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Portland Museum of Art v. Germain

Superior Court of Maine, Sagadahoc

February 15, 2019



          Daniel I. Billings, Justice

         Before the Court is Defendant Annemarie Germain's motion for summary judgment. Plaintiff Portland Museum of Art (the "PMA") has opposed this motion, and it is in order for decision. For the following reasons, the motion is denied.

         I. BACKGROUND

         The following facts are drawn from the parties' statements of material facts and are not in dispute except where otherwise indicated.

         A. The Relationship Between Ms. Germain and Mrs. Potter

         Newell Potter died in 2004, leaving all of his assets to his wife, Mrs. Eleanor Potter. (Pl.'s S.M.F. ¶ 108.) Before he died, he asked Ms. Germain to "watch out for his wife and make sure nobody takes advantage of her." (Id.) After Mr. Potter's death, Ms. Germain would visit Mrs. Potter on the weekends and would also see her during the week while they were working together at Warren Furniture in Westbrook. (Def.'s S.M.F. ¶ 1.) Mrs. Potter broke her leg in March 2012. (Def.'s S.M.F. ¶ 2.) Ms. Germain stayed with Mrs. Potter while she was recuperating from her leg injury but maintained a home in Biddeford Pool. (Def.'s S.M.F. ¶ 3.) Ms. Germain teased Mrs. Potter one day by saying, "I have to go home" and "you'd probably love it if I was here 24/7," and Mrs. Potter answered, "Oh, will you?" (Def.'s S.M.F. ¶ 4; Pl.'s Resp. to Def.'s S.M.F. ¶ 4.) Ms. Germain moved in with Mrs. Potter in March 2012 at Mrs. Potter's request. (Def.'s S.M.F. ¶ 5.)

         On occasion, Mrs. Potter asked Ms. Germain to proofread checks, or to write out a check for Mrs. Potter to sign. (Def.'s S.M.F. ¶ 10-) The only instances in which Ms. Germain wrote out the amount of the check were at Mrs. Potter's specific direction. (Id. ¶ 11.) Mrs. Potter never pre-signed blank checks for Ms. Germain to complete, nor did she sign checks before the amount was written in. (Id. ¶ 12.) According to Ms. Germain, Mrs. Potter would write her a check "just because she likes the shirt you had on that day or the high heels you had on." (Pl.'s S.M.F. ¶ 126.)

         After Ms. Germain was added to Mrs. Potter's TD Bank checking account in June of 2014, almost $100, 000 was deposited into the account, which had never had checks issued out of it before. (Id. ¶ 127.) Ms. Germain also began receiving funds from this checking account. (Id.) In December 2014, Ms. Germain was added as a co-owner to all of Mrs. Potter's Bangor Savings Bank certificate of deposit accounts. (Id. ¶ 128.) By the time Mrs. Potter died, all of her funds belonged to Ms. Germain through joint accounts. (Id. ¶ 129.)

         After she started working for Mrs. Potter, friends noticed paintings, jewelry, and other valuables in Ms. Germain's Biddeford Pool home. (Id. ¶ 130.) Ms. Germain also began driving a gold Cadillac that Mrs. Potter purchased for her. (Id. ¶131.) The next year, Mrs. Potter bought Ms. Germain a Jeep Wrangler, which Mrs. Potter had to use a stool to get into. (Id.) In December 2014, Mrs. Potter bought Ms. Germain a second Cadillac for her birthday. (Id.) Although Ms. Germain claims Mrs. Potter gifted her "thousands" of pieces of jewelry, Ms. Germain told her sister that she also found hidden jewelry in the house and kept it. (Id. ¶ 132.)[1] Mrs. Potter also funded Ms. Germain's extensive online shopping. (Id. ¶ 133.) Between January 2011 and March 2012, Mrs. Potter charged less than $1, 500 to her credit card. (Id. ¶ 134.) In 2013, Mrs. Potter charged $29, 692.96 to her credit card, and she charged $39, 046.00 in 2014. (Id. ¶ 135.) Although Mrs. Potter's attorneys thought Mrs. Potter was paying Ms. Germain $5, 000 per month, Ms. Germain received $111, 500 from Mrs. Potter's Bangor Savings Bank checking account in 2014 alone. (Id. ¶ 136.) Darrell Perry, a contractor who was hired to make improvements to Mrs. Potter's home "for the benefit of Annemarie" which included adding a sunroom and renovating the kitchen, and who witnessed Mrs. Potter's October 2, 2014 Will, was paid $17, 450.00 in 2013 and $46, 040.56 in 2014. (Id. ¶ 138.)

         When Mrs. Potter visited with her step-grandchildren, Ms. Germain would not leave Mrs. Potter alone with them, and Mrs. Potter did not engage in their conversations and sounded "scared and nervous" when she spoke. (Id. ¶ 115.) When Mrs. Potter was hospitalized in 2014, her family was not informed. (Id. ¶ 116.)[2]

         B. The March 2014 Will

         In the mid-1990s, Mrs. Potter and her husband created reciprocal Wills and Trusts that would provide for Mr. Potter's grandchildren. (Pl.'s S.M.F. ¶ 139.) Mrs. Potter later executed another Will on November 28, 2005. (Def.'s S.M.F. ¶ 17.) The only bequest the 2005 Will made to the PMA was a gold necklace, and even then, only in the event Barbara Greenburg Harrison was not alive at the time of Mrs. Potter's death. (Id. ¶ 19.) The next Will Mrs. Potter executed is dated December 11, 2007 and contained the same bequest to the PMA as the 2005 Will. (Id. ¶¶ 20-21.)

         Mrs. Potter first spoke with Attorney Kelley Young about the possibility of creating a trust for her sister, Barbara Coleman, in 2009. (Pl.'s S.M.F. ¶ 140.)[3] The idea of revising her estate plan to include a trust was revisited with Attorney Young and Attorney Matthew Goldfarb, Mrs. Potter's longtime lawyer and friend of 45 years, in the spring of 2013. (Id. ¶ 141.) Ultimately, the only aspect to be determined was what to do about Mrs. Potter's residuary estate. (Id. ¶ 143.) After considering the matter for over two years, Mrs. Potter decided to name the PMA as the residuary beneficiary of her estate. (See id. ¶ 145; Def.'s Reply S.M.F. ¶ 145.)

         Consistent with Mrs. Potter's expressed wishes, Attorney Young prepared a pour-over will that devised her estate to a trust that would be administered primarily for the benefit of Mrs. Coleman. (Pl.'s S.M.F. ¶ 149.) According to her trust agreement, upon her death, her trustees -Attorney Goldfarb and Hugh Judge of R.M. Davis, Inc. - were to retain $500, 000 for Mrs. Coleman's benefit, distribute her home to Ms. Germain, make specific gifts to Mrs. Potter's stepdaughter, step-grandchildren and other charitable interests, and then distribute the balance to the PMA free and clear of trust, amounting to approximately $1.2 to $2 million, depending on how much was left after Mrs. Potter's passing. (Id. ¶ 150.) The PMA was also the remainder beneficiary of the funds set aside for Mrs. Coleman. (Id. ¶ 151.) Attorney Goldfarb did not believe the desired distribution of Mrs. Potter's home to Ms. Germain was the result of undue influence. (Def.'s S.M.F. ¶ 34.)

         Ms. Germain was not present at the initial meeting to discuss changing the 2007 Will on September 18, 2013, and she did not bring Mrs. Potter to that meeting. (Id. ¶ 33.) Prior to execution, Attorneys Goldfarb and Young reviewed Mrs. Potter's estate plan alone with her paragraph-by - paragraph, and Attorney Young made Mrs. Potter aware of everything that was in her trust. (Pl.'s S.M.F. ¶ 153.) The attorneys then invited Ms. Germain into the room and reviewed the basic sketch of the estate plan with her. (Id. ¶ 15 5.) Although Mrs. Potter's trust specifically directed her trustees to deed her home to Ms. Germain, Ms. Germain complained "loudly and vociferously about the fact that her name wasn't mentioned in the will" and "that she was not happy with the will and trust." (Id. ¶ 156.)[4] Attorney Young then asked Ms. Germain to leave the room while Mrs. Potter executed the documents. (Id. ¶ 157.)

         Mrs. Potter executed the Will and Trust on March 18, 2014. (Def.'s S.M.F. ¶ 23.) The process of changing the Will took two-and-a-half years. (Id. ¶ 29; Pl.'s Resp. to Def.'s S.M.F. ¶ 29.) Attorney Young mailed Mrs. Potter a copy of her estate planning documents on April 25, 2014. (Pl.'s S.M.F. ¶ 161.)

         On June 5, 2014, Mrs. Potter called Attorney Young out of the blue, saying she urgently wanted to make changes to her estate plan. (Pl.'s S.M.F. ¶ 164.) Prior to that date, Mrs. Potter had never expressed any concerns about her estate plan to Attorneys Young and Goldfarb. (Id. ¶ 165.) Troubled and suspicious of Ms. Germain, Attorney Young suggested a face-to-face meeting alone with Mrs. Potter, which she refused. (Id. ¶ 166.) A few days later, Mrs. Potter called again and insisted that Attorney Young "tear up her will." (Id. ¶ 167.) Attorney Young does not believe that Mrs. Potter's instruction to destroy her March 2014 Will and Trust reflected her personal desire or decision, but was the result of an idea "that Matt Goldfarb and Hugh Judge were stealing Eleanor's property ... that Anna had planted." (Id. ¶ 169.) Concerned that Mrs. Potter was being influenced by Ms. Germain, Attorney Young responded that he would not tear up the will, but would deliver the documents to her or send them to her new lawyer. (Id. ¶ 170.) Mrs. Potter refused to reveal the identity of her new lawyer, would not allow Attorney Young to send her prior estate planning documents to her new lawyer, which was "unusual," and instead told Attorney Young to bring her the documents. (Id. ¶ 171.)

         When Attorney Young hand-delivered Mrs. Potter's estate planning documents on June 10, 2014, Ms. Germain opened the door and, in front of Mrs. Potter, started "berat[ing]" Attorney Young. (Id. ¶ 172.) Ms. Germain called Attorney Young "a thief," and told him to "admit to Eleanor" that Attorneys Young and Goldfarb and Hugh Judge "were stealing from Eleanor" by placing her assets into a trust they would administer. (Id. ¶ 173.) Mrs. Potter asked Attorney Young, "Why are you stealing from me?" (Id. ¶ 174.) When Attorney Young tried to explain that this was not the case, Ms. Germain interjected and called Attorney Young a "pansy ass," claiming he forced Mrs. Potter "to sign something she didn't want when [they] asked Anna to leave the room." (Id. ¶ 175.) Ms. Germain again complained that "her name was not in the will" and that the house was not going to her, despite the clear language of Mrs. Potter's trust instrument. (Id. ¶ 176.) When Attorney Young tried to show Ms. Germain that she was in fact receiving the house, Ms. Germain threatened to put Attorney Young's name "all over the Old Port as a thief." (Id. ¶ 177.)[5] The next day, Mrs. Potter fired Attorney Goldfarb. (Id. ¶ 178.) When Attorney Goldfarb called her to seek an explanation, Mrs. Potter refused to talk to him. (Id. ¶ 179.)

         C. The October 2014 Will

         On June 3, 2014, Ms. Germain and Mrs. Potter met with Attorney Richard LeBlanc. (Def.'s S.M.F. ¶ 50.) During the meeting, it was discussed that Donald Coleman's IRA of over $250, 000 would pass directly to Mrs. Coleman, and that there seemed to be a number of joint accounts that now belonged to Mrs. Coleman alone, as well as a residence owned as tenants-in-common so that Mr. Coleman's 50% interest would pass to a trust to Mrs. Coleman. (Id. ¶51.)

         Attorney Nelson Toner began representing Mrs. Potter during the summer of 2014. (Id. ¶ 59; Pl.'s Resp. to Def.'s S.M.F. ¶ 59.) Attorney Toner first learned of Mrs. Potter through Attorney LeBlanc, who had contacted Attorney Toner to ask for help with Mrs. Coleman. (Def.'s S.M.F. ¶ 61.) When introducing Attorney Toner to the situation with Mrs. Potter, Attorney LeBlanc told Attorney Toner that Ms. Germain was a caregiver for Mrs. Potter and lived with her at the home. (Id. ¶ 91.)

         Attorney Young expected to hear from Mrs. Potter's new attorney to request a copy of his file and to discuss Mrs. Potter's prior estate plan, as is typical, but he was "baffled" when this "call never came." (Pl.'s S.M.F. ¶ 182.) Shortly after Mrs. Potter had retained Attorney Toner, Attorney LeBlanc called him to express his own concerns about Mrs. Potter's relationship with Ms. Germain, telling Attorney Toner that he had witnessed Mrs. Potter being "coach[ed]" by Ms. Germain. (Id. ¶ 183.)

         Attorney Toner's first meeting with Mrs. Potter was sometime between July 9 and July 14, 2014. (Def.'s S.M.F. ¶ 64.) When Attorney Toner arrived for the meeting, he was greeted by Ms. Germain. (Id. ¶ 67.) During the beginning of the meeting, Attorney Toner, Ms. Germain, and Mrs. Potter were all sitting at the dining room table. (Id. ¶ 68.) According to Attorney Toner's billing records, the initial meeting lasted 30 minutes. (Id. ΒΆ ...

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