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Estate of Minnie Lewis
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 74
Docket:	Cum-00-617
Argued:	April 10, 2001
Decided:	May 4, 2001	

Panel:WATHEN, C.J., and RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.





ESTATE OF MINNIE LEWIS


WATHEN, C.J.


	[¶1]  Lawrence Lewis appeals from the judgment of the Cumberland
County Probate Court (Childs, J.) denying his claim of undue influence in
connection with the will of his mother, Minnie Lewis.  He argues that the
Probate Court erred in failing to apply a presumption of undue influence; in
applying a clear and convincing standard of proof; and in failing to strike an
"anti-harassment" clause from the will as against public policy.  The
personal representatives filed a cross-appeal contending that the Probate
Court erred in making a determination concerning the future enforceability
of the "anti-harassment" clause on the basis that the issue was not ripe and
in awarding attorney fees to Lawrence Lewis based on the potential viability
of that claim.  Finding no error, we affirm the judgment.
	[¶2]  The relevant facts may be summarized as follows:  Minnie
Lewis, the testatrix, died on April 5, 1999, leaving a will dated September 6,
1991, and a codicil. She was survived by three sons, David, Paul, and the
contestant Lawrence. She was also survived by three grandchildren, the
children of her predeceased son, Bernard, who died before Minnie executed
her last will. She was also predeceased by her husband, George. Minnie
retained Attorney Edwin Heisler to prepare the will and codicil. Attorney
Heisler continued to represent son David in estate planning matters and had
prepared a will and trust for son Lawrence in 1972.
	[¶3]  After Minnie Lewis's death, an application for informal
appointment of personal representatives was filed and Attorney Heisler and
sons David and Paul were appointed personal representatives.  Thereafter, a
petition for formal probate of will and appointment of personal
representatives was filed. Lawrence objected and, after hearing, the Probate
Court entered a judgment in which it declined to find any undue influence
resulting from Attorney Heisler's dual representation of testatrix and her
son David or resulting from any conduct of Lawrence's siblings, either
individually, with each other, or with Attorney Heisler.  In addition, the
court declined to determine that the "anti-harassment" clause in Minnie's
will was, as a matter of law, against public policy and thus unenforceable. 
Instead, the court found that the clause had not been invoked or used
against Lawrence.  The court left open the question as to future
enforceability under section 3-905 of the Probate Code and awarded
Lawrence attorney fees on this basis. Lawrence Lewis filed an appeal and the
personal representatives filed a cross-appeal.
I. Presumption of Undue Influence
	[¶4]  Lawrence argues that (1) the Probate Court erred in failing to
apply a presumption of undue influence with respect to will contests in
general; and (2) even if it did not err in failing to apply the presumption
broadly, it erred as a matter of law in failing to apply a presumption of undue
influence when a confidential relationship exists between an attorney and a
testatrix and the attorney breaches the duty of loyalty to the testatrix by dual
representation of the testatrix and a beneficiary.  By this line of argument,
Lawrence seeks to shift the burden to the personal representatives to prove
that undue influence did not occur. See M.R. Evid. 301(a) ("a presumption
imposes on the party against whom it is directed the burden of proving that
the nonexistence of the presumed fact is more probable than its existence.") 
	[¶5]  Contrary to Lawrence's assertion, the law in Maine is clear. 
Although we have applied a presumption of undue influence when the
existence of a confidential relationship between two parties has been
established in cases involving an inter vivos transfer of property, see Estate
of  Sylvester v. Benjamin, 2001 ME 48, ¶ 6,  767 A.2d 297, the presumption
does not apply in will contests. See 18-A M.R.S.A. § 3-407 (1998); Estate of
Langley, 586 A.2d 1270, 1272 (Me. 1991); In re Will of Fenwick, 348 A.2d
12, 15 (Me. 1975). 
	[¶6]  In Maine, after the proponent of the will has shown by a
preponderance of the evidence that the will was duly executed, it is the
contestant who bears the burden to prove that the probate should not be
ordered because of a "lack of testamentary intent or capacity, undue
influence, fraud, duress, mistake or revocation." 18-A M.R.S.A. § 3-407
(1998); Estate of Langley, 586 A.2d at 1271.  An inference of undue
influence may arise in the mind of the factfinder when a confidential
relationship exists between the testatrix and the one who is asserted to have
influenced her and she has disposed of her property in an unexpected or
unnatural manner. Estate of Langley, 586 A.2d at 1271; In re Will of
Fenwick, 348 A.2d at 15. "Although proof of such circumstances permits the
Probate Court to draw an inference, it does not raise a presumption of undue
influence and more is required to establish that undue influence has
occurred." Id. at 1272; see also In re Will of Fenwick, 348 A.2d at 15
(stating "Maine has taken the position . . . that proof of such circumstances
does not raise a presumption of undue influence").  Unlike a presumption,
an inference does not shift the burden. Estate of Langley, 586 A.2d at 1272.
Lawrence's reliance on Hinds v. John Hancock Ins. Co., 155 Me. 349, 155 
A.2d 721 (1959)  is misguided.  The rules addressed in Hinds concerning
inferences and presumptions were not followed, see Comment, What is the
Law of Rebuttable Assumptions in Maine?, 16 Me. L. Rev. 226 (1964), and
were superseded by subsequent rules promulgated by this Court.  See  M.R.
Evid. 301(a).  Further, the current rule applicable in will contest cases
refers to "one who is asserted to have influenced the testatrix" and does not
distinguish between an attorney holding a confidential relationship and a
beneficiary holding a confidential relationship.  Thus, the Probate Court did
not err in refusing to apply a presumption in this case arising out of  the
dual representation by Attorney Heisler of Minnie, her son David, and her
son Lawrence.  Nor did it err in refusing to apply a presumption arising out
of the alleged conduct of the "heirs" in driving a wedge between Lawrence
and the family. 
II. Standard of Proof
	[¶7]  Defendant also argues that the Probate Court erred in applying
a clear and convincing standard of proof in determining undue influence and
that the proper standard is preponderance of the evidence. We have
specifically stated in will contest cases, however, that "[u]ndue influence
must be established by clear and convincing evidence." Estate of Langley,
586 A.2d 1270, 1271 (Me. 1991) (citing Estate of Dodge 576 A.2d 755, 757
(Me. 1990)). Defendant's reliance on Avery v. Whatley, 670 A.2d 922 (Me.
1996) on the basis that it is a more recent case is misplaced.  Avery involved
a claim of undue influence in procuring a deed, not a will contest. Thus, the
Probate Court applied the proper standard of proof.
III. Anti-harassment Clause
	[¶8]  Lawrence argues that the Probate Court should have struck the
following anti-harassment clause from the will as against public policy and
thus unenforceable as a matter of law:
Provided however, that the Trustees may, in their sole and
absolute discretion, suspend making any and all payments to
or for the benefit of LAWRENCE LEWIS at any time when in
the judgment of the Trustees, LAWRENCE LEWIS is
harassing any beneficiary or any Trustee, or their agents, of
any trust created hereunder.
He argues that this provision is against public policy because it subjects him
to an arbitrary and capricious withholding of life-sustaining funds; allows any
of his brothers as beneficiaries to concoct a story that will suspend his trust
payments; and gives the trustees the unfettered right to determine
harassment.
	[¶9]  The Probate Court found that it could not say that, on its face,
the anti-harassment clause is unenforceable as a matter of law based on
Lawrence's analysis. As the personal representatives and beneficiaries argue,
will conditions that restrain conduct have long been upheld as not against
public policy. See, e.g., In re Laning's Estate, 339 A.2d 520, 524-25 (Pa.
1975) (upholding condition in will relating to membership in a church);
Griffin v. Sturges, 40 A.2d 758, 762 (Conn. 1944) (upholding condition in
will relating to abstaining from the use of intoxicating liquor). The
Restatement applicable to testamentary transfers provides that "[a]n
otherwise effective provision in a donative transfer which is designed to
prevent the acquisition or retention of an interest in property on account of
the transferee acquiring or persisting in specified personal habits is valid."
Restatement (Second) of Prop.: Donative Transfers § 8.2 (1981); id. Div. I, Pt.
III Introductory Note. "The use of restraints as an inducement to the
elimination of existing personal habits . . . or as a means of assuring the
continuance of the present character of the donee . . . is not against public
policy." Id. § 8.2 cmt. a.  Moreover, the law anticipates that a trustee may be
the one to determine whether a particular restraint has been violated and
provides an avenue for judicial review to avoid unreasonable exercises of
power. See § 8.2 cmt. b (stating "where an arbiter is designated by the
testator to pass upon the question whether or not the devisee has violated
the terms of the restraint[,] [t]he determination of breach of performance by
such an arbiter is conclusive in the absence of a judicial finding that the
determination was influenced by some consideration other than an honest
endeavor to evaluate the conduct of the devisee"). Thus, the Probate Court
did not err in determining that the language was not unenforceable on its
face.
	[¶10]  The personal representatives further argued at trial and on
appeal that the Probate Code specifically spells out Maine's public policy
concerning restraints of conduct and that the only restraint of conduct that
is unenforceable under the Probate Code is the restraint against contesting a
will:
A provision in a will purporting to penalize any interested
person for contesting the will or instituting other
proceedings relating to the estate is unenforceable if
probable cause exists for instituting proceedings.
18-A M.R.S.A. § 3-905 (1998).  They argue that the anti-harassment clause
does not fall within this in terrorem provision because it in no way penalizes
Lawrence for contesting a will. Section 3-905, however, also applies to
restraints against "instituting other proceedings relating to the estate."  
The Probate Court determined that, contrary to the personal
representatives' contention, the application of the anti-harassment clause
could fall within the purview of the in terrorem clause.  The court found that
the anti-harassment clause "could conceivably be employed by the Trustees
in the future to dissuade or prevent Lawrence from 'instituting proceedings
relating to the estate' were he to question the discretionary authority of the
Trustees in the administration of his Trust." It found that to the extent it
might fall within the in terrorem clause, "the challenged clause could be
found unenforceable at a later time depending upon circumstances which
then present themselves to show that the anti-harassment clause is being
improperly invoked or otherwise used to chill a legitimate legal action by
Lawrence with regard to the Trust created by the Will." The Probate Court
determined, nonetheless, that it did not need to determine the
enforceability of the will clause with reference to the in terrorem provision
at the present time because factually the clause had not been invoked or
used against Lawrence.  
	[¶11]  The personal representatives argue on cross-appeal that the
Probate Court, by speculating on future enforceability, exceeded its authority
in opining on an unripe issue.  The personal representatives, however,
raised the issue at trial whether the anti-harassment clause fit within the in
terrorem provision. The Probate Court simply responded to the personal
representatives' position and demonstrated that the interpretation of this
clause cannot be answered strictly as a matter of law, but is dependent on
factual circumstances. In some situations harassing individuals could be
analogous to using intoxicating liquors and upheld as an enforceable
provision against restraint of personal behavior. Restatement (Second) of
Prop.: Donative Transfers § 8.2 (1981).  In other situations, however,
conduct that may be characterized as "instituting proceedings relating to
the estate" may be deemed by the Trustees as harassing them. In this
situation, it may fall within the in terrorem provision of section 3-905 and
be unenforceable. Restatement (Second) of Prop.: Donative Transfers § 9.2
cmt. a, b (1981) (stating there is a public interest in holding fiduciaries to a
proper standard of performance and in not deterring beneficiaries from
bringing to light the questionable conduct). Thus, the Probate Court
properly considered the anti-harassment clause's application to the in
terrorem provision and did not err in its analysis.
IV.  Attorney Fees
	[¶12]  The personal representatives argue that the Probate Court
erred in awarding attorney fees to Lawrence.  The Probate Court, applying
the analysis of Estate of Wright, 637 A.2d 106 (Me. 1994), determined that
the "challenge to the anti-harassment provision of the Trust created by the
Will was not without some merit as the clause may be subject to further
scrutiny depending upon the circumstances which may arise in the future"
and awarded attorney fees for this challenge.  In general, we review a
Probate Court's decision on attorney fees for abuse of discretion. Estate of
Wright, 637 A.2d 106, 109 (Me. 1994). If the issue is whether the Probate
Court exceeded the authorization of 18-A M.R.S.A. § 1-601 (1998), we
review for error of law. Id. We have upheld an award of attorney fees to a
party whose challenge has been unsuccessful where the claims were made in
good faith and the Probate Court's decision on the merits adverse to the
contestants was a "close call." Id. at 110. 
	[¶13]  The personal representatives argue that because the Probate
Court's determination that the clause may have some merit in the future
addressed an unripe issue, the Probate Court was wrong to award attorney
fees on that ground. Because we find that the Probate Court did not err in
addressing whether the clause was enforceable within the purview of section
3-905, we do not find that the Probate Court's award of attorney fees was an
abuse of discretion. 
	The entry is:
					Judgment affirmed.

Attorney for appellant: Thomas F. Hallett, Esq., (orally) P O Box 7508 Portland, ME 04112 Attorneys for appellees: Jerrol A. Crouter, Esq. John S. Kaminski, Esq. Drummond Woodsum & MacMahon P O Box 9781 Portland, ME 04104-5081 Jonathan S. Piper, Esq. Alfred C. Frawley, Esq. Preti, Flaherty, Beliveau, Pachios & Haley, LLC P O Box 9546 Portland, ME 04112-9546