MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	    2016	ME	129	
Docket:	      And-15-454	
Submitted	
  On	Briefs:	 June	22,	2016	
Decided:	     August	11,	2016	
	
Panel:SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                             ESTATE	OF	PAUL	GAGNON	
                                        	
	
	
HUMPHREY,	J.	

      [¶1]		The	personal	representative	of	the	Estate	of	Paul	Gagnon	appeals	

from	 a	 judgment	 of	 the	 Androscoggin	 County	 Probate	 Court	 (Dubois,	 J.)	 in	

favor	of	Cecile	Poulin	following	a	bench	trial	on	Poulin’s	claims	of,	inter	alia,	

breach	 of	 fiduciary	 duty	 and	 undue	 influence	 against	 the	 Estate.	 	 Poulin	

cross-appeals	 from	 the	 court’s	 denial	 of	 her	 motion	 for	 attorney	 fees.	 	 We	

conclude	 that	 there	 was	 sufficient	 evidence	 to	 support	 the	 Probate	 Court’s	

finding	 that	 Paul	 Gagnon	 misappropriated	 Poulin’s	 funds	 and	 was	 not	 acting	

pursuant	to	the	authority	granted	to	him	by	the	power	of	attorney	executed	by	

Poulin.		We	also	conclude	that	the	Probate	Court	did	not	abuse	its	discretion	

nor	 err	 as	 a	 matter	 of	 law	 when	 it	 denied	 Poulin’s	 motion	 for	 attorney	 fees.		

We	therefore	affirm	the	judgment.	
2	   	

                                                    I.		BACKGROUND	

           [¶2]		The	following	facts	were	found	by	the	Probate	Court	after	a	bench	

trial	 on	 Cecile	 Poulin’s	 complaint	 against	 the	 Estate	 of	 Paul	 Gagnon	 for	 the	

unauthorized	 withdrawal	 of	 funds	 from	 her	 bank	 account,	 and	 they	 are	

supported	 by	 competent	 evidence	 in	 the	 record.	 	 Estate	 of	 Fournier,	

2009	ME	17,	¶	6,	966	A.2d	885.			

           [¶3]	 	 Following	 her	 husband’s	 death	 in	 2005,	 Poulin,	 then	 eighty-five	

or	-six,	 asked	 her	 nephew,	 Paul	 Gagnon,	 to	 assist	 her	 with	 her	 financial	

affairs—duties	 that	 had	 previously	 been	 performed	 by	 her	 late	 husband.		

Gagnon	 assumed	 this	 role	 and	 also	 assisted	 her	 in	 her	 daily	 life,	 such	 as	

transporting	 her	 to	 her	 appointments	 and	 running	 errands	 for	 her.	 	 Poulin	

asked	Gagnon	to	withdraw	money	from	her	bank	account	to	provide	her	with	

living	 expenses,	 and	 he	 routinely	 gave	 her	 $300	 once	 a	 month.	 	 However,	

instead	of	making	only	the	single	monthly	withdrawal,	bank	records	showed	

additional	 ATM	 withdrawals	 of	 $300	 one	 or	 more	 times	 each	 month	 from	

February	 2005	 until	 July	2009,1	 when	 Gagnon	 was	 hospitalized	 with	 a	 heart	

condition.		

																																								 								
   1	 	 Although	 the	 court	 stated	 that	 the	 bank	 records	 showed	 four	 or	 five	 ATM	 withdrawals	 per	

month	from	2005	to	2009,	the	bank	records	actually	showed	between	one	and	three	withdrawals	
per	month	from	February	2005	to	April	2007	and	thereafter	showed,	with	few	exceptions,	between	
two	 and	 six	 withdrawals	 per	 month	 from	 May	 of	 2007	 to	 July	 of	 2009.	 	 Notwithstanding	 this	
     	                                                                                                                                                  3	

           [¶4]	 	 While	 Gagnon	 was	 in	 the	 hospital,	 from	 mid-July	 2009	 to	

November	 2009,	 he	 could	 not	 complete	 financial	 transactions	 for	 Poulin.	 	 At	

his	request,	his	wife	and	daughter	provided	Poulin	with	her	monthly	spending	

money,	and	bank	records	indicated	that	only	three	withdrawals	of	$300	were	

made	 during	 that	 three-month	 period.	 	 After	 Gagnon’s	 discharge	 from	 the	

hospital,	 Poulin’s	 account	 was	 changed	 into	 a	 joint	 account	 naming	 both	

Gagnon	 and	 Poulin	 as	 holders.	 	 Records	 from	 the	 joint	 account	 show	 that,	

following	 Gagnon’s	 discharge,	 the	 frequency	 of	 ATM	 withdrawals	 occurring	

before	 Gagnon’s	 hospitalization	 resumed.	 	 In	 June	 2011,	 Poulin	 signed	 a	

durable	 power	 of	 attorney	 appointing	 Gagnon	 as	 her	 agent,	 which	 included	

the	 power	 of	 self-gifting.	 	 Poulin	 testified	 that	 she	 did	 not	 know	 what	 the	

document	was	and	did	not	remember	signing	it.			

           [¶5]	 	 After	 Gagnon	 died	 in	 November	 2012,	 Poulin	 asked	 Gagnon’s	

nephew,	Robert	Gagnon,	to	help	with	her	finances.		Robert	withdrew	the	$300	

per	month	she	requested,	but	he	had	to	gradually	decrease	that	amount	as	her	

funds	 diminished.	 	 Robert	 noticed	 that	 a	 substantial	 number	 of	 withdrawals	

had	been	made	prior	to	his	uncle’s	death,	and	he	obtained	complete	banking	


																																								 																																								 																																								 																														 	
discrepancy,	 the	 court’s	 calculations	 of	 the	 total	 amount	 withdrawn	 during	 the	 relevant	 years,	
which	 provided	 the	 basis	 for	 the	 amount	 of	 damages	 due	 to	 Poulin,	 were	 correct	 and	 consistent	
with	the	record	evidence.	
4	   	

records	for	the	period	from	February	3,	2005,	to	November	21,	2012.		These	

records	revealed	ATM	withdrawals	from	Poulin’s	account	totaling	$91,620,	a	

sum	 well	 in	 excess	 of	 the	 amount	 that	 Poulin	 actually	 received	 during	 that	

time.	 	 In	 March	 2013,	 Poulin	 filed	 a	 claim	 against	 Gagnon’s	 Estate,	 alleging	

unauthorized	withdrawal	of	funds,	fraud,	breach	of	fiduciary	duty,	and	undue	

influence.		Both	parties	filed	motions	for	attorney	fees.	

         [¶6]	 	 In	 December	 2014,	 the	 Androscoggin	 County	 Probate	 Court	 held	

an	 evidentiary	 hearing.	 	 In	 an	 order	 dated	 March	 25,	 2015,	 the	 court	

concluded	 that	 (1)	 Gagnon	 had	 not	 violated	 any	 duty	 imposed	 by	 the	 Maine	

Uniform	 Power	 of	 Attorney	 Act,	 see	 18-A	 M.R.S.	 §	 5-914	 (2015),	 because	 he	

had	 not	 acted	 pursuant	 to	 his	 grant	 of	 that	 power;	 (2)	 Poulin	 had	 met	 her	

burden	 of	 establishing	 that	 she	 had	 a	 fiduciary	 or	 confidential	 relationship	

with	 Gagnon,	 resulting	 in	 a	 presumption	 of	 undue	 influence;	 (3)	 the	 Estate	

failed	 to	 sustain	 its	 burden	 of	 showing	 that	 Gagnon	 acted	 with	 “entire	

fairness”	 and	 that	 the	 transaction	 was	 free	 of	 any	 undue	 influence	 affecting	

Poulin’s	interest;	and	(4)	Poulin	had	not	received	the	benefit	of	the	additional	

ATM	 withdrawals.	 	 In	 fact,	 she	 had	 not	 even	 spent	 the	 entire	 $300	 she	 had	

received	each	month.			
      	                                                                                 5	

          [¶7]	 	 The	 court	 concluded	 that	 Gagnon	 “misapplied	 Poulin’s	 assets,	

using	 them	 for	 his	 own	 benefit	 and	 manifestly	 violating	 his	 fiduciary	 duty,”	

and	it	granted	Poulin’s	claim	for	damages	in	the	amount	of	$63,420.		The	court	

denied	Poulin’s	motion	for	attorney	fees	because	it	did	“not	find	any	support	

for	[her]	request	for	an	award	of	attorney’s	fees	in	the	[Probate]	Code.”		

          [¶8]		Poulin	filed	a	motion	for	alteration	or	amendment	of	judgment	as	

to	the	denial	of	her	request	for	attorney	fees,	and	the	Estate	filed	motions	for	

additional	findings	of	fact	and	conclusions	of	law	and	for	reconsideration.		In	

August	 2015,	 the	 court	 entered	 an	 order	 denying	 all	 of	 the	 motions,	 but	 this	

time,	 based	 on	 a	 different	 analysis,	 it	 addressed	 the	 merits	 of	 Poulin’s	

arguments	 in	 support	 of	 her	 request	 for	 attorney	 fees.	 	 The	 Estate	 appealed,	

and	Poulin	cross-appealed.			

                                    II.		DISCUSSION	

A.	       Sufficiency	of	the	Evidence	

          [¶9]		The	Estate	argues	that	the	court	erred	by	(1)	shifting	the	burden	to	

it	prior	to	a	showing	by	Poulin	that	Gagnon	actually	retained	or	converted	any	

funds	for	his	own	benefit	and	(2)	finding	that	Gagnon	was	the	one	who	made	
6	    	

withdrawals	 between	 March	 2005	 and	 August	 2009	 because	 there	 was	 no	

evidence	to	establish	that	he	had	access	to	Poulin’s	accounts	during	that	time.2			

           [¶10]	 	 The	 proponent	 of	 a	 common-law	 undue-influence	 claim	 “must	

prove	 both	 the	 existence	 of	 a	 confidential	 relationship3	 and	 the	 superior	

party’s	receipt	of	a	benefit	flowing	from	the	relation[ship]	in	order	to	create	a	

presumption	of	undue	influence.”		Theriault	v.	Burnham,	2010	ME	82,	¶	6	n.2,	

2	 A.3d	 324	 (alteration	 in	 original)	 (quotation	 marks	 omitted).	 	 Once	 the	

presumption	 is	 established,	 “the	 burden	 shifts	 to	 the	 benefitted	 party	 to	

demonstrate	affirmatively	that	he	transacted	with	entire	fairness	and	that	the	

transaction	 was	 free	 of	 any	 undue	 influence	 affecting	 the	 other	 party’s	

interests.”	 	 Albert	 v.	 Albert,	 2015	 ME	 5,	 ¶	 8,	 108	A.3d	388	 (quotation	 marks	

omitted).			

           [¶11]	 	 The	 record	 in	 this	 case	 contains	 sufficient	 evidence	 to	 establish	

that	 Gagnon	 received	 a	 “benefit	 flowing	 from”	 his	 confidential	 relationship	

with	 Poulin	 between	 2005	 and	 2012,	 and	 the	 court	 properly	 shifted	 the	

burden	 to	 his	 Estate	 to	 prove	 the	 entire	 fairness	 of	 the	 transactions	 and	
																																								 								
   2	 	 The	 cases	 cited	 by	 Poulin	 in	 support	 of	 her	 argument	 that	 the	 Estate	 did	 not	 preserve	 its	

sufficiency-of-the-evidence	 claim	 because	 it	 did	 not	 move	 for	 a	 judgment	 as	 a	 matter	 of	 law,	
pursuant	 to	 M.R.	 Civ.	P.	50(d),	 are	 inapposite	 because	 they	 involve	 motions	 for	 a	 judgment	 as	 a	
matter	of	law	in	actions	tried	by	juries.	

     3	
    	 The	 Estate	 does	 not	 challenge	 the	 court’s	 finding	 that	 a	 confidential	 relationship	 existed	
between	Gagnon	and	Poulin.	
   	                                                                                    7	

freedom	 from	 undue	 influence.	 	 First,	 regarding	 Gagnon’s	 access	 to,	 and	

misuse	 of,	 Poulin’s	 bank	 account,	 exhibits	 and	 testimony	 demonstrated	 that	

the	pattern	of	multiple	$300	ATM	withdrawals	each	month	began	shortly	after	

Poulin’s	 husband	 died,	 when	 Gagnon	 took	 over	 her	 finances.	 	 Second,	 Poulin	

testified	 that	 Gagnon	 gave	 her	 $300	 per	 month	 for	 living	 expenses,	 and	

Gagnon’s	 daughter	 testified	 that	 Gagnon	 gave	 either	 her	 or	 her	 mother	 the	

ATM	card	and	PIN	for	them	to	take	out	money	for	Poulin’s	benefit	during	his	

hospitalization.	 	 Third,	 only	 three	 ATM	 withdrawals	 were	 made	 during	 the	

three	 months	 that	 Gagnon	 was	 hospitalized,	 providing	 circumstantial	

evidence	that	Gagnon	himself	was	responsible	for	the	additional	withdrawals	

made	 between	 2005	 and	 2012,	 when	 he	 was	 not	 in	 the	 hospital.	 	 Finally,	

several	 witnesses	 testified	 that,	 although	 the	 bank	 account	 was	 in	 only	

Poulin’s	name	for	most	of	the	relevant	period,	she	did	not	drive,	and	she	did	

not	know	how	to	make	ATM	withdrawals.	

       [¶12]	 	 Although	 the	 Estate	 contends	 that	 the	 court	 could	 not	 shift	 the	

burden	to	it	in	the	absence	of	evidence	that	Gagnon	“ever	used	any	funds	for	

his	 own	 personal	 use	 or	 that	 he	 ever	 retained	 any	 funds,”	 because	 no	 one	

knew	where	the	money	went,	we	conclude	that	the	court	did	not	err.		We	have	

never	 held	 that	 the	 alleged	 victim	 must	 make	 a	 showing	 as	 to	 how	 the	
8	    	

defendant	 “retained”	 or	 “used”	 the	 ill-gotten	 gains	 in	 order	 to	 establish	 a	

presumption	 of	 undue	 influence	 flowing	 from	 a	 defendant’s	 receipt	 of	 those	

gains.	

B.	       Damages	

	         [¶13]		The	Estate	also	argues	that	the	court	erred	by	awarding	damages	

for	 ATM	 withdrawals	 made	 after	 Poulin	 executed	 a	 power	 of	 attorney	

appointing	Gagnon	as	her	agent	in	June	2011	because	the	power	of	attorney	

specifically	 granted	 Gagnon	 the	 power	 to	 give	 gifts	 to	 himself	 from	 Poulin’s	

assets.	 	 “Our	 review	 of	 compensatory	 damage	 awards,	 the	 assessment	 of	

which	is	in	the	sole	province	of	the	fact-finder,	is	highly	deferential.		We	will	

disturb	 an	 award	 of	 damages	 only	 when	 it	 is	 plain	 that	 there	 is	 no	 rational	

basis	upon	which	the	amount	of	the	award	may	be	supported.	.	.	.”		Estate	of	

Hoch	v.	Stifel,	2011	ME	24,	¶	43,	16	A.3d	137	(citations	and	quotation	marks	

omitted).		“The	fact-finder	may	also	act	upon	probable	and	inferential	.	.	.	proof	

in	 determining	 damages.”	 	 Id.	 (alteration	 in	 original)	 (quotation	 marks	

omitted).	

          [¶14]		The	court	found	that	there	was	no	evidence	that	Gagnon	accessed	

Poulin’s	account	specifically	pursuant	to	the	power	of	attorney.		In	fact,	there	

was	 no	 evidence	 that	 Gagnon	 even	 provided	 a	 copy	 of	 the	 document	 to	 the	
      	                                                                                                         9	

bank.		To	the	contrary,	the	regular	pattern	of	unauthorized	withdrawals	from	

2005	to	Gagnon’s	death	in	2012,	interrupted	only	while	he	was	in	the	hospital,	

did	not	change	after	Gagnon	was	given	power	of	attorney.		Thus	we	conclude	

that	there	is	a	rational	basis	to	support	the	court’s	award	of	damages	for	the	

period	from	June	2011	to	Gagnon’s	death,	and	we	discern	no	error.			

C.	        Attorney	Fees	

	          [¶15]		Poulin	cross-appeals,	arguing	that	the	court	erred	in	its	original	

judgment	when	it	declined	to	award	her	attorney	fees	on	the	ground	that	the	

Probate	 Code	 did	 not	 authorize	 such	 an	 award.	 	 “Whether	 the	 trial	 court	 is	

authorized	 to	 award	 attorney	 fees	 is	 generally	 a	 question	 of	 law.”	 	 Estate	 of	

Weatherbee,	 2014	 ME	 73,	 ¶	 17,	 93	 A.3d	 248.	 	 “We	 review	 a	 trial	 court’s	

decision	 concerning	 the	 award	 of	 attorney	 fees	 for	 an	 abuse	 of	 discretion.”4		

Estate	of	Marquis,	2003	ME	71,	¶	22,	822	A.2d	1153.			

           [¶16]	 	 As	 Poulin	 argues,	 the	 plain	 language	 of	 the	 Code,	 18-A	 M.R.S.	

§	1-601	(2015),	supports	the	interpretation	that	either	party	in	any	contested	

matter	in	the	Probate	Court,	which	includes	this	case	and	this	claimant,	may	


																																								 								
      4	 	 “Review	 for	 an	 abuse	 of	 discretion	 involves	 resolution	 of	 three	 questions:	 (1)	 are	 factual	

findings,	 if	 any,	 supported	 by	 the	 record	 according	 to	 the	 clear	 error	 standard;	 (2)	 did	 the	 court	
understand	the	law	applicable	to	its	exercise	of	discretion;	and	(3)	given	all	the	facts	and	applying	
the	appropriate	law,	was	the	court’s	weighing	of	the	applicable	facts	and	choices	within	the	bounds	
of	reasonableness.”		McLeod	v.	Macul,	2016	ME	76,	¶	6,	---	A.3d	---	(quotation	marks	omitted).	
    	
10	   	

be	awarded	attorney	fees.		See,	e.g.,	Estate	of	Ricci,	2003	ME	84,	¶¶	28-32,	827	

A.2d	 817;	 Estate	 of	 Deschenes,	 2003	 ME	 35,	 ¶¶	 15-16,	 818	A.2d	1026.	 	 If	 the	

court’s	analysis	ended	with	the	conclusion	that	the	Code	did	not	authorize	an	

award,	Poulin’s	claim	would	have	merit.	

          [¶17]	 	 However,	 Poulin	 appropriately	 brought	 the	 legal	 issue	 to	 the	

court’s	 attention	 when	 she	 renewed	 her	 request	 for	 attorney	 fees	 in	 a	

post-judgment	 motion	 for	 alteration	 or	 amendment	 of	 the	 judgment,	 and,	 in	

its	 order	 denying	 that	 motion,	 the	 court	 reconsidered	 and	 applied	 section	

1-601	to	the	facts	of	the	case.		In	explaining	its	reasoning	for	denial	of	Poulin’s	

motion,	the	court	noted	that	she	could	have	brought	this	claim	while	Gagnon	

was	 alive,	 in	 which	 case,	 under	 the	 “American	 Rule,”	 each	 party	 would	 be	

responsible	for	his	or	her	own	attorney	fees.		The	court	explained	that,	“[t]he	

fact	that	the	decedent’s	conduct	was	discovered	after	his	death,	and	the	claim	

had	 to	 be	 asserted	 against	 the	 estate,	 does	 not	 provide	 justification	 for	 an	

award	under	1-601.”	

          [¶18]	 	 Although	 the	 court	 initially	 denied	 Poulin	 an	 award	 of	 attorney	

fees	 based	 on	 an	 erroneous	 conclusion	 that	 the	 Probate	 Code	 did	 not	 allow	

that	relief,	it	reconsidered	its	authority	with	respect	to	the	attorney	fees	issue	

in	 its	 decision	 on	 Poulin’s	 motion	 for	 alteration	 or	 amendment	 of	 judgment,	
    	                                                                                11	

correctly	 considered	 section	 1-601,	 and	 did	 not	 abuse	 its	 discretion	 when	 in	

the	circumstances	of	this	case	it	denied	the	motion.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	    	     	     	     	      	
	
On	the	briefs:	
	
     Jason	Dionne,	Esq.,	Isaacson	&	Raymond,	P.A.,	Lewiston,	for	
     appellant	Estate	of	Paul	Gagnon	
     	
     Paul	P.	Murphy,	Esq.,	and	Coleman	G.	Coyne	Jr.,	Esq.,	Murphy	
     &	 Coyne	 Law	 Offices,	 P.A.,	 Lewiston,	 for	 cross-appellant	
     Cecile	Poulin	
	
	
	
Androscoggin	County	Probate	Court	docket	number	2012-499	
FOR	CLERK	REFERENCE	ONLY	
