion, and because Dr. Austin’s testimony “undermined the significance of the
forensic analysis” of Dr. Kendall. Jennifer, however, failed to renew her objection to Dr. Austin’s
testimony, despite the trial court’s invitation to do so, when it became clear that Dr. Austin would not
offer an opinion as to capacity or when he testified that it would be difficult to assess capacity from
medical records alone. See, e.g., State v. Oeur, 1998 ME 82, ¶ 4, 711 A.2d 118 (reviewing the admission
of evidence for obvious error when the defendant moved in limine to exclude the evidence but failed to
renew his objection at trial).
12

         [¶26] “Proponents of a will have the burden of establishing prima facie

proof of due execution in all cases, and, if they are also petitioners, prima facie

proof of death and venue.[5] Contestants of a will have the burden of establishing

lack of testamentary intent or capacity . . . .” 18-A M.R.S. § 3-407 (2013); see also

Estate of Horne, 2003 ME 73, ¶ 18, 822 A.2d 1177; Estate of Siebert, 1999 ME

156, ¶ 4, 739 A.2d 365. Testamentary capacity is an issue of fact that we review

for clear error. Estate of Siebert, 1999 ME 156, ¶ 6, 739 A.2d 365; see also Estate

of Greenblatt, 2014 ME 32, ¶ 12, 86 A.3d 1215 (“[W]e defer to the Probate Court

on factual findings unless they are clearly erroneous, but . . . review de novo the

application of the law to the facts.” (quoting Estate of Horne, 2003 ME 73, ¶ 17,

822 A.2d 1177)).

         [¶27] Because a party contesting the validity of a will bears the burden of

proving the absence of testamentary capacity, we will not disturb the Probate

Court’s findings unless the evidence compels a different result. Estate of Siebert,

1999 ME 156, ¶ 6, 739 A.2d 365; see also Estate of Dodge, 576 A.2d 755, 757

(Me. 1990) (upholding the Probate Court’s finding of capacity despite evidence

that the testatrix showed signs of “fatigue, confusion and difficulty in

communicating” because there was “considerable evidence . . . that she possessed

     5
      Jennifer does not contest the Probate Court’s determination that Donald presented prima facie
evidence of due execution of the will. The parties stipulated in the Probate Court to proof of death and
venue.
                                                                                  13

at least [a] modest degree of competence”); Estate of Rosen, 447 A.2d 1220, 1223

(Me. 1982) (“Where . . . there is a choice between two permissible views of the

weight of the evidence, the findings of the Probate Court must stand.”). The

credibility and weight to be assigned to the evidence are within the sole province

of the Probate Court as the fact-finder. Estate of Siebert, 1999 ME 156, ¶ 10,

739 A.2d 365. Acting as the fact-finder, the court may selectively accept and

reject testimony. See, e.g., State v. Williams, 2012 ME 63, ¶ 49, 52 A.3d 911;

Efstathiou v. Efstathiou, 2009 ME 107, ¶ 12, 982 A.2d 339.

      [¶28] 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.
14

Estate of Siebert, 1999 ME 156, ¶ 5, 739 A.2d 365 (quotation marks omitted); see

also Estate of Record, 534 A.2d 1319, 1321 (Me. 1987) (discussing testamentary

capacity). This standard requires only a modest level of competence and a general

knowledge of one’s assets. Estate of Dodge, 576 A.2d at 757; Estate of Rosen,

447 A.2d at 1222-23. “[E]vidence of the testator’s behavior during a reasonable

period before and after the execution of the will is admissible to show his

capacity.” Estate of Record, 534 A.2d at 1321.

      [¶29] Contrary to Jennifer’s arguments on appeal, the court did not clearly

err in finding that Ruth had the requisite testamentary capacity to execute a will.

The record supports the court’s finding that, while at CMMC, Ruth was mostly

lucid, was able to interact with others, and discussed executing a will. There was

also competent evidence to support the court’s finding that although Ruth’s ability

to verbally communicate was significantly impaired by the time she was admitted

to hospice, Ruth was nevertheless able to interact with hospice personnel.

Although the court found that Ruth was experiencing some delirium, and there was

evidence that factors such as her medications and low sodium and oxygen levels

could have impacted her capacity, the court simply was not persuaded that Ruth

lacked the modest level of competency necessary to execute a will. See Estate of

Dodge, 576 A.2d at 757; Estate of Rosen, 447 A.2d at 1222-23. Because the
                                                                               15

evidence does not compel a contrary conclusion, we will not disturb the Probate

Court’s findings. See Estate of Siebert, 1999 ME 156, ¶ 6, 739 A.2d 365.

        The entry is:

                           Judgment affirmed.



On the briefs and at oral argument:

        William H. Childs, Esq., Childs, Rundlett, Fifield & Altshuler, LLC,
        Portland, for appellant Jennifer Edmondson

        Jason Dionne, Esq., Isaacson & Raymond, P.A., Lewiston, for appellee
        Donald Hamel



Androscoggin County Probate Court docket number 2012-474
FOR CLERK REFERENCE ONLY
