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Estate of Ulrickson (corrected 11-20-97)
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 217
Docket: 	Cum-97-205
Argued: 	October 8, 1997
Decided:	November 7, 1997



	[¶1]  Charles H. Ulrickson appeals from the judgment entered in the
Cumberland County Probate Court (Childs, J.) granting a Petition for Order of
Complete Settlement of Estate filed by Gordon Ulrickson.  Charles contends
that the Probate Court erred: (1) in denying Charles's objection to the
petition without an evidentiary hearing; (2) in not finding the deeds and will
executed by Harold Ulrickson voidable for fraud, undue influence, or mistake
of fact; (3) in not finding the deeds executed by Harold voidable pursuant to
the Improvident Transfers of Title Act{1}; and (4) in not addressing Charles's
claims for accounting, his claims against Harold's attorney, Roger Leland,
and his objection to the payment of Attorney Leland's fees.  We affirm the
judgment of the Probate Court. 
	[¶2]  In 1986, following the death of his wife, Harold Ulrickson
executed a will that provided roughly equal shares of his estate to his four
adult children: Gordon Ulrickson, Janet Sweetser, Charles Ulrickson, and
Donald Ulrickson.   However, in October, 1993, Harold transferred his real
property to his four children.  Shortly thereafter, Harold executed a new
will, dated November 22, 1993.  Charles Ulrickson, Harold's son, received a
considerably smaller portion of the estate than his siblings as a result of the
inter vivos transfers and Harold's new will. 
	[¶3]  Harold Ulrickson died on September 6, 1994.  On the petition of
Charles and Donald, Harold's will dated November 22, 1993, was admitted
to informal probate on December 7, 1994.  The will named Charles and
Donald co-personal representatives.  They accepted appointment on the
date the will was admitted and proceeded to act by, inter alia, publishing a
notice to creditors and filing a federal gift tax return and a federal estate tax
return acknowledging their father's inter vivos transfers of real estate.
	[¶4]  Almost two years later, on October 9, 1996, Gordon Ulrickson
filed a petition, pursuant to 18-A M.R.S.A. § 3-1002, for complete
settlement of his father's estate.  Charles filed an objection to this petition
with the Probate Court on November 4, 1996.  The parties submitted
evidence in support of and in opposition to the petition in the form of
affidavits with attached exhibits.  The Probate Court, in its Findings and
Order dated March 19, 1997, granted Gordon's petition for complete
settlement of the estate.  This appeal followed.    
	[¶5]  Charles contends that the Probate Court erred by ruling on the
petition without granting the parties an evidentiary hearing.  The Probate
Court, in November, 1996, conferenced with counsel for both parties to
determine the future course of the litigation.  A second conference was held
one month later.  During this period, counsel supplied the court with copies
of pertinent affidavits, documents, and memoranda of law.  Because the
Probate Court's order was not issued until March, 1997, both parties had a
sufficient opportunity to present additional affidavits, submit materials by
way of an offer of proof, or petition the court for an evidentiary hearing. 
Charles does not suggest to us any additional evidence that he intended to
offer if he were afforded a hearing.  The court's docket does not reflect that
Charles requested a hearing, nor did Charles avail himself of the opportunity
to prepare a statement of the proceedings pursuant to M.R. Prob. P. 74(b).  
	[¶6]  We conclude, therefore, that the parties consented to the
Probate Court's determination without a further evidentiary hearing. 
Nothing in the record before us demonstrates the contrary intent of either
party.  Cf. Estate of Weeks, 462 A.2d 44, 47 (Me. 1983).
	[¶7]  Charles seeks to challenge the validity of his father's will by
opposing the petition for complete settlement.{2}  Charles, however, never
petitioned for supervised administration of the estate.  He also did not seek
formal probate of the will, an appropriate step by which he might have
challenged the will's validity.  See 18-A M.R.S.A. § 3-401 (1981) ("A formal
testacy proceeding is litigation to determine whether a decedent left a valid
will.  A formal testacy proceeding may be commenced by an interested
person filing a petition as described in section 3-402 . . . in which he
requests that the judge . . . enter an order . . . to prevent informal probate of
a will . . .").  	
	[¶8]  Section 3-1002 of Maine's probate code governs the formal
proceedings at issue in this case.  Section 3-1002 reads, in relevant part:

A personal representative administering an estate under an
informally probated will or any devisee under an informally
probated will may petition for an order of settlement of the
estate . . . The petition may request the court to consider the
final account or compel or approve an accounting and
distribution, to construe the will and adjudicate final settlement
and distribution of the estate.

18-A M.R.S.A. § 3-1002 (1981).{3}  Section 3-1002 specifically defines the
purpose of a petition for complete settlement of an estate and the claims the
court can consider thereunder.  An order of complete settlement of an
estate closes estate administration, terminates the personal representative's
appointment, and acts as a discharge with respect to all persons receiving
notice of the proceeding.  Mitchell, Maine Probate Procedure § 4.25.1 (Hunt
rev. 1996).  Opposition to a petition for complete settlement of an estate is
an inappropriate vehicle to challenge the validity of a will based on undue
influence, fraud, or mistake.  See 18-A M.R.S.A. § 3-1002 (court may
"consider the final account," "compel or approve an accounting and
distribution," "construe a will," and "adjudicate final settlement and
distribution of the estate" in a section 3-1002 proceeding).  The petition for
ordering complete settlement conformed to the conditions in Harold's will. 
See id.{4}	 
	[¶9]  Finally, Charles argues on appeal that the Probate Court erred in
not considering the estate's claims against Attorney Leland, his demand for
an accounting of estate properties, and his objection to the payment of
Attorney Leland's fees by the estate.  In fact, the Probate Court's order
specifically approved the accounting presented in Gordon's petition and we
are satisfied that Charles's claims that were appropriate for consideration by
the court were so considered.  The Probate Court's judgment granting
Gordon Ulrickson's petition is supported by credible evidence and therefore
is not clearly erroneous.  Estate of Saliba v. Dunning, 682 A.2d 224, 226 (Me.
	The entry is:
					Judgment affirmed 

Attorney for appellant: Thomas B. Wheatley, Esq., (orally) 55 Highland Street Portland, ME 04103-3042 Attorneys for appellees: Paul S. Bulger, Esq. Troubh, Heisler, & Piampiano P O Box 9711 Portland, ME 04104-5011 (for Donald Ulrickson) Dennis J. O'Donovan, Esq., (orally) McCandless & Epstein L.L.P. 2 Monument Square Portland, ME 04101 (for Gordon Ulrickson) Paul P. Murphy, Esq. Murphy & Coyne P O Box 1312 Lewiston, ME 04243-1312 (for Jane Sweetser)
FOOTNOTES******************************** {1} 33 M.R.S.A. §§ 1021-1025 (1996). {2} Charles challenges the validity of the will that he submitted to probate on the grounds that the will was a product of undue influence, fraud, and mistake. {3} In this instance, Gordon's section 3-1001 petition asked the court to consider and to approve the account of the personal representative, to determine the persons entitled to distribution and the amounts to be distributed, to order final settlement and distribution of the estate, to discharge the personal representative from claims of interested persons, to close administration of the estate, and to approve the payment of Gordon's legal fees in connection with the petition. {4} Charles also contends that the Probate Court erred in not finding the inter vivos transfers of property voidable pursuant to the Improvident Transfers of Title Act, 33 M.R.S.A. §§ 1021-1025 (1996). Again, a probate proceeding to consider a petition for complete settlement of an estate is an inappropriate vehicle to raise such a claim.